Ejueyitsi v Bond University
[2012] FMCA 872
•20 September 2012
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 Ejueyitsi failed the subject.
Mr Ejueyitsi makes allegations in respect of his contract law subject. He says “the Applicant also detected inadequacy in Mr Bigwood teaching and researching as they lack positive guidance particularly in an assignment in contract where he instructed the applicant to correct a drafted contract document with mistakes and further argued that in the draft contract the price did not need to be fixed.” Mr Ejueyitsi failed his contract law subject.
With respect to his Australian Legal System subject, Mr Ejueyitsi says that in respect of the lecturer and tutor in that subject he “again detected wide range inadequacy as both teaching and institution in tutorial ran in confrontation with each direction particularly in their assessment in relation to the subject.” Mr Ejueyitsi failed his Australian Legal System subject.
Mr Ejueyitsi alleges that he “eventually lost confidence on the evaluated papers and tutorial classes had with the Respondent employees and concluded that their conduct in general was within the means of sabotage and racism to eliminate the applicant from the contractual relationship if pressed.”
On his own evidence, Mr Ejueyitsi was invited by the University to apply for a review of his grades using the University’s review mechanisms, but Mr Ejueyitsi declined, taking the view that only an external review would be unbiased and reliable.
Mr Ejueyitsi says that as a result of his experiences with the University he lost complete faith in the University’s “assessments” and asked the University to refund his tuition fees. The University has failed to do so.
Importantly, in his affidavit Mr Ejueyitsi says:
Particulars at point
The respondent owed the applicant a duty to full disclosure of its assessment procedure and requirements of the programs prior to the applicant paid is tuition fees, enrolled into the program and was negligent in that its servants failed under the Commonwealth Law – Consumer Protection Act 2010
Particulars specific
The respondent failed to disclose to the applicant its assessment policy procedure and requirement in full prior to the commencement of the program
The respondent failed to disclose to the applicant prior commencement of the program that his accent was not clear
The respondent failed to disclose fully to the applicant that their assignments, tutorial classes are inadequate in relation to the inconsistency and confusion found on the ground arising from the conduct of the respondent employees.
Basic contention between parties
Whether the respondent failed to communicate fully to the applicant its assessment procedures and policies in relation to these subjects
Whether the applicant is required to speak in a specific accent suitable to the respondent
Whether the internal review conducted by the respondent lacked merit
Whether the academic materials recommended to the applicant align with academic guidance and direction of the respondent
Whether the applicant suffered any loss or damage as a result of the conduct of the respondent
Particulars of loss
The respondent employees caused physical pains, mental pains and continuous pain of mind to the applicant
Cost of defending this action is $300,000
Physical and psychological trauma
The applicant claimed from the respondent damages arising from the emotional, psychological trauma, time and money wasted by the defendant or servants or agents at Robina, a suburb of Brisbane on or December 2011 with such damage having been caused by the failure and negligent of the respondent employees
(faithfully reproduced)
On 23 February, 2012 Mr Ejueyitsi filed some further and better particulars of his claim. In those further and better particulars he explains:
“The central legal kernel for examination by this Court is whether the respondent owed the applicant a duty of full disclosure of its programs, assessment pattern, policy and guidance in relation to the contractual relationship in existence between the parties.
Whether the respondent’s failure to disclose fully its assessment pattern, policies and programs to the applicant are sufficient to diminish the academic spirit of the applicant and has capability of causing psychological trauma and distress to the applicant?
Whether the experiences alleged by the academics are in line with what is on the ground today in this honourable Court?”
Mr Ejueyitsi does not provide any further explanation about what he means by the phrase programs, assessment pattern, policy and guidance in relation to the contractual relationship in existence between the parties. Nor does he expand upon what he means by the use of the phrase assessment pattern, policies and programs.
The balance of the further and better particulars are provided in a discursive fashion and are confused and confusing. They are very difficult to follow.
The University says that Mr Ejueyitsi’s application should be summarily dismissed because he has no prospect of successfully prosecuting his action. In particular, the University says that:
a)The claim does not engage any particular jurisdiction possessed by this Court;
b)The claims sought to be advanced by Mr Ejueyitsi are claims in negligence and breach of contract and absent the Court being seized of a federal matter, the Court has no jurisdiction to entertain Mr Ejueyitsi’s claim;
c)In any event, Mr Ejueyitsi has not suffered any loss or damage and the claim ought to be dismissed for that reason.
A preliminary matter
As a preliminary matter, Mr Ejueyitsi suggests that the University’s application to summarily dismiss his claim has already been decided. To understand that submission, some background is necessary.
This application was originally filed in the Federal Magistrates Court in Melbourne. It came before a Federal Magistrate in Melbourne for its first Court date on 21 March, 2012.
I have before me a transcript of the hearing that occurred on that day. The transcript reveals that Mr Ejueyitsi represented himself, the University was represented by a solicitor and the Court discussed the application for summary dismissal which the University wished to pursue.
Mr Ejueyitsi argues that the summary dismissal application has already been decided, but it is clear from the transcript that the summary dismissal application was not decided on the first Court date. The Federal Magistrate determined that the matter ought to be transferred to Brisbane for further prosecution. He formed the view that it was inappropriate to hear and determine the summary dismissal application, and thereby necessarily consider the merits of Mr Ejueyitsi’s claim when the matter would inevitably be transferred to Brisbane. In those circumstances, and without deciding the summary dismissal application, the matter was simply transferred to Brisbane for further directions and hearing.
The summary dismissal application has not been heard and determined. It remains live and to be determined.
Summary dismissal
Relevantly, Rule 13.10(a) of the FMCR states:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
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.
Consideration
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.
I agree with the University’s submission that on its face, the application does not assert a cause of action that is governed by The Australian Consumer Law but seems to be based on allegations of common law negligence and breach of contract. Indeed, the application uses the phrase “damages for negligence”.
Mr Ejueyitsi’s affidavit to which I have earlier referred speaks of both damages for negligence and breach of contract. His affidavit says: “The respondent owed the applicant a duty to full disclosure of its assessment procedure and requirements of the programs prior to the applicant paid is tuition fees, enrolled into the program and was negligent in that its servants failed under the Commonwealth Law – Consumer Protection Act 2010”. His further and better particulars speak of a “duty to disclose”.
It may be Mr Ejueyitsi’s case that by not disclosing the matters he asserts the University ought to have disclosed, the University has engaged in misleading and deceptive conduct for the purposes of s.18(1) of The Australian Consumer Law. What is clear is that unless he has a cause of action which is within the jurisdiction of this Court, his claims for damages for negligence and breach of contract cannot succeed.
Mr Ejueyitsi seems to be alive to the point made against him because in his written submissions filed for the purposes of this application he suggests that one of the matters for determination by the Court is:
Whether if assessed and found different from the basic contention, such conduct if pressed are they within the means of misleading and deceptive conduct in line with the strength of the Competition and Consumer Act of 2010 [The Australian Consumer Law] or former the Trade Practice Act of 1.974, all within the legal spirit of protecting consumer?
(faithfully reproduced)
I am not entirely sure what that paragraph means, but in my view Mr Ejueyitsi is attempting to articulate that the University has engaged in misleading and deceptive conduct because it did not:
a)tell him that it (presumably its staff) could not understand his accent; and
b)tell him of the basis upon which he would be assessed in his studies.
According to the University’s submissions, Mr Ejueyitsi’s claim is that:
a)assessment criteria and other information ought to have been made available to him before he enrolled in his course, but was not;
b)he should be refunded his tuition fees;
c)he should be awarded damages for various physical and mental conditions he alleges he has suffered as a result of the University’s conduct; and
d)he should be awarded costs in the amount of $300,000.00, incurred in “defending the action”.
Implicit in his claim is that Mr Ejueyitsi was not advised of the assessment criteria of each of the subjects in which he enrolled. The University says that those allegations are unsustainable. It seems uncontroversial that he was accepted to study at the University on 26 July, 2011. Mr Ejueyitsi was extended FEE-HELP assistance (to assist him with his enrolment fees) and he was notified of that assistance on 18 August, 2011. The day after he received that confirmation, he enrolled in his subjects for his first semester.
Between 10 August, 2011 and his enrolment in his subjects on 19 August, 2011, the assessment criteria for each subject was available on the University’s website (see affidavit of Hayley Sue Morgan filed on 17 May, 2012 relied upon by the University). Mr Ejueyitsi does not seek to take issue with that evidence. Mr Ejueyitsi did not attempt to challenge the fact that the University website could have been viewed by him at any time prior to 19 August, 2011.
Having regard to those facts, it is difficult to see any basis for a claim on Mr Ejueyitsi’s behalf for a breach of s.18(1) of The Australian Consumer Law. I doubt that this is a case in which there was a positive duty cast upon the University to tell Mr Ejueyitsi about its assessment procedures for each subject, but even if that is wrong, the evidence, which Mr Ejueyitsi does not seek to challenge, is that the assessment criteria for each subject was published on the University’s website before he enrolled in each subject. It is hard to imagine what else the University could have done.
Moreover, it is also very difficult to understand how there could be a positive duty upon the University to tell Mr Ejueyitsi that its staff (lecturers and tutors) might have difficulty understanding him. Mr Ejueyitsi’s first language is not English and he does speak with a strong accent. But he has chosen to attend a University in a country where English is the official language. The University is only obliged to disclose to Mr Ejueyitsi (if it is obliged to disclose anything) matters of fact about which it has knowledge. Clearly it cannot disclose a fact about which it does not know. Mr Ejueyitsi does not suggest that any person on behalf of the University knew, or ought to have known that he spoke with a strong accent or that it would have any particular impact upon his study in any particular subject having regard to the staff who might from time to time be deployed in that subject.
The University also points out in its evidence that to date, Mr Ejueyitsi has not made any payments to the respondent for the course in which he enrolled. Mr Ejueyitsi does not take issue with that evidence. He apparently applied for, and was granted, FEE-HELP assistance. I accept the University’s submission that accordingly, any repayment that may become due and owing in respect of Mr Ejueyitsi’s course of study would probably be payable to the Commonwealth and not to Mr Ejueyitsi.
The evidence suggests that Mr Ejueyitsi acknowledged those terms when making his application for FEE-HELP: affidavit of Irene Slok Kee Koh filed on 8 March, 2012. Mr Ejueyitsi does not take issue with that evidence.
Conclusion
In my view Mr Ejueyitsi does not have any reasonable prospect of successfully pursuing this application because:
a)To the extent that he attempts to raise a claim pursuant to The Australian Consumer Law, his claim has no reasonable prospect of succeeding;
b)To the extent that he seeks to rely upon a claim for damages for negligence I am not persuaded that Mr Ejueyitsi can establish that there was cast upon the University a positive duty to inform him of its assessment policy and procedures before his enrolment. To the extent that he was interested in such things, the information was available to him, although he may not have taken the opportunity to seek it out;
c)To the extent that he seeks to rely upon a claim for damages for breach of contract I can see no basis for such a claim in the evidence.
The application should be dismissed pursuant to rule 13.07(1)(b)(ii) of the Federal Magistrates Court Rules 2001.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 20 September 2012
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