Ejueyitsi v DEAKIN University
[2013] FCCA 1034
•9 August 2013
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 Vincent B Ejueyitsi filed on 28 March 2013, at page 2.
On 2 May 2013 the Applicant sought to ‘withdraw his application’. The Court understood this to mean that the Applicant wished to withdraw his originating Application and seek recourse through the Ombudsman. He was given leave to withdraw the Application filed on 3 October 2012.
It subsequently became apparent that the Applicant sought only to withdraw his Application in a Case and the matter was relisted for
21 May 2013. On 14 May 2013 the Applicant lodged a document headed ‘Amendment of Application’:
The words that the applicant paid his tuition fees to the respondent in the application should read the applicant Fee Help application was approved by the respondent making the applicant indebted to the Commonwealth Government through the Fee Help loan and the respondent get government funding allocation from the number of Fee Helps/HEES Fess [sic] students of which the applicant is part of the students. The cost of defending the application of $200,0000 [sic] be removed and whether applicant suffered loss/damage and whether the conduct of respondent was fair and denial of natural justice be added.
The applicant also wants the respondent to give the names among the list of the witnesses the respondent wish to give evidence/testimonies in this honourable court.
The applicant wish the trial be shifted by one week forward to enable the applicant to file his comprehensive submission as ordered by Her Honour.
I will be grateful for these requests.
Thank you.[4]
[4] ‘Amendment of Application’ document of Vincent B Ejueyitsi dated 14 May 2013.
The Court treated this as an Application for leave to amend the substantive Application and this was listed for 21 May 2013.
On 21 May 2013 the Court made the following orders:
(1) The substantive application filed on 3 October 2012 be reinstated.
(2) The matter be listed for Final Hearing on 31 July 2013 at 10.00 a.m. (with an estimated hearing time of 2 days).
(3) The Applicant is to make, file and serve an Outline of Argument by 4.00 p.m. on 17 July 2013.
(4) The Respondent is to make, file and serve an Outline of Argument by 4.00 p.m. on 24 July 2013.
(5) The application to amend the Application is dismissed.
(6) The Applicant pay the costs of this day of the Respondent fixed in the sum of $330.00.
The Applicant was advised that any further application for leave to amend needed to be confined to narrowing the issues in dispute and relevant to the legislation pleaded – namely the Competition and Consumer Act 2010 (Cth) (“the Act”).
On 26 June 2013, the Applicant lodged a document headed ‘Statement of Claim’ consisting of five pages plus attachments. There was no application made for leave to amend the originating Application.
On 26 July 2013, the Respondent made an Application in a Case for orders that the ‘Statement of Claim’ dated 26 June 2013 be struck out. The Application was supported by an affidavit of
JACQUELIN ALANA MORRIS (“Ms Morris”).[5] That Application was listed for hearing on 31 July 2013, the same day as the substantive hearing.
[5] Affidavit of Jacquelin Alana Morris filed 26 July 2013.
On 16 July 2013 the Applicant lodged a written Outline of Submissions and the Respondent’s Outline of Argument was lodged on
24 July 2013.
At the hearing on 31 July 2013 Ms NASSER (“Ms Nasser”), of Zindilis Lawyers, notified the Court that she had been engaged by the Applicant on 24 July 2013 to represent him; she however now sought leave to withdraw stating “At this point I would be seeking that I be - I seek leave to excuse myself from this matter. I’ve just had instructions that he does not - Mr Ejueyitsi - no longer wishes for me to act”.[6]
[6] Transcript of proceedings, 31 July 2013, page 2 at lines 2, 3 and 4.
After leave was granted for Ms Nasser to withdraw the Applicant sought an adjournment of the matter in order to obtain legal representation. The Application was opposed by the Respondent. The Respondent pointed to the following:
·The affidavit evidence in the matter had been before the Court and with the parties since February 2013.
·The Applicant had been represented by Sabelberg Morcos Lawyers at the mediation.
·On 24 July 2013, the Respondent was notified that Zindilis Lawyers now acted for the Applicant.
·On 25 July 2013, Zindilis Lawyers had sought to have the matter adjourned by consent and had been notified on the same day that any application to adjourn the trial date would be opposed.
·The Applicant has a prior history of withdrawing instructions on short notice, citing proceedings instituted by him in the Federal Court in 2012 appealing a decision by Jarrett FM in Ejueyitsi v Bond University [2012] FMCA 872 and proceedings in the High Court in October 2008 in Ejueyitsi v Maloney [2008] HCATrans 361 seeking to reinstate a special leave application.
The Court being of the view that the Applicant had had ample opportunity to seek legal representation, the application for adjournment was refused.
The Applicant then notified the Court that he had not read the Respondent’s Application in a Case or the affidavit of Ms Morris. The Court was therefore adjourned for 70 minutes to enable the Applicant to read the documents. When the Court resumed, the Applicant stated that he did not have the documents and had not read them. He was unable to explain why he had not asked either the Judge’s Associate or the Respondent for copies.
The Respondent was asked to read the paragraphs in the affidavit of
Ms Morris on which the Respondent relied. Those paragraphs referred to the history of the proceedings and to correspondence between the Applicant and the Respondent’s solicitors.
With respect to the strike out application, the Respondent submitted that:
·
The history showed that the issue of an amendment to the Initiating Application was first raised by the Applicant on 17 February 2013. An attempt to amend the Application was finally made on
14 May 2013 and rejected by the Court on 21 May 2013.
·The ‘Statement of Claim’ was made in breach of the rules of the Federal Circuit Court Rules 2001 (Cth).
·No application had been made for leave to amend the Application.
·The ‘Statement of Claim’ was unclear and ambiguous. It appears to be pleading a breach of contract but no particulars are identified. It also appears to seek a judicial review of some breach of ‘procedural fairness’ by the Respondent.
·The ‘Statement of Claim’ does not establish the jurisdictional basis for the Court to deal with the matters raised.
·The ‘Statement of Claim’ raises new causes of action which are unintelligible and not particularised.
The document submitted and headed ‘Statement of Claim’ is said to be an “Amendment basesd [sic] on Rules 8.21 of the Federal Court”.[7] That Rule refers to applications made to the Federal Court for leave to amend any originating application. The relevant rule for the purposes of proceedings in the Federal Circuit Court is Rule 7.01. No application has been made by the Applicant under that rule.
[7]‘Statement of Claim’ document of Vincent B Ejueyitsi filed on 26 June 2013, at page 1.
The orders sought in the ‘Statement of Claim’ are as follows:
A. A declaration that the defendant is in breach of the Australian Competition and Consumer Act 2010: that the process followed by the defendant to arrive at its decisions defied procedural fairness, natural justice and other claims
B. Alternatively loss of tuition fees in respect to which the plaintiff is liable to the Commonwealth of Australia be refunded to the Commonwealth by the defendant
C. Or A [sic] review of the plaintiff papers and examination incidence by externally body based on the process applied by the defendant defied fair process;
D. Costs
E. Interest pursuant to statute.[8]
[8] Ibid, at pages 4 and 5.
The particulars however draw no connection between the matters pleaded and a breach of the provisions of the Act, nor the connection between that legislation and any power in the Court to declare that “the process followed by the defendant to arrive at its decisions defied procedural fairness, natural justice and other claims”.[9]
[9] Ibid, at page 4.
The particulars provide no basis for the Court to conduct a general review of the procedural fairness of the ‘defendant’s process’ nor to order a “review of the plaintiff papers and examination incidence by externally body based on the process applied by the defendant defied fair process”.[10]
[10] ‘Statement of Claim’ document of Vincent B Ejueyitsi filed on 26 June 2013, at page 5.
I found the document to be unintelligible and incapable of founding the basis for proceedings within the jurisdiction of the Court. Further, the initiating proceedings were lodged on 3 October 2012. An application to amend the originating Application, in a form capable of being dealt with by the Court, ought to have been the subject of an application for leave to amend under Rule 7.01 long before this document was filed.
For these reasons the Respondent’s application to have the ‘Statement of Claim’ struck out was granted.
Following the Court dealing with the strike out application the Applicant was asked to open his case on the substantive application. The Applicant declined to do so stating he needed a barrister. The Applicant was advised that the issue of an adjournment in order for him to obtain legal representation had already been dealt with. The Applicant continued to insist that he needed a barrister.
The Applicant had previously represented himself in proceedings in this Court, Ejueyitsi v Bond University, and before the High Court (French CJ) in seeking leave to reinstate a special leave application.[11] All of the material before the Court lodged by the Applicant has been lodged under his own name.
[11] [2012] FMCA 872 and [2008] HCATrans 361.
The issue of representation being dealt with, in light of the Applicant’s refusal to open his case, the Application in this matter is dismissed for want of prosecution.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Date: 9 August 2013
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