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…
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- Case
- [2012] FMCA 872
- Decision Date
CaseChat Overview and Summary
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
1.
The application filed on 7 February, 2012 be dismissed pursuant to r.13.07(1)(b)(ii) of the
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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