Nyoni v Murphy (No 2)

[2017] FCA 1479

FEDERAL COURT OF AUSTRALIA

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

File number(s):

WAD 193 of 2017

Judge(s):

SIOPIS J

Date of judgment:

8 December 2017

Catchwords:

PRACTICE AND PROCEDURE – a Registrar refused under r 2.26 of the Federal Court Rules 2011 (Cth) to accept the applicant’s application for filing – whether the Federal Court has power pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) to review a decision of a Registrar under r 2.26 not to accept a document for filing.

Legislation:

Federal Court of Australia Act 1976 (Cth) s 35A(5)

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Federal Court Rules 2011 (Cth) rr 2.26, 39.05

Federal Court Rules 1979 (Cth) O 46 r 7A(1)  

Cases cited:

Druett v Segal [2011] FCA 1191

Reaper v Luxton [2015] FCA 430

Haque v Tesoriero [2017] FCA 86

Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222

Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426

Date of hearing:

29 November 2017

Registry:

Western Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

26

Counsel for the Applicant:

The Applicant appeared in person.

Counsel for the First, Second and Third Respondents:

Mr C Beetham

Solicitor for the First, Second and Third Respondents:

State Solicitor’s Office

ORDERS

WAD 193 of 2017

BETWEEN:

EMSON NYONI

Applicant

AND:

JILLIAN MURPHY

First Respondent

THERESA BEECH

Second Respondent

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF HEALTH WA

Third Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	8 DECEMBER 2017

THE COURT ORDERS THAT:

1.The applicant’s application of 14 September 2017 for review of the decision of a Registrar of this Court made on 24 August 2017 not to accept the applicant’s application and affidavit both dated 24 August 2017 for filing, is dismissed.

2.The applicant is to pay the respondents’ costs.

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

REASONS FOR JUDGMENT

SIOPIS J:

1. This is an application by Mr Nyoni, the applicant, for review of a decision of a Registrar of this Court made on 24 August 2017 to reject Mr Nyoni’s interlocutory application and supporting affidavit both dated 24 August 2017 for filing. Mr Nyoni’s application for review relies upon the power of a Court under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to review a decision of a Registrar.

2. By way of background, Mr Nyoni and the respondents have been involved in litigation against each other on a number of occasions since 2010.  In 2015, the respondents caused a bankruptcy notice to issue to Mr Nyoni, which was founded on costs orders made in the respondents’ favour in 2013 and 2014 totalling in excess of $80,000.  On 17 February 2017, a judge of the Federal Circuit Court of Australia made a sequestration order against the estate of Mr Nyoni based…