Nandutu v Chapman (No 2)

Case [2021] FCA 45

FEDERAL COURT OF AUSTRALIA

Nandutu v Chapman (No 2) [2021] FCA 45

Appeal from: Nandutu v Chapman(No.2) [2019] FCCA 3718
File number: NSD 2104 of 2019
Judgment of: STEWART J
Date of judgment: 29 January 2021
Date of publication of reasons: 1 February 2021
Catchwords: PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution pursuant to r 36.74(1)(d) of the Federal Court Rules 2011 (Cth) – in the alternative, application to dismiss appeal for failure to appear at a related hearing pursuant to 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) – where appellant failed to comply with directions or orders of the Court, failed to appear at hearings of the Court, failed to file or serve affidavit evidence and failed to communicate to the respondent or the Court her intentions with regard to the appeal – where appeal does not on the face of it have any merit – whether further delay would increase the prejudice to the respondent – appeal dismissed
Legislation:

Federal Circuit Court of Australia Act 1999 (Cth) s 88Q(2)

Federal Court of Australia Act 1976 (Cth) ss 25(2B), 37M(1), 37N(1)

Federal Court Rules 2011 (Cth) rr 1.34, 35.33(2), 36.74
Cases cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

Hoefler v Tomlinson (1995) 60 FCR 452

Nandutu v Chapman [2020] FCA 1798

Van Reesema v Giameos (1979) 27 ALR 525

Wade v AMI Australia Holdings Pty Ltd [2010] FCAFC 120; 274 ALR 431
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 29
Date of hearing: 29 January 2021
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:

29 JANUARY 2021

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

STEWART J:

  1. The appellant by amended notice of appeal filed on 14 January 2020 appeals against the whole of the judgment of Judge Street in the Federal Circuit Court on 18 December 2019 in Nandutu v Chapman(No.2) [2019] FCCA 3718. The orders made by his Honour were:

    (1)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).

    (2)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).

  2. The appellant also applied for leave to appeal against other orders made by his Honour, but I dismissed that…

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Nandutu v Chapman (No 2) [2021] FCA 45
Case
[2021] FCA 45
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Nandutu v Chapman (No 2) was heard before the court. The appellant, Nandutu, appealed against a decision made in a previous case, Chapman v Nandutu (No 2). The primary issue before the court was whether the appellant's appeal should be dismissed due to her failure to comply with the court's orders and directions, as well as her lack of communication regarding her intentions with respect to the appeal. The respondent, Chapman, argued that the appeal had no merit and that further delay would only increase the prejudice to her.

The court had to determine whether the appeal should be dismissed for want of prosecution under rule 36.74(1)(d) of the Federal Court Rules 2011 (Cth) or for failure to appear at a related hearing under section 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth). The court found that the appellant had not complied with the directions and orders of the court, had failed to appear at hearings, and had not filed or served affidavit evidence. Furthermore, the appellant had not communicated her intentions with respect to the appeal to the respondent or the court. The court also noted that the appeal did not appear to have any merit on its face. The court concluded that further delay would increase the prejudice to the respondent, and therefore, the appeal should be dismissed.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal. The court noted that the entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011. The dismissal of the appeal and the imposition of costs were deemed appropriate given the appellant's failure to comply with the court's orders and directions and her lack of communication regarding her intentions with respect to the appeal. The court also found that the appeal did not have any merit on its face and that further delay would only increase the prejudice to the respondent.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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