Nandutu v Chapman
[2019] FCCA 3715
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NANDUTU v CHAPMAN | [2019] FCCA 3715 |
| Catchwords: CONSUMER LAW – Application alleging misleading or deceptive conduct – whether the pleadings disclose a proper cause of action – whether the applicant has no reasonable prospect of successfully prosecuting the proceedings – summary judgment in favour of the respondent – application dismissed. |
| Legislation: Competition and Consumer Act 2010 (Cth), sch.2, s.18 |
| Cases cited: Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192 |
| Applicant: | SUSAN KANA NANDUTU |
| Respondent: | PROFESSOR SIMON CHAPMAN |
| File Number: | SYG 2239 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 18 December 2019 |
| Date of Last Submission: | 18 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | MinterEllison |
ORDERS
The applicant’s affidavits which have been read are not to be treated as available for public access without a further order of the Court.
Subject to leave, the applicant’s oral submissions as to whether there is an arguable case are limited to 30 minutes.
Summary judgment is given in favour of the respondent against the applicant in relation to the whole of the proceedings pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth).
DATE OF ORDER: 18 December 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2239 of 2018
| SUSAN KANA NANDUTU |
Applicant
And
| PROFESSOR SIMON CHAPMAN |
Respondent
REASONS FOR JUDGMENT
These proceedings were commenced on 13 August 2018 by an application which alleged that the Court’s jurisdiction was invoked in respect of the Competition and Consumer Law Act 2010 (Cth) sch 2 (“Australian Consumer Law”), as well as allegations purportedly invoking the Court’s jurisdiction under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Sex Discrimination Act 1984 (Cth).
The applicant has filed in Court four versions of a statement of claim. The applicant filed a first statement of claim on 1 March 2019. That pleading, on its face, failed to identify any arguable cause of action and made evidentiary assertions which did not permit the identification of any proper cause of action. That pleading, on its face, was both vexatious for want of articulation of a proper case and had no reasonable prospect of success.
The applicant filed a further second statement of claim on 16 April 2019. That amended statement of claim suffered similar deficiencies and, on its face, failed to properly disclose any arguable cause of action. That amended statement of claim made evidentiary assertions which did not identify any proper cause of action and made serious allegations without proper particulars.
The applicant filed a further third purported statement of claim on 8 November 2019, described as a “Further Amended Points of Claim”. That document advanced allegations under the Australian Human Rights Commission Act 1986 (Cth) and related legislation which were the subject of other proceedings to which the Court will refer shortly. That document also referred to legislation without identifying any proper cause of action or the material facts in support of any proper cause of action. That document, on its face, was vexatious and failed to disclose any reasonably arguable case invoking this Court’s jurisdiction.
The applicant filed a further fourth purported statement of claim on 16 December 2019. That document sought to join a second respondent. That document also advanced a case under s 18 of the Australian Consumer Law against the purported respondents. The pleading includes reference to the Crimes Act 1900 (NSW) and fails to properly plead material facts in support of a cause of action under s 18 of the Australian Consumer Law.
It is apparent from the applicant’s submissions and affidavits, which have been read subject to relevance, that the applicant seeks to complain in relation to her candidature on a PhD course and makes various allegations about misleading documents, including references to a Changes to Supervisory Team Form dated 6 August 2014 which identifies the purported second respondent as being a postgraduate coordinator. The form relates to a swap of Research and Auxiliary Supervisor from the first respondent to a different professor.
The further fourth purported statement of claim does not identify how the Changes to Supervisory Team Form document is one which arises in the context of trade and commerce, gives rise to conduct by the purported respondents in trade and commerce, why the document is misleading or deceptive or identify the basis for a cause of action in respect of reliance upon the said document.
The elements of the cause of action under s 18 of the Australian Consumer Law are not properly articulated. The applicant has had four opportunities to try and identify whether the applicant has a proper case and has not done so. The further fourth purported statement of claim also includes embarrassing and irrelevant allegations in respect of, amongst other matters, the Crimes Act 1900 (NSW), the Criminal Code Act 1995 (Cth) and the Corporations Act 2001 (Cth). The further fourth purported statement of claim, on its face, is vexatious and fails to identify any reasonably arguable cause of action.
The Court takes into account the caution identified in Spencer v Commonwealth of Australia [2010] HCA 28 in relation to the Court’s powers under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Act”) and that it is only in the clearest of cases that the Court should exercise powers to summarily dismiss proceedings under s 17A of the Act.
The respondent identified the opportunities which were provided to the applicant to provide an arguable pleading disclosing a cause of action. The respondent also identified that there were other proceedings commenced in this Court in relation to the Australian Human Rights Commission determination of a complaint on 1 March 2019 and that those proceedings were dismissed on 11 June 2019 summarily. The respondent also identified four other proceedings in the Supreme Court of New South Wales, three of which have been dismissed. On the evidence before the Court, the 2015 proceedings remain on foot.
The respondent identified the overlap in relation to the allegations advanced in those proceedings. The respondent submits that, in light of the overlap of the proceedings, the current proceedings are vexatious. The first respondent relies upon r 13.10(b) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) and that the applicant has commenced five other sets of proceedings with overlapping factual allegations, all of which appear to arise out of the applicant’s grievance in respect of her candidature for a PhD. The respondent also identified that the proceedings in other Courts in 2017, 2018, 2019 have been summarily dismissed. The respondent also submitted that there has been no identification why, if there was a claim under the Australian Consumer Law, it was not able to be pursued in those other proceedings.
It is apparent until the most recently filed fourth version of the pleading that the applicant was seeking to pursue human rights claims that had been the subject of separate proceedings in this Court but had been summarily dismissed. It is apparent that the applicant also filed an application for leave to join other parties, which the respondent identified as supporting the vexatious nature of these proceedings and that there is no proper basis for the joinder of those other parties. The Court accepts that submission and, in relation to the proposed second respondent in respect of the latest pleading, no proper cause of action is disclosed and no proper basis has been identified why the Court would grant leave to permit reliance upon the fourth pleading or the joinder of the purported second respondent.
The respondent has also submitted that the proceedings are an abuse of process under r 13.10(c) of the Rules. The respondent referred to the abuse of process that arises in relation to the commencement of concurrent proceedings in different Courts in respect of the same dispute: Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192 at [54] to [73]. The Court accepts the respondent’s submission that the proceedings in the present case are an attempt to relitigate issues in other proceedings and are, as such, an abuse of process: see Rippon v Chilcotin Pty Ltd & Ors (2001) 53 NSWLR 198.
The respondent asked for the proceedings to be summarily dismissed under s 17A(2) of the Act on the basis that they have no reasonable prospect of success and also relied upon r 13.10(a) of the Rules.
The Court has taken into account the caution required in finding that proceedings are hopeless, bound to fail and have no reasonable prospect of success. The fourth statement of claim is incomprehensible in form, does not properly disclose any arguable case in respect of a recognisable cause of action and there is a want of material facts capable of disclosing a cause of action under s 18 of the Australian Consumer Law. The Court has also taken into account that the applicant is unrepresented.
The fourth proposed statement of claim is entirely unclear and unanswerable in terms of articulating material facts capable of supporting a recognisable cause of action and includes embarrassing and irrelevant material. It could not be identified how relevant conduct arose in trade and commerce or, as the Court has identified, what conduct is said to be misleading and deceptive beyond a broad allegation that the document dated 6 August 2014 is false. The nature of the falsity, reliance upon the same or loss from a cause of a view point being suffered because of this alleged misleading and deceptive conduct is unable to be identified from the pleading. No arguable case of a contravention of s 18 of the Australian Consumer Law is disclosed by the pleading.
The Court has taken into account the affidavit evidence filed by the applicant which is voluminous. That affidavit evidence was admitted subject to relevance at the commencement of the hearing today.
The Court identified that it would make a further order in relation to access to the affidavits without further leave of the Court. Consistent with the Court’s powers under s 88B of the Act, the Court identified that it was not, at this stage, determining whether a suppression order should be made but was rather identifying a process by which, if such an issue arises, that issue can then be determined by the Court. The Court took into account, in relation to that order, the principles identified in s 88G of the Act.
The Court explained to the applicant at the commencement of the hearing that the Court was determining the issues raised by the application in a case consistent with the order that was made on 4 December 2019. The applicant addressed the Court in relation to the pleading, seeking to explain the alleged cause of action as well as roaming far and wide in respect of the dispute arising from the applicant’s candidature and complaints in relation to the conduct that occurred in other proceedings.
The applicant made serious, unsupported allegations in relation to the conduct in other proceedings. The applicant also sought to explain why proceedings were not pursued under the Australian Human Rights Commission Act 1986 (Cth) in the Supreme Court of New South Wales. That does not explain why the applicant sought to agitate, at the commencement of these proceedings, the same issue as was before the Court in other proceedings brought the applicant. The Court has also taken into account the evidence filed by the applicant in relation to her health, but this does not assist the Court to identify that the applicant has a reasonably arguable cause of action.
The orders made on 4 December 2019 were as follows:
1. The application in a case filed by the respondent on 7 May 2019 is fixed for hearing at 9:30am on 18 December 2019 and the Court will also determine on that occasion, if appropriate, whether orders should be made under Part 6B of the Federal Circuit Court of Australia Act 1999 (Cth) declaring the applicant a vexatious litigant and restraining the applicant from instituting any further proceedings in this Court or continuing any further proceedings in this Court without further leave of the Court.
2. Leave is granted to the applicant to file and serve a further amended points of claim that properly pleads and particularises each and every cause of action together with any further affidavit or submissions by the applicant on or before 16 December 2019.
3. Leave is granted to the respondent to file and serve any further submission in respect of the orders the Court has made today on or before 12 December 2019.
The Court has taken into account the affidavit evidence which was admitted subject to relevance. Nothing in the affidavits assists the Court to find that the applicant has a reasonable prospect of succeeding in proceedings under s 18 of the Australian Consumer Law. Notwithstanding the caution that must be taken into account, the Court is clearly satisfied in the present case that the proceedings are hopeless and bound to fail.
The Court is further of the view that the applicant has had ample opportunity to identify a proper cause of action that has a reasonable prospect of success, if the applicant was able to do so. The applicant has not done so.
The Court is satisfied that this is a case where the Court should exercise its powers under s 17A of the Act.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 December 2019 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 17 January 2020
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