Ms Nandutu commenced the first of the proceedings she has brought against the University in October 2015 by summons. There Ms Nandutu sought unspecified orders about a decision of the University's Student Appeals Body, refusing her appeal from the December 2014 decision of the Faculty of Medicine, to terminate her candidature in its PhD Program. In 2015 Ms Nandutu filed a statement of claim, prepared by her legal representatives, after she had been referred by the Registrar for Pro Bono Legal assistance.
Those legal representatives later ceased acting for Ms Nandutu, who has since repeatedly sought to amend her pleadings. She has also commenced three other sets of proceedings:
1. In 2017 she commenced proceedings in this Court in relation to alleged defamation; and
2. In 2018 she commenced proceedings in the Federal Court, also in relation to her exclusion from the PhD program, which have been transferred to this Court: Nandutu v University of Sydney [2018] FCA 1118;
3. In 2019 she commenced, proceedings in this Court by summons for alleged economic loss quantified at between $750,000 - $800,000 caused by the University's alleged breach of its contractual obligations to her, in respect of her PhD candidature.
By motions filed in 2018 the University sought orders:
1. under Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), dismissing the 2017, 2018 and 2019 proceedings;
2. in the alternative, orders under Rule 14.28, striking out her pleadings in those proceedings;
3. restraining her from:
1. taking any further step in those proceedings, without prior leave; and
2. bringing other proceedings against the University in this or other State courts and Tribunals, in relation to her PhD studies at the University and the termination of her candidature.
Ms Nandutu also filed a motion on 29 March 2019, which was heard on 4 April, before the hearing of the University's motions commenced.
Ms Nandutu had initially sought that only the motions in respect of the 2018 proceedings be dealt with, because, she said of her ill health, which did not permit her to spend two days in court, dealing with all of the motions. That application was opposed and had to be refused, in the interests of justice.
That was because it had to be accepted that the motions needed to be heard together, given the circumstances which had led Ms Nandutu to bring her various proceedings; the commonality of most, if not all of the other parties and their connection with the University; their interconnected procedural history; and the common relief which the University pursued.
The result was that Ms Nandutu's motion was first dealt with, before the hearing of the University's motions commenced. The hearing had to be adjourned, however, after Ms Nandutu became unwell and was attended by a First Aid officer and then paramedics.
I now give reasons for the orders which I made in relation to Ms Nandutu's 29 March motion, as well as orders which I made prior to the adjournment of the hearing, in order to preserve the status quo, until the matters all come before me for directions at 9:30 am on 12 April 2019.
[2]
The 29 March motion
The hearing of the University's motions first came before Campbell J in September 2018 when it was also adjourned because of Ms Nandutu's health: Nandutu v The University of Sydney (Supreme Court of NSW, Campbell J, 11 September 2018, unrep). Then his Honour ordered:
"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."
On 29 March, Ms Nandutu sought to have orders made by the Registrar, reviewed and to obtain leave to file further attached notices of motion, by sending an email to my Associate, after she learned that the hearing of the University's motions had been listed before me on 4 April. She was informed that she could not so make an application to the Court and a copy of these communications was provided to the University's solicitors.
On 29 March Ms Nandutu also filed a motion by which she requested that orders made by the Registrar in relation to the 2018 proceedings, which finally resulted in the University's strike out application being listed for hearing on 4 April, as well as various costs orders, be reviewed. If those orders were not granted, she sought leave to discontinue the 2018 proceedings, without any costs order.
This motion was supported by affidavits in which Ms Nandutu explained the ill health she had suffered as a result of her exclusion from PhD candidature; her pursuit of various of her proceedings; and her indigent circumstances. She also explained her belief that she had not received procedural fairness at various points, because leave she had sought about various applications had not been granted. The affidavit was supported by medical certificates in which treating doctors spoke of her symptoms; treatments; improvements in her condition; the stress she was experiencing; and the benefits she would receive from further treatment from a clinical psychologist.
The University opposed the review of the Registrar's orders, but did not oppose leave to discontinue the proceedings, but pressed for a costs order.
I declined to review the Registrar's orders, having concluded that there was no error in the Registrar's approach to the resolution of what lay in issue between the parties, about the University's motion.
One of the complaints advanced by Ms Nandutu was that she had never filed any documents in the 2018 proceedings, in this Court. As I explained to her, those proceedings were transferred to this Court as the result of an order made on 26 July 2018 in the Federal Court by Robertson J and that accordingly, they must now be dealt with in accordance with the Rules and practices of this Court.
In resolving the issues which came before the Registrar, he thus had to bear in mind that the Civil Procedure Act 2005 (NSW) imposes obligations on the Court, the parties and their representatives, to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56. The Court's practices and procedures must be implemented:
1. to eliminate delay in final determination, beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute and the preparation of the case for trial: s 59; and
2. with the object of resolving the issues in such a way that cost is proportionate to the importance and complexity of the subject-matter in dispute.
Section 57 requires that the proceedings be managed having regard to:
"(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties."
Section 58 requires that in deciding whether to make any order or direction for the management of the proceedings, the Court must seek to act in accordance with the dictates of justice, taking into account the matters specified in s 58(2), which relevantly include the degree of expedition with which the parties have approached the proceedings and the degree to which they have been timely in their interlocutory activities; the degree to which any lack of expedition has arisen from circumstances beyond their control; and the degree of injustice that would be suffered by the parties, as a consequence of any order or direction.
The orders which the Registrar made, which resulted in the listing of the University's three motions for hearing together on 4 April, plainly had regard to these obligations.
While Ms Nandutu undoubtedly has rights which she is exercising by her pursuit of the various proceedings she has commenced, the University also has rights and it was their exercise in the 2018 proceedings which led the Registrar to list its strike out motion for hearing together with the motions its filed in the 2017 and 2019 proceedings.
Ms Nandutu's views about the correctness of those orders, so far as the 2018 proceedings which she commenced in the Federal Court are concerned, provided no just basis for their review.
Nor did Ms Nandutu's views about the costs orders made by the Registrar. The usual order under the Rules is that costs follow the event. The mere making of costs orders provided no basis for their review, notwithstanding Ms Nandutu's undoubted ill health.
The evidence established that Ms Nandutu suffers from a heart condition, for which she receives ongoing treatment. She has been assessed as being unfit for work for a further period; to be stressed by her pursuit of this litigation; and to require further assistance from a psychologist.
This evidence also had to be considered in the context of her own pursuit of all of the litigation she has commenced and that even at the hearing on 4 April, Ms Nandutu did not seek an adjournment, on account of her health. To the contrary, her case was that she was not well enough to deal with the hearing of all of the University's motions, but she was able to press her own motion and she said, to deal with the 2018 proceedings.
Accordingly, the application to review the Registrar's orders was refused.
Ms Nandutu then pressed her alternative application, that she be granted leave to discontinue the 2018 proceedings, but with no order as to costs being made against her.
The University's case was that there should be no departure from the usual order, that costs follow the event. As best I understood Ms Nandutu's position, she contended that relevant to the costs application was evidence which the University proposed to rely on, in support of its other motions.
In those circumstances, despite her objection to this course, I granted Ms Nandutu leave to discontinue the 2018 proceedings, reserving the question of costs of those proceedings, until the University's other motions had been decided.
[3]
The University's remaining motions
That left the University's motions in respect of the 2017 and 2019 proceedings to be heard.
Ms Nandutu objected to the receipt of affidavits sworn by the University's solicitors, which explained the history of some of the proceedings she has pursued against the University, current and former employees and others who work for it, on the basis of relevance.
Having been convinced that those matters were relevant to what remained in issue between the parties on the remaining motions, I received those affidavits. The receipt of the evidence had not been completed, when shortly after 11 am Ms Nandutu sought an adjournment, which I granted and during which assistance was provided to her.
Before finally adjourning the matter for further directions, in Ms Nandutu's absence, the University sought orders which would preserve the status quo, pending the conclusion of the hearing of its motions.
In the circumstances which had arisen, I was satisfied that this application had to be heard and orders made, if the overriding propose specified by s 56 of the Civil Procedure Act was to be adhered to. In the circumstances, the interests of justice clearly could not permit Ms Nandutu to pursue yet further motions in the proceedings which remain on foot during the adjournment, or to commence yet further proceedings, before the University's motions were heard to finality and directions could be given in the 2015 proceedings, in which there is no apparent impediment to the giving of directions, so that it can go forward to trial.
The motions are thus listed for directions on 12 April, so that a further hearing date can be fixed for the University's motions and the hearing of the argument as to costs, on Ms Nandutu's motion.
[4]
The 2015 proceedings
I also listed the 2015 proceedings for directions on 12 April.
From what had already been put before me and what had fallen from the parties, the 2015 proceedings have repeatedly come before the Registrar for directions, since Hoeben CJ at CL made orders in Nandutu v The University of Sydney [2017] NSWSC 509, that:
"1 Leave to file the proposed Amended Statement of Claim annexed to the plaintiff's Affidavit of 23 March 2017 is refused.
2 The Notice of Motion filed 4 January 2017 is dismissed.
3 The plaintiff is not permitted to file an Amended Statement of Claim without the leave of the Court.
4 Should the plaintiff seek leave to file an Amended Statement of Claim, that application should be made on or before 31 August 2017.
5 The plaintiff is pay the costs of these proceedings, including the defendant's costs of opposing the Notice of Motion."
Still the matter has not progressed to trial, even though the University does not in this case suggest that there is any deficiency in the pleadings.
The delay appears to be the result of all of the other steps which Ms Nandutu has pursued, which include the commencement of the 2017, 2018 and 2019 proceedings, as well as proceedings which Ms Nandutu explained that she had commenced and discontinued before NCAT, having come to the view that she was wasting her time there pursuing complaints about privacy.
Bearing in mind the obligations imposed by the Civil Procedure Act and having taken into account that Ms Nandutu had sought and been granted leave to withdraw the 2018 proceedings which she had commenced in the Federal Court, I concluded that all of her proceedings should now be case managed by a judge.
Accordingly, I listed the 2015 proceedings for directions on 12 April, so that they can be considered at the same time as the further listing of the University's motions in the 2017 and 2019 matters.
[5]
Orders
The orders made were:
1. The hearing of the University's motions in the 2017 and 2019 proceedings (Matter numbers 2017/374521 - Nandutu v University of Sydney and 2019/40642 - Nandutu v University of Sydney) is adjourned for directions at 9:30am on 12 April 2019.
2. That pending further order, without prior leave of a judge of this Court Ms Nandutu is not to issue any new proceedings arising out of her PhD candidature at the University of Sydney or the suspension and termination of that candidature against the University, its former or current employees or students, in any New South Wales Court or Tribunal.
3. Without prior leave of a judge of this Court Ms Nandutu is not to file further motions in the proceedings which remain on foot in matters 2015/287280 - Nandutu v University of Sydney and 2017/374521- Nandutu v University of Sydney and 2019/40642 - Nandutu v University of Sydney.
4. Costs are reserved.
[6]
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Decision last updated: 05 April 2019