Education Australia P/L v The Commonwealth of Australia
[1994] FCA 379
•10 JUNE 1994
EDUCATION AUSTRALIA PTY. LTD. v. THE COMMONWEALTH OF AUSTRALIA
No. NG905 of 1993
FED No. 379/94
Number of pages - 5
Assignment - Statutes - Contract
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
GUMMOW, LEE AND HILL JJ
CATCHWORDS
Assignment - choses-in-action - prerogative right of Crown to take assignments.
Statutes - construction of - Overseas Students (Refunds) Act 1990 - whether Act displaced prerogative right of Crown to take and enforce assignments.
Contract - implied terms - whether implied term as to refund of fees paid by overseas sutdents to educational institutions - whether inconsistency between implied and express terms.
The Commonwealth of Australia v. Ling (1993) 44 FCR 397
HEARING
SYDNEY, 17 and 18 May 1994
#DATE 10:6:1994
Counsel for the Appellant: J.A. Needham
Solicitors for the Appellant: De Rubeis and Associates
Counsel for the Respondent: A.J. Sullivan QC,
H. Coonan, F. Kunc
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
GUMMOW, LEE AND HILL JJ This is an appeal from a judgment entered on 10 November 1993 by an order of a Judge of this Court (Beaumont J.) that the appellant, which had traded as "Wessex College of English" and "Wessex College" ("Wessex"), pay the respondent ("the Commonwealth") the sum of $2,897,344.90. That matter was heard by his Honour concurrently with the four applications entitled The Commonwealth of Australia v. Noel Ling (1993) 44 FCR 397 ("Ling"). This appeal was heard at the same time as the appeals in Ling - appeals NG742-NG745 of 1993. The facts set out in the reasons delivered in the Ling appeals are, in most respects, relevant to this appeal and, therefore, the foregoing reasons are to be read with the following.
Counsel for Wessex adopted the submissions of counsel for Ling and made short additional submissions pertinent to this appeal. It was submitted that the implied term found by his Honour in the present case, of like effect to that found in Ling, conflicted with express terms in the Wessex enrolment forms signed by students and forming part of the contractual terms between the parties.
The enrolment forms used by Wessex contained language slightly different from that used in Ling. The four enrolment forms, described as Forms A, B, C, D, contained the following relevant provisions.
Form A:
4. "Tuition fees are refundable subject to four weeks
notice in advance of the commencement of a course. Tuition fees are not refundable or transferable after the course begins except in cases of serious illness, when a certificate from a Doctor must be provided stating that you are unable to continue your studies in Australia.
The enrolment fee, accommodation placement and airport transfer fees are not refundable. First week homestay fee non-refundable. The College reserves the right to change its prices at any time."
Form B:
"REFUND CONDITIONS
Tuition fees are refundable subject to:
1. Visa application being rejected
2. Four weeks notice in advance of the commencement of a course.
3. Serious illness, if certified by a doctor stating that you are unable to continue your studies in Australia.
Tuition fees are not transferable. Enrolment accommodation placement and airport transfer fees are not refundable. First four weeks homestay fee not refundable."
Form C:
"1. PAYMENT OF FEES
TUITION FEES will be refunded in full if a visa application is rejected.
TUITION FEES will be refunded in full subject to four weeks advance notice of cancellation. TUITION FEES are not refundable once the course has commenced except in the case of serious illness of the applicant only, where a doctor issues a certificate stating that the student is unable to continue to study in Australia. TUITION FEES are not refundable after the commencement of the course for any other reason. The Accommodation Placement Fee is not refundable. The first four weeks of booked homestay accommodation is not refundable. Airport transfer fees are not refundable."
Form D:
"Cancellation and Refund Policy
1. Enrolment fees, Airport transfer fees and Accommodation placement fees are non-refundable once paid. The first two weeks of Homestay accommodation are non-refundable.
2. Tuition fees will be refunded in full if a visa application is unsuccessful.
3. Tuition fees are not transferable to any other person or institution.
4. Cancellations: Where a student cancels his or her course, giving at least 28 days notice of cancellation prior to the commencement of the course, tuition fees will be refunded less 15% of the total tuition fees paid; or, 4 weeks tuition fees (whichever amount is higher). Where students cancel and give less than 28 days notice before the scheduled commencement date of the course, no refunds will be made unless there are serious circumstances beyond the control of the student (evidence must be supplied).
5. Course deferment: Should the student request to defer the start of his or her course, an administration fee of $60 will be charged."
As in Ling, in a number of cases no enrolment forms were held in the records of Wessex for students who had paid fees in advance. In response to the form "Refund Report - Rejected Overseas Student" the Commonwealth required Wessex to complete to provide the Commonwealth with information as to the requests made by students for the refund of pre-paid fees and the amounts remaining unpaid, Wessex gave details of approximately 475 students who had requested and had not received refunds. Of those students, 103 had not submitted the letter from the Commonwealth which had rejected the student's application for a visa. It was submitted that in respect of 70 of those 103 no evidence had been submitted that they had been refused visas on application.
It will be noted that Form A contains no reference to either the practical inability of a student to obtain a visa or the rejection of a student's application. In our view, the express terms of Form A properly construed relate only to circumstances extraneous to visa requirements and indeed to a situation where a student, for whatever reason, gives notice of cancellation no less than four weeks before the commencement of a particular course. So construed, there is no inconsistency between the express terms embodied in Form A and the implied term found by his Honour.
Form B, which counsel for Wessex stated was completed by most students, is concerned in para.1 with the rejection of a visa. The cases dealt with in paras. 2 and 3, in our opinion, are alternative to the rejection of a visa and do not depend upon such a rejection.
The first paragraph, it is true, covers some of the ground in the implied term found by his Honour. In our view, a term should not be implied which repeats provisions contained in an express term. But that does not mean, in respect of the contractual arrangements between Wessex and students governed by the terms contained in Form B, that a narrower term should not be implied to deal with a case not comprehended by the express terms, namely where, as a result of a change in Australian Government policy, a student is practically unable to obtain a visa. Accordingly, in our view, a term should be implied in a contract to which Form B applies, narrower than that implied by his Honour and concerned only with the case where a student would be unable to obtain a visa if the student made such an application. Once such a term is implied, then it follows that the Commonwealth is entitled to succeed because we would infer, as inferred in Ling, that no student would be likely, having prepaid fees, not to apply for a visa if a visa were in fact obtainable by that student.
Form C, also has an express term dealing with cases where a student's application for a visa is rejected. In our view, the further term relating to four weeks advance notice of cancellation has no application to a case of inability to obtain a visa. For the reasons we have already advanced, we are of the view that a term should be implied in a contract formed by the acceptance of this enrolment form, to the effect that tuition fees would be refunded in full if, in a case not involving rejection of a visa, a student is unable to obtain a visa as a result of a change in Australian Government policy.
Form D is in substance not substantially different from Form C. The reference to a visa application being unsuccessful is, in our view, no more than a reference to a student's visa application being rejected. The reference to cancellation in cl.4 has, in our view, no part to play in a case where the visa application has been unsuccessful or where the circumstances are such that the student is unable to obtain a visa.
For the reasons already given, we would imply into the contract formed by the acceptance of Form D, a term the same as that to be implied in the contract formed by the acceptance of Form C.
We reach these conclusions notwithstanding that students were advised, after forwarding the enrolment form, of the starting date of the course in an acceptance advice form. In our view advice of a fixed starting date for the course does not in any way necessitate a different result.
We gain also no assistance from the refund policy promulgated by the trade association, ELICOS Association, which provided relevantly:
"Refund Policy
1. Any registration fees are not refundable.
2. Tuition fees are refunded in full if a visa application is rejected and the student notifies the college more than 14 days before the commencement of the course.
3. If a student cancels his/her application for a course more than 28 days before commencement of the course the institution may charge a cancellation fee.
4. If a student cancels his/her application for a course within 28 days before commencement of the course, the institution may charge a fee equal to one term's tuition fee.
5. No refund is given after the student has commenced his/her course, except in very limited and special circumstances which supporting evidence is required by the executive officer.
...
Refund Procedures
1. Requests for cancellations, transfers and refunds must be made in writing.
2. Refunds will not be paid directly to students in Australia (the Australian Government does not permit this)."
Although it would seem that Wessex was a member of the trade association, the statement of policy of that association is, to some extent, inconsistent with the refund policy expressed in enrolment forms. Clearly there is no suggestion that the ELICOS Association refund policy ever came to the knowledge of any of the students in such a way as that it could form part of the contractual terms of the relationship between a college and the student.
As with Ling, no question of frustration arises and the submissions in respect of construction of statutory provisions and non est factum are not sustainable.
The appeal must be dismissed with costs.
0
1
0