Nyoni v Morgan

Case [2019] FCA 2039

FEDERAL COURT OF AUSTRALIA

Nyoni v Morgan [2019] FCA 2039

File numbers: NSD 1345 of 2019
NSD 1716 of 2019
Judge: BANKS-SMITH J
Date of judgment: 3 December 2019
Catchwords:

PRACTICE AND PROCEDURE - where two applications brought for judicial review of decisions by registrars - where applications also seek review of conduct of judges of the Federal Court of Australia - where applications transferred to Western Australian District Registry - where an application to set aside transfer order is pending hearing - proposed application to re‑transfer proceedings to New South Wales District Registry and for recusal of judge - direction made to Registry to not accept proposed application for filing

PRACTICE AND PROCEDURE - proposed joinder of review applications - where parties and impugned decisions not common and no efficiencies in joinder - application refused
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 20A, 25(2B), 35A

Federal Court Rules 2011 (Cth) rr 2.26, 2.27, 39.05

State Administrative Tribunal Act 2004 (WA) s 105
Cases cited:

McDonald v Federal Court of Australia [2017] FCA 1216

Murphy v Nyoni [2017] FCCA 143

Nyoni v Cho [2019] FCA 560

Nyoni v Murphy [2017] FCA 941

Nyoni v Murphy (No 2) [2017] FCA 1479

Nyoni v Murphy [2018] FCAFC 75

Nyoni v Pharmacy Board of Australia [2018] FCA 1313

Nyoni v Pharmacy Board of Australia [2018] FCA 1707

Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526

Nyoni v Pharmacy Board of Australia (No 2) [2019] FCA 225

Pharmacy Board of Australia and Nyoni [2018] WASAT 134

Pharmacy Board of Australia and Nyoni [2018] WASAT 134 (S)
Date of hearing: 3 December 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 62
For NSD 1345 of 2019:
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: The First Respondent filed a submitting notice save as to costs
Counsel for the Third Respondent: The Third Respondent filed a submitting notice save as to costs
Counsel for the Fourth Respondent: The Fourth Respondent filed a submitting notice save as to costs
Counsel for the Fifth Respondent: The Fifth Respondent filed a submitting notice save as to costs
Counsel for the Sixth and Seventh Respondents: Ms JM McKenzie
Solicitor for the Sixth and Seventh Respondents: Minter Ellison
For NSD 1716 of 2019:
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: The First Respondent filed a submitting notice save as to costs
Counsel for the Fourth Respondent: Mr E Fearis
Solicitor for the Fourth Respondent: State Solicitor's Office

ORDERS

NSD 1345 of 2019
BETWEEN:

EMSON NYONI

Applicant
AND:

REGISTRAR MORGAN

First Respondent

CHARLOTTE WALLACE (and others named in the Schedule)

Third Respondent

JUDGE:

BANKS-SMITH J

DATE OF ORDER:

3 DECEMBER 2019

THE COURT ORDERS THAT:

1.Pursuant to r 2.27(e) of the Federal Court Rules 2011 (Cth) the applicant's proposed interlocutory application received by the Perth Registry on 29 November 2019…

Continue reading Nyoni v Morgan

Sign in free to access the full text

Details
AGLC
Nyoni v Morgan [2019] FCA 2039
Case
[2019] FCA 2039
Decision Date

CaseChat Overview and Summary

The case of Nyoni v Morgan involves an originating application for judicial review brought by Mr Nyoni against Registrar Morgan of the New South Wales District Registry of the Federal Court of Australia. The application concerns the refusal by Registrar Morgan to accept for filing Mr Nyoni's originating application which sought review of decisions made by the State Administrative Tribunal of Western Australia, and decisions of Justice White and Justice McKerracher of the Federal Court of Australia. The application was subsequently transferred to the Western Australian District Registry of the Federal Court of Australia. The court was required to determine several legal issues, including whether the matter should be re-transferred to the New South Wales District Registry, whether a proposed application to join another application for judicial review should be accepted, and whether the judge should recuse himself due to apprehended bias. The court also had to consider the implications of an existing application to set aside the transfer order.

The court determined that the matter should not be re-transferred to the New South Wales District Registry as it was appropriately transferred to the Western Australian District Registry due to the connection between the proceedings and matters occurring in Western Australia. The court refused the application to join the two review applications, finding that there were no common parties or impugned decisions, and no efficiencies would be gained from joining the applications. Regarding the application for recusal, the court found no basis for the judge to recuse himself and directed the Registry not to accept the proposed application for filing. The court concluded that the refusal by Registrar Morgan to accept Mr Nyoni's originating application for filing was not an abuse of process, and the application for judicial review was bound to fail.

The court made several orders, including adjourning the hearing of the interlocutory application to the date of the hearing of the originating application. The court also extended the time for the fourth respondent to file a notice of objection to competency and set a date for the hearing of that objection. The programming and listing of the hearing of the originating application was adjourned to a later date. Costs were reserved.

Orders

Orders of the court

1. The interlocutory application filed 29 October 2019 (application to join trustee, application for stay of proceedings) is adjourned to the date of the hearing of the originating application, such hearing to be on a date to be fixed.

2. The time for the fourth respondent to file a notice of objection to competency be extended to 2 December 2019.

3. The fourth respondent's notice of objection to competency filed 2 December 2019 be heard and determined prior to the substantive hearing of the applicant's originating application.

4. The fourth respondent file and serve submissions and any affidavit material in support of the notice of objection to competency by 10 December 2019.

5. The applicant file and serve submissions and any affidavit material in response to the notice of objection to competency by 13 December 2019.

6. The notice of objection to competency application be listed for hearing on 17 December 2019 at 9.30 am.

7. The programming and listing of the hearing of the originating application be adjourned to 9.30 am on 17 December 2019.

8. Costs reserved.

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

Background

Background to the litigation

Due to the complexity of the filed papers and the range of applications before me, it is useful to provide some background to the proceedings. I also add that a summary of the many proceedings concerning Mr Nyoni was compiled by Griffiths J in Nyoni v Cho [2019] FCA 560 at [9]‑[21], and that decision provides useful context to the matters now before me.Background - Nyoni v Morgan On 29 July 2019 Mr Nyoni purported to file an originating application for judicial review against three members of the State Administrative Tribunal (SAT) of Western Australia, and against Justice White and Justice McKerracher of this Court. The proposed application for judicial review traverses a large number of matters said to arise out of the decision of members of SAT and the decisions of White J and McKerracher J. It is useful to consider those matters briefly.SAT proceedings As to the SAT proceedings, the Pharmacy Board of Australia (Board) commenced proceedings in the vocational stream in SAT under the Health Practitioner Regulations National Law (WA) Act 2010 in 2015 in which Mr Nyoni was named as the respondent. On 14 December 2018 SAT (constituted by the respondent members) determined that Mr Nyoni engaged in a way that constitutes professional misconduct as a registered pharmacist: Pharmacy Board of Australia and Nyoni [2018] WASAT 134. On 13 June 2019 SAT made orders against Mr Nyoni including an order cancelling his registration as a pharmacist and that he be precluded from reapplying for a period of two years: Pharmacy Board of Australia and Nyoni [2018] WASAT 134 (S). There is no evidence that Mr Nyoni had appealed those decisions. An appeal from a decision of SAT lies to the Court of Appeal or Supreme Court of Western Australia: s 105(3) of the State Administrative Tribunal Act 2004 (WA).Decision of Justice Siopis In order to understand the relevance of the decisions of White J and McKerracher J to which I will turn, it is first necessary to address the decision of Siopis J in Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526. Mr Nyoni commenced an action against the CEO of the Department of Health, the Board and the Australian Health Practitioner Regulation Agency (AHPRA). The proceedings against the CEO of the Department of Health were dismissed by Siopis J on 25 October 2016. Mr Nyoni claimed damages against the Board and AHPRA for misleading or deceptive conduct, defamation or injurious falsehood arising out of the recording on the Board's National Register and on AHPRA's website in December 2013 of a condition on Mr Nyoni's registration as a pharmacist that he was 'prohibited from taking or self-administering Schedule 8 drugs, save for those that may be legally prescribed for him'. After a trial which took place in Perth on 16, 17, 29 and 30 August and 29 September 2017, Siopis J dismissed Mr Nyoni's claims on 17 April 2018.Decisions of Justice White and Justice McKerracher On 8 May 2018 Mr Nyoni filed a notice of appeal against the orders of Siopis J dismissing his claims.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

After the application before McKerracher J was dismissed, the Board and AHPRA applied to dismiss the appeal proceedings with costs based on the failure to provide security, and White J made orders in those terms: Nyoni v Pharmacy Board of Australia (No 2) [2019] FCA 225.Decision of Registrar Morgan to reject filing - NSD 1345 of 2019 On 30 July 2019 Registrar Morgan of the New South Wales District Registry refused to accept for filing the proposed originating application which sought review of matters relating to the SAT decisions and the decisions of White J and McKerracher J. Registrar Morgan relied on r 2.26 of the Federal Court Rules 2011 (Cth), which states:Refusal to accept document for filing - abuse of process or frivolous or vexatious documentsA Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:(a) on the face of the document; or(b)by reference to any documents already filed or submitted for filing with the document. The Registrar gave the following written reasons for his refusal:It appears that the Document raises issues and concerns that have already been dealt with by this court in previous proceedings commenced by you, including proceedings: WAD 357/2014 (before Justice Siopis), WAD 408/2018 (before Justice McKerracher) and WAD 191/2018 (before Justice White). It is not appropriate for you to commence fresh proceedings (by way of the Document) seeking this court re‑agitate those issues and concerns again. Further, if the document has raised new issues for review by a court the use of the document to progress that review is not permitted under the Federal Court Rules.For these reasons, in my view the application cannot possibly succeed and therefore the Document is an abuse of the process of the Court and frivolous and vexatious.Mr Nyoni commences review proceedings in New South Wales On 12 August 2019 Mr Nyoni commended the proceedings in NSD 1345 of 2019 by way of an originating application for judicial review of the decision of Registrar Morgan. On 9 September 2019 Mr Nyoni filed an interlocutory application seeking a range of orders including orders staying decisions of SAT, joining the State of Western Australia and seeking various orders against the Board including an order mandating the re-registration of Mr Nyoni pending the hearing of the review application. The application for review of Registrar Morgan's decision came before Katzmann J on 30 September 2019 for a first case management hearing. At that case management hearing, Katzmann J noted that Mr Nyoni was seeking relief against a number of parties who were not parties to the proceedings. Her Honour made orders that:1.By 4pm on 4 October 2019, the applicant file and serve any amended originating application and affidavit in support (noting the applicant intends to add as parties to the proceeding the Pharmacy Board of Australia and the State Administrative Tribunal of Western Australia).2.By 4pm on 4 October 2019, the applicant file and serve any amended interlocutory application adding those parties against whom relief is sought.3.The case management hearing be stood over until 9.30am on 14 October 2019.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.