Nandutu v University of Sydney

Case •

[2019] NSWSC 1436

•

24 October 2019

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Nandutu v University of Sydney [2019] NSWSC 1436
Hearing dates: 18 June 2019 & written submissions
Decision date: 24 October 2019
Jurisdiction:Common Law
Before: R A Hulme J
Decision:

1. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings in 2017/374521, 2018/231384, and 2019/40642 are dismissed.

 

2. The plaintiff is restrained from taking any further steps, including making any further interlocutory application, in proceedings 2015/287280, without the prior leave of a judge of the Court. Any such application for leave shall be made by Notice of Motion filed and served upon the defendant supported by affidavit evidence explaining the purpose of the application and how it will advance the just, quick and cheap resolution of the proceeding.

 

3. Until further order, unless with the prior leave of a judge of the Court, the plaintiff is restrained from issuing any new proceeding in any court or tribunal in New South Wales against the defendant, including the defendant's employees, former employees, affiliates and students, where such new proceedings relate to, or arise out of, or concern:

 

a. the plaintiff's candidature for a PhD at the University of Sydney ("the candidature");
b. the management and/or administration of the candidature by the University of Sydney or its officers, employees, former employees, affiliates, or agents;
c. the suspension and termination of the candidature;
d. the supervision of the plaintiff during the candidature; and/or
e. the allegations made in any pleading or other document filed before the date of these orders in proceedings 2017/374521, 2018/231384 and 2019/40642.

 4. The plaintiff is to pay the costs of the defendants in respect of the notices of motion and the proceedings generally in 2017/374521, 2018/231384 and 2019/40642.
Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — r 13.4 – Self-represented litigant – Dispute over exclusion from PhD program at university – Initial proceeding filed 2015 – Three additional sets of proceedings commenced in 2017, 2018, and 2019 – No reasonable cause of action disclosed – Abuse of process

  CIVIL PROCEDURE — Application for orders preventing further proceedings – Orders made preventing plaintiff from making applications in existing proceedings – Whether to grant orders restraining plaintiff from commencing new proceedings in relation to same subject matter – Consideration of principles – Court has inherent power to prevent abuse of its processes – Orders made where abuse of process by relitigation – Whether orders available where abuse of process by multiplication of proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 14.30, 15.19
Vexatious Proceedings Act 2008 (NSW), s 8
Cases Cited: Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; [2003] EWCA Civ 1113
Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia [1987] FCA 135; (1987) 13 FCR 413
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17
Ebert v Venvil [2000] Ch 485
Hunter v Leahy [1999] FCA 1075; (1999) 91 FCR 214
McGuirk v University of NSW [2009] NSWSC 1424
Nandutu v University of Sydney [2017] NSWSC 509
Nandutu v University of Sydney [2019] NSWSC 375
National Australia Bank v Skoczek [2016] NSWSC 1765
Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31
Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, 16 June 1986)
Velissaris v Dynami Pty Ltd [2013] VSCA 299; (2013) 206 ALR 256
von Risefer v Permanent Trustee Company Ltd [2005] QCA 109; [2005] 1 Qd R 681
Watiwat v Dixon (No 2) [2017] NSWSC 1242
Willi v Banks [2018] QSC 284
Texts Cited: Ritchie’s Uniform Civil Procedure NSW, LexisNexis.
Category:Principal judgment
Parties: Susan Kana Nandutu (Plaintiff)
University of Sydney (Defendant)
Representation:

Counsel:
Ms S K Nandutu (Self-represented)
Ms B Tronson (Defendant)

  Solicitors:
Minter Ellison (Defendant)
File Number(s): 2015/287280; 2017/374521; 2018/231384; 2019/40642

Judgment

  1. HIS HONOUR: Ms Susan Nandutu has commenced four proceedings against the University of Sydney. They all arise from or relate in some fashion to her exclusion in 2014 from a Doctor of Philosophy (Medicine) Program administered by the Sydney Medical School, the University's graduate medical school.

The 2015 proceeding – administrative law (2015/287280)

  1. On 1 October 2015, Ms Nandutu commenced the first of the proceedings by way of Summons (the 2015 proceeding). It sought unspecified orders in relation to the decision by the Student Appeals Body to uphold the Sydney Medical School’s decision to terminate Ms Nandutu’s candidature in the PhD program in December 2014. After Ms Nandutu had received pro bono legal assistance, a Statement of Claim was filed in those proceedings on 17 August 2016. Orders are sought in the nature of certiorari and mandamus in relation to the decision of the Student Appeals Body.

The 2017 proceeding – defamation (2017/374521)

  1. Ms Nandutu commenced another proceeding against the University of Sydney by filing a Statement of Claim on 11 December 2017, in which she sought damages in respect of defamation (the 2017 proceeding). Whilst the events with which this proceeding is concerned appear to have occurred in the years subsequent to Ms Nandutu’s exclusion from her PhD program (although that is not entirely clear), they relate to things said and done in relation to it. On 15 December 2017, only four days after commencing that proceeding, Ms Nandutu filed an Amended Statement of Claim.

The 2018 proceeding – "tort law, common law and negligence" (2018/231384)

  1. Ms Nandutu commenced a proceeding against the University of Sydney and four individuals in the Federal Court of Australia on 21 June 2018 (the 2018 proceeding). That proceeding was stated to involve claims under “Tort Law, Common Law and Negligence”. The “pleadings” refer to matters such as an alleged breach of a duty of care which occurred whilst Ms Nandutu was a PhD student at the Sydney Medical School. On 11 July 2018, Ms Nandutu advised the Federal Court that she had commenced the proceeding in that Court because she was “in an indigent position” and the Supreme Court would not waive the filing fee. On 26 July 2018, Robertson J ordered that the proceeding be transferred to the Supreme Court.

The 2019 proceeding – breach of contract (2019/40642)

  1. Ms Nandutu commenced her fourth proceeding against the University of Sydney by filing a Summons on 6 February 2019, in which she sought damages for breach of contract (the 2019 proceeding). She alleged in the “pleading” that she had been “subjected to repeated breaches of contractual obligations which the defendant owed the plaintiff whilst PhD student in [Sydney Medical School]”.

Recent procedural history

  1. The University has taken the position that the 2015 proceeding is competently pleaded. It filed a defence on 26 October 2016. It contends that that matter should proceed to determination. In each of the other proceedings, it has filed Notices of Motion in which various orders are sought, but primarily for orders pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the proceedings be dismissed, or under r 14.28 of the UCPR that the pleadings be struck out. These Notices of Motion were listed for hearing on 4 April 2019 when they came before Schmidt J.

  2. The transcript of the proceedings before Schmidt J on 4 April 2019 indicates that Ms Nandutu initially resisted the hearing of the defendant’s Notices of Motion whilst she had applications of her own that she asked to be dealt with. One of those applications was that the 2018 proceedings be discontinued without any order for costs being made. The transcript indicates that her Honour dealt with Ms Nandutu’s applications and then embarked upon a hearing of the defendant’s application. The latter did not progress beyond the reading of affidavits because Ms Nandutu felt unwell and ultimately the hearing ceased.

  3. Her Honour made orders that the 2017 and 2019 proceedings be adjourned for directions on 12 April 2019. She ordered that, pending further order, and without prior leave of a judge of the Court, Ms Nandutu not issue any new proceedings arising out of her PhD candidature at the University of Sydney, and related issues. In addition, she ordered that, without prior leave of a judge of the Court, Ms Nandutu was not to file further motions in the proceedings which remained on foot, being the 2015, 2017 and 2019 proceedings. Those orders did not deal with the 2018 proceeding.

  4. The matter came back before Schmidt J on 12 April 2019. In relation to the 2018 proceeding, her Honour made an order granting Ms Nandutu’s application for leave to discontinue, but her Honour reserved the question of costs to be determined at the hearing of the University’s motions in respect of the 2017 and 2019 proceedings. She added that if Ms Nandutu failed to comply with the filing and service of Notice of Discontinuance in relation to the 2018 proceeding, that matter would be taken to be the subject of the orders she made in respect of the 2017 and 2019 proceedings.

  5. In relation to the 2017 and 2019 proceedings, her Honour’s orders included that Ms Nandutu file and serve any written submissions one week prior to the date allocated for the hearing of the motion. Because the question of Ms Nandutu’s health was a live issue, her Honour ordered that Ms Nandutu be excused from attending the hearing of the University’s motions, although she specifically noted that Ms Nandutu was not precluded from attending. She ordered that regardless of whether Ms Nandutu attended the hearing, she was to be provided with a transcript of the hearing within three business days of completion of that hearing. Following that, she was to be given a period of time to make any written submissions concerning the university’s motions. The University would then be given a period of time to make any written submissions by way of reply.

  6. Finally as to this recent procedural history, I note that the matter came back before Schmidt J on 29 April 2019 after she had been alerted to the fact that a hearing date had been set for the University’s summary dismissal and strike out applications in the middle of 2020. Her Honour clearly had in mind a hearing considerably sooner than that and determined to fix the matter for hearing on 18 and 19 June 2019 before a Common Law judge. Her Honour was notionally part-heard in the hearing of the applications, but she had foreshadowed that she would be on leave from sometime in May for an extended period. Her Honour was informed that no Notice of Discontinuance of the 2018 proceedings had been filed by Ms Nandutu, contrary to her Honour’s order of 4 April 2019. Accordingly, her Honour listed that matter for hearing along with the hearings concerning the 2017 and 2019 proceedings. Her Honour also directed the University to write to Ms Nandutu to advise her of those orders.

The hearing on 18 June 2019

  1. The hearing of the University’s applications was assigned to me and both parties appeared on 18 June 2019. Ms Nandutu appeared without representation, as expected, and the University was represented by Ms Tronson of counsel.

  2. At the outset, Ms Nandutu indicated that she was not aware that the University’s Notices of Motion were listed for hearing on that day. She said she had made an inquiry of a registry staff member some weeks prior and had been given to understand that it was only the 2015 matter that was listed on 18 June 2019, and that was for directions only. She denied having received any communication from the University’s solicitors advising her of the orders made by Schmidt J and specifically that the strike out and summary dismissal applications in respect of the 2017, 2018, and 2019 proceedings were listed for hearing.

  3. Counsel for the University indicated that her instructing solicitor had, on 29 April 2019, advised Ms Nandutu of the hearing date by way of an email. Ms Nandutu indicated that she had not received such email and offered as an explanation that because she had "been under strict restrictions to avoid stressful situation", she had not checked her "official emails"; she had only used her "personal emails". [1] A little later, a printout of the email in question was brought into court and it indicated that Ms Nandutu had indeed been sent an email by the solicitors acting for the University at 12.07pm on 29 April 2019 advising her of the orders made that day by Schmidt J. The email address to which the email was directed was exactly the same as the email that had been used by Ms Nandutu in the recent past, for example when forwarding various notices to admit facts and authenticity of documents forms to the University’s solicitors.

    1. Tcpt, 18 June 2019, p 5(1).

  4. I refused to grant Ms Nandutu an adjournment of the hearing of the University’s motions. I was satisfied that she had been appropriately advised in a timely way that the matters were listed for hearing on 18 June 2019. To deal with her complaint of not being prepared to engage with the hearing of the application on that day, I proceeded in the fashion contemplated by Schmidt J in her orders of 12 April 2019. Accordingly, I permitted the University to present its case and for counsel to make her submissions. Counsel spoke in supplementation to written submissions that had previously been filed and served. The proceedings were then adjourned so as to enable Ms Nandutu to respond with written submissions.

  5. Ms Nandutu sought an extended period of time in which to take advantage of that opportunity, claiming that she was presently not completely well and would not be in a position to respond in the near future. Given a period of extended leave I was due to embark upon in August 2019, I reluctantly acceded to her request to allow a period of about three months.

  6. For completeness I record that at the hearing, Ms Nandutu also expressed concern about certain Notices of Motion she had filed, which she pressed for resolution before the University's applications were heard. It emerged, however, that none were outstanding as they had been considered and resolved by Schmidt J on 4 April 2019. Her Honour made orders on that day and gave reasons in a judgment delivered the following day: Nandutu v University of Sydney [2019] NSWSC 375 at [9]-[28] (Nandutu v University of Sydney (Schmidt J)).

  7. Ms Nandutu was to file and serve her written submissions by 13 September 2019 and the University had until 4 October 2019 to provide any submissions in reply. Ms Nandutu filed submissions on the due date, but she did not serve a copy upon the University. When the University became aware of this, an extension of time was sought and granted. The University's submissions in reply dated 10 October 2019 were received on 14 October 2019.

The University’s applications

  1. I do not propose to itemise the affidavit evidence relied upon by the University aside from one aspect. The University sought to rely upon an affidavit of Ms Lana Ristic dated 19 February 2019. It was not read in the proceedings before Schmidt J because at that point, Ms Nandutu became unwell and the hearing was terminated. Ms Nandutu objected to it at the hearing before me, but was unable to articulate her objection. I said that I would provisionally admit it and provide her with an opportunity to outline the basis of her objection in submissions. [2] Ultimately, Ms Nandutu said nothing in relation to any objection to the affidavit. I regard it as part of the evidence before the Court.

    2. Tcpt, 18 June 2019, 13(47).

  2. In respect of each of the 2017, 2018, and 2019 proceedings, the University's primary application is for an order pursuant to r 13.4 of the UCPR: that the proceedings be dismissed on the grounds that the initiating process does not disclose a reasonable cause of action and/or the proceedings are an abuse of the process of the court.

  3. Alternatively, the University seeks an order pursuant to r 14.28: that the pleadings be struck out in whole or in part on the grounds that they are embarrassing, and/or do not disclose a reasonable cause of action nor make any claim for relief; and/or are an abuse of the process of the court.

  4. In relation to the 2018 proceeding, the University seeks in the alternative to the above relief, orders removing each of the second to fifth defendants on the basis that each of the individuals has been improperly or unnecessarily joined. Alternatively, it seeks an order pursuant to r 13.4: that the proceedings be summarily dismissed in relation to those persons on the grounds that no reasonable cause of action is disclosed against any of them and/or the proceedings in respect of them are an abuse of the process of the court.

  5. The University also seeks an order that Ms Nandutu be restrained from taking any further steps, including making any further application without the prior leave of a judge of the Court, in the 2015 proceeding and, if necessary, the 2017, 2018, and 2019 proceedings.

  6. Finally, the University seeks an order that, unless with the prior leave of a judge of the Court, Ms Nandutu be restrained from issuing any new proceedings in any New South Wales court or tribunal against the University, including its employees, former employees, affiliates, and students, where such new proceedings are related to or arise out of or concern:

(a)   the plaintiff’s candidature for a PhD at the University of Sydney;

(b)   the management and/or administration of the candidature by the first defendant or its officers, employees, former employees, affiliates or agents;

(c)   the suspension and termination of the candidature;

(d)   the supervision of the plaintiff during the candidature; and/or

(e)   the allegations made in any pleading or other document filed before the date of these orders in proceedings 2019/40642.

  1. Counsel advised that the term “affiliates” used in framing this proposed order has a particular and well-accepted meaning in the context of the University. It relates to people who are not employees or students, but are involved, for example, as members of the Student Appeals Body.

Further background

  1. Before turning to the detail of the University's applications, it is first useful to refer to some further background material, as helpfully set out in the written submissions of counsel for the University dated 26 March 2019.

  2. I have mentioned that the University regards the Statement of Claim in the 2015 proceeding as having been competently pleaded, but that was at a time when Ms Nandutu had legal assistance. However, her solicitor ceased to act and filed a notice in that respect on 21 November 2016. Ms Nandutu then proceeded to serve a series of draft amended statements of claim upon the University on 8 December 2016, 4 January 2017, 15 March 2017, and 16 March 2017. A Notice of Motion was filed on 4 January 2017 seeking leave to file an amended statement of claim.

  3. The application to file an amended statement of claim came before Hoeben CJ at CL on 10 April 2017 and his Honour gave judgment on 3 May 2017: Nandutu v The University of Sydney [2017] NSWSC 509 ("Nandutu v University of Sydney (Hoeben CJ at CL)"). His Honour determined that the pleading proposed in the Amended Statement of Claim was embarrassing in its form and content. His Honour said in part (at [33]) that:

“… far from setting out the basis for the plaintiff’s claim so as to allow the trial to be conducted fairly, the allegations in the ASOC are vague and expressed as generalisations, the relevance of which it is difficult to determine. The nature of the claims being brought against the defendant is simply not clear”.

  1. His Honour observed that (at [35]) “the confusing and somewhat rambling and repetitive content of the proposed ASOC is the very antithesis of that objective”; namely, enabling the court to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings (s 56 of the Civil Procedure Act 2005 (NSW)).

  1. His Honour referred to ways in which pleadings may be embarrassing, including if allegations are made at such a level of generality that the defendant does not know the case it has to meet (Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia [1987] FCA 135; (1987) 13 FCR 413 at 417-418). His Honour then observed:

“[37] The ASOC in this case is replete with examples of those kinds of generalisations and ambiguities. It is simply not possible to identify the specific causes of action relied upon and the averments which are said to establish that cause of action. Even where it is possible to identify a possible cause of action, the relevance of the factual assertions accompanying it is problematic in the extreme. In many cases the factual assertions are plainly irrelevant to any cause of action which could be said to arise from even a generous reading of the document.

[38] Another problem with the proposed ASOC is that general allegations of fraud are made without any particularisation. Moreover, those allegations of fraud are made in parts of the ASOC where they appear to have no relevance to other assertions there set out. …”

  1. His Honour refused leave to file the proposed Amended Statement of Claim and dismissed the Notice of Motion. He made an order that Ms Nandutu was not permitted to file an Amended Statement of Claim without the leave of the Court and that should she seek such leave, that application should be made on or before 31 August 2017.

  2. After Hoeben CJ at CL had given judgment, and before the matter subsequently came before Campbell J on 11 September 2018, Ms Nandutu:

(a)   filed and/or served five versions of her pleadings in the 2015 Proceedings (having filed and/or served four versions of her pleadings in the six months before the hearing before Hoeben CJ at CL);

(b)   commenced the [2017] Proceedings on 11 December 2017 and thereafter served four amended versions of her pleadings in that matter;

(c)   commenced the [2018] Proceedings in the Federal Court on 21 June 2018, explaining to Robertson J at the hearing on 26 July 2018 that she commenced in that Court because she was refused a waiver of the filing fee in the Supreme Court.

  1. The matter came before Campbell J on 11 September 2018. The transcript for that day indicates that there were two notices of motion upon which the University sought to move the court for summary dismissal or strike out orders of the 2017 and 2018 proceedings. There were also multiple notices of motions and "short minutes" [3] filed (or otherwise) by Ms Nandutu seeking orders, mostly (it would seem) for amending statements of claim or earlier notices of motion seeking the same. As it was on the occasions of the hearing before Schmidt J on 4 April 2019 and the hearing before me on 18 June 2019, Ms Nandutu claimed to be sick and unable to proceed. Her claim was not supported by any medical certificate. His Honour made it clear that an adjournment on medical grounds should always be supported by such a certificate.

    3. Tcpt 11 September 2018 – it is evident that Ms Nandutu was under the impression that she could seek interlocutory orders simply on the basis of her formulating "short minutes of orders".

  2. Campbell J adjourned the matter on the basis of giving Ms Nandutu one last chance to put things in order and file draft amended statements of claim in the 2017 and 2018 proceedings that would be in their final form, warning her that: "You really need to treat this as a final attempt to get things right". Ms Nandutu indicated that she understood. [4]

    4. Tcpt 11 September 2018, p22 l25

  3. Campbell J made the following orders:

“1.   The hearing of the notices of motion filed by the plaintiff on 31 August 2017 and 7 May 2018 and by the defendant on 18 May 2018 and 17 August 2018 is adjourned.

2.   List each of the 2015, 2017 and 2018 proceedings for directions before the Common Law Registrar at 9 a.m. on 23 October 2018.

3.   Grant leave to the plaintiff to file and serve an amended notice of motion in substitution for the motion of 31 August 2017 in the 2015 proceedings seeking leave to file a new and final version of a proposed Amended Statement of Claim by 8 October 2018;

4.   Grant leave to the plaintiff to file and serve an amended Notice of Motion in substitution for that filed on 7 May 2018 in the 2017 proceedings seeking referral for pro bono assistance (if so advised), to file a new and final version of a proposed Amended Statement of Claim and seeking leave to issue further subpoenas to produce documents.

5.   Grant leave to the plaintiff (if necessary) to file and serve a notice of motion in the 2018 proceedings seeking leave to file an amended statement of claim to the intent that that should be the final version of the statement of claim.

6.   In each case the motion or amended motion must be supported by an affidavit explaining why the amendment is necessary and in each of the 2015 and 2017 proceedings explaining delay in propounding the final version of the statement of claim. To the extent that the explanation is the receipt of new information the affidavit must state what the information is, when it was received and why it makes a difference.

7.   In each case the final version of the statement of claim must be annexed to the affidavit.

8.   In the case of the 2017 proceedings the schedule of documents sought to be produced must be annexed to the affidavit.

9.   Subject to order 11 below the matters are not to be relisted unless the plaintiff produces a medical certificate certifying her fit to conduct the interlocutory hearing.

10.   No further adjournment of any hearing in any of the proceedings on medical grounds is to be granted unless supported by medical evidence.

11.   Liberty to the defendant to apply on 23 October 2018 to have its motions of 18 May 2018 and 17 August 2018 relisted if the plaintiff is in default of any of her obligations under these orders.

12.   The defendant’s costs of today are reserved.”

  1. The University observed that subsequent to Campbell J having made those orders, Ms Nandutu:

“(a)   filed and/or served three versions of her pleadings in the 2015 Proceedings;

(b)   filed and/or served two versions of her pleadings in the [2017] Proceedings;

(c)   filed and/or served three versions of her pleadings in the [2018] Proceedings;

(d)   commenced the 2019 Proceedings and served a further version of her pleadings in that matter; and

(e)   sought to have further subpoenae issued.”

The University's applications for summary dismissal or striking out

  1. The University contends that all of Ms Nandutu’s pleadings in each of the 2017, 2018 and 2019 proceedings exhibit the same deficiencies, or kinds of deficiencies, addressed in Nandutu v The University of Sydney (Hoeben CJ at CL) at [30]-[39].

  2. The University submitted that the pleadings in each of the three proceedings are in a form that neither the opposing parties nor the Court should be required to confront. Reference was made to National Australia Bank Ltd v Skoczek [2016] NSWSC 1765 where Johnson J (at [49]-[50]) said that he found the pleadings in that case to be "difficult to comprehend" and "embarrassing in nature in that they are expressed in a general way without expression or articulation of material facts".

  3. It was submitted that in this case, the pleadings do not "state with sufficient clarity the case that must be met by" the University (or other defendants), where the claims by Ms Nandutu were "vague and largely unintelligible". Other criticisms were that any "material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to" and that the "allegations are made at such a level of generality that the University does not know in advance the case it has to meet": McGuirk v University of NSW [2009] NSWSC 1424 at [21], [30], [32]-[33].

  4. The University submitted that there have been significant delays in relation to the 2015 proceeding. (I note the Defence was filed around three years ago). It was argued that the interests of justice are not served by allowing Ms Nandutu's conduct to continue.

  5. In relation to the 2017 proceedings in which defamation is alleged, the University pointed out that the failure of Ms Nandutu to comply with the requirements of rr 14.30 and 15.19 of the UCPR concerning the prohibition on pleading falsity, malice, or unlawfulness as well as the general requirements as to the particulars required.

  6. The University also criticised the 2017, 2018, and 2019 proceedings as constituting an abuse of process similar to the situation of litigating the same matter in concurrent proceedings in different courts. (Reference in this regard was made to the discussion in Ritchie's Uniform Civil Procedure NSW, LexisNexis at 13.4.10.)

  7. Ms Nandutu's failure to plead her claims in a competent fashion despite many attempts over the years was said to emphasise the abusive or vexatious nature of the 2017, 2018 and 2019 proceedings. While it appreciated the difficulty for a person in Ms Nandutu's position to agitate claims of some complexity, the University argued that regard should be had to its own position (and that of the individual defendants) and to the impact on the Court's resources if Ms Nandutu were permitted to continue conducting proceedings in the manner in which she has done to date. She has had the benefit of legal assistance in formulating the pleadings in the 2015 proceeding, the benefit of the explanation of Hoeben CJ at CL in his judgment in May 2017 for what he considered to be the deficiencies in the pleadings, as well as the benefit of the remarks and the "last chance" provided by Campbell J in September 2018. I take the University to be saying that despite being afforded these benefits, Ms Nandutu's approach to the litigation has continued regardless.

The University's supplementary oral submissions

  1. In comparing what appear to be the bases of the claims raised in the 2017, 2018, and 2019 proceedings with that which is raised in the 2015 proceedings, the University invited consideration of the proposition that Ms Nandutu ought to be permitted to raise other issues, even though they are not raised in the 2015 proceedings. [5] Counsel submitted that the University’s response would be that this is what Ms Nandutu had purported to do in 2017 in her failed attempt to amend the statement of claim in the 2015 proceedings; the attempt that was rejected by Hoeben CJ at CL. Accordingly, it was the University's submission that it was insufficient to merely strike out the pleadings in each of the 2017, 2018, and 2019 proceedings. Rather, the appropriate remedy is dismissal of the proceedings themselves.

    5. Tcpt,18 June 2019, p 16.

Ms Nandutu's submissions

  1. Because of her asserted unpreparedness at the hearing on 18 June 2019, Ms Nandutu confined herself in oral submissions to a broad contention that there was no duplication of proceedings; "the causes of action and the matters complained about in each of the cases are different … The matters complained about happened at different times". [6] As indicated earlier, she was permitted time to develop her argument in written submissions to be filed and served three months hence.

    6. Tcpt,18 June 19, p 21(41).

  2. Ms Nandutu's written submissions filed on 13 September 2019 completely failed to deal with the substance of the University's applications for summary dismissal or striking out (or with the application for restraint upon further proceedings, interlocutory or otherwise). They are drafted in the same style as her various attempts at pleadings in the 2017, 2018, and 2019 proceedings. To a significant extent, they are difficult to comprehend. They are confined in their focus upon matters that do not arise for determination. They refer to evidence that is not before the Court. They are scandalous to the extent that they include allegations of ethical and criminal misconduct by lawyers for the University without any evidentiary basis.

Determination

  1. In the course of what follows, there will be reference to the terms of some of Ms Nandutu's attempts at pleadings. What is referred to are simply examples; the difficulties are evident from the entirety of what she has filed, or sought to file.

  2. As to the "duplication" of proceedings issue, the version of the amended statement of claim in the 2015 proceeding considered by Hoeben CJ at CL was the third attempt at making amendments after the version filed along with the Notice of Motion heard by his Honour. It was a version annexed to Ms Nandutu's affidavit of 23 March 2017: Nandutu v The University of Sydney (Hoeben CJ at CL) at [18]. [7] This version sought relief for:

    7. A copy of this version of the pleadings was forwarded to the University's solicitors by email on 16 March 2017 and is Annexure K to the affidavit of Ms Michelle MacMahon of 24 March 2017.

"CONTRACT LAW

1. Orders for damages to compensate the plaintiff for losses caused by defendant's failure to deliver promised education services as PhD student in SMS …

ADMINISTRATIVE LAW

4. Order in the nature of certiorari setting aside the decision of the Student Appeals Body.

5. Order in the nature of mandamus requiring the Student Appeals Body …

FAILURE IN DUTY OF CARE, MISREPRESENTATION, FRAUD

8. Orders for damages to compensate the plaintiff … due to:

(1) Defendant’s failure in duty of care to the plaintiff whilst PhD student in SMS.

(2) Misrepresentation, deception and fraudulent actions against the plaintiff – denying her legal rights.

(3) Falsified information against the plaintiff disseminated by Christopher Jordens – Sydney University employee in SMS, including “print out” with false entries and wrong information lumped on the plaintiff’s personal details, which he alleged to be the plaintiff’s Sydney University Academic Record and he disseminated that falsified information.

(4) Defendant’s facilitation, endorsement and defence of what is noted in 8(ii), (iii).”

  1. The "Contract Law" claim appears to be of similar substance to what is "pleaded" by Ms Nandutu in the 2019 proceeding.

  2. The "Administrative Law" claim continues the 2015 claim.

  3. The "Failure in duty of Care, Misrepresentation, Fraud" claim appears to be something of an amalgam of the 2017 proceeding with additional aspects.

  4. There is force in the University's contention that what Ms Nandutu has done is avoid Hoeben CJ at CL’s criticism of her attempts to amend her pleadings in relation to the 2015 proceeding, by way of commencing the three separate subsequent proceedings. However, the pleadings in those proceedings are no better.

  5. In the 2017 proceeding, the Amended Statement of Claim filed on 15 December 2017 purports to plead a case in defamation. It includes assertions of fact of broad generality in an incomprehensible style, such as:

"5. Severe damage and injury caused to the plaintiff by the defendant and specified persons who are defendant's employees, and severity of injury and harm caused to the plaintiff – worsened by the defendant and specified persons who are defendant's employees, including but not limited to Christopher Jordens – intentionally, repeatedly and maliciously published false and defamatory claims against the plaintiff, and maliciously caused publication and dissemination of false and defamatory claims against the plaintiff, including on 1 December 2016 at global conference, 2, 5 and 6 December 2016 after same global conference, 23 August 2017 at regional peace conference (Attachments 1, 2, 3), and

(1) the defendant did not check false matter, false, defamatory claims used against the plaintiff against the plaintiff by specified persons who are defendant's employees; yet

the plaintiff complained to the defendant on false matter and false claims used against her by specified persons who are defendant's employees, including – but not limited to Christopher Jordens, prof Gary Halliday, ass/prof Peter McCallum;

(2) the defendant sanctioned use of false matter, false and defamatory claims against the plaintiff by specified persons who are defendant's employees, including – but not limited to Christopher Jordens;

(3) the defendant facilitated and sanctioned use of false and defamatory claims against the plaintiff by specified persons who are defendant's employees, including – but not limited to Jake Lynch;

(4) the defendant blocked the plaintiff's efforts for action to check use of falsified material, false matter and false claims against her, by specified persons who are defendant's employees, including – but not limited to Christopher Jordens, and he deliberately maliciously, and repeatedly published, and caused publication and dissemination of false and defamatory claims against the plaintiff."

  1. The latest attempt by Ms Nandutu to further amend the statement of claim in the 2017 proceeding is one she served upon the University on 18 February 2019. [8] It represents a slight improvement in that it exhibits some awareness of the requirements of the UCPR as to drafting pleadings in defamation, but it remains embarrassing for the lack of precision in its factual detail to enable the defendant (and a court) to understand the detail and scope of what is alleged. Some assertions are not self-evidently relevant and a considerable number are simply incomprehensible. There are also pleadings of matters of law and pleadings of conclusions without apparent foundations.

    8. Affidavit, Lana Ristic, 19 February 2019 at par 12, Annexure D.

  2. The following is an example of the style of the pleadings in that version:

“4.   The Plaintiff pleads for Court action:

(1)   under NSW Defamation Act 2005, in respect of the causes of action constituted by publications of false matter with 14 imputations defamatory of the plaintiff and her reputation, noted in paragraphs 7(1), (2) and (3), and in paragraphs 8(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) (below).

(2)   By what is noted in paragraph 4(1), severe damage, loss and harm caused to the plaintiff, by publications in 2017, with imputations defamatory of the plaintiff, published by specified persons who are/were first defendant’s employees.

(3) The plaintiff was identified in what is noted in paragraphs 4(1) and (2). On identification in publications of false matter with imputations defamatory or reputation, see also Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, Supreme Court of Queensland.

5.   The Plaintiff pleads for Court action:

(1) under Australian Consumer Law, Competition and Consumer Act 2010, Schedule 2, Section 21(1)(a), for unconscionable conduct and prohibited actions against the plaintiff whilst PhD student in SMS of USYD, by specified persons who are/were first defendant’s employees:

(1)   on 6/8/2014 prof Simon Chapman and a/prof Christopher Jordens produced false document; aforementioned false document was endorsed and adopted by a/prof Christopher Jordens, to be used, and used against the Plaintiff;

(2)   false document noted in paragraph 4(2)i., was used as base for, for supporting falsified records and false documents, provided to other academics and other persons on 10/3/2015, 1/3/2015, and in October and November 2014 by a/prof Christopher Jordens, and on 2/3/2015 by prof Gary Halliday, to be used, and used as basis for decisions with severe and far-reaching consequences for the plaintiff.

(3)   falsified records and false documents noted in paragraph 4(2)(a) and (b), were used as ‘official sources’ for false matter with imputations defamatory of the plaintiff, provided to other persons and to public offices in 2015, 2016, 2017 and 2018, ruining the plaintiff’s reputation, discrediting the plaintiff, and to influencing public officers and decisions against the plaintiff.”

  1. In the 2018 proceeding, there is a "Statement of claim" filed in the Federal Court on 19 June 2018 that includes:

“1   The Applicant enrolled for PhD studies in Sydney Medical School (hereafter 'SMS') of University of Sydney (hereafter 'USYD') on 31 August 2010.

2   The Applicant was a subject of repeated breaches according to statutes and legislations from February 2012 to 25 June 2015.

3   The Applicant maintains and can establish breach of duty of care occurred from:

(i) Negligence (Torts Law, Common law negligence);

(ii) unconscionable and prohibited conduct with supply services for her PhD candidature during the period noted in paragraph 2; and

(iii) the Applicant vehemently brings negligence claim under the Competition and Consumer Act 2010 (Cth) Schedule 2; and

(iv) fraudulent and dishonest actions from the Respondents misrepresented the Applicant's abilities, competence and intellectual capacity and denied her, her basic right in continuing her studies.

(v) the Applicant can further justify her negligence claim under contravention of: Human Rights (Parliamentary Scrutiny) Act 2011, No. 186, 2011; International Covenant on Economic, Social and Cultural Rights (1966, 1976); International Convention on the Elimination of All Forms of Racial Discrimination (1965, 1969); Convention on the Elimination of All Forms of Discrimination against Women (1979, 1981); Racial Discrimination Act 1975; Anti-Discrimination Act 1977 (NSW)."

  1. On 15 February 2019, Ms Nandutu sent to the University's solicitors a "Statement of Claim" together with a "Revised Amended Notice of Motion, 8 February 2019" in respect of this proceeding. [9] The "Statement of Claim" appears to plead a case in negligence against the University and four individual defendants, for example:

“4.   The Plaintiff maintains and can establish breach of duty of care occurred from:

(i)   Negligence (NSW Civil Liabilities Act 2002, Common Law negligence)

(ii) unconscionable conduct and prohibited actions against the Plaintiff, whilst PhD student in SMS of USYD, by the respondents (Australian Consumer Law (ACL) Competition and Consumer Act 2010, Schedule 2, Sections 18, 21(1) and 29(1)(b).

(iii)   prohibited actions from the respondents, misrepresented the plaintiff’s abilities, competencies and intellectual capacity, and caused severe harm and damage to the plaintiff.”

9. Affidavit, Lana Ristic, 19 February 2019 at par 9, Annexure A.

  1. An example of the style of pleading in relation to the individual defendants is:

“15.   I was subjected to false document produced on 6/8/2014 by prof Simon Chapman and a/prof Christopher Jordens; endorsed and adopted by a/prof Christopher Jordens; and used

(1)   as base for, and for supporting falsifying my student and academic records in SMS of USYD; and

(2)   as base for, and for supporting falsified records and documents deceitfully alleged to be my student and academic records in SMS and USYD.

(3)   for supporting falsified records and false documents mentioned in paragraph 13(1)

(4)   used as base for, and for supporting false documents, and which are insonsistent with facts and evidence of what happened, and inconsistent with USYD mandatory requirements for PhD Annual Progress Reviews, through out entire period the plaintiff was PhD student in SMS; and

documents mentioned in paragraph 15(4), were deceitfully alleged to be the plaintiff’s 2014, 2013 and 2012 PhD Annual Progress Review reports.”

  1. The “Summons” in the 2019 proceeding filed on 6 February 2019 (the claim for breach of contract) includes:

“3.   The plaintiff, was subjected to repeated breaches of contractual obligations, which the defendant owed the plaintiff whilst PhD student in SMS; the plaintiff was subjected to breaches according to statutes and legislations from February 2012 to 25 June 2015;

(1)   breaches in respect to supervision for the plaintiff’s PhD candidature in SMS of USYD, by PhD supervisor;

(2)   breaches of USYD mandatory requirements in respect to supervision of the plaintiff’s PhD candidature by PhD supervisor, occurred under applicable USYD Rules and Policy, including:

i.   USYD (Higher Degree by Research) Rule 2011, Sections 4.09(1) and (2); 4.11; and

ii.   USYD Supervision of Higher Degree by Research Students Policy 2013 (no amendment), multiple breaches occurred.

4.   The Plaintiff can establish and demonstrate to the Courts, breaches complained about occurred:

(1)   the Plaintiff was denied:

i.   education and services for her PhD candidature in SMS from 2012 to Semester 1 2015;

ii.   supervision for the plaintiff’s PhD candidature in SMS of USYD, by PhD supervisor(s) in 2012, 2013, most of 2014 (except for one month in 2014), and Semester 1 2015.

iii.   academic support, monitoring, appraisal and reporting for the plaintiff’s PhD candidature by PhD supervisor(s) in 2012, 2013, 2014 and Semester 1 2015.

iv.   access to 2012, 2013, 2014 Annual Progress Reviews (hereafter “APR”), which should have been conducted in accordance with USYD mandatory requirements for PhD APR, spelled out in the the applicable USYD Policy and Rules.

(2)   the Plaintiff was denied access to 2012, 2013 and 2014 PhD Annual Progress Reviews, which should have been conducted in accordance with USYD mandatory requirements.”   

  1. In Nandutu v University of Sydney (Hoeben CJ at CL), after saying that it would be "quite inappropriate" to grant Ms Nandutu leave to file the 23 March 2017 version of the amended statement of claim in the 2015 proceedings – the version that was an attempt to encompass the wide range of her claims – Hoeben CJ at CL observed (at [40]):

"That does not end the matter. The legal concepts which the plaintiff appears to be trying to articulate are complex and require the expertise of somebody who is legally qualified. In fairness to the plaintiff, some time should be allowed to her to enable her to seek such legal advice, if such is available, and to be in a position to file an Amended SOC if the advice she receives is to that effect."

  1. Regrettably, little has changed in Ms Nandutu's attempts to plead her various claims that were subsequently hived off in the three separate proceedings now under consideration. I am satisfied that the three sets of proceedings constitute an abuse of process of the court in that they represent a seemingly never-ending and continually inept attempt to plead claims that remain opaque, to put it mildly. The pleadings also qualify for the description "embarrassing" in that it is virtually impossible to discern, with the necessary degree of clarity, the case that must be met by the University. Even where it might be possible to identify issues, the pleadings are so ill-defined that they deny the University the procedural fairness to which it is entitled.

  2. I am satisfied that the 2017, 2018, and 2019 proceedings should be summarily dismissed, partly upon the basis that they do not disclose a reasonable cause of action, but more so because they, and the various attempts at amendment, constitute an abuse of the processes of the Court.

Application for orders preventing further proceedings

  1. The University submitted that the only thing that will do justice between the parties, taking into account the use of court resources and the observations of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) at 27, recently approved by the High Court in Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31 at [47], is to make orders in each proceeding which, overall, prevent Ms Nandutu (without leave of the Court) from taking any further steps other than steps to prosecute the 2015 proceedings on the basis of the competent pleadings. It was submitted that such an order is necessary to prevent any further multiplication of proceedings. [10]

    10. Defendant’s written submissions, 26 March 2019, at par 14.

  2. The restraining orders sought are, in effect, twofold. First, the University seeks an order to prevent Ms Nandutu from making applications in the course of the existing proceedings, namely the 2015, 2017, 2018, and 2019 proceedings. Second, the University seeks to restrain the commencement of proceedings relating to the same subject matter by Ms Nandutu in the future. Both sets of orders would be subject, of course, to the leave of a judge of the Court. Orders of these types were made on an interim basis (i.e. "pending further order") by Schmidt J on 5 April 2019 when adjourning the hearing of the University's motions. In oral submissions, the University agreed that such orders could be made on an interim basis ("until further order"), for the purpose of allowing the parties to focus on bringing the 2015 proceedings, which the University accepts as competently pleaded (in the Statement of Claim filed on 17 August 2016), to a conclusion.

Principles

  1. As a broad proposition, it is well accepted that the Court has an inherent power to prevent the abuse of its processes; see, for example, von Risefer v Permanent Trustee Company Ltd [2005] QCA 109; [2005] 1 Qd R 681 (von Risefer) at [14] (Keane JA).

  2. There are statutory avenues to control abuse of process available through the Vexatious Proceedings Act 2008 (NSW) (and equivalents), which regulates persons declared to be "vexatious litigants", against whom appropriate orders can be made, including to prohibit the person from instituting proceedings pursuant to s 8 of the Act. The University does not press for such statutory orders in these proceedings.

  3. In relation to the first set of orders sought, I accept that the court has the inherent power to restrain Ms Nandutu from making further applications in the course of existing proceedings.

  4. In relation to the second set of orders pressed for by the University (and other defendants), the inherent power of the Court to make an order to prevent Ms Nandutu from commencing fresh proceedings, whether in this Court or another, in relation to the same matters presently in issue, is arguably a more controversial question. The relevant legal principles and lines of authority have, however, been helpfully discussed recently by a member of this Court, as well as in the Victorian Supreme Court of Appeal and Queensland Court of Appeal.

  5. The High Court authority on this question is Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17 (Inglis). Barwick CJ and McTiernan J held that the court only had the inherent power to make orders preventing applications made in existing proceedings; it did not extend to orders preventing fresh proceeding against any person altogether. Their Honours relied on the absence of authorities supporting this proposition, as well as the effect of vexatious proceedings legislation which would have abrogated any inherent power should it exist.

  6. This has not, however, closed consideration of this question, as both Australian and English courts have examined the effect of the Inglis decision in recent years.

  7. For example, subsequent consideration of Inglis led to this broad proposition being distinguished by the Federal Court of Australia in Hunter v Leahy [1999] FCA 1075; (1999) 91 FCR 214 (Hunter). As Robb J helpfully explained in Watiwat v Dixon (No 2) [2017] NSWSC 1242 (Watiwat):

“[40] In Hunter v Leahy, French J had to decide whether or not an order made by Sheppard J barring the applicant from instituting proceedings without leave was valid. In relation to Inglis, his Honour said at [17]:

'I do not regard the decision in Commonwealth Trading Bank v Inglis as so constraining the inherent jurisdiction or the implied incidental power of this Court or the application of s 23, that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to relitigate the substance of matters already determined in proceedings which have been disposed of in the Court.'

[41] French J relied upon Attorney-General v Wentworth (1998) 14 NSWLR 481 in support of his decision. In that case, the applicant sought an order pursuant to s 84(1) of the Supreme Court Act 1970 (NSW), which gave the court power to restrain a person who had ‘persistently and without any reasonable ground institute[d] vexatious proceedings’. Roden J considered the distinction between the institution of proceedings and the taking of a step in proceedings that were already before the court and said at 492:

'I regard Commonwealth Trading Bank v Inglis as authority for the proposition that interlocutory proceedings taken in the course of an action, no matter by whom they are instituted, are subject to the inherent power of the court to protect its processes from abuse. In so far as they are interlocutory proceedings in a pending action, they are not, in my view, “proceedings instituted” for the purposes of s 84. However, if they seek substantive relief, and particularly if they seek to bring an additional party into the proceedings, they are capable of being so regarded, even if they are properly commenced by notice of motion in existing proceedings.'

[42] Roden J said that the court should look at what the litigant had attempted to do in substance rather than form when determining whether or not they had ‘instituted proceedings’. French J applied this reasoning in Hunter v Leahy in effect to hold that the court has the inherent power to restrain an action that in form institutes fresh proceedings if it in substance seeks to relitigate a matter that has already been determined."

  1. It is important to note that French J found that the court has power to restrain the institution of fresh proceedings if they in substance seek to relitigate a matter that has already been determined.”

  2. The approach taken by French J was followed by Keane JA (as he then was) in von Risefer. His Honour gave reasons (at [23]-25]) for the orders that were primarily directed at a situation where it is apparent that the party is seeking to relitigate a matter that has been taken to finality:

“[23] The defendants seek orders to protect them against further proceedings by the plaintiffs in addition to protection against further applications being made in the proceedings which are already pending…

…

[24] In Hunter v. Leahy, French J. stressed that it was the substance and not the form of the proceedings that was of most importance. An order could still be made to restrain the institution of new proceedings so long as it could be determined that those proceedings constituted an attempt to relitigate a dispute that had already been concluded. As French J. said:

'I do not regard the decision in Commonwealth Trading Bank v Inglis as so constraining the inherent jurisdiction or the implied incidental power of this Court or the application of s 23, that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to relitigate the substance of matters already determined in proceedings which have been disposed of in the Court.'

[25] I respectfully agree with these observations of French J. In my view, this Court has the power to protect the defendants against any further attempt by the plaintiffs to relitigate the same complaints in fresh proceedings as an aspect of the inherent jurisdiction to which I have referred or, possibly, in reliance on s. 58 of the Constitution of Queensland 2001. It is, no doubt, a power to be exercised with the utmost caution; but this case affords a clear example of the kind of case in which it should be exercised to protect parties against whom baseless allegations of unlawful conduct have repeatedly been made from the expense, inconvenience and hurt involved in the further repetition of those allegations.” [Citations omitted]

  1. English courts have also had cause to consider and distinguish the decision in Inglis. A helpful analysis of the English line of decisions is to be found in the judgment of Whelan JA (Tate JA and Osborn JA agreeing) in Velissaris v Dynami Pty Ltd [2013] VSCA 299; (2013) 206 ALR 256 (Velissaris). There, his Honour discussed the decision of the English Court of Appeal in Ebert v Venvil [2000] Ch 485, in which the court had been asked to consider whether a plaintiff should be restrained by order from commencing new proceedings against a specific party in relation to specific issues, and summarised the effect of the decision as follows:

“[110] …the Court of Appeal first observed that there was no dispute about the Court’s inherent jurisdiction to prevent further applications being made without the leave of the Court in existing proceedings. This had been ‘authoritatively decided’ in Grepe [v Loam (1887) 37 Ch D 168. CA]. Lord Woolf indicated that the controversial issue was whether there was jurisdiction to impose such a prohibition in relation to new proceedings.

[111]   Lord Woolf observed that it could ‘hardly be doubted’ that the Court ought to have that jurisdiction. He then reviewed the history of Mr Ebert’s litigious activities.

[112]   The Court referred to the decision in Inglis, and to a decision from the Supreme Court of New Zealand, and quoted two long passages from the judgment in Inglis.

[113]   The suggestion in Inglis that courts had not previously taken the step of making orders to prevent the commencement of new proceedings, other than under vexatious litigation legislation, was revealed not to have been the case as a result of investigations undertaken by senior counsel who had appeared as amicus curiae before the Court of Appeal with the assistance of the Crown Office. Those investigations had revealed that at least six orders restraining the institution of fresh proceedings had been made prior to the Vexatious Actions Act 1896 being passed. Other orders made of a like kind since the passage of the legislation were also identified, although the Court pointed out that in relation to both categories of order (before and after the legislation) it was far from clear that the issue had ever been fully argued.

[114]   The Court of Appeal observed that the existence of the history revealed in the course of the proceeding before it, of which the High Court in Inglis had been unaware, meant that the approach in Inglis could not be ‘accepted uncritically’, and the judgment then addressed the relevant issues ‘from a standpoint of principle’. The breadth of the inherent jurisdiction of any court to prevent its procedures being abused was reviewed, and the following conclusion was reached:

'The court undoubtedly has the power to stay or strike out vexatious proceedings when they are commenced under its inherent power. We can see no reason in principle why it should not also, in accord with the general approach to the granting of quia timet injunctions, exercise that power to prevent the serious loss that anticipated but unidentified proceedings could cause the defendants to those proceedings'.

The Court said that it was ‘firmly of the opinion’ that the orders made were ones which the Court had been entitled to make."

  1. Whelan JA went on to explain how the broader English position has been confirmed in subsequent authorities:

“[115]   The English Court of Appeal confirmed the position as described in Ebert, and clarified the procedures which ought to be followed, in Bhamjee v Forsdick [(No 2) [2004] 1 WLR 88; [2003] EWCA Civ 1113].

[116]   The Court in Bhamjee reviewed at some length the significant problems being visited upon litigants and the courts as a result of a ‘very small category of litigants’ who were ‘bombarding’ the courts with unmeritorious applications. The Court referred to the breadth of the power to prevent abuse and in that context adopted the following observation of Alderson B in Cocker v Tempest [(1841) 7 M & W 502]:

'The power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion ...'

[117]   The conclusion in Ebert was endorsed in Bhamjee, and a cascading range of orders was prescribed. That range began with an order of the kind made in Grepe, described as a ‘civil restraint order’. There was then an order extending to fresh proceedings, described as an ‘extended civil restraint order’. Then, a more extended order, referred to as ‘a new general civil restraint order’, was described. Guidelines for the imposition of these orders were set out. This new approach to protective measures was said to be required not just to protect prospective litigants but to protect the resources of the courts themselves. The Court of Appeal endorsed the view, also advanced in Ebert, that this approach was bolstered by the civil procedure reforms which had been introduced in the United Kingdom under the Civil Procedure Rules.” [Citations omitted]

  1. The decision of the English Court of Appeal in Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; [2003] EWCA Civ 1113 relied strongly on the inherent power of the court to make the orders, saying the following at [33]:

“It is therefore well established on authority that: (i) this court, like any court, has an inherent jurisdiction to protect its process from abuse; (ii) the categories of abuse of process will never be closed; (iii) no litigant has any substantive right to trouble the court with litigation which represents an abuse of its process; (iv) so long as the very essence of a litigant’s right to access the court is not extinguished a court has a right to regulate its processes as it thinks fit (absent any statute or rule or practice direction to contrary effect) so long as its remedies are proportionate to the identified abuse (whether it is existing or threaten); (v) one way in which a court may legitimately regulate its processes is by prescribing a procedure to be conducted entirely in writing.”

  1. Returning to Velissaris, Whelan JA summarised the present position in Australia as follows (at [139]-[144]):

“[139]   Inglis was concerned with an application to restrain the institution of new proceedings in the widest of terms. The High Court held that such an order could only be made under the applicable vexatious litigant legislative provisions. The Court’s acceptance of Grepe means that the Court must be taken to have accepted that orders after judgment were capable of being ‘regarded as’ made in the action. The dicta in Inglis confines the exercise of the inherent jurisdiction to the Grepe situation.

[140]   This Court must have due regard to the dicta in Inglis, but it cannot ignore the deficiencies in the material before the High Court, as pointed out in Ebert, and it is also bound to have due regard to two decisions of another intermediate appellate court, the Queensland Court of Appeal, on what is an issue of Australian common law.

[141]   But for Inglis, I would adopt the English position as set out in Ebert, and to the extent applicable in Australia in Bhamjee. It seems to me that Inglis does preclude that course.

[142]   Inglis does not, however, preclude the adoption of the course taken in Hunter and adopted in von Risefer and in Goodwin, in my view. Orders can be made in exercise of a court’s inherent jurisdiction to prevent abuse of its own processes so as to restrain the institution of fresh proceedings without leave, where those proceedings are in substance an attempt to overturn a judgment already given and re-litigate a matter already decided.

[143]   Such orders can properly be made by reference to the subject matter of the judgment the party is seeking to re-litigate, as was done in Manolakis, Westwill, and Optquest.

[144]   Like French J in Hunter, I think the proper basis for such orders is the inherent jurisdiction, not rules like Rule 27.06 which concern a court official’s consideration of a document put forward by a party.” [Citations omitted.]

  1. From this, it appears that as Whelan JA said above at [142], the inherent power of the court to prevent abuse of process extends to the power to make an order restraining a plaintiff from commencing future proceedings subject to leave of the court, if in substance, the proceedings are a relitigation of already decided issues.

  2. There are two relevant recent decisions in which a court sitting at first instance has considered whether to make the order currently sought by the defendant. In the decision of this Court in Watiwat, Robb J dismissed the plaintiff’s proceedings pursuant to r 13.4 of the UCPR for failing to disclose a reasonable cause of action. On the issue of whether to grant orders “barring Mr Watiwat from bring fresh proceedings in relation to the same or substantially the same causes of action without the leave of the court”, Robb J reviewed the principles, similarly quoting the above extracts from Velissaris. His Honour then said the following:

“[57] There is a question about whether, when the Courts of Appeal of Queensland and Victoria considered that the court has inherent power to restrain the commencement without the leave of the court of proceedings that involved an attempt to reopen concluded litigation, the principle discussed extended to a plaintiff who had not otherwise acted with the indicia of a vexatious litigant in any way, but whose second attempt to draw his own statement of claim had led to the summary dismissal of his proceedings because he had not been able to formulate claims that were known to the law.

[58] It may be arguable that the court does have jurisdiction to restrain the commencement of new proceedings in these circumstances without the leave of the court, but in my view having regard to the judgment of the High Court in Inglis and the terms of the judgments in the Courts of Appeal that I have briefly outlined above, that remains a contentious question.”

  1. At [57], Robb J referred to a requirement that the plaintiff against whom orders are sought must have “acted with the indicia of a vexatious litigant”. In any event, Robb J declined to make the order in circumstances where his Honour did not consider that he had been sufficiently addressed on the principles by the parties. Even assuming that there was a power to make such an order, his Honour did not do so because it would be inappropriate in a case where the plaintiff had 1) “not at this stage exhibited the semblance of vexation that would justify the making of the order” and 2) had “not yet sought to reopen any judgment given against him whether on the merits of the case or summarily”. [11]

    11. At [62].

  2. In the Queensland Supreme Court decision of Willi v Banks [2018] QSC 284, Ryan J referred to the discussion of the authorities in von Risefer at [11]-[25], before going on to make an order to prevent the plaintiffs from bringing applications in existing proceedings, or commencing further proceedings in relation to the allegations. Unlike in Hunter, von Risefer, and Velissaris, in which orders were considered only to be appropriate in a context where there was some attempt by the plaintiff to relitigate their claims when they had already been finalised, Ryan J did not rely on this concept to make the orders. Rather, her Honour made the orders because the plaintiffs demonstrated their intention to act unreasonably in the conduct of litigation:

“[136]   The plaintiffs have stated their intention to proceed with litigation for as long as it takes until they are – as they see it – vindicated, but they have demonstrated no preparedness to respect legal processes or to confine themselves to the legitimate means of review.

[137]   As I mentioned above, they have a cavalier and defiant approach to the deployment of legal processes. They bring unreasonable claims, or claims which have no support (such as, for example, their application to stay the enforcement hearing, which was not supported by any evidence) which cause expense and hardship to those who must respond to them.

[138]   They have indicated an intention to behave unreasonably in the future (by seeking to have decisions reviewed until they are satisfied with the result – whether their claim is meritorious or not), and have behaved unreasonably in the past including by refusing to co-operate in the enforcement hearing and in bringing the present claims.

[139]   They have stated that they will not pay costs to the other side – a position which has been reflected in Mr Willi’s failing to produce relevant financial documents for the purposes of the enforcement hearing.

[140]   Bearing in mind the need to take a cautious approach, I consider this an appropriate case to make the order sought. The justice of the case requires that the defendants be protected against the expense (financial and emotional) of any unreasonably oppressive litigious conduct by the plaintiffs.”

The University’s submissions

  1. Counsel for the University submitted that although the Courts of Appeal in Queensland in von Risefer and Victoria in Velissaris considered that the sought order could be made in a situation where the plaintiff is attempting to relitigate a finalised matter, overall, the “touchstone” for the making of an order relies on the inherent power of the court to control the abuse of its processes. In support of this, counsel pointed to the way in which Keane JA structured his reasons in von Risefer, first to consider the principle of controlling abuse of process in a general way, and then to apply it in a particular case – which was relitigation.

  2. Taking this broader view of the principles, counsel contended that the fundamental principle of abuse of process is not limited to making orders in cases where process is abused by way of relitigation, but that it can extend to cases where process is abused by way of a “proliferation” of applications within a particular proceedings, as well as a proliferation of proceedings arising out of the same matter. Therefore, considering the facts in the present case, in which Ms Nandutu has commenced three separate sets of proceedings in 2017, 2018, and 2019 in an attempt to frustrate the progression of the 2015 proceedings, it was submitted that this is a proliferation situation that constitutes an abuse of process, particularly in view of s 56 of the Civil Procedure Act 2005 (NSW), and which is effectively analogous or similar to a case involving relitigation.

  3. Counsel referred to the first instance decision of Robb J in Watiwat, where his Honour noted that the making of such an order was “contentious” in a context where proceedings had not been resolved, where he had not been sufficiently addressed on the authorities, and where the plaintiff had not “exhibited the semblance of vexation that would justify the making of the order sought”. It was submitted that in the present case, the Court has the benefit of having been addressed on and provided with the relevant authorities, and that the proliferation of proceedings, and motions and applications within proceedings, “places this case in a very different category” (at [62]). Counsel submitted that the present case could be distinguished from Watiwat, and urged that this Court would find that Ms Nandutu has “exhibited the semblance of vexation” justifying the order.

  4. In her written submissions, it was contended by counsel that orders in this form are the “only orders which will do justice between the parties”. The effect of the orders will be to “overall, prevent the plaintiff from taking any further steps other than steps to prosecute the 2015 Proceedings on the basis of the competent pleadings before the Court, unless she has leave to take such steps, [and that this was necessary] to prevent any further multiplication of proceedings”.

  5. During the hearing, counsel accepted that a restraining order preventing Ms Nandutu from commencing fresh proceedings, whether in this Court or another, could be made in terms of “until further order”. Further, it was conceded that such an order may not need to be framed in a way that prevents Ms Nandutu from instituting proceedings globally, but merely in relation to particular issues. [12]

    12. Tcpt, 18 June 2019, pp 15-16.

Consideration

  1. The amended statement of claim in respect of which Hoeben CJ at CL refused to grant leave to Ms Nandutu in 2017 was sent in draft to the University's solicitors by email on 16 March 2017. While the competently pleaded statement of claim prepared by lawyers and filed on 17 August 2016 was confined to the legality of the decision of the Student Appeals Body, this iteration of an amended statement of claim raised additional causes of action: breach of contract; "failure in duty of care, misrepresentation, fraud"; and, seemingly, defamation (e.g. "false information, false entries, and wrong information lumped on plaintiff's personal details" and "false, slanderous and horrid allegations against the plaintiff").

  2. As mentioned above, Hoeben CJ at CL refused leave to amend and ordered that Ms Nandutu not be permitted to file a further amended statement of claim without leave of the Court, and only if such application be made by 31 August 2017. Ms Nandutu has avoided the consequences of those orders by purporting to carve out her additional claims into separate proceedings which she has commenced in the succeeding three years, and yet her pleadings in those proceedings remain as deficient as those considered by Hoeben CJ at CL. [13]

    13. See above at [48]-[52].

  3. The University has been faced not only with the commencement of the latter three proceedings on such deficient pleadings, but it has been inundated with multiple draft proposed amendments to pleadings and sundry interlocutory applications. Civil litigation must be conducted with the overriding purpose of s 56 of the Civil Procedure Act 2005 (NSW) at the forefront, but Ms Nandutu's conduct is the antithesis of it.

  4. As the University has suggested, the 2015 proceeding should progress to a determination without the hindrance and delay that has been the by-product of the other matters. Such has been the abuse of process occasioned by it that there is ample justification for the Court making the orders sought to prevent recurrence.

Orders

  1. The following orders are made:

  1. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings in 2017/374521, 2018/231384, and 2019/40642 are dismissed.

  2. The plaintiff is restrained from taking any further steps, including making any further interlocutory application, in proceedings 2015/287280, without the prior leave of a judge of the Court. Any such application for leave shall be made by Notice of Motion filed and served upon the defendant supported by affidavit evidence explaining the purpose of the application and how it will advance the just, quick and cheap resolution of the proceeding.

  3. Until further order, unless with the prior leave of a judge of the Court, the plaintiff is restrained from issuing any new proceeding in any court or tribunal in New South Wales against the defendant, including the defendant's employees, former employees, affiliates and students, where such new proceedings relate to, or arise out of, or concern:

  1. the plaintiff's candidature for a PhD at the University of Sydney ("the candidature");

  2. the management and/or administration of the candidature by the University of Sydney or its officers, employees, former employees, affiliates, or agents;

  3. the suspension and termination of the candidature;

  4. the supervision of the plaintiff during the candidature; and/or

  5. the allegations made in any pleading or other document filed before the date of these orders in proceedings 2017/374521, 2018/231384 and 2019/40642.

  1. The plaintiff is to pay the costs of the defendants in respect of the notices of motion and the proceedings generally in 2017/374521, 2018/231384 and 2019/40642.

  1. I will hear the parties as to the management of proceedings 2015/287280.

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Endnotes

Decision last updated: 24 October 2019

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Cases Citing This Decision

1

Nandutu v University of Sydney [2020] NSWSC 352
Cases Cited

15

Statutory Material Cited

3

Nandutu v University of Sydney [2019] NSWSC 375
Nandutu v The University of Sydney [2017] NSWSC 509
Timberlake, M. v Consultech Australia Pty Ltd [1987] FCA 135