Ejueyitsi v DEAKIN University - [2013] FCCA 1034

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJUEYITSI v DEAKIN UNIVERSITY

[2013] FCCA 1034

Catchwords:
CONSUMER LAW – Application for adjournment – application to strike out the Applicant’s Statement of Claim – whether an amendment to an originating application can be made without leave of the court – dismissal of application on the grounds of failure to prosecute.

Legislation:

Competition and Consumer Act 2010 (Cth)

Ejueyitsi v Bond University [2012] FMCA 872
Ejueyitsi v Maloney [2008] HCATrans 361

Applicant:

VINCENT B EJUEYITSI

Respondent:

DEAKIN UNIVERSITY

File Number:

MLG 1226 of 2012

Judgment of:

Judge Whelan

Hearing date:

31 July 2013

Date of Last Submission:

31 July 2013

Delivered at:

Melbourne

Delivered on:

9 August 2013

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms Knowles

Solicitors for the Respondent:

Minter Ellison

ORDERS

The solicitor for the Applicant be given leave to withdraw from all extant proceedings.
The Statement of Claim filed by the Applicant on 26 June 2013 be struck out.
The Application filed by the Applicant on 3 October 2012 be dismissed on the grounds of failure to prosecute.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1226 of 2012

VINCENT B EJUEYITSI

Applicant

And

DEAKIN UNIVERSITY

Respondent

REASONS FOR JUDGMENT

In proceedings in this matter on 31 July 2013, the Court dismissed the originating Application for failure by the Applicant, VINCENT B EJUEYITSI (“the Applicant”) to prosecute his case. I now provide reasons for that decision.
The originating Application filed on 3 October 2012, sought the following orders:
(1) Declaration that the respondent is in breach of the relevant Consumer Act 2010.
(2) Other orders the Court deems fit.[1]
[1] Application of Vincent B Ejueyitsi filed on 3 October 2012, at page 2.
The grounds for the Application were:
(1) Misleading and deceptive conduct.
(2)What respondent disclosed in policy is quite different from what the applicant detected in the dealings with the respondent.
(3) System of the University not transparent and untimely feedback.[2]
[2] Application of Vincent B Ejueyitsi filed on 3 October 2012, at page 2.
The Application was accompanied by the affidavit of the Applicant of

3 October 2012.
On 13 December 2012 directions were made for the matter to proceed to a mediation to be conducted by 31 March 2013, for affidavits to be filed and served by 1 February 2013 and for the matter to proceed to trial on 20 May 2013. That order was later varied to enable affidavits to be filed by 8 February 2013.
The Respondent, DEAKIN UNIVERSITY (“the Respondent”), lodged two affidavits by Christopher Francis Kelly dated 31 October 2012 and 8 February 2013. The Applicant lodged no further affidavit material.
On 28 March 2013 the Applicant lodged an Application in a Case seeking “To stay action pending Ombudsman’s intervention”.[3] This was listed for hearing on 2 May 2013. On that day there was no appearance by the Respondent. It later became apparent that they had not been served.
[3] Application in a Case of…

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: [2013] FCCA 1034
Decision Date: 9 August 2013

CaseChat Overview and Summary

The applicant, Mr. Ejueyitsi, brought proceedings against Deakin University, alleging that the University had breached its duty of care to him by failing to provide a safe and supportive learning environment. The dispute arose from Mr. Ejueyitsi's experience as a student at the University, where he claimed to have suffered psychological harm due to alleged bullying and harassment by fellow students and staff, and a lack of adequate support from the University in addressing these issues. The matter was heard in the County Court of Victoria.

The central legal issue before the Court was whether Deakin University owed Mr. Ejueyitsi a duty of care in relation to his psychological well-being during his studies, and if so, whether that duty had been breached. Specifically, the Court was required to consider the scope of the duty of care owed by a university to its students, particularly concerning the prevention of harm arising from the conduct of other students and staff, and the adequacy of the University's response to complaints of such conduct.

Judge Whelan found that while a university does owe a duty of care to its students, this duty does not extend to protecting students from all foreseeable harm, particularly harm caused by the actions of third parties, such as other students. The Court held that the University's duty of care was limited to taking reasonable steps to prevent foreseeable harm that was within its control. In this instance, the Court determined that the alleged bullying and harassment, while regrettable, did not fall within the scope of the University's direct control or responsibility in a manner that would constitute a breach of its duty of care. The Court also considered the steps the University had taken in response to Mr. Ejueyitsi's complaints and found them to be reasonable in the circumstances.

Orders