Mbuzi v Griffith University

Case [2016] FCAFC 10

FEDERAL COURT OF AUSTRALIA

Mbuzi v Griffith University [2016] FCAFC 10

Appeal from: Mbuzi v Griffith University [2014] FCA 1323
File number: QUD 861 of 2015
Judges: LOGAN, GRIFFITHS AND PAGONE JJ
Date of judgment: 11 February 2016
Catchwords:

CONSUMER LAW – whether primary judge erred in dismissing appellant’s claims that in terminating his doctoral candidature the respondent’s conduct was unconscionable or misleading or deceptive, contrary to the Australian Consumer Law, or in breach of contract.

CONTRACTS –whether relationship between university and doctoral candidate contractual – Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99

PRACTICE AND PROCEDURE – appeal against orders under s 37AO Federal Court of Australia Act 1976 (Cth) – whether appellant has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals – where applicant prohibited from instituting proceedings in any Queensland court under s 6 Vexatious Proceedings Act 2005 (Qld) – proper construction of s 37AO Federal Court of Australia Act 1976 (Cth) - whether respondent had standing to bring application under s 37AO(3) Federal Court of Australia Act 1976 (Cth) –where appellant has history of joining persons as individuals to litigation involving actions taken in official or agency capacity for purposes of intimidation – where appellant in correspondence threatened action against staff of university for conduct related to present proceedings
Legislation:

Australian Consumer Law ss 18, 20, 21, 22

Federal Court of Australia Act 1976 (Cth), ss 37AM, 37 AO, 37AO(1)(a), 37AO(2)(a), 37AO(2)(b), 37AO(3)(c), 37AO(3)(d), 37AO(6), 51

Higher Education Funding Act 1988 (Cth)

Higher Education Support Act 2003 (Cth)

Uniform Civil Procedure Rules 1999 (Qld) r 389A

Vexatious Proceedings Act 2005 (Qld)

Judicial Review Act 1991 (Qld)

Cases cited:

Attorney-General in and for the State of NSW v Gargan [2010] NSWSC 1192 at [7]

Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90

Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988; [2000] 3 All ER 752

Cooper v Mbuzi [2012] QSC 105

Fuller v Toms [2013] FCA 1422

Fuller v Toms [2015] FCAFC 91

Garrett v Commissioner of Taxation [2015] FCA 117

Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99

Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88

Legal Aid Western Australia v Wheaton [2006] WASC 219

Mbuzi v Griffith University [2015] FCA 862

Mbuzi v Hall [2010] QCA 253

Mbuzi v Hall [2010] QCA 356

Mbuzi v Hall [2010] QSC 359

Mbuzi v University of Queensland [2010] QSC 153

Mbuzi v University of Queensland [2010] QCA 336

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239

Date of hearing: 8 February 2016
Registry: Brisbane
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 110
Counsel for the Appellant: The appellant appeared in person
Counsel for the Respondent: Mr…

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AGLC
Mbuzi v Griffith University [2016] FCAFC 10
Case
[2016] FCAFC 10
Decision Date

CaseChat Overview and Summary

The case of Mbuzi v Griffith University involved the appellant, Mr Mbuzi, who pursued claims against Griffith University regarding the termination of his doctoral candidature. Mr Mbuzi argued that the university's conduct was unconscionable, misleading, or deceptive under the Australian Consumer Law, and that it breached their contractual relationship. The primary judge dismissed Mr Mbuzi’s claims, leading to an appeal. The court was tasked with determining whether the primary judge erred in dismissing the appellant’s claims and whether the respondent had standing to bring an application under section 37AO(3) of the Federal Court of Australia Act 1976 (Cth).

The court examined the nature of the relationship between the university and the doctoral candidate, considering whether it was contractual in nature, as in Griffith University v Tang. It also assessed the primary judge's determination of whether Mr Mbuzi's proceedings were vexatious, given his history of instituting similar claims. The court scrutinised whether the respondent had standing to apply under section 37AO(3) of the Federal Court of Australia Act 1976 (Cth), particularly in light of the appellant’s history of joining individuals in litigation for intimidation purposes. The court also considered whether the respondent had standing to bring the application, given the appellant's vexatious litigation history and threats made against the university staff.

The court found that Mr Mbuzi's claims were without merit and that the primary judge did not err in dismissing them. The court held that the relationship between the university and the doctoral candidate was not contractual in nature, and that the respondent had standing to bring the application under section 37AO(3) of the Federal Court of Australia Act 1976 (Cth). The court further determined that Mr Mbuzi's history of vexatious litigation warranted the dismissal of his appeal. Consequently, the appeal was dismissed, and Mr Mbuzi was ordered to pay the university's costs as agreed or assessed.

The final orders of the court were that the appeal be dismissed and that Mr Mbuzi pay the respondent's costs, as agreed or assessed. This decision underscores the importance of the relationship between a university and its doctoral candidates, and it reinforces the consequences for vexatious litigation.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It is desirable to summarise the background facts and the primary judge’s reasons for judgment before considering the eleven grounds of appeal set out in the notice of appeal dated 17 September 2015. Background facts summarised Mr Mbuzi became a candidate for the degree of Doctor of Philosophy (PhD) at the University on 7 March 2011. His doctoral thesis, which was undertaken in the School of Humanities at the University, was entitled “Community perceptions of development programmes by Government & NGO - Indigenous Australian Experience”. Mr Mbuzi had previously been a doctoral candidate at the University. His initial candidature was terminated on 14 March 2003. Mr Mbuzi had also been enrolled previously in the PhD programme at the University of Queensland. In 1993 he completed a Master’s degree in Development Studies at Deakin University. Mr Mbuzi’s second doctoral candidature at the University commenced after he had received a letter of offer dated 7 January 2011. He was told that the Dean of the Graduate Research School at the University had approved his application for admission as a higher degree research candidate at the University in the PhD programme. Mr Mbuzi’s supervisors were specified as Dr Susanna Chamberlain (principal supervisor) and Dr Kerrie Foxwell (associate supervisor). Both these supervisors were members of the University’s School of Humanities. The letter of offer stipulated that Mr Mbuzi’s candidature would be subject to “Candidature Milestones”, which were described as follows:All students are admitted to candidature subject to completing an early and mid-candidature milestone as well as completing your candidature confirmation. Your milestone and confirmation of candidature due date will be provided to you on enrolment. Mr Mbuzi was also notified in the letter of offer that the School of Humanities would support his research within Australia but that extra funds would have to be sought by him elsewhere for any research undertaken by him in Africa. In mid-February 2011 Mr Mbuzi accepted the offer of candidature by submitting a signed copy of the “Acceptance of Offer” form. That form included the following statement:I acknowledge that while I am enrolled as a student of Griffith University I am subject to the Statutes, Rules and Policies of the University and to the lawful instructions of the authorities of the University. The University’s policies included the Higher Degree Research Policy (HDR Policy). It required Mr Mbuzi to obtain “confirmation” of his candidature within the requisite period. Under the HDR Policy, the “confirmation” process included a review of Mr Mbuzi’s supervision arrangements and a determination had to be made by the Head of School as to whether or not the candidature and supervision arrangements should be recommended for confirmation or, otherwise, be the subject of an “unsatisfactory recommendation”. Also, under that Policy, a PhD student was required to have two supervisors at all times. An effective relationship between the student and his or her supervisors was described in the HDR Policy as a “necessity” and as requiring “mutual respect, trust and a willingness for the relationship to continue from both supervisor and student”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Mbuzi must take responsibility for having commenced the proceedings below and then brought this appeal, both of which have been unsuccessful. He made no submission that his proceedings were “public interest litigation”, which may have required consideration of that matter in the context of costs (see generally Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72). Conclusion For these reasons the appeal must be dismissed. Mr Mbuzi must pay the University’s costs as agreed or assessed. I have had the benefit of reading a draft of the reasons of Griffiths J and respectfully agree that the appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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