Federal Court of Australia

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

ORDERS

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 application on 14 December 2020 on account of the appellant’s failure to appear at the hearing for the reasons set out in the Nandutu v Chapman [2020] FCA 1798. The appellant has not applied to set aside that order of dismissal that was made in her absence, as she was entitled to do under r 35.33(2) of the Federal Court Rules 2011 (Cth).

3    Subsequent to the dismissal of the application for leave to appeal, the respondent filed an interlocutory application applying for the dismissal of the appeal, being that part of it not requiring leave, under r 36.74(1)(d) for failure to prosecute the appeal.

4    Relevantly, s 25 of the Federal Court of Australia Act 1976 (Cth), which is headed “Exercise of appellate jurisdiction”, includes the following provisions:

(2B)     A single Judge (sitting in Chambers or in open court) or a Full Court may:

…

(ba)     make an order that an appeal to the Court be dismissed for want of prosecution; or

(bb)     make an order that an appeal to the Court be dismissed for:

(i)     failure to comply with a direction of the Court; or

(ii)     failure of the appellant to attend a hearing relating to the appeal; or…

5    Also, r 36.74, which is headed “Application to dismiss appeal”, includes the following provisions:

(1)    A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:

…

(c)     attend a hearing relating to the appeal;

(d)     prosecute the appeal.

(2)     An application under subrule (1) must be served on the appellant:

(a)     at the appellant’s address for service; or

(b)     personally.

Note:     The Court may make orders subject to conditions - see rule 1.33. The Court may fix a time for the doing of an act and in default order the appeal be dismissed.

6    When the interlocutory application was called for hearing before me, the appellant failed to appear. As indicated, she had also failed to appear at the hearing of her application for leave to appeal in respect of that part of the appeal for which she required leave.

7    Her failure to appear on the hearing of the interlocutory application raised the possibility for the respondent of also seeking the dismissal of the appeal on that basis, as referred to in s 25(2B)(bb)(ii) of the Act and r 36.74(1)(c). The respondent accordingly made such an application from the bar table as an alternative to the application for dismissal of the appeal on the grounds of failure to prosecute the appeal, although counsel noted the stated requirement in the rule that such an application must be served, and that that requirement had not been fulfilled. The provision of r 1.34 that the court may dispense with compliance with any of the Rules was also noted.

8    The relevant history on which the respondent relies includes the following.

9    The appeal was commenced by the appellant by filing a notice of appeal on 19 December 2019. That was more than 13 months ago and the appeal has barely progressed at all. It is to be noted, however, as will be seen, that much of the delay was brought about by the intervening COVID crisis rather than as a result of anything done or not done by the appellant.

10    At a case management hearing on 20 February 2020 the appellant failed to appear. Orders were nevertheless made that day, listing her application for leave to appeal for hearing on 25 March 2020, unusually and to the appellant’s benefit providing for the respondent to prepare the court book, and requiring the appellant to file and serve submissions in support of leave to appeal by 13 March 2020.

11    The appellant failed to file any submissions in support of her application for leave to appeal.

12    The hearing on 25 March 2020 of the application for leave to appeal was vacated shortly before that date because of the COVID crisis. Because the appellant was self-represented, a new date for the hearing of the application for leave to appeal was not set until it was safe for such a hearing to be held in person rather than remotely. The date that was ultimately set was 14 December 2020. As canvassed in my earlier reasons, the appellant failed to appear on that day and the application for leave to appeal was dismissed. The appellant had not indicated in advance that she would not appear, and she offered no explanation for why she failed to appear save for an email that she sent to the New South Wales District Registry of the Court on 19 December 2020 in which she relevantly stated the following:

I have been very unwell.

I have attached Medical Certificate from my General Practitioner.

I will resend the attached document with my Affidavit, as soon as I am able to get access to JP for signing my Affidavit.

13    Attached to the email was a document on the stationery of the Redfern Station Medical Centre in the following terms:

Medical Certificate

This is to certify that Ms SUSAN NANDUTU has a medical condition and will not be able to attend work from 07/12/2020 to 22/12/2020 inclusive.

Any kind consideration regarding her absence would be greatly appreciated.

Kind regards,

Dr LEE LIM

BM, BS, FRACGP, Dip of Paediatrics

221951GW

15th December 2020

14    On the next working day, 21 December 2020, the District Registry replied to the appellant at the email address from which she had sent her email and another email address previously given by her, referred to as a Gmail address at [11] of my earlier reasons, and to the solicitors for the respondent as follows:

Dear Parties,

The Court has received the below correspondence in this matter but is not in a position to enter into correspondence on the issues raised.

The applicant can consider taking what steps are available to you, if any, under rule 35.33(2) of the Federal Court Rules 2011.

15    No further communication was received from the appellant thereafter, and no further documentation was filed by her. To be clear, the appellant did not subsequently file or otherwise provide the affidavit foreshadowed by her in her email and did not apply for reconsideration of the orders dismissing the application for leave to appeal.

16    In the meanwhile, on 18 December 2020 the respondent’s solicitor had by email to the email addresses furnished by the appellant served his interlocutory application seeking the dismissal of the appeal on the basis of failure to prosecute the appeal. The interlocutory application was also served by way of express post to the PO Box address provided by the appellant in her notice to appeal. These addresses and their significance are discussed in my earlier reasons at [10]-[11].

17    On 25 January 2021, the respondent’s solicitor wrote to my associate, copying the appellant at her nominated Gmail and Yahoo! email addresses, seeking further details of the listing of the interlocutory application which had been listed before me at 9:30 am on 29 January 2021. My associate replied later that day, including to the Gmail and Yahoo! email addresses of the appellant, stating in bold type that the matter was listed to be heard “in-person” at 9:30 am on 29 January 2021 and stating that the courtroom details would be available the afternoon prior to the listing via the Court’s Daily Court List on the Court’s website. My associate also provided a hyperlink to the list. On 27 January 2021, the District Registry of the Court also emailed the parties, including the appellant at two email addresses given by her, reiterating that the interlocutory application was listed to be heard “in-person” with the relevant details including a hyperlink to the Daily Court List.

18    As indicated, there has been no further communication from the appellant, and no documents have been served by her.

19    In Van Reesema v Giameos (1979) 27 ALR 525 the Full Court per Bowen CJ, Fisher and Lockhart JJ in an application for the dismissal of an appeal for want of prosecution stated (at 530) that “the power to dismiss appeals for want of prosecution must not be lightly exercised” and that “each case depends on its own circumstances.” The Court also stated (at 531) that “public policy demands that the business of the courts should be conducted with expedition and that its rules and orders should be complied with.” The Court dismissed the appeal reasoning (at 533) that there had been inexcusable delay on the part of the appellant and breach by him of an undertaking to the Court and of orders of the Court, the Court was not satisfied that there was any reasonably arguable case for the appellant in the appeal, and that further delay would increase the prejudice to the respondent and non-parties to the appeal (being other creditors to the appellant’s sequestrated estate).

20    In Hoefler v Tomlinson (1995) 60 FCR 452 the Full Court per Spender J, Sackville and Kiefel JJ agreeing, dismissed an appeal for failure on the part of the appellant to prosecute it. After referring to the dicta and reasoning in Van Reesema v Giameos referred to above, the Court reasoned (at 453) that “there has been simply no effort to prosecute the appeal, and one can infer that there is no intention on [the appellant’s] part to prosecute his appeal, and in those circumstances it seems … that the appeal should be dismissed for want of prosecution”.

21    In Wade v AMI Australia Holdings Pty Ltd [2010] FCAFC 120; 274 ALR 431 the Court per Cowdroy J dismissed an appeal pursuant to s 25(2B)(ba) of the Act for want of prosecution. The Court noted (at [37]) that the personal difficulties of the first appellant in prosecuting the appeal and the status of the first and second appellants as litigants-in-person must be balanced with the respondents’ interests arising from orders made by the primary judge in their favour. It was held (at [38]) that the first appellant had not complied with the Court’s directions and had otherwise failed to be diligent in the prosecution of the appeal.

22    On the authorities, I accept that dismissal of an appeal for want of prosecution is a drastic remedy that should be sparingly resorted to, that a court should not lightly deprive a litigant of their right of appeal, and that each case turns on its own facts and circumstances. It is also the case that the respondent to an appeal has a key interest in being able to enjoy the fruits of the judgment that is appealed from and to bring the appeal to a reasonably quick and efficient conclusion. These divergences in interests must be balanced.

23    However, there are also other interests that must be brought into consideration. These include the overarching purpose of the civil practice and procedure of the Court which is to facilitate the just resolution of disputes “as quickly, inexpensively and efficiently as possible”: s 37M(1) of the Act. Parties to a civil proceeding, including an appeal, must conduct the proceeding in a way that is consistent with the overarching purpose: s 37N(1) of the Act. These provisions, and the jurisprudence of the Court, recognise the broader public interest and the interest of other litigants in other cases in having proceedings brought to a just and efficient conclusion: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5] and [30] per French CJ, [93]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

24    With regard to the possible merits of the appeal, it is necessary to have regard to the grounds of appeal as set out in the amended notice of appeal. They are put as follows:

1.    The Appellant appeals against summary judgment and Court Orders made under Case Number SYG2239/2018 on 18 December 2019,

   (a)    procedural unfairness occurred;

(b)    error of law occurred, whether or not error appears on the record of the decision; the Judge in the lower Court erred under [about 20 provisions of four different statutes are then listed].

2.    The Appellant appeals against summary judgment and court order 5 made under Case Number SYG2239/2018 on 18 December 2019, and contends the Judge of the lower Court acted in excess of jurisdiction and in breach of: [about 10 provisions of four different statutes are then listed].

25    Although the second ground of appeal refers to order 5 there is no such order. Since two sets of orders, one with three orders and the other with two orders, were made, perhaps the reference is intended to be to order 2 as set out at [1] above. In any event, the point is that it is not at all apparent from the amended notice of appeal what the true grounds of appeal really are. It is also not apparent that there is any reasonably arguable ground of appeal. Of course, it must be appreciated that the appellant is self-represented with the result that the same standards of exactitude in framing the grounds of appeal should not be applied to her as may be applied to a party represented by experienced counsel. Nevertheless, it is the appellant’s appeal. She has the obligation of identifying and particularising proper and understandable grounds of appeal. She has failed to do so and in the circumstances it is not possible to conclude that the appeal has any merit.

26    With reference to the facts identified above, the appellant has failed to comply with directions or orders of the Court, she has failed on several occasions to appear at hearings of the Court including at the hearing of the application to dismiss the appeal for want of prosecution, she has failed to file or serve an affidavit that she indicated in correspondence some six weeks ago that she intended to file or serve, she has failed to communicate to the respondent or the Court her intentions with regard to the appeal, the appeal does not on the face of it have any merit, and the appeal has been on foot for some time. In those circumstances I am not able to infer that the appellant has any continuing intention to prosecute the appeal, and even if she does have such an intention she has failed to demonstrate or to act on it in a manner to be expected of her.

27    I am therefore satisfied that the appeal should be dismissed on the grounds of want of prosecution.

28    In any event, I would be inclined to dismiss the appeal on the basis of the appellant’s failure to attend a hearing relating to the appeal, particularly since this is the third time that she has done that without any or adequate explanation. Insofar as the purported medical certificate is concerned, not only is it not produced by way of affidavit in support of an application but it lacks sufficient detail and reasoning to be of any probative value. Insofar as the requirement in r 36.74(2) that the application be served is concerned, I would rely on s 25(2B)(bb)(ii) which poses no such requirement and exercise my discretion under r 1.34 to waive the requirement.

29    For those reasons I dismissed the appeal with costs.

Associate:

Dated:    1 February 2021