Nyoni v Bird

• Jurisdiction: Australia Federal only
• Judgment Date: 14 April 2022
• Neutral Citation: [2022] FCAFC 61
• Date: 14 April 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

Nyoni v Bird [2022] FCAFC 61

Appeal from:
File number(s):	VID 501 of 2021
Judgment of:	MORTIMER, ROFE AND MCELWAINE JJ
Date of judgment:	14 April 2022
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of a decision of the primary judge dismissing an application for review of a decision of the Registrar to refuse to accept documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) – whether the primary judge erred in finding that the Court could not grant prerogative relief against itself applying Bird v Free (1994) 126 ALR 475 – whether the primary judge erred in concluding that a breach of the rules of natural justice had not occurred – no grounds made out – appeal dismissed
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Federal Court of Australia Act 1976 (Cth) s 23 Federal Court Rules 1979 (Cth) O 46 r 7A Federal Court Rules 2011 (Cth) r 2.26 Industrial Relations Act 1988 (Cth) s 412 Judiciary Act 1903 (Cth) s 39B Poisons Act 1964 (WA) ; De Smith’s Judicial Review (8th ed, Sweet and Maxwell, 2018) SA de Smith, The Prerogative Writs (1951)11CLJ 40 SA de Smith, Wrongs and Remedies in Administrative Law (1952) 15 MLR 189
Cases cited:	Anthony v Maxam Australia Pty Ltd [2012] TASFC 5 Bird v Free(1994) 126 ALR 475 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260; [2007] FCAFC 32 Conybeare v Lewis (1880)13 Ch D 469 Cory v Registrar of the Federal Court of Australia (2010) 190 FCR 240;[2010] FCA 1215 EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 218 FCR 316; [2014] FCAFC 8 Groenvelt v Burwell(1700) 1 Ld Raym 454; 91 ER 1202 Kostov v Australian Financial Security Authority [2020] FCA 1105 Mbuzi v Baldwin [2016] FCA 1314 National Retail Association v Fair Work Commission (2014) 225 FCR 154; [2014] FCAFC 118 Nyoni v Bird[2021] FCA 959 Nyoni v Cho[2019] FCA 560 Nyoni v Morgan[2019] FCA 2039 Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526 Pharmacy Board of Australia v Nyoni [2018] WASAT 134 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 R v Cowle(1759) 2 Burr 834; 97 ER 587 R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 R v Gray; Ex parte Marsh(1985) 157 CLR 351 R v Justices of the Central Criminal Court; Ex parte London City Council[1925] 2 KB 43 ReJarman; Ex parte Cook (1997) 188 CLR 595 Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld)(1995) 184 CLR 620 Saad v Commissioner of the Australian Federal Police (2021) 361 FLR 261; [2021] VSCA 246 Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222; [2010] FCAFC 47 Somasundaram v Luxton [2020] FCA 1076 Walton v Gardiner (1993) 177 CLR 378 Wheaton,in the matter of various applications by Wheaton [2020]FCA 463 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16
Division:
Registry:
National Practice Area:
Number of paragraphs:	55
Date of hearing:	24 February 2022
Counsel for the Appellant:	Mr Nyoni appeared in person
Counsel for the Respondent:	The Respondent filed a submitting notice, save as to costs
Amicus curiae:	Ms J Moir

ORDERS

		VID 501 of 2021
BETWEEN:	EMSON NYONI Appellant
AND:	REGISTRAR BIRD Respondent

order made by:	MORTIMER, ROFE AND MCELWAINE JJ
DATE OF ORDER:	14 April 2022

THE COURT ORDERS THAT:

1. The appeal is dismissed.

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

REASONS FOR JUDGMENT

MORTIMER J:

1. I have had the advantage of reading the reasons of McElwaine J in draft. I agree with his Honour that the appeal must be dismissed, and I agree generally with the reasons his Honour gives.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate:

Dated: 6 April 2022

REASONS FOR JUDGMENT

ROFE J:

2. I have also had the benefit of reading the reasons of McElwaine J in draft form and agree that the appeal should be dismissed.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Rofe.

Associate:

Dated: 6 April 2022

REASONS FOR JUDGMENT

MCELWAINE J:

3. The appellant, Mr Nyoni,has been involved in multiple proceedings in this Court, the Supreme Court of Western Australia and the State Administrative Tribunal (SAT) of Western Australia. At their genesis is a decision made by officers of the Department of Health of Western Australia in 2011 to conduct an audit of Mr Nyoni’s pharmacy business in Kellerberrin, Western Australia. That audit led to the preferring of charges against Mr Nyoni for six breaches of the Poisons Act 1964 (WA) and the associated regulations. In broad terms, those charges related to the failure to maintain a register for scheduled drugs and failing to keep a safe containing those drugs locked. Mr Nyoni pleaded not guilty to each charge, but on 23 January 2013 was convicted, fined and ordered to pay court costs.

4. Summaries of the various proceedings involving Mr Nyoni may be found in the decisions of Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526 per Siopis J; Nyoni v Cho[2019] FCA 560 per Griffiths J; and Nyoni v Morgan[2019] FCA 2039 per Banks-Smith J. It is not necessary to elaborate upon the proceedings of Mr Nyoni in order to decide the appeal that is before this Court.

5. This appeal concerns the decision of Snaden J of 17 August 2021: Nyoni v Bird[2021] FCA 959 (PJ). In that decision, the primary judge dismissed an application for review of a decision of the respondent, Registrar Bird (the Registrar), who on 26 March 2020 refused to accept for filing an originating application of Mr Nyoni lodged on 27 February 2020. The power exercised by the Registrar is conferred by r 2.26 of the Federal Court Rules 2011 (Cth) (Federal Court Rules), which provides:

Refusal to accept document for filing – abuse of process or frivolous or vexatious documents

A 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.

6. The Registrar set out her reasons for the exercise of that power in correspondence addressed to Mr Nyoni of 6 March 2020 in the following terms:

I refer to the following documents you sought to file with the Court Registry (in Victoria), which were received on 27 February 2020:

• Form 66 Originating application: and

• Affidavit sworn on 20 January 2020.

After considering the document, I have refused to accept the documents for filing pursuant to s 2.26 of the Federal Court Rules 2011, as I am satisfied that it constitutes an abuse of process on the basis that the documents do not disclose a cause of action against all of the respondents named in the application.

I recommend that you seek legal advice in relation to this letter, and prior to...