Nyoni v Shire of Kellerberrin [2011] FCA 1299 (14 November 2011)

Last Updated: 15 November 2011

FEDERAL COURT OF AUSTRALIA

Nyoni v Shire of Kellerberrin [2011] FCA 1299

Citation:		Nyoni v Shire of Kellerberrin [2011] FCA 1299
Parties:		EMSON NYONI v SHIRE OF KELLERBERRIN, DARREN FRIEND, STAN MCDONNELL and FRANK PECZKA
File number:		WAD 316 of 2010
Judge:		SIOPIS J
Date of judgment:		14 November 2011
Catchwords:		PRACTICE AND PROCEDURE – local pharmacist claimed that the Shire and Shire officials were engaged in a campaign to disparage and harm his business with the object of driving him out of business and replacing him with a pharmacist they supported – Shire published minutes of a Shire Council meeting on the internet - the minutes contained disparaging statements about the pharmacist’s business – the pharmacist claimed the conduct contravened s 52 of the Trade Practices Act - whether it could tenably be contended that the publication of the disparaging information was conduct “in trade or commerce” - whether the proceeding should be dismissed on the grounds that the jurisdiction of the Court had not properly been invoked – whether the proceeding should be summarily dismissed – whether the applicant’s statement of claim should be struck out.
Legislation:		Trade Practices Act 1974 (Cth) ss 6(3), 52 Federal Court of Australia Act 1976 (Cth) s 31A Australian Human Rights Commission Act 1986 (Cth) s 46PO
Cases cited:		Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 Ahmed v Harbour Radio Pty Ltd [2009] FCA 1113; (2009) 180 FCR 313 Mid Density Development Pty Ltd v Rockdale Municipal Council [1992] FCA 634; (1992) 39 FCR 579 Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 Firewatch Australia Pty Ltd v Country Fire Authority [1999] FCA 761; (1999) 93 FCR 520 Dataflow Computer Services Pty Ltd v Goodman [1999] FCA 1625; (1999) 168 ALR 169 White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55
Date of hearing:	15 August 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the First Respondent:	Mr C Maclean
Solicitor for the First Respondent:	DLA Piper Australia
Counsel for the Second, Third and Fourth Respondents:	Mr M Solomon
Solicitor for the Second, Third and Fourth Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 316 of 2010

BETWEEN:	EMSON NYONI Applicant
AND:	SHIRE OF KELLERBERRIN First Respondent DARREN FRIEND Second Respondent STAN MCDONNELL Third Respondent FRANK PECZKA Fourth Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	14 NOVEMBER 2011
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The whole of the amended statement of claim filed 30 May 2011, is struck out.
2. The applicant has leave to file and serve by 4.00 pm on 31 January 2012, a re-amended statement of claim.
3. Leave is reserved to the respondents, within 28 days of the service upon them of the re-amended statement of claim, to make any application in relation thereto.
4. The following paragraphs are to be struck out of the following documents on the Court file:

(a) the amended statement of claim filed 30 May 2011:

(i) para 7.3,

(ii) para 7.4(b),

(iii) para 20,

(iv) para 20(b),

(v) para 20(c),

(vi) para 20(d),

(b) the statement of claim filed 29 April 2011:

(i) the particulars to para 7.3,

(ii) para 7.4(b),

(iii) para 13 and the particulars thereto,

(c) the affidavit of Mr Nyoni filed 28 October 2010:

(i) page 2, lines 5-8,

(ii) page 5, lines 6-21, 42

(iii) page 6, lines 21-31.

5. The notice of motion filed by the first respondent on 17 June 2011, is otherwise dismissed.
6. The notice of motion filed by the second, third and fourth respondents on 17 June 2011, is otherwise dismissed.
7. Costs reserved.
   

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 316 of 2010

BETWEEN:	EMSON NYONI Applicant
AND:	SHIRE OF KELLERBERRIN First Respondent DARREN FRIEND Second Respondent STAN MCDONNELL Third Respondent FRANK PECZKA Fourth Respondent

JUDGE:	SIOPIS J
DATE:	14 NOVEMBER 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

1. Mr Emson Nyoni, the applicant, is a pharmacist who carries on business as such, at the Kellerberrin Pharmacy in Kellerberrin, a town in Western Australia. The Kellerberrin Pharmacy is the only pharmacy in the town. Mr Nyoni is an Australian citizen of “Zimbabwean black African background”. In 2003, Mr Nyoni bought the Kellerberrin Pharmacy and moved to Kellerberrin. Before that time, Mr Nyoni worked as a pharmacist in Victoria.
2. The first respondent is the Shire of Kellerberrin. At the commencement of the proceeding, and before then, the second respondent was the chief executive officer of the Shire, and the third respondent was the president of the Shire Council. The fourth respondent is a former chief executive officer of the Shire.
3. On 28 October 2010, Mr Nyoni commenced a proceeding in this Court against the respondents by filing an application supported by an affidavit. I subsequently made orders that Mr Nyoni file a statement of claim. Following complaints by the respondents as to the form and content of that pleading, I gave Mr Nyoni, who is self-represented, leave to file an amended statement of claim. The amended statement of claim (the statement of claim) runs to 46 pages, not counting the documents which are annexed to the statement of claim. The statement of claim is verbose, uses extravagant language and contains many irrelevant allegations, statements of law and pleads evidence. However, notwithstanding these deficiencies, it is, nevertheless, possible to discern the general tenor of the complaint made by Mr Nyoni against the respondents.
4. In essence, Mr Nyoni claims that the respondents had embarked upon a course of conduct intended to denigrate and, thereby, injure his pharmacy business with the object of driving him out of business, and replacing him as the local pharmacist, with another pharmacist, whom the Shire has financially supported. Mr Nyoni claimed damages on the basis that he had suffered financial loss and damage and mental anguish.
5. In his statement of claim, Mr Nyoni alleges that the respondents (or some of them) have encouraged some of his customers to make unjustified complaints to the regulatory authorities, have spread false rumours that the Shire had power under financial instruments which Mr Nyoni had signed, which it intended to exercise, to evict Mr Nyoni from his pharmacy premises, and falsely represented that Mr Nyoni had been dispensing medicines which were detrimental to the health of his customers and that he, Mr Nyoni, suffered from a terminal illness and would soon be leaving town.
6. Mr Nyoni also alleged that the respondents (or some of them) had misused public funds to support the endeavours of a rival pharmacist to obtain a Pharmaceutical Benefits Scheme (PBS) licence and open a rival pharmacy business in Kellerberrin. In fact, Mr Nyoni has pleaded that the Shire itself applied for the PBS licence.
7. Further, Mr Nyoni has pleaded that in February 2010, the Shire, and other respondents, in support of the candidature of the rival pharmacist, had deliberately included in the minutes of a meeting of the Shire Council, statements disparaging of him and his business, with the object of destroying his business and replacing him as the local pharmacist; and that these statements were given wide circulation by being published on the internet.
8. Mr Nyoni pleaded that after he, Mr Nyoni, was successful in his application for the PBS licence over the candidate which the Shire had supported, the second and third respondents had approached Mr Nyoni with a view to persuading him to sell the pharmacy business to the third respondent at under value. Mr Nyoni went on to plead that when he refused to sell his pharmacy business, the second and third respondents threatened “to teach him a lesson”.
9. Mr Nyoni also alleges that an employee of the Shire, the Shire engineer, had on 14 October 2010, without warning, entered the pharmacy premises and disconnected the electrical power and caused damage with the consequence that the pharmacy could not carry on business whilst the electricity was disconnected. Mr Nyoni attached a letter from the pharmacy’s electricity provider, Synergy, saying that it had given no authority to anyone to disconnect Mr Nyoni’s electrical power.
10. The statement of claim refers to a number of different causes of action. The causes of action include claims for damages on the grounds that the respondents have acted in contravention of the Trade Practices Act 1974 (Cth) by engaging in misleading or deceptive conduct, unconscionable conduct and anti-competitive conduct. Mr Nyoni also claims that he has been the victim of racial discrimination contrary to the Racial Discrimination Act 1975 (Cth). In addition, Mr Nyoni has also purported to plead a number of common law causes of action including actions in defamation, misfeasance in public office and negligence.
11. The Shire, which is separately represented, has filed a notice of motion seeking that Mr Nyoni’s application be summarily dismissed on the grounds that there is no jurisdiction in this Court to hear and determine his application, alternately, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), or, in the further alternative, that the whole of the statement of claim be struck out.
12. The second, third and fourth respondents filed a notice of motion seeking similar relief. However, in addition, the second, third and fourth respondents seek orders that Mr Nyoni’s affidavit filed 28 October 2010, statement of claim filed 29 April 2011, and amended statement of claim filed 30 May 2011, be removed from the Court file on the grounds that each document contains scandalous material.

SHOULD THE APPLICATION BE DISMISSED FOR WANT OF JURISDICTION?

13. The respondents contended that Mr Nyoni’s proceeding should be dismissed because the jurisdiction of this Court has not properly been invoked because there is no tenable federal claim pleaded by Mr Nyoni.
14. Much of the respondents’ argument under this head was directed towards showing that Mr Nyoni had not pleaded any tenable federal claim. However, in my view, it is not sufficient for the respondents to demonstrate that a pleaded claim is untenable to establish that the jurisdiction of the Court has not been properly invoked. The respondents would need to show that the claim is “colourable”.
15. In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564, French J (as his Honour then was) (with whom Beaumont and Finkelstein JJ agreed) said at [86]:

The mere fact that a claim is found not to be tenable does not of itself deprive the Court of jurisdiction in non-federal claims comprising part of the same matter.

16. At [88], French J (with whom Beaumont and Finkelstein JJ agreed) observed:

In the ordinary course the contention that a claim is not tenable will not go to jurisdiction unless dependent upon a submission that the claim is outside jurisdiction. And indeed, within that class a claim may be untenable because its very nature denies its character as an element of any matter or controversy in respect of which the Court can exercise jurisdiction. So a proceeding based upon the proposition that the Commonwealth Constitution is invalid does not disclose a matter arising under the Constitution or involving its interpretation - Nikolic v MGICA Ltd [1999] FCA 849. A claim may also be a sham reflecting no genuine controversy and therefore establishing no matter in respect of which the Court may exercise its jurisdiction. There has been discussion of so called “colourable” claims made under the Trade Practices Act for the improper purpose of fabricating jurisdiction. The mere fact that a claim is struck out as untenable does not mean it is colourable in that sense. The pleading of the s 52 claim in this case advanced the legitimate forensic purpose of endeavouring to establish a cause of action which would not require proof of a duty of care. Notwithstanding its precipitate initiation and chequered history, I am not satisfied that it was colourable in the sense that would deprive this Court of jurisdiction to deal with the matter including any non-federal claims that may form part of it.

17. In the case of Ahmed v Harbour Radio Pty Ltd [2009] FCA 1113; (2009) 180 FCR 313, Foster J, after having referred to the abovementioned observations, observed at [64]:

I agree with French J that the mere fact that a claim is struck out as untenable does not mean that it is colourable in the sense that it was made for the improper purpose of fabricating jurisdiction.

18. I have, accordingly, taken the respondents to contend that Mr Nyoni’s claims are so untenable as to lead to the conclusion that the Court’s jurisdiction has been colourably invoked.
19. The respondents contended that no tenable claim under the Racial Discrimination Act had been pleaded because of the failure of Mr Nyoni to plead facts which demonstrate that he had satisfied the requirements of s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA). Further, the respondents contended that Mr Nyoni had not pleaded any conduct capable of supporting a claim under the anti-competitive provisions of the Trade Practices Act.
20. However, as to the misleading or deceptive conduct allegations made by Mr Nyoni, the respondents recognised that Mr Nyoni had pleaded certain facts and circumstances which were capable of being construed as allegations that one or more of the respondents engaged in misleading or deceptive conduct, in contravention of s 52 of the Trade Practices Act. The pleaded facts and circumstances are the following.
21. First, Mr Nyoni has pleaded that an employee of the Shire, the Shire corporate manager, made misleading or deceptive statements to customers of the pharmacy to the effect that Mr Nyoni was dispensing “wrong and foul medicines”, that Mr Nyoni had a terminal illness and was not fit to dispense medicines at all, and that Mr Nyoni had by his wrongful dispensing of medicines, adversely affected the health of many of his customers and, therefore, that the customers were advised to obtain their “medicines” from other sources.
22. Secondly, Mr Nyoni pleaded that the respondents had intentionally published on the internet, false or misleading information regarding his pharmacy business, as part of the minutes of a meeting of the Shire Council of 2 February 2010, with the intention of harming his business, driving him out of town and having him replaced by a pharmacist whom the Shire was supporting financially.
23. Thirdly, Mr Nyoni pleaded that at the time that the Shire persuaded him to take up a loan to purchase the Kellerberrin Pharmacy, which would be disbursed through the Shire, the Shire failed to disclose to him that he would be required to execute caveats in favour of the Shire over the property.
24. As to the first two pleaded claims referred to above, the respondents contended that there was no tenable claim under the Trade Practices Act, because it would not be possible for the Court to conclude that the impugned conduct engaged in by the respondents was conduct “in trade or commerce” and also, perhaps, that the Shire was not a “corporation” to which s 52 of the Trade Practices Act applied. As to the third of the claims referred to above, the respondents accepted that there was arguably, conduct “in trade or commerce”, but contended that the claim was untenable because Mr Nyoni had not demonstrated the impugned conduct led to him suffering any damage.
25. I deal now with the respondents’ contention that the first two claims pleaded by Mr Nyoni were untenable. Counsel for the Shire did not specifically contend that the Shire was not a “corporation” to which s 52 of the Trade Practices Act applied. Indeed, in the course of his oral submissions, counsel appeared to accept that the Shire was a “corporation” to which s 52 applied. The gravamen of counsel’s submissions was that it could not be tenably contended that by engaging in the impugned conduct, the Shire had engaged in conduct “in trade or commerce”.
26. Counsel for the second, third and fourth respondents also focused his submissions on whether it could be tenably contended that by engaging in the impugned conduct referred to in the first two claims, the Shire engaged in conduct “in trade or commerce”. However, during his oral submissions, counsel referred to certain observations in Mid Density Development Pty Ltd v Rockdale Municipal Council [1992] FCA 634; (1992) 39 FCR 579, and it appears that part of his argument, at least implicitly, included the contention that it could not be tenably contended that the Shire was a “trading corporation” and, therefore, a “corporation” to which s 52 of the Trade Practices Act applied.
27. I, therefore, deal first with the question of whether it could be tenably contended that the Shire is to be treated as a “trading corporation” for the purposes of the Trade Practices Act. In the peculiar circumstances of this case, on the material currently before the Court, and in particular, the pleaded facts in Mr Nyoni’s statement of claim, I am unable to come to the view that it is beyond argument that the Shire is not a “trading corporation”. The Shire is, of course, a corporation established under the Local Government Act 1995 (WA), charged with statutory duties under that Act. However, whether a corporation is to be regarded as a “trading corporation” under the Trade Practices Act, will depend upon an examination of its activities as well as its constitution. Mr Nyoni has pleaded that the Shire has engaged in a number of activities which on their face, indicate that the Shire engaged in some trading activities. These allegations include the allegation that the Shire made, or administered, loans to private individuals and took securities, that it applied to the Australian Pharmaceutical Council Authority for a PBS licence and that it has procured the supply of, or engaged in the process of supplying, medicines to a local supermarket for sale by the supermarket. These activities on their face, could conceivably constitute trading activities. There is no evidence from the Shire in relation to these allegations. These allegations are, indeed, curious and it may well be that Mr Nyoni will not succeed in proving these allegations at trial. However, it seems to me, that on the state of the pleaded facts, it cannot be said that, if the allegations are established at trial, it is beyond argument, that it will not be open to the trial Court to find that the Shire is a “trading corporation”.
28. However, it is unnecessary to found my decision on this issue. This is because, at least one of Mr Nyoni’s claims that the respondents have engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act, does not depend upon him proving that the Shire is a “trading corporation”. This is the claim founded upon the publication of the minutes of the Shire Council’s meeting of 2 February 2010, on the internet. The fact that the publication occurred over the internet invokes the wider operation of s 52 of the Trade Practices Act by reason of s 6(3) of that Act and, therefore, s 52 would apply to the conduct of the Shire as well as the three individual respondents - each of whom is alleged to be responsible for the publication of the minutes of the meeting on the internet.
29. Accordingly, I intend to examine by reference to that claim, the respondents’ submission that it is untenable to contend that the impugned conduct in publishing on the internet the disparaging comments about Mr Nyoni in the Shire Council minutes, was conduct “in trade or commerce”.
30. The minutes of the Shire Council’s meeting in respect of which Mr Nyoni complains, state as follows:

MIN 11/10 MOTION – Moved Cr. Forsyth 2nd Cr. Bee

That Council endorses the actions of the Shire President and Chief Executive Officer in the non-Budget expenditure relating to the purchase of property at 96 Massingham Street Kellerberrin.

CARRIED 6/0
Agenda Reference: 11.1.8
Subject: Lease of Council Property
Location: 96 Massingham Street Kellerberrin
Applicant: Ms Lesley Ashburn
File Ref: ASS-459
Disclosure of Interest: Nil
Date: 2 February 2010
Author: Darren Friend, Chief Executive Officer

BACKGROUND

An approach was made by the proponent in the first week of the New Year concerning whether Council had any suitable properties available for lease/rental for a commercial business (pharmacy). As a result of the discussion and in consultation with the Shire President, a decision was made to purchase 96 Massingham Street which will be available to lease to the proponent, should he be the successful applicant in acquiring the Pharmaceutical Benefits Scheme (PBS) licence for Kellerberrin. There are two applicants for the licence and a decision will be made via Medicare Australia in Canberra at the end of the month.

COMMENT

As a result of the current pharmacist in Kellerberrin selling his PBS licence prior to Christmas, Kellerberrin not only finds itself without a pharmacist who can dispense subsidised medication, the community may not have access to such a facility for several months to come.

Not only is this situation unsatisfactory, it is the culmination of a period of several years of below average service on the part of the pharmacist, Emson Nyoni to the residents of Kellerberrin. Councillors are well aware of the level of dissatisfaction among the community with complaints made on a regular basis to Council staff, other business owners and Councillors themselves concerning the operations of the pharmacy.

The irregular hours of opening, the dirty state of the shop and lack of stock and prescription drugs are regularly brought to the attention of Council staff by disgruntled members of the community.

Whilst Council can not be seen to favour one business over another, it is Council’s responsibility to ensure that its community receives access to essential services as part of its “good governance” requirements.

31. The tenor of Mr Nyoni’s claim in relation to the publication of the minutes, is that the respondents deliberately included within the body of the minutes, statements which denigrated and disparaged Mr Nyoni and his business, with the sole intention of deterring customers from his business and thereby destroying Mr Nyoni’s business, as part of a stratagem to procure the replacement of Mr Nyoni with another pharmacist, who the Shire and the other respondents supported; or, as Mr Nyoni puts it, “for the sole goal of the respondents to inflict harm on the applicant whom they wanted to get rid of, as described in their minutes”.
32. The question of whether conduct is “in trade or commerce” was considered by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 (Concrete Constructions). In that case, the High Court considered that advice given by one employee to another whilst they were both engaged in carrying out construction work as part of their employment, was not conduct “in trade or commerce” for the purposes of s 52 of the Trade Practices Act. The majority of the High Court (Mason CJ, Deane, Dawson and Gaudron JJ) found that conduct “in trade or commerce” would be limited to conduct “which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character”.
33. The majority recognised that there would be circumstances where it may be difficult to determine whether conduct was “in trade or commerce”. At 604, the majority observed:

What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct “in trade or commerce” may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not without more, of that character.

34. The distinction between conduct which is, and which is not, conduct “in trade or commerce” has been considered in a number of cases. The respondents referred, in particular, to two of these cases.
35. In Firewatch Australia Pty Ltd v Country Fire Authority [1999] FCA 761; (1999) 93 FCR 520 (Firewatch), the applicant, a manufacturer of fire extinguishers, claimed that the respondent, the Country Fire Authority (the CFA), a statutory body incorporated pursuant to the Country Fire Authority Act 1958 (Vic), had engaged in misleading or deceptive conduct in contravention of s 52 and s 53 of the Trade Practices Act by distributing a document that was disparaging of one of the models of fire extinguishers made by the applicant.
36. The document in question was a bulletin prepared by an employee of the CFA. The bulletin stated that the new fire extinguisher did not meet Australian standards and went on to state that “under no circumstances is this product to be used on wide electrical hazards”. The bulletin also stated: “I would strongly recommend that brigades not become involved in the distribution or recommendation of this product.”
37. The bulletin was distributed to fire brigades within the CFA. The bulletin was also distributed to a limited number of persons outside the CFA. Some of the brigades to which the bulletin was distributed, provided fire equipment maintenance services to entities in the private sector, and in the course of providing those services, in limited circumstances, supplied and recommended which brands of fire extinguishers should be purchased.
38. The CFA contended that the bulletin was an internal communication and that in distributing the bulletin, it had not engaged in conduct “in trade or commerce”. Goldberg J rejected that argument. After having earlier referred to the observations of the majority of the High Court in Concrete Constructions referred to at [33] above, Goldberg J observed as follows at [63] and [64]:

The present case falls into that area identified by the majority in Concrete Constructions where the dividing line between what is and what is not conduct “in trade or commerce” is less clear. Although an internal CFA communication will ordinarily not have a trading or commercial character there was added to the bulletin a recommendation to brigades that as part of their trading or commercial activity they not be involved in the distribution or recommendation of the Firewatch extinguisher. In that context the primary distribution of the bulletin was conduct “in trade or commerce”. More particularly was this so where the bulletin was distributed further to persons outside the CFA organisation and reached consumers and potential consumers.

Although the bulletin was an internal document it had “a trading or commercial character” in the sense that it was intended to influence servicing brigades not to be involved in the distribution or recommendation of the Firewatch extinguisher. Putting the matter another way, the bulletin had more than “an internal character”; it was intended to have a consequence or impact on trading and commercial activities. It was intended that in dealings or potential dealings with consumers fire equipment maintenance servicing brigades would be influenced not to become involved in the distribution or recommendation of the product.

39. Another case in which the question of whether the impugned conduct was conduct “in trade or commerce” was considered, was the case of Dataflow Computer Services Pty Ltd v Goodman [1999] FCA 1625; (1999) 168 ALR 169 (Dataflow).
40. Mr Goodman, an employee of the applicant, Dataflow Computer Services Pty Ltd, sent an email to the franchisees of retail department stores known as “Harvey Norman” to whom Dataflow had until then, distributed products, and, also, to representatives of the print media. In the email, Mr Goodman advised that Dataflow had incorporated a new company and intended to sell products directly to the “end-user” rather than continuing to distribute the products through Harvey Norman outlets.
41. Dataflow brought a claim against Mr Goodman alleging that he had contravened s 52 of the Trade Practices Act. It was accepted that Mr Goodman’s email was false because Dataflow did not have an intention which Mr Goodman represented.
42. There was no evidence as to whether Mr Goodman was carrying on a business nor his motivation for sending the email.
43. Hely J came to the view that Mr Goodman’s conduct in sending the email was not “in trade or commerce” and was more appropriately characterised as that of a bystander commenting on trade or commerce in which others were engaged, rather than something done “in trade or commerce”.
44. The respondents contended that the disparaging comments about Mr Nyoni’s business in the Shire Council minutes, were to be similarly characterised as the comments made in Mr Goodman’s email in Dataflow, namely, those of an interested bystander commenting on events, rather than statements intended to have an impact on trading activities by an interested party.
45. In my view, there is a substantial distinction between the position of Mr Goodman in the Dataflow case, and the position of the Shire and the other respondents, as alleged by Mr Nyoni.
46. In Dataflow, Hely J made specific comment that there was no evidence as to the motivation of Mr Goodman.
47. By contrast, however, Mr Nyoni contended that the respondents’ motivation in publishing the disparaging statements, was to destroy his business by deterring customers from frequenting his business, as part of a stratagem, to which they were parties, to promote the establishment of a rival pharmacy. I understand Mr Nyoni’s claim to be that the respondents only included the disparaging references to his pharmacy in the minutes for the purpose of injuring his business. In other words, there was an ulterior motive in preparing the minutes so that they contained the disparaging statements - with the consequence that the minutes were not to be treated as genuine minutes produced in the ordinary course of local government functions.
48. In my view, contrary to the submissions of the respondents, it cannot be said, on the facts alleged by him, that Mr Nyoni’s claim that the respondents’ conduct was conduct “in trade or commerce”, is untenable.
49. This is because Mr Nyoni has alleged that the respondents’ impugned conduct was intended to destroy his business by driving away customers and to promote the interests of a rival pharmacist they supported. It is, at least, arguable that if Mr Nyoni was to establish these facts at trial, that a court would find that the conduct was, in the words of Goldberg J in Firewatch, intended to have an “impact on trading and commercial activities” and that it was, therefore, conduct “in trade or commerce”.
50. It follows, therefore, that the respondents have failed to show that all of Mr Nyoni’s claims in respect of the Trade Practices Act allegations of misleading or deceptive conduct, are untenable, let alone colourable, with the consequence that the respondents have failed to show that the jurisdiction of this Court has not been properly invoked.
51. It is, therefore, unnecessary to consider under this heading, the attacks made by the respondents on other federal claims made by Mr Nyoni.
52. I will, therefore, dismiss the respondents’ application that the proceeding be dismissed on the grounds that Mr Nyoni has not properly invoked the jurisdiction of this Court.

DISMISSAL UNDER S 31A OF THE FEDERAL COURT OF AUSTRALIA ACT

53. Under this heading, the respondents contended that Mr Nyoni has had an opportunity to remedy the defects in the statement of claim but had failed to do so. The respondents went on to contend that the amended statement of claim was so deficient that the Court should infer that Mr Nyoni’s case was so devoid of prospects of success that he should not be afforded a further opportunity to plead a cause of action.
54. Whilst it is true that Mr Nyoni’s amended statement of claim is seriously deficient, I do not accept the respondents’ contention that the underlying allegations made by Mr Nyoni against the respondents are so devoid of any prospects of success that the whole proceeding should be terminated forthwith.
55. As I have previously indicated, notwithstanding the deficiencies of the statement of claim even after the amendment, it is possible to discern the tenor of Mr Nyoni’s allegations against the respondents. Further, there is some corroborating evidence in support of at least some of the allegations which Mr Nyoni has made. Thus, for example, Mr Nyoni has annexed to his affidavit a letter from Synergy dated 16 November 2010, advising that Synergy did not authorise the disconnection of the power supply to Mr Nyoni’s business and that the disconnection occurred through no default by the account holder.
56. Further, it is plain from the face of the minutes of the meeting of the Shire Council, that the Shire did publish comments derogatory of Mr Nyoni, and that members of the Shire Council approved the expenditure of public monies in assisting a pharmacist to establish a rival pharmacy in Kellerberrin and to obtain a PBS licence.
57. In my view, the following observations of Lindgren J in the case of White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [50], are apt in the circumstances of this case:

Section 31A of the FCA Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form.

58. Likewise, in the case of Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55 at [9], Logan J observed that, a litigant who attempts to secure a hearing of a matter according to law:

ought not peremptorily to be terminated save in clear cases, ie in cases which, on judicial assessment, can be seen, truly, to have no reasonable prospect of success. Further, and at the risk of stating the obvious, what falls for assessment is a “prospect”. On what is before the court on the hearing of the application under s 31A, which, may well not comprise the whole of the evidence that the parties come to lead at trial, is there a reasonable prospect? If there is no such reasonable prospect either in law or in fact then the application must succeed. (Original emphasis.)

59. In my view, albeit that I am satisfied that the statement of claim is seriously defective, I am not satisfied that, on the materials before the Court, Mr Nyoni has no reasonable prospects of success, whether in relation to his claim founded on misleading or deceptive conduct under the Trade Practices Act, or in respect of some of the common law claims to which he has already referred, or in respect of other claims which may potentially be available to Mr Nyoni. In my view, it is, at least, possible that if Mr Nyoni was to obtain legal advice, that other common law or statutory claims, in addition to or in substitution for, the claims already referred to by Mr Nyoni, may be available to be pleaded.
60. I was, however, minded to make orders dismissing Mr Nyoni’s claim under the Racial Discrimination Act on the grounds that there has been no apparent compliance with s 46PO of the AHRCA; and also, the claim in relation to the allegation of abuse of market power by the Shire. However, as I have decided to strike out the whole of the statement of claim, with leave to re-amend, I will wait the outcome of the repleaded statement of claim. I intend to make a pro bono referral for the purpose of, in the first instance, at least, advising Mr Nyoni in relation to the claim, and preparing the re-amended statement of claim. It may well be that these causes of action will be abandoned in the re-amended statement of claim.

STRIKE OUT OF THE STATEMENT OF CLAIM

61. As I have already mentioned, it is apparent that the amended statement of claim filed 30 May 2011, in its current form, is seriously deficient in that it fails to comply with the rules of pleading.
62. I will, therefore, strike out the whole of the amended statement of claim on the grounds that it is embarrassing, verbose, pleads evidence and statements of law and does not adequately plead the causes of action upon which Mr Nyoni purports to rely.
63. However, for the reasons referred to at [59] above, I will give Mr Nyoni leave to file and serve a re-amended statement of claim. I also intend to make a referral for pro bono legal assistance to Mr Nyoni, in the first instance, at least, to advise Mr Nyoni in respect of the claim and to prepare a re-amended statement of claim. I anticipate that the participation of pro bono counsel will enure to the benefit of all the parties and the Court.

SCANDALOUS MATERIAL

64. The second, third and fourth respondents contended that there were paragraphs in Mr Nyoni’s statement of claim, amended statement of claim and affidavit which contained scandalous material which was extraneous to the causes of action relied upon by Mr Nyoni and the underlying facts related thereto, and that these documents should be removed from the Court file.
65. I accept the submission that the documents do, in fact, contain scandalous material. However, the paragraphs which contain the scandalous material can be specifically identified and, in my view, only those paragraphs should be struck out of the documents on the Court file. Accordingly, I order that the following paragraphs be struck out of the following documents:

(a) the amended statement of claim filed 30 May 2011:

(i) para 7.3,

(ii) para 7.4(b),

(iii) para 20,

(iv) para 20(b),

(v) para 20(c),

(vi) para 20(d),

(b) the statement of claim filed 29 April 2011:

(i) the particulars to para 7.3,

(ii) para 7.4(b),

(iii) para 13 and the particulars thereto,

(c) the affidavit of Mr Nyoni filed 28 October 2010:

(i) page 2, lines 5-8,

(ii) page 5, lines 6-21, 42

(iii) page 6, lines 21-31.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 14 November 2011