Nyoni v Shire of Kellerberrin [2011] FCA 1299

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) 104 FCR 564 Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313 Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Firewatch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520 Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55