Ahoure v The University of Adelaide - [2020] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
AHOURE v THE UNIVERSITY OF ADELAIDE
[2020] SADC 21
Judgment of His Honour Judge Chivell
12 March 2020
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - ADJOURNMENT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - TRIAL - NO CASE TO ANSWER OR DIRECTED VERDICT FOR WANT OF EVIDENCE
Plaintiff self-represented after solicitor withdrew two months before trial. Application for adjournment of the trial refused.
Defendant declined to award a PhD to plaintiff in 2006. Plaintiff made various attempts to have decision reversed and ultimately commenced litigation – resolved by execution of a Settlement and Release Agreement in 2014. Agreement provided for further re-examination of plaintiff’s thesis – defendant again declined to award a PhD and again plaintiff appealed, culminating in these proceedings. Plaintiff claiming Agreement voidable and pleading, inter alia, misrepresentation, uncertainty, breach of contract and rectification.
No case to answer submission by defendant. Election to call no evidence by defendant.
Held: Defendant has no case to answer. Plaintiff’s claim dismissed.
District Court Civil Rules 2006 (SA) r 209, referred to.
Popovic v Tanasijevic (No 3) [1999] SASC 339; Naiama Pastoral Co Pty Ltd v Plan 4 Insurance Services Pty Ltd [2010] SASC 105, considered.

AHOURE v THE UNIVERSITY OF ADELAIDE
[2020] SADC 21

The defendant in this action, the University of Adelaide, has submitted that it has no case to answer. It has elected to call no evidence. These are my reasons for upholding the defendant’s submission.
On 12 December 2014, Mr Ahoure and the University of Adelaide entered into a written contract which they called a ‘Settlement and Release Agreement’.[1] The purpose of the Agreement was to resolve litigation between them.[2] In that action, Mr Ahoure had sought to challenge certain decisions made by the University. Mr Ahoure had submitted a thesis for the degree of Doctor of Philosophy in June 2005. In October 2006, the University declined to award the degree to him.
[1] Exhibit P1, pp 33-43.
[2] Ahoure v The University of Adelaide, District Court Action No. 2248 of 2012.
A variety of re-examination, appeal and review processes occurred after the original decision was made by the University. The 2012 legal proceedings were instituted after these various attempts by Mr Ahoure to have the decision reversed were unsuccessful.
After protracted negotiations between Mr Ahoure and his legal representatives and the University and its legal representatives, the parties agreed to a resolution of the issues between them. This led to the execution of the Agreement by both parties.
Pursuant to the Agreement,[3] Action No. 2248 of 2012 was dismissed by consent on 22 December 2014.
[3] Clause 5 – Exhibit P1, p 38.
The Agreement provided, amongst other things, for a further re-examination of Mr Ahoure’s thesis, and contained elaborate directions about the process by which that would occur. The further re-examination was conducted but, unfortunately for Mr Ahoure, it led to the same result. Mr Ahoure was advised of that result on 8 April 2015.
Mr Ahoure instituted an appeal from that result, but the appeal was also unsuccessful. He then instituted these proceedings on 9 June 2017.
The Nature of the Plaintiff’s Claim
The Statement of Claim has been amended several times since the action was commenced. The Fourth Statement of Claim remains a discursive, convoluted, disorganised and repetitive document.
Without attempting to bring together the various repetitions and contradictions in the document, it is possible to distil four categories of pleading:
1.Misrepresentation – this is particularised in paragraph 3.1:
3.1Clause 2.2 b of the Agreement contains a misrepresentation by way of a false statement by the defendant that the Research Education and Development Committee (REDC) must not include Ms Donna Gould as a member when it considers the plaintiff’s thesis.
Sections 4, 6 and 7 of the Misrepresentation Act 1972 (SA) are invoked,[4] as is s 18 of the Competition and Consumer Act 2010 (Cth).[5]
[4]    [3.2].
[5]    [3.3].
2.Breach of contract – paragraph 3.4 states:
3.4The defendant failed to perform the agreement in good faith or otherwise performance of the agreement was affected by bad faith.
This plea is repeated in paragraph 4.5. Further breaches are alleged in paragraph 4.1, in that the University included Ms Gould in the REDC, and in paragraph 4.3, in that the University failed to make a ‘fresh determination’ of the merits of Mr Ahoure’s thesis.
3.Void for uncertainty – this plea is made in paragraph 3.5:
3.5Clauses 2.2 of the agreement and 10 of Schedule A of the agreement read together and clauses 10 a, 10.b.c, 10.e, 10.f, and 10.g of Schedule A of the agreement, read together and as a whole render those terms of the agreement and the promise, purpose and consideration of the agreement illusory or ambiguous or uncertain and or incapable or impossible of performance by the defendant.
4.Rectification – this plea is made in paragraphs 50 and 51:
50.In respect of the basis for rectification, the plaintiff repeats paragraphs 34-39, 46, 47-49 hereof and say(s) that the contents pleaded therein justify and constitute the basis for rectification of the agreement.
51.As to rectification the plaintiff says that:
51.1 The plaintiff repeats paragraphs 34 and 48 (all inclusive) and says that Examiner 3 Report, Re-Examiner 2 Report and the Supervisors report to Re‑Examiner 1 and 2 Reports be struck off and or expunged and disregarded.
51.2 The Plaintiff refers to paragraph 39 hereof and say that clauses 10 a, 10.b.c, 10c, 10d and 10.f of Schedule A of the agreement, be struck off the agreement.
The pleas of breach of contract and rectification presuppose a valid contract. They would have no relevance if the contract is held to be voidable at Mr Ahoure’s option on the grounds of misrepresentation, or to be void for uncertainty of its terms.
As to the remedies sought by Mr Ahoure, they are specified in Part 3 of the Fourth Statement of Claim as follows:
52.The remedies sought in respect of rescission are:-
52.1 An Order setting aside the Consent Orders
52.2 An Order relisting the plaintiff’s proceedings for hearing and determination.
52.3 Any other orders as the Honourable Court deems just
52.4 Costs
53.In the alternative to paragraph 52 (all inclusive) hereof, and only if remedies in rescission are not available (which is denied), the remedies sought in respect of breach of agreement are:-
53.1A declaration that the defendant breached clauses 2.2b and 2.2 of the agreement and clauses 2.2i and 3 of the agreement
53.2Rectification of clauses 10 of Schedule A of the agreement
53.2ARectification of the agreement by striking off or expunging Examiner 3 Report, Re-Examiner 2 Report and the Supervisors report to Re-Examiner 1 and 2 Reports.
53.3Specific performance of the agreement on the basis of rectification ordered by the Court
53.4Such other Orders as the Honourable Court deem just.
53.5Costs
I pause here to observe that the remedies sought in [52.1] and [52.2] are not available to Mr Ahoure in these proceedings. Orders of that nature could only be made in Action No. 2248 of 2012.
Preparation for Trial
On 15 February 2019, and later on 6 May 2019, a Master referred this action for a listing appointment so a date could be fixed for trial. The trial was set down for 3 February 2020. At the time of setting down, Mr Ahoure was represented by Mr Elekwachi of FNE Lawyers.
The action was referred to me for management in the last three months or so to trial. I set a directions hearing for 9 December 2019. Mr Elekwachi applied for permission to withdraw. He cited an inability to obtain reasonable instructions from Mr Ahoure.[6]
[6] Fourth Affidavit of Francis Nnamdi Elekwachi sworn 2 December 2019, [4].
Mr Ahoure sent an email to my chambers on Sunday, 8 December 2019 saying that he had fallen ill and was unable to attend the hearing. He advised that he opposed Mr Elekwachi’s application on the basis that it was Mr Elekwachi who had failed to take Mr Ahoure’s reasonable instructions.
On 9 December 2019, I granted Mr Elekwachi permission to withdraw. A further directions hearing was fixed for 29 January 2020.
On 29 January 2020, Mr Ahoure appeared. He told me he had been unable to find a lawyer to act for him. He said he had recently spoken to Mr Adrian Bambrick, a solicitor, who had only returned from holidays the previous day. He applied for an adjournment of the trial so that he could properly instruct Mr Bambrick.
Ms Clark opposed the adjournment of the trial, referring to the opportunity Mr Ahoure had had since 9 December 2019 to obtain representation. She submitted that if Mr Ahoure wished to make such an application, he should do so in a formal way and file an affidavit setting out the attempts he had made and the reasons why they were unsuccessful.
I accepted Ms Clark’s submission and directed Mr Ahoure to file any such application and affidavit by close of business on Friday, 31 January 2020. I indicated that I would hear any such application at 11.30 a.m. on Monday, 3 February 2020. I specifically warned Mr Ahoure that he should not assume that the trial would be adjourned, and that he should be prepared for trial in case the application was unsuccessful. Mr Ahoure told me that he understood what he had to do and would pass the information on to Mr Bambrick.
No application or affidavit was filed by Mr Ahoure by close of business on Friday, 31 January 2020.
On Monday, 3 February 2020, Mr Ahoure appeared and told me that Mr Bambrick had been in negotiation with Mr Linke, solicitor for the University, over the weekend, and that some sort of deed had been drafted. Mr Ahoure requested an adjournment to Wednesday, 5 February 2020 so that the deed could be ‘studied’. He said one difficulty was that Mr Bambrick did not have Mr Elekwachi’s file because Mr Elekwachi had not released it.
I adjourned the trial to Tuesday, 4 February 2020 to enable Mr Ahoure to instruct Mr Bambrick about the deed. I impressed upon him the urgency of the situation. I made it clear to Mr Ahoure that the trial was to proceed on 4 February 2020 if the matter was not resolved before then.
On Tuesday, 4 February 2020, the matter was called on again. Mr Ahoure produced an affidavit.[7] He reiterated that Mr Bambrick did not have Mr Elekwachi’s file. I pointed out that Mr Elekwachi had previously filed tender books, and Mr Ahoure agreed that it was unlikely that he would need any other documents.
[7] Exhibit P2 - Affidavit of Pierre-Ablingue Ahoure sworn 4 February 2020, FDN 44.
Mr Ahoure referred to discussions between Mr Bambrick and Mr Linke the previous day, and that he was unaware of the outcome. Ms Clark told me that urgent action was required of Mr Ahoure on the previous day, and that he had not taken it. She said that the time for an agreement between the parties expired at 10 a.m. on 4 February 2020.
Mr Ahoure then made a further application to adjourn the trial. The affidavit produced by Mr Ahoure did not give grounds for such an application. I will refer to the affidavit again later in these reasons.
Ms Clark tendered an affidavit of Mr Linke in opposition to the application to adjourn.[8] In brief summary, Mr Linke deposed:
[8]    Third Affidavit of Nicholas Stewart Linke sworn 3 February 2020, FDN 42.
·       there had been eight iterations of the Statement of Claim, not all of which were filed at court;
·       there had been numerous interlocutory appearances, all due to the Mr Ahoure’s failure to comply with the Rules;
·       the matter was not listed until 3 February 2020 because Mr Ahoure wished to cross-examine everyone who had any involvement in the issue of his PhD candidature, so 10 days were required for the trial;
·       the tender books were filed without the University’s consent;
·       Mr Linke first learned of Mr Elekwachi’s application to withdraw on 5 December 2019;
·       on several occasions during the ensuing six weeks, Mr Linke had urged Mr Ahoure to attend to obtaining representation as a matter of urgency, including in a letter to Mr Ahoure following the 9 December 2019 hearing, and in an email on 17 December 2019;
·       in late December 2019, Mr Ahoure advised Mr Linke that he had a US attorney assisting him. After a short email exchange, that attorney did not respond to further attempts by Mr Linke to make contact;
·       Mr Linke wrote letters to Mr Ahoure on 21 January 2020 and 24 January 2020 warning him that the University was prepared for trial on 3 February 2020 and would resist any attempt to delay the hearing;
·       on 29 January 2020, Mr Bambrick told Mr Linke that he was meeting Mr Ahoure for the first time on 30 January 2020. Mr Bambrick advised that he would not be appearing at a trial on 3 February 2020;
·       the University had incurred unnecessary administrative costs arising from delays in the matter, since it was also required to report to its insurer;
·       the schedules of several of the University’s witnesses had been interrupted in order for them to be proofed, and that time would be wasted if the matter was adjourned;
·       one interstate witness had travel arrangements made so that she could attend to give evidence, which involved extra inconvenience;
·       it is not apparent that Mr Ahoure has the means to satisfy the numerous orders for costs made against him so far, as well as any order for costs arising from an adjournment of the trial;
·       there would be a substantial further delay if the trial was to be relisted, particularly if new solicitors were instructed. I suspect that any new solicitor would have the same difficulties in accessing Mr Ahoure’s previous files as Mr Elekwachi and Mr Bambrick experienced, and further interlocutory processes would no doubt be required before another trial could take place;
·       the delay would adversely affect the ability of witnesses to recall events which have occurred since 2015;
·       it is likely that, had Mr Ahoure made an effort in December 2019 to instruct a solicitor and instruct that solicitor to retain a barrister, he would have been able to do both without difficulty.
The University also filed a further affidavit from Mr Linke,[9] in which he deposed that:
·       he had telephoned Mr Bambrick the previous day after court and told Mr Bambrick that I had urged Mr Ahoure to contact Mr Bambrick urgently, so he should expect a call;
·       Mr Bambrick later told Mr Linke that he did not hear from Mr Ahoure until 5.21 p.m., by text message. Mr Ahoure had sought Mr Bambrick’s help with an affidavit;
·       Mr Linke also advised Mr Bambrick that the affidavit was required to provide evidence in support of Mr Ahoure’s application for an adjournment;
·       neither Mr Bambrick nor Mr Ahoure contacted Mr Linke again that day or on 4 February 2020;
·       Mr Linke had received no response by or on behalf of Mr Ahoure to a draft agreement to resolve the dispute since he had sent it to Mr Bambrick on the afternoon of Friday, 31 January 2020.
[9]    Fourth Affidavit of Nicholas Stewart Linke sworn 4 February 2020, FDN 43.
The affidavit filed by Mr Ahoure on the morning of 4 February 2020 makes no reference to any of the possible reasons why he might have been seeking an adjournment. It is more in the nature of an uninvited written submission on the merits of his claim.
In summary then:
·       Mr Ahoure, despite several invitations to do so, provided no evidence as to the efforts he had made to obtain legal representation;
·       even when it became urgently necessary to do so, Mr Ahoure did not take any notice of warnings given by the court and by the University’ssolicitor that he should seek Mr Bambrick’s help as a matter of urgency;
·       Mr Ahoure did not seriously attempt to justify his failure to obtain legal representation until it was, in a practical sense, too late to represent him at the trial;
·       I was not satisfied that, by being granted an adjournment, Mr Ahoure would be any more assiduous in obtaining representation than he had been up until then;
·       the trial had been set for 10 days on Mr Ahoure’s insistence, so the waste of court resources, the inconvenience and stress caused to the University’s witnesses, and the interests of justice generally were not in favour of an adjournment.
For all these reasons, I refused Mr Ahoure’s application to adjourn the trial.
Trial
The trial commenced with Mr Ahoure tendering, at my suggestion, ‘Trial Book’ volumes 1, 2 and 3, which had been prepared by Mr Elekwachi and lodged with the court. Volume 1 is a trial book and volumes 2 and 3 are tender books. Unfortunately, it would appear that Mr Elekwachi did not comply with the Master’s direction that the draft indexes for the tender books be agreed between the solicitors and agreed tender books be lodged with the court. In any event, although Ms Clark had some reservations about certain parts of the tender books, I received them on the basis that I would attach what I thought was appropriate weight to the areas where she had some objection. They became Exhibit P1.
Mr Ahoure then tendered the affidavit which he had sworn on the morning of 4 February 2020, apparently with Mr Bambrick’s assistance. That affidavit was received and marked Exhibit P2.
Before we proceeded further, I explained to Mr Ahoure the procedure to be adopted during the trial, and attempted to explain my role and, in particular, that although I would attempt to assist him as far as I could, I could not do so to the extent of being unfair to the University.
I explained to Mr Ahoure the onus of proof, the admissibility of evidence and other procedural matters.
At one point, Mr Ahoure indicated that he wished to tender his affidavit as his evidence-in-chief. When asked whether he wished to adduce any other evidence, he indicated that he would like to call Professor Elizabeth Porter as part of his case. He said that Professor Porter was one of the people who re‑examined his thesis prior to the Settlement Agreement.
Unfortunately, Mr Ahoure had not subpoenaed Professor Porter to give evidence. To his knowledge, she resided in the United States and he was unable to provide her address.
I agreed with the observation of Ms Clark that the evidence of Professor Porter would not be relevant unless Mr Ahoure was successful in the action and was able to reopen the 2012 proceedings by having the Settlement Agreement set aside. Mr Ahoure eventually accepted that submission.[10] He then indicated that he did not wish to call any other witnesses.
[10] T 27-28.
Mr Ahoure’s affidavit, Exhibit P2, contains very little evidence. It contains a number of assertions and submissions. For example:
·       Mr Elekwachi did not follow his instructions – [1];
·       Mr Elekwachi was seeking to inflate his fees – [2];
·       Mr Ahoure’s case can be resolved on a simple point of law – [3];
·       the terms under which the dispute was sent to the REDC were beyond the power of the University to have fulfilled – [4];
·       the deed improperly empowered the University to covertly manipulate the academic outcome of the re-examination of Mr Ahoure’s PhD thesis by substituting an ‘internally accountable administrative assessment dependent in its entirety on the (University) exercising an unrestrained bureaucratic control … without in any terms the REDC necessarily having to have recourse to an academic re-appraisal of the thesis’ – [5];
·       the deed is void ab initio, or voidable, as ‘an invalid university procedure not in any way compatible with the internationally set principles and values of all research universities’ – [8];
· the original examination of his thesis had been irregular and improper – [6], [7], [9] to [17], [19] to [24];
·       the University ought to ‘withdraw the unexamined thesis, or accept that I am right to, and I have an equal right to, litigate this turpitude, enormity and egregious conduct of the DOGS [Director of Graduate Studies] for the Adelaide Graduate Centre on these grounds, which neither the deed dispute, nor losing this trial of the deed, can ever legally prohibit me from undertaking’ – [18]

To the extent that I am able to distil any comprehensible and rational argument from this material, it is clear that Mr Ahoure, despite having been told on several occasions that the merits of his claim prior to the Settlement Agreement cannot become relevant until the Settlement Agreement is set aside, continued to argue the merits of what happened prior to the Agreement and provided no evidence as to why the Agreement should be set aside.
Ms Clark expressed some concern that Mr Ahoure did not understand that, having made the election not to call evidence in order to make the submission of no case to answer, the University was electing not to call the witnesses it had earlier indicated it would call. I attempted to explain to Mr Ahoure again the significance of the fact that the decision by the University to elect to call no evidence would mean that unless Mr Ahoure called further evidence, there would be no further evidence in the case. I gave him an opportunity to consider his position further over an extended lunch break.
When we resumed, Mr Ahoure told me that he did not have any other witnesses to call.[11] He then indicated that he wished to speak beyond the contents of his affidavit. He was sworn and began giving evidence again of the history of the matter and the events which occurred prior to the Settlement Agreement. It was substantially a repetition of what was contained in his affidavit. Mr Ahoure then indicated that that was all the evidence he wished to call, and closed his case.[12]
[11] T 35.
[12] T 38.
The No Case to Answer Submission
Ms Clark referred to r 209 of the District Court Civil Rules 2006 (SA) as being the source of the power to consider the University’s application. That rule states:
209—Court's power to control trial
(1)     The Court may give directions about—
(a)the issues on which it requires evidence; and
(b)the nature of the evidence it requires to decide those issues; and
(c)the way in which the evidence is to be placed before the Court; and
(d)limiting the number of witnesses or the amount of evidence that a party may call or introduce on a particular issue.
(2)     The Court may, at any time—
(a)limit the time to be taken by a trial or any part or aspect of a trial; or
(b)amend any such limitation.
Examples—
1The Court might limit the time to be taken in examining, cross-examining or re-examining a witness.
2The Court might limit the time to be taken by a party in presenting its case or making a particular oral submission.
(3)     In deciding whether and, if so, how to exercise its powers under this rule, the Court—
(a)must have regard to—
(i)the need to ensure that justice is administered expeditiously           and economically; and
(ii)the need to ensure that each party is allowed an adequate              opportunity to present its case; and
(iii)the need to prevent abuse of the judicial system for the purpose of delay or other ulterior purposes; and
(b)may have regard to other relevant considerations.
(4)     The Court may use its power under this rule to exclude evidence that would otherwise be admissible.
(5)     Rule 209 extends to any hearing conducted by the Court.
Although the rule does not make specific reference to a submission of no case to answer, such a submission is included in the commentary to that rule in Civil Procedure South Australia[13] at [209.65.5] as an example of the exercise of the powers granted by the rule.
[13] Civil Procedure South Australia vol 1 (Service 179) LexisNexis Butterworths.
A court has always had the power at common law to consider such a submission. The criteria for the exercise of the power are stated as:
The exercise on a “no case” submission is whether the plaintiff has not made out a case on the material then before the court taken at its highest and disregarding evidence favouring the defence.
Popovic v Tanasijevic (No 3)[14] and Naiama Pastoral Co Pty Ltd v Plan 4 Insurance Services Pty Ltd[15] are quoted as authorities for that proposition.
[14] [1999] SASC 339.
[15] [2010] SASC 105.
In Naiama at [34], Layton J stated:
It was common ground between the parties that the principles which govern a submission of no case to answer are as follows:
-    It is not necessary for the defendant to elect to call no evidence if, as here, the submissions of the defendant are directed to the lack of evidence and legal issues which arise on the evidence.
-    The evidence of the plaintiff should be taken at its highest.
-    The trial Judge is entitled to draw all proper inferences from the evidence.
-    If a reasonably arguable case is established by the plaintiff supporting the causes of action pursued, then the no case submission of the defendant must fail. The issue is whether the evidence at its face value could reasonably sustain a finding against the defendant on the causes of action claimed. This should be decided on the basis of the Judge drawing all proper inferences from the evidence taken at its highest.
(Citations omitted)
Ms Clark’s submission was that there had been no evidence adduced by Mr Ahoure which was relevant to any of the causes of action in the Fourth Statement of Claim. I shall deal with them in turn.
Misrepresentation
At a very basic level, a misrepresentation must consist of a statement or representation which is untrue or ‘more broadly, that leads the representee into error’[16]Cheshire and Fifoot defines a representation as: [17]
… a statement made by one party, or his or her agent, to the other, before or at the time of contracting, about some existing state of affairs or to some past event, which is one of the factors that induced the representee to enter the contract. Examples are a statement that a business is very profitable with figures provided to back up the statement; a statement that a home unit has a ‘lock-up garage’ or a statement that a farm has an adequate water supply. A representation may be inferred from conduct, as where someone selling engines to a mowing machine manufacturer fails to reveal that the engines are not new.
(Footnotes omitted)
[16] Seddon, NC & Bigwood, RA Cheshire and Fifoot Law of Contract (11^th Aust. Ed.) LexisNexis Butterworths, Australia 2017, [11.10].
[17] At [11.9].
As I have already outlined, paragraph 3.1 of the Fourth Statement of Claim particularises the claim of misrepresentation as being a ‘false statement by the (University) that the Research Education and Development Committee (REDC) must not include (my emphasis) Ms Donna Gould as a member when it considers the plaintiff’s thesis’.
It might be suggested that the above phrase is a non sequitur. If Mr Ahoure is suggesting that the false statement by the University was that Ms Donna Gould would not be included as a member of the REDC, and that that statement was false to the knowledge of the University at the time it was made, and that the representation led or induced Mr Ahoure to enter the contract, then it might amount to a misrepresentation.
The only evidence of a statement made by or on behalf of the University referring to Ms Gould is in paragraph 2.2 of the Settlement Agreement as follows:[18]
b. … The Committee must not include Professor Richard Russell, Ms Anne Witt or Ms Donna Gould as members when it considers Mr Ahouré’s thesis.
(My emphasis)
There is no evidence that the University intended to include Ms Gould as a member of the committee at the time the Agreement was entered into or at any other relevant time. Mr Ahoure repeatedly referred to the minutes of the meeting of the REDC of 30 March 2015, which was a special meeting called in order to consider his thesis. The minutes record the members present and, in addition, state:
In attendance: Ms Donna Gould (Secretary).[19]
[18] Exhibit P1, p 36.
[19] Exhibit P1, p 138.
Mr Ahoure refused to accept that there was any distinction between the role of a member of a committee and the secretary of a committee. In other documents concerning other meetings, Ms Gould was described as an ‘executive officer’. This does not and could not constitute evidence of a misrepresentation by the University.
Another point to be made about that is that the minutes of the 30 March 2015 meeting record that there were six members of the committee present, there were no abstentions, and the eventual voting was 4:2 against Mr Ahoure’s PhD candidacy. The clear inference from that is that Ms Gould did not vote as a member of the committee – she was the seventh person present at the meeting.
Finally, it should have come as no surprise to Mr Ahoure that Ms Gould would be present at the meeting of the REDC. Ms Gould is referred to by name as the ‘Committee Executive Officer’ in clause 10c of Schedule A to the Settlement Agreement and that officer is referred to again in clause 10d. It was clearly within the contemplation of the parties at the time the Agreement was entered into that Ms Gould would be present at the meeting. The inference seems clear that she did no more than she was entitled to pursuant to the Agreement, and that there was no evidence of a misrepresentation, or of a breach of the Agreement, as I shall presently discuss.
The only other ground of misrepresentation that I could glean from the Fourth Statement of Claim is a general claim that at the time it entered into the Agreement, the University had no intention of complying with it in good faith. Thus, by entering into the Agreement, it was somehow misrepresenting its future intentions. No evidence has been proffered to support any such contention.
For the same reasons, there is no evidence to support a claim by Mr Ahoure based upon any alleged misleading and deceptive conduct by the University which would attract the provisions of the Competition and Consumer Act 2010 (Cth).
I accept Ms Clark’s submission that there is no evidence to support the first asserted cause of action in the Fourth Statement of Claim, based on misrepresentation.
Void for Uncertainty
As I have already outlined, the particulars of this allegation are contained in paragraph 3.5 of the Fourth Statement of Claim. It makes the bald assertion that clause 2.2 of the Agreement and clause 10 of Schedule A of the Agreement ‘read together and as a whole render those terms of the agreement and the promise, purpose and consideration of the agreement illusory or ambiguous or uncertain and or incapable or impossible of performance by the defendant’.
The learned authors of Cheshire and Fifoot Law of Contract[20] explain the principles requiring certainty of contracting terms:
6.1The requirement of certainty. For a contract to be legally effective it must be sufficiently certain, that is, it must be both clear and complete, at least in the essentials. If a contract is not sufficiently certain it is said to be void, unless the uncertain part can be severed, leaving the rest of the agreement intact. If a contract is declared void for uncertainty, then the parties may have rights under the law of restitution, estoppel or possibly misleading conduct.
The question of certainty is complicated because a contract can be uncertain in various ways: a term or combination of terms may be vague, ambiguous, contradictory or meaningless; or the agreement may be incomplete, in the sense of leaving something to be agreed later, either deliberately or inadvertently. Further, uncertainty may arise in such a way that it is possible to argue on the basis of the principles of mistake.
6.2Essential terms. It is clear from the cases that a contract is affected by uncertainty only if its essential terms are uncertain or lacking. Inessential terms that are vague or incomplete can be filled out by the court, ignored or severed. What is essential and inessential in a contract depends upon the intention of the parties. The test of severance … is really a test of what is essential. At least the parties to the contract, the principal undertakings, the subject-matter and the price must be certain.
(Footnotes omitted)
[20] Supra.
Having read the entirety of the Agreement and its annexures, I see no grounds upon which the Agreement could be described as uncertain, unclear, ambiguous, vague or imprecise. It is not internally contradictory or otherwise illusory.
No specific grounds have been advanced by Mr Ahoure to the contrary of that proposition.
I agree with Ms Clark’s submission that there is no evidence to support the claim that the Agreement is void based upon the uncertainty of the contract. It is a simple and perfectly clear document.
Breach of Contract
As previously stated, there are three alleged breaches of contract pleaded in the Fourth Statement of Claim:
·that the University included Ms Gould as a member of the REDC. I have already discussed this issue under the heading of misrepresentation. There is no evidence that Ms Gould acted as a member of the REDC;
·that the University did not make a fresh determination of the issues. It is inherent in this assertion that the meeting on 30 March 2015 referred to above was a sham and did not constitute a fresh appraisal of Mr Ahoure’s thesis. Mr Ahoure has adduced no evidence to support this assertion. All of the correspondence prior to the meeting and the actions of the University subsequent to the meeting are to the contrary and suggest that the members of the committee went about their task conscientiously and in good faith;
·that the University did not act in good faith in carrying out the terms of the Agreement. As already stated, there is no evidence to support that assertion either.
In summary, I agree with the submission of Ms Clark that there is no evidence to support the cause of action based on breach of contract.
Rectification
Paragraph 50 of the Fourth Statement of Claim states that ‘the plaintiff repeats paragraphs 34-39, 46, 47-49 hereof and say(s) that the contents pleaded therein justify and constitute the basis for rectification of the agreement’. Paragraph 51 sets out what should be struck off or expunged in pursuit of such rectification. [21]
[21] See [9] above.
The reports which Mr Ahoure now seeks to expunge were put before the REDC pursuant to the Agreement in Schedule A. Schedule A to the Agreement, described as ‘Guidance Notes to be Provided to the Research Education and Development Committee for Consideration of the Outcome of Re-Examination of Mr Ahouré’s Thesis’, provides:
BACKGROUND
1.Mr Ahouré enrolled in a PhD at the University in 1999.
2.In about May 2005 Mr Ahouré gave notice (with approval of his Supervisor) to the University his intention to submit his thesis and on 23 June 2005 he submitted his thesis. This thesis was initially to be examined by two examiners but owing to delay a third examiner was also appointed.
3.On 19 October 2006, after receipt of all three examination reports and upon consideration by the Student Matters Subcommittee, the University decided not to award the Degree of Doctor of Philosophy for the thesis in its current form, and invited Mr Ahouré to revise and re-submit his thesis for re-examination.
4.On or about 11 January 2008 Mr Ahouré submitted a revised thesis for re-examination. The revised thesis was examined by two re-examiners, one of whom (re-examiner 2) was an original examiner.
5.On or about 14 April 2008, upon consideration by the Student Matters Subcommittee, the University determined not to award the Degree of Doctor of Philosophy to Mr Ahouré and offered him the award of the Degree of Master of Arts.
6.Mr Ahouré lodged an application for a student appeal of this decision on 8 May 2008.
7.In July 2008 a review committee of the University heard the application for a student appeal.
8.Mr Ahouré was again offered the award of the Degree of Master of Arts by the University by its letter dated 28 October 2008.
9.Mr Ahouré lodged a further student appeal on 14 January 2009 which was terminated on or about 9 February 2009 on the grounds that it was lacking in substance. Mr Ahouré was informed that the termination of this student appeal did not derogate his rights to further pursue his complaint outside the University.
RECOMMENDATIONS
10.As a term of settlement of a dispute between the University and Mr Ahouré, the Committee is now being asked to, at the next Committee meeting, make a fresh determination of the outcome of the re-examination of Mr Ahouré’s thesis on the following basis.
a. The Committee has complete discretion to make a fresh determination in this matter and Committee members are asked (subject to the guidance notes set out below) to exercise their professional and independent academic judgment.
b. The Committee is to consider the following documents and information:
a. the 3 original examiners’ reports, the first and second re-examiners’ reports and the supervisor’s report on the 3 original examiners reports and the supervisor’s report on the first 2 re-examiners’ reports; and
b. Mr Ahouré’s written submissions; and
c. Any other document relating to Mr Ahouré on the consent of the parties.
c. If any member of the Committee has any query in relation to the written submissions that he or she wishes to raise with Mr Ahouré, such query must be provided to the Committee Executive Officer (Ms Donna Gould) no later than 2 weeks prior to the meeting date. The Committee Executive Officer will provide these to the University’s lawyers who will in turn forward these to Mr Ahouré’s lawyers.
d. Mr Ahouré will have until one week prior to the meeting date to provide further written submissions to the University’s lawyers in response to any questions. The University’s lawyers will provide these to the Committee Executive Officer for circulation to the Committee prior to the meeting date.
e. The Committee may make one of the following determinations:
-   To award the Degree of Doctor of Philosophy (with or without amendments);
-   To award a lesser qualification (with or without amendments); or
-   Not to award any degree.
f. For avoidance of any doubt, more recent rules which prescribe word limits on theses will specifically not apply to the Committee’s consideration (but Committee members are not precluded from considering verbosity as a factor in their deliberations in their discretion).
g. Committee members may treat each of the reports mentioned above with whatever weight they determine to attach to the same in their discretion.
h. Committee members shall not take into account or give any weight to the previous determinations to award the Degree of Master of Arts and will make a fresh determination in good faith and without any bias in favour or against the candidate.
i.   The decision of the Committee must be handed down within one month of meeting.
Attachments:
1. Examiner 1 report
2. Examiner 2 report
3. Examiner 3 report
4. Supervisor’s report on Examiner 1, 2 and 3 reports
5. Re-examiner 1 report
6. Re-examiner 2 report
7. Supervisor’s report on Re-examiner 1 and 2 reports
8. Written submissions by Mr Ahouré
9. Letter from the University to Mr Ahouré dated 24.10.06
There is no explanation in the Fourth Statement of Claim as to why any such striking off should occur. It is not asserted that the matters sought to be struck off were included in the Agreement by mistake.
In Cheshire and Fifoot,[22] the learned authors explain the power to rectify a contract in the circumstances described in paragraph 12.30:
Equity, in the exercise of its exclusive jurisdiction, has satisfactorily dealt with cases where, though consent is undoubted and real, it has by mistake been inaccurately expressed in a later instrument. In other words, the mistake does not lie in the formation of the agreement between the parties, or in the formation of their concurrent intention to enter into an agreement, but in the formal step of reducing the agreement to writing, whether the writing purports to record a previously concluded agreement, or, in the absence of a previously concluded agreement, purports to give expression to the concurrent intention of the parties.
[22] Supra.

Nowhere is it asserted by Mr Ahoure that the written Agreement does not represent the agreement of the parties prior to its execution. There is no basis for a suggestion of mutual mistake.
To the extent that it might be suggested that the plaintiff made a unilateral mistake when entering into the contract, Cheshire and Fifoot states at paragraph 12.53:
Thus it is reasonably clear that, where there is a mistake in the document known to the other party who keeps silent about it, the court will order rectification. There is probably no requirement that the unmistaken party engaged in some positive conduct aimed at preventing the other from discovering the mistake. In other words, the same controversy as to what amounts to ‘sharp practice’ may arise here as it does with rescission for
unilateral mistake. If there is such a requirement, then it seems that knowledge of the error coupled with silence is sufficient.
(Footnotes omitted)
Mr Ahoure’s only position in this context is simply that, notwithstanding that he agreed to the terms of the Settlement Agreement at the time he entered into it, the sections he now finds unfavourable to him mean that he made a mistake in entering into the Agreement in the first place, and so those sections of the Agreement should be expunged from the Agreement. That is not the sort of mistake which equity contemplates as justifying rectification of a contract. Mr Ahoure must show that he was labouring under a relevant mistake at the time he entered into the contract. There is no evidence of that.
I agree with Ms Clark’s submission that there is no evidence to support the cause of action based on rectification of the contract, either on the basis of mutual mistake or unilateral mistake.
Other Causes of Action
In his affidavit,[23] Mr Ahoure sought to raise a further cause of action, namely, that the Settlement Agreement was void ab initio because it was:
… not in any way compatible with the internationally set principles and values of all research universities that may globally be upheld at the core of academic life and conduct as a corner-stone of freedom for academic staff in research and teaching in university life.
[23] Exhibit P2.
As far as I am aware, that is not a cause of action known to the law. Further, there is no evidence of any ‘internationally set principles and values of all research universities’, nor has it been demonstrated that the Agreement was incompatible with any such principles and values.
For those reasons, it could not possibly be argued that any such internationally set principles and values should be incorporated as implied terms in the Agreement.
Finally, Ms Clark correctly submitted that any such alleged cause of action has not been pleaded and there was no application to amend the pleading to incorporate it.
In his final submissions to the court, I invited Mr Ahoure on several occasions to address himself to the specific causes of action he has invoked in his Fourth Statement of Claim. Without traversing the entire exchanges between us, I think it is fair to indicate that on no occasion was I successful in having Mr Ahoure address himself to those issues.
Conclusion
In all these circumstances, I accept Ms Clark’s submission that the University has no case to answer. Mr Ahoure’s claim is dismissed.
I will hear the parties as to any consequential orders.