Nyoni v Pharmacy Board of Australia (No 5)

[2017] FCA 1282

FEDERAL COURT OF AUSTRALIA

Nyoni v Pharmacy Board of Australia (No 5) [2017] FCA 1282

File number(s):	WAD 357 of 2014
Judge(s):	SIOPIS J
Date of judgment:	30 October 2017
Catchwords:	PRACTICE AND PROCEDURE – application to  re‑open – litigant in person did not have access to unreported English case when making closing submissions.
Cases cited:	White v Southampton University Hospitals NHS Trust [2011] EWHC 825 (QB)
Date of hearing:	30 October 2017
Registry:	Western Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	14
Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the First and Third Respondents:	Mr GJ Pynt
Solicitor for the First and Third Respondents:	MDS Legal

ORDERS

WAD 357 of 2014

BETWEEN:

EMSON NYONI

Applicant

AND:

PHARMACY BOARD OF AUSTRALIA

First Respondent

ANDREW ROBERTSON IN HIS CAPACITY AS THE DELEGATE TO THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF HEALTH

Second Respondent

AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY

Third Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	30 OCTOBER 2017

THE COURT ORDERS THAT:

1.The applicant has leave to re-open his case to the extent permitted by order 2.

2.By 4 pm on 10 November 2017, the applicant file and serve any responsive submissions in relation to the case of White v Southampton University Hospitals NHS Trust [2011] EWHC 825 (QB).

3.The submissions referred to in order 2 are not to exceed 5 pages in length.

4.The costs of the applicant’s application to re-open the case be reserved.

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 the applicant, Mr Emson Nyoni, to re-open his case.  Each of the parties made oral closing submissions on 29 September 2017.

2. This application has been occasioned by the fact that after the close of oral submissions the solicitors for the first and third respondents (the respondents), at the request of the Court, provided the Court and Mr Nyoni with a copy of an unreported English case to which the respondents had referred in their closing submissions.  The case is White v Southampton University Hospitals NHS Trust [2011] EWHC 825 (QB) (White).

3. White is a case where a doctor in England sued Southampton University Hospitals Trust and Professor William Roche for defamation on the basis of statements made in a letter of complaint about the plaintiff written by Professor Roche to the Fitness to Practise Directorate of the General Medical Council.  Relevantly, Eady J dismissed an appeal from a Master who had struck out the defamation claim on the basis that the letter of complaint to the professional practice body was attended by absolute privilege; and so could not give rise to liability for defamation.

4. Mr Nyoni wishes to re-open his case to make two contentions.

5. The first is that White is being relied upon by the respondents for a defence which is outside the scope of the statement of issues which had been stated by the Court and which defined the scope of this litigation.

6. Secondly, Mr Nyoni wants to argue that White is distinguishable from the facts and circumstances of his claim against the respondents.

7. The Court will only permit a party to re-open a case when the interests of justice require it.

8. As to the first of Mr Nyoni’s proposed contentions, Mr Pynt, on behalf of the respondents, submitted that the defence of absolute privilege to Mr Nyoni’s defamation claim has always been an issue in this proceeding.  Mr Pynt said that the respondents had raised that particular potential defence in the first document that they filed, at the request of the Court, setting out the respondents’ proposed potential issues; and that it was contained in the statement of issues document which the Court settled and comprised one of the defences to the defamation claim brought by Mr Nyoni.  I agree with this statement.

9. Mr Nyoni’s point appears to be that the respondents are seeking to use White to rely upon a wider concept of absolute immunity, as opposed to absolute privilege, because there are observations in White which refer to “immunity” rather than “privilege”.  However, in my view, there is no relevant distinction for the purposes of this case.  White was a case about absolute privilege as a defence to defamation, and that is the same defence which is being advanced by the respondents in this case.

10. Therefore, I will not permit Mr Nyoni to re-open to advance an argument that White raises an issue which is beyond the issues in the statement of issues settled by the Court in this case; and that the respondents cannot, therefore, rely on that case.  That argument does not enjoy any potential for success.

11. As to Mr Nyoni’s second proposed argument, Mr Nyoni says that he was not given a fair opportunity to deal with the case of White in his closing submissions at trial and now wishes to make submissions which distinguish White from the circumstances of this case.  I will, for the following reasons, permit Mr Nyoni to re-open for this limited purpose.

12. First, Mr Nyoni is a litigant in person and did not have access to White, which is an unreported case from the Queen’s Bench Division in England, at the time of making his closing submissions.

13. Secondly, White is of obvious relevance to the issues in this case and is adverse to the interests of Mr Nyoni.  In his outline of submissions filed in support of this application to re‑open, Mr Nyoni foreshadowed some of the arguments he would make on re-opening, and there is an arguable basis to Mr Nyoni’s proposed arguments.

14. In my view, therefore, it is in the interests of justice that Mr Nyoni be entitled to re-open on this limited basis.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       2 November 2017