Ejueyitsi v Bond University - [2012] FMCA 872

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EJUEYITSI v BOND UNIVERSITY

[2012] FMCA 872

CONSUMER LAW – Summary dismissal – application not within jurisdiction of Court.

Competition and Consumer Act 2010, s.138a
Federal Court of Australia Act 1976, s.31A
Federal Magistrates Act 1999, s.17A
Federal Magistrates Court Rules 2001, rr.13.10(a), 13.07(1)(b)(ii)
The Australian Consumer Law, ss.18(1), 236

George v Fletcher (Trustee) [2010] FCAFC 53
Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant:

VINCENT B EJUEYITSI

Respondent:

BOND UNIVERSITY

File Number:

MLG 111 of 2012

Judgment of:

Jarrett FM

Hearing date:

21 June 2012

Date of Last Submission:

21 June 2012

Delivered at:

Brisbane

Delivered on:

20 September 2012

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondent:

Mr Walker

Solicitors for the Respondent:

Bartley Cohen Litigation Lawyers

ORDERS

The application filed on 7 February, 2012 be dismissed pursuant to r.13.07(1)(b)(ii) of the Federal Magistrates Courts Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

MLG 111 of 2012

VINCENT B EJUEYITSI

Applicant

And

BOND UNIVERSITY

Respondent

REASONS FOR JUDGMENT

This is an application by Bond University, the respondent in these proceedings, to have Mr Ejueyitsi’s principal application summarily dismissed. Mr Ejueyitsi resists the application.

The applicant’s principal claim

By his application filed on the 7 February, 2012 Mr Ejueyitsi seeks orders against Bond University in the following terms:
“Full refund of tuition fees plus damages.”
The grounds of his application are:
“Damages experienced by applicant resulting from the negligence of the respondent to fully communicate his assessment conditions, policy and requirements of the program.”
When Mr Ejueyitsi filed his application he also filed an affidavit to support it. That affidavit (filed on 7 February, 2012) sheds a little more light on the nature of Mr Ejueyitsi’s claim. It appears from that affidavit that in September, 2011 Mr Ejueyitsi was admitted to a course of study at Bond University. He was enrolled, as best as I can tell, in the Juris Doctor. He was advised to pay his tuition fees prior to his enrolment and class attendance.
In his affidavit, Mr Ejueyitsi identifies four people who he alleges were employed by the University and who were “engaged” in the areas of law “of Tort, Australian Legal System and Contract respectively.” Mr Ejueyitsi says that “during the course of teaching the Applicant detected wide range of inconsistency in their teaching and analyses based on the Applicant’s experience in relative fields. The Applicant has also published widely in Australian Government departments and books.”
Mr Ejueyitsi goes on to allege that in the torts subject, the lecturer/tutor “imputed inadequacy in the accent of the Applicant and in most instances constituted ridicule on the part of the Applicant and this caused the Applicant in some occasions lost of his academic balance and coupled with his argument in the class that in “law no answer is wrong”. And this was demonstrated in his treatment of an assignment on Miller v Miller the High Court case of 2011 …”. Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 872
Decision Date: 20 September 2012

CaseChat Overview and Summary

The matter in question involved Ejueyitsi as the plaintiff against Bond University as the defendant. The dispute centred around an application for summary judgment, which was subsequently dismissed by the court. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Bromberg.

The primary legal issue before the court was whether the plaintiff, Ejueyitsi, had any reasonable prospect of successfully prosecuting his claim against Bond University. The court needed to assess if the plaintiff's application for summary judgment under section 17A of the Federal Magistrates Act 1999 was appropriate. Given that the application was made under the incorrect legislative framework, the court had to determine whether the plaintiff's case was viable under the correct statutory provisions, specifically the Competition and Consumer Act 2010 and The Australian Consumer Law.

Justice Bromberg, in dismissing the application for summary judgment, noted that the evident legislative purpose behind section 17A of the Federal Magistrates Act 1999 was to provide a mechanism for the court to dismiss proceedings where there was no reasonable prospect of success. The court highlighted that this power was not to be exercised lightly and emphasized the importance of a practical judgment in determining whether the plaintiff had more than a "fanciful" prospect of success. The judge found that the plaintiff's application was made under the wrong legislative framework and that the statutory provisions cited were not applicable to the case. Consequently, the application for summary judgment was dismissed.

ORDERS:
1. The application filed on 7 February 2012 is dismissed pursuant to r.13.07(1)(b)(ii) of the Federal Circuit Court of Australia Rules.

Orders

Orders of the court

The application filed on 7 February, 2012 be dismissed pursuant to r.13.07(1)(b)(ii) of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I observe that the above rule follows s.17A of the Federal Magistrates Act 1999 which is in the same terms as s.31A of the Federal Court of Australia Act 1976. That rule and those sections provide for the Court to give summary judgment in an appropriate case. Relevantly, s.17A of the Federal Magistrates Act 1999 is set out in the following terms:Summary judgment …(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. The approach taken in cases dealing with s.31A of the Federal Court of Australia Act 1976 are generally seen as apposite in cases dealing with s.17A of the Federal Magistrates Act 1999: George v Fletcher (Trustee) [2010] FCAFC 53 at [75] and [105]. The words of s.31A mean what they say and there is little point in attempting to formulate other phrases to encapsulate their meaning: Spencer v Commonwealth of Australia (2010) 241 CLR 118, per Hayne, Crennan, Kiefel and Bell JJ at [58] – [59]. The Court must embark upon a “practical judgment…as to whether the applicant has more than a ‘fanciful’ prospect of success”: per French CJ and Gummow J at [25]. What is required by the section is set out by the Hayne, Crennan, Kiefel and Bell JJ as follows at [60]:… The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. On its face, Mr Ejueyitsi’s application purports to be made pursuant to the Court’s jurisdiction under the “Consumer Protection Act 2010”. No such Commonwealth Act exists. In argument, Mr Ejueyitsi clarified that his claim is made pursuant to the Competition and Consumer Act 2010. Jurisdiction under that Act is conferred upon this Court in relation to The Australian Consumer Law found in schedule 2 of that Act: s.138a of the Competition and Consumer Act 2010. Actions for damages for contraventions of Chapters 2 or 3 of The Australian Consumer Law are within the jurisdiction of the Court: s.236 of The Australian Consumer Law.

Ratio Decidendi

Legal Principle Established

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