Nyoni v Shire of Kellerberrin (No 2)

This case concerns an application by Emson Nyoni against the Shire of Kellerberrin, Darren Friend, Stan McDonnell, and Frank Peczka. The applicants sought to strike out Mr Nyoni's substituted statement of claim. The dispute arose out of claims made by Mr Nyoni against the respondents for defamation, loss of future earnings, fraud, and discrimination, amongst other things. The Federal Court was required to decide whether the consent orders granting Mr Nyoni leave to file an amended originating application should be set aside, and whether the discontinuance of the proceeding against the fourth respondent should be set aside. The Court found that the consent orders giving Mr Nyoni leave to file a further amended originating application should be set aside as it was in the interests of justice to do so. The Court found that setting aside the discontinuance of the proceeding against the fourth respondent would not be effective to set aside the discontinuance as at the time the minute of consent orders was filed, pleadings had not yet closed, and the discontinuance would have taken effect without the need for any intervention of the Court. The Court struck out a substantial number of paragraphs of the statement of claim, as they did not disclose a reasonable cause of action, and were embarrassing. The Court vacated the order made on 28 February 2011 that this matter proceed on pleadings and directed that the matter proceed by way of the production by each of the parties of a statement of facts, issues, and contentions with the intention of establishing before trial a clear statement of the causes of action which may be advanced at trial, the issues to which those causes of action give rise, and the facts and contentions relied on in support of the position contended for by each party. The matter was listed for a case management conference at a date to be fixed. The respondents were within 21 days to file and serve their written submissions on the question of costs. The applicant was within 21 days, thereafter, to file and serve his written submissions in response. Each party's written submissions were not to exceed four pages.