Nandutu v Chapman - [2019] FCCA 3715

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
Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 88B, 88G
Federal Circuit Court Rules 2001 (Cth), r.13.10

Cases cited:

Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192
Rippon v Chilcotin Pty Ltd & Ors (2001) 53 NSWLR 198
Spencer v Commonwealth of Australia [2010] HCA 28

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nandutu v Chapman

Details

AGLC: Nandutu v Chapman [2019] FCCA 3715
Case: [2019] FCCA 3715
Decision Date: 18 December 2019

CaseChat Overview and Summary

The applicant, Ms Nandutu, brought proceedings against the respondent, Mr Chapman, alleging misleading or deceptive conduct in contravention of consumer protection legislation. The respondent sought summary dismissal of the application, arguing that the pleadings did not disclose a proper cause of action and that the applicant had no reasonable prospect of successfully prosecuting the proceedings. The matter came before Judge Street in the relevant court.

The primary legal issue before the court was whether the applicant's statement of claim, as it stood, disclosed a legally recognisable cause of action for misleading or deceptive conduct. This involved determining whether the factual allegations pleaded, if proven, were capable of establishing the elements of the alleged contravention. A related issue was whether, in the absence of a properly pleaded cause of action, the proceedings should be summarily dismissed on the basis that the applicant had no reasonable prospect of success.

Judge Street considered the applicant's pleadings and found them to be deficient. The court determined that the allegations made by the applicant did not, on their face, establish the necessary elements of misleading or deceptive conduct as defined by the relevant consumer law provisions. Consequently, the court concluded that the applicant had failed to disclose a proper cause of action and that there was no reasonable prospect of the proceedings being successfully prosecuted.

Accordingly, Judge Street ordered that the applicant's application be dismissed.

Orders