Federal Court of Australia Nandutu v University of Sydney [2020] FCA 1797 Appeal from: Application for extension of time for leave to appeal or to appeal: Nandutu v University of Sydney [2019] FCCA 2754 File number: NSD 1547 of 2019 Judgment of: STEWART J Date of judgment: 14 December 2020 Catchwords: PRACTICE AND PROCEDURE – application seeking extension of time for leave to appeal or to appeal orders made by the Federal Circuit Court of Australia – where applicant failed to appear – whether application should be dismissed under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) – whether applicant had proper notice of listing – application dismissed Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A) Federal Court Rules 2011 (Cth) rr 11.01(5), 35.33(1)(a)(i) Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of hearing: 14 December 2020 Counsel for the Applicant: The applicant did not appear Counsel for the Respondents: M Gaven Solicitor for the Respondents: MinterEllison ORDERS NSD 1547 of 2019 BETWEEN: SUSAN KANA NANDUTU Applicant AND: UNIVERSITY OF SYDNEY First Respondent SIMON CHAPMAN Second Respondent order made by: STEWART J DATE OF ORDER: 14 december 2020 THE COURT ORDERS THAT: 1. The applicant's application for an extension of time to seek leave to appeal or to appeal from an order of the Federal Circuit Court is dismissed. 2. The applicant is to pay the respondents' costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) STEWART J: 1 The applicant has filed an application seeking an extension of time to apply for leave to appeal if leave is required, or to appeal if leave is not required, from a judgment of the Federal Circuit Court of Australia on 6 August 2019. That judgment is reported as Nandutu v University of Sydney [2019] FCCA 2754. 2 The orders appealed against were, in essence, that pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) the applicant's application for leave to bring a proceeding in the Circuit Court was dismissed. The applicant's proceeding was also "otherwise dismissed", apparently on a summary basis. 3 The applicant has failed to appear on her application before me. Her name has been called and she has not presented at the court. The respondents to the application apply for dismissal of the application under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) for failure to appear. 4 I am satisfied that the applicant has had ample notice of the listing today. She has not given any indication that she would not appear. 5 In my view and assessment, dismissal is the right course. There has been no communication from the applicant with the respondents or with the Court for many months, and she is in default of filing submissions. In the circumstances, there is no positive indication from the applicant since she last appeared in the matter in March of this year that she wishes to pursue the proceeding. To not dismiss the proceedings now would visit unjustified prejudice on the respondents. 6 The relevant history of communication with the applicant is as follows. 7 In her originating application, the applicant gave an email address, which I will refer to as her Gmail address, and a PO Box postal address for service. In terms of r 11.01(5) of the Rules, by providing the email address the applicant agreed to receive service of documents at that email address. She has not subsequently given notice to change that address or withdrawn that agreement. 8 Leaving aside prior communications, on 1 September 2020 my associate emailed the parties, including the applicant at her given Gmail address, giving notice of today's listing and attaching orders I had made that day. Those orders included listing the matter for hearing today, and also requiring the applicant to file and serve written submissions in support of her application by no later than 30 November 2020. 9 On 15 September 2020, my associate emailed the parties again, asking for them to confirm receipt of the previous email. No response was received from the applicant. That email was sent to the same Gmail address already mentioned. Neither of the aforementioned emails from my associate elicited any form automatic response to say that the email address was out of service or no longer in use. 10 The respondents have tendered several communications from their solicitors with the applicant. Those include an email on 3 December 2020, which also attached the orders already mentioned on 1 September 2020, that was addressed, relevantly, to the Gmail address. 11 On 4 December 2020, a further email was sent by the respondents' solicitors, on this occasion to my associate, but copied to the applicant at her Gmail address. The email also included the orders of 1 September 2020. 12 On 8 December 2020, an email was sent by the respondents' solicitors to the applicant at her Gmail address which included the respondents' submissions for the hearing today. On that day the respondents' solicitors also sent a letter by express post to the applicant at the PO Box address that she had given in her originating application. The letter enclosed by way of service the respondents' submissions. I am advised that the respondents' solicitors received no response to those communications. 13 In the circumstances, as I have said, I am satisfied that the applicant has had proper notice of the hearing today. She has failed to appear and I therefore order that her application for an extension of time is dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate: Dated: 15 December 2020