Nyoni v Chee Koon Hee (No 4)

Case [2013] FCA 948


FEDERAL COURT OF AUSTRALIA

Nyoni v Chee Koon Hee (No 4) [2013] FCA 948

Citation: Nyoni v Chee Koon Hee (No 4) [2013] FCA 948
Parties: EMSON NYONI v CHEE KOON HEE AND OTHERS
File number: WAD 154 of 2013
Judge: GILMOUR J
Date of judgment: 18 September 2013

Catchwords:

PRACTICE AND PROCEDURE – application under s 31A of the Federal Court of Australia Act 1976 (Cth) – allegations of conspiracy – whether the Court has jurisdiction – whether, as against one respondent, judgment should be given under r 26.01 (d) of the Federal Court Rule 2011 (Cth) for being an abuse of process 

Legislation: Federal Court of Australia Act 1976 (Cth) s 31A
Poisons Act 1964 (WA) ss 5, 23(2), 24, 62(2)(ha)
Poisons Regulations 1965 (WA) reg 43A
Trade Practices Act 1974 (Cth) s 52
Competition and Consumer Act 2010 (Cth) Sch 2 ss 18, 22
Judiciary Act 1903 (Cth) s 39B
Federal Court Rules 2011 (Cth) r 26.01(d)
Local Court Act 2007 (NSW) ss 39(1), s 40(1)
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(1)
Cases cited: Australian Health Insurance Associated Ltd (formerly Voluntary Health Insurance Association of Australia Ltd) v Esso Australia Pty Ltd (1993) 116 ALR 253
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146
Broadbent v Medical Board of Queensland (2011) 195 FCR 438
Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Limited) (No 2) [2007] FCA 179
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (Formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260
Croker v Commissioner of Taxation [2006] FCA 372
Direct Factory Outlets Pty Ltd v Westfield Management Ltd (2003) 132 FCR 428
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260
Glass v State of New South Wales (1994) 52 FCR 336
Hamod v New South Wales (2002) 188 ALR 659
Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372
Manolakis v Carter [2008] FCAFC 183
Nyoni v Chee Koon Hee [2013] FCA 701
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Rogers v Asset Loan Co Pty Ltd [2008] FCA 1304
Stergiou v McGrail [1994] FCA 241
SZNFR v Minister for Immigration and Citizenship [2009] FCA 851
Underdown v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 965
White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298
Williams v Hunt [1905] 1 KB 512
Date of hearing: 9 August 2013
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 119

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Details
AGLC
Nyoni v Chee Koon Hee (No 4) [2013] FCA 948
Case
[2013] FCA 948
Decision Date

CaseChat Overview and Summary

The plaintiff, Nyoni, filed an application under section 31A of the Federal Court of Australia Act 1976, alleging a conspiracy involving multiple respondents. The application sought to address various legal issues, including the jurisdiction of the Court and whether judgment should be given against one respondent for being an abuse of process. The Federal Court was tasked with determining these significant procedural and jurisdictional matters.

The Court examined whether it had the authority to hear the case, given the nature and extent of the allegations. Additionally, it assessed whether the application against one of the respondents constituted an abuse of process, warranting a judgment under rule 26.01(d) of the Federal Court Rules 2011. These issues were critical in determining the admissibility and fairness of the proceedings.

In its decision, the Court concluded that it did not have jurisdiction to hear the case as it did not fall within the statutory framework intended for such applications. The Court found that the allegations did not meet the criteria for an abuse of process against any of the respondents. Consequently, the proceedings against all respondents were dismissed, and the plaintiff was ordered to pay the respondents' costs on an indemnity basis, including costs related to an earlier interlocutory application.

The final orders of the Court mandated the dismissal of all proceedings against the respondents and required the plaintiff to pay the respondents' costs, reflecting the Court's determination that the application was not substantiated.

Orders

Orders of the court

1. The proceedings against the first, second and seventh respondents be dismissed.

2. The proceedings against the third, fourth and fifth respondents be dismissed.

3. The proceedings against the ninth, tenth and twelfth respondents be dismissed.

4. The proceedings against the sixth respondent be dismissed.

5. The proceedings against the eleventh respondent be dismissed.

6. The proceedings against the eighth respondent be dismissed.

7. The applicant pay the respondents’ costs, on an indemnity basis, to be taxed if not agreed.

8. The applicant pay the costs of the first, second and seventh respondents in relation to the applicant’s interlocutory application for injunctive relief dated 22 May 2013, on an indemnity basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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