Nandutu v Chapman [2020] FCA 1798

Federal Court of Australia

Nandutu v Chapman [2020] FCA 1798 Appeal from: Application for leave to appeal: Nandutu v Chapman [2019] FCCA 3715

File number: NSD 2104 of 2019

Judgment of: STEWART J

Date of judgment: 14 December 2020

Catchwords: PRACTICE AND PROCEDURE – application seeking leave to appeal against orders made by the Federal Circuit Court of Australia – where appellant failed to appear – whether application should be dismissed under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) – whether appellant had proper notice of listing – application dismissed

Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 17A Federal Court of Australia Act 1976 (Cth) ss 24(1)(d), 24(1A), 24(1D)(ca) Federal Court Rules 2011 (Cth) rr 11.01(5), 35.33(1)(a)(i), 36.74(1)

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 18

Date of hearing: 14 December 2020

Counsel for the Appellant: The appellant did not appear

Counsel for the Respondent: G Johnson

Solicitor for the Respondent: MinterEllison

ORDERS NSD 2104 of 2019

BETWEEN: SUSAN KANA NANDUTU Appellant

AND: SIMON CHAPMAN Respondent

order made by: STEWART J DATE OF ORDER: 14 DECEMBER 2020

THE COURT ORDERS THAT:

1. The appellant's application for leave to appeal from an order of the Federal Circuit Court is dismissed. 2. The appellant is to pay the respondent's costs as agreed or taxed. 3. On or before 18 December 2020 the respondent is to file an application under r 36.74(1) of the Federal Court Rules 2011 (Cth) in relation to the appellant's appeal from the orders of the Federal Circuit Court given in Nandutu v Chapman (No 2) [2019] FCCA 3718. 4. The respondent is to serve the application referred to at Order 3 above and these orders by sending them to the email addresses and to the PO Box postal address of the appellant on record. 5. The respondent's application referred to at Order 3 above is listed for hearing before Justice Stewart at 9.30 am on 29 January 2021. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

STEWART J: 1 Listed for hearing today is the appellant's application for leave to appeal against certain orders made by the Federal Circuit Court of Australia on 18 December 2019. She is referred to as the appellant rather than the applicant for two reasons. One is that in the same proceeding she also appeals as of right against certain orders of the Circuit Court made on the same day in the same proceeding – I will come to those. The other is that she has not filed an application for leave to appeal but accepted during case management some time back that she required leave to appeal. Her notice of appeal, and subsequently her amended notice of appeal, has been taken as her application for leave to appeal so far as it refers to the orders in respect of which she requires leave. 2 Notably, the orders in respect of which the appellant applies for leave to appeal include an order for summary judgment in favour of the respondent against the appellant in relation to the whole of her proceeding in the Circuit Court pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth). Leave is required pursuant to s 24(1D)(ca) read with ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth). 3 Also on that day, in the same proceeding but with separate reasons for judgment, the primary judge made orders under s 88Q(2) of the Act that all proceedings before that Court instituted by the appellant be stayed and may not be pursued without leave of that Court, and also prohibiting the appellant from instituting proceedings in that Court without leave of the Court. The orders are final orders in respect of which the appellant has filed a notice of appeal. 4 The reasons for judgment in the Circuit Court are reported as Nandutu v Chapman [2019] FCCA 3715 and Nandutu v Chapman (No 2) [2019] FCCA 3718. 5 The appellant has failed to appear today on the hearing of her application for leave to appeal. Her name has been called. She is not present at the court. The respondent has applied for dismissal of her application under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) for failure to appear. 6 I am satisfied that the appellant has had ample notice of the listing today. She has not given any indication that she would not appear, but she has also given no positive indication since March that she intends pursuing the proceeding. 7 There has been no communication from the appellant with the respondent or with the Court for many months and she is in default of filing submissions under orders made on 1 September 2020. In the circumstances, to not dismiss the proceeding now – that is, the application for leave to appeal – would visit unjustified prejudice on the respondent. 8 In the circumstances, I am satisfied that dismissal is the right course. 9 The relevant history of communications with the appellant is as follows. 10 In her notice of appeal by which she commenced the proceeding, the appellant has given an email address, which I will refer to as her Yahoo! email address, as well as a PO Box postal address for service. 11 In terms of r 11.01(5) of the Rules, by providing the email address the appellant agreed to receive service of documents at that email address. She has not subsequently given notice of a change of that address or withdrawal of that agreement. That said, there are documents – including an amended notice of appeal – that have been filed by her in this proceeding which have also given a different email address for her. It is a Gmail address. I will refer to it as such. 12 Leaving aside prior communications, on 1 September 2020 my associate emailed the parties including the appellant at both her Gmail and Yahoo! addresses. That email gave notice of the listing of the hearing of her application today and attached orders that were made that day, which orders listed the matter for today and required the appellant to file and serve written submissions on or before 30 November 2020. 13 On 15 September 2020, my associate followed up with a further email asking the parties to confirm receipt of the previous email. That email was also sent to both the Gmail and Yahoo! addresses of the appellant. She did not reply from either email address. Also, neither email elicited any form of automatic response to say that the email address was out of service or no longer in use. 14 The respondent has tendered correspondence from his solicitors to the appellant. On 3 December 2020, the solicitors emailed the appellant at both email addresses attaching the orders of the 1 September 2020 that I have referred to. 15 On 4 December 2020, the respondent's solicitors emailed my associate copying their email to the appellant at both email addresses. That email also attached the orders of 1 September 2020. The solicitors also note in the email that the appellant's submissions were due to be filed and served by 30 November 2020, but none had been received. 16 On 8 December 2020, the respondent's solicitors sent a further email to the appellant at her Gmail address (but not her Yahoo! address) attaching the respondent's submissions for the hearing today. Also on that day, the respondent's solicitor sent by express post a letter to the appellant's PO Box address, which also enclosed the submissions for the hearing today. I note that in paragraph 2 of those submissions it is recorded that the application for leave to appeal is listed before me today, that is, 14 December 2020. None of those communications from the respondent's solicitors elicited any response. 17 As I have said, I am satisfied on that evidence that the appellant has had proper notice of the hearing today and she has failed to appear, and the proper course is to dismiss the application for leave to appeal. 18 There is obviously now a question as to whether the appellant still intends proceeding with the appeal in respect of which she does not require leave. In those circumstances, the respondent has indicated an intention to file an application that the appeal be dismissed under r 36.74(1) of the Rules. The appropriate order to make in that regard is therefore to direct the respondent to file his application, which I will require to be done by 18 December 2020. The respondent should also serve that application by sending it to the known email addresses and postal address on record for the appellant and I will list that application for hearing at 9.30 am on 29 January 2020. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.

Associate: Dated: 15 December 2020