Nandutu v Chapman (No.2)
[2019] FCCA 3718
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NANDUTU v CHAPMAN (No.2) | [2019] FCCA 3718 |
| Catchwords: PRACTICE & PROCEDURE – Application for the making of vexatious proceedings orders – whether the applicant has frequently instituted or conducted vexatious proceedings in Australian Courts – whether the applicant is likely to pursue further vexatious proceedings – vexatious proceedings orders made. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 88Q |
| Cases cited: Freeman v National Australia Bank Ltd [2006] FCAFC 67 |
| 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
All proceedings before the Federal Circuit Court of Australia instituted by the applicant are stayed and may not be pursued without leave of the Court pursuant to s 88Q(2) of the Federal Circuit Court of Australia Act 1999 (Cth).
The applicant is prohibited from instituting proceedings in the Federal Circuit Court of Australia without leave of the Court pursuant to s 88Q(2) 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 and, as a result of orders made today, the proceedings have been dismissed under section s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Act”) with summary judgment for the respondent.
At the time the proceedings were fixed for hearing, the Court made an order on 4 December 2019 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 respondent has submitted that the requirements of ss 88Q(1) and 88Q(5) of the Act have been made out and that the Court should make vexatious proceedings orders under s 88Q(2) of the Act. The respondent addressed the Court also in relation to the breadth of that potential order. The Court is satisfied that the requirements of s 88Q(5) of the Act have been met.
The Court is satisfied that the applicant was on notice of the application seeking vexatious proceedings orders by the result of the orders made on 4 December 2019 and the submissions provided by the respondent in relation to s 88Q of the Act.
It is apparent, on the evidence before the Court, that the applicant has had three other proceedings summarily dismissed in the Supreme Court of New South Wales. On the basis of those proceedings alone, together with the dismissal of these proceedings, the Court finds that the applicant has frequently instituted or conducted vexatious proceedings in Australian Courts. The other proceedings which have been pursued in this Court and were summarily dismissed in relation to the same subject matter, being SYG 1080 of 2019, would reinforce the same finding under s 88Q(1)(a) of the Act. Independently of the proceedings in this Court, the Court is satisfied that the requirements of s 88Q(1)(a) of the Act are made out.
The jurisdiction under Part 6B of the Act is a protective jurisdiction that must be exercised with restraint. That jurisdiction is one in respect of which all persons in Australia ordinarily have a right of access to the Courts of this country and a limitation on the access of any person in Australia to the Courts should only be imposed in clear circumstances where it is necessary to protect the Court and the public from the wasted cost, expense and time in respect of a vexatious litigant.
The purpose of the orders have been identified in Smith & Anor v Jarvie & Anor [2015] FCCA 2483, Freeman v National Australia Bank Ltd [2006] FCAFC 67 at [24]. The Court takes into account also the observations made by the learned Toohey J in Jones v Skyring [1992] HCA 39 and the principles in relation to whether the proceedings had been frequently instituted as identified in Fuller v Toms [2015] FCAFC 91 at [112].
The Court finds that it is apparent the applicant has sought to relitigate, both in these proceedings and in the Supreme Court of New South Wales proceedings, the same subject matter in relation to her candidature for a PhD. It is apparent that the applicant, from her conduct in these proceedings and her submissions, maintains that there has been misleading conduct in those proceedings and that there have been defamatory imputations by the representatives and/or alleged parties.
Both on the applicant’s affidavits and the applicant’s submissions, it is apparent that the applicant is likely to pursue further vexatious proceedings if not the subject of an appropriate restraint to prevent the waste of Court resources, time and also unnecessary cost to the community in respect of proceedings which have no reasonable prospect of success. The Court takes into account the principles that were identified by the learned Perram J in Official Trustee in Bankruptcy v Gargan (No.2) [2009] FCA 398.
The applicant’s conduct throws light on the prospect as to whether there would be further vexatious proceedings brought by the applicant. The Court is satisfied that, unless an order is made under s 88Q of the Act, the applicant is likely to pursue further vexatious proceedings.
Further, the Court is satisfied that the proceedings which have been commenced in the Supreme Court of New South Wales and these proceedings have caused obvious significant cost and inconvenience to the parties to those proceedings, quite apart from the scandalous nature of the allegations which have been included.
The Court is also satisfied that this is an appropriate case in which to make an order broader than just the subject matter of the PhD candidacy because the applicant’s conduct has identified a willingness to make broad and unsubstantiated scandalous allegations beyond the subject matter of the alleged implication of the proceedings. Both in the applicant’s affidavit and in oral submissions, the applicant has advanced allegations that are unsupported, unrelated to the proceedings and jurisdiction of this Court and seriously disparaging of persons not before the Court.
The Court is satisfied that, unless an order is made under s 88Q(2) of the Act, the applicant is likely to pursue other vexatious proceedings. The Court is also of the view that this is an appropriate case in which to prevent the applicant from pursuing any other extant proceedings in the Court without the grant of leave of the Court so that further Court resources, time and expense of the Court and parties is not further wasted.
I certify that the preceding thirteen (13) 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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