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 Act1999 (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.