Mbuzi v Griffith University

Case [2014] FCA 1323

FEDERAL COURT OF AUSTRALIA

Mbuzi v Griffith University [2014] FCA 1323

Citation: Mbuzi v Griffith University [2014] FCA 1323
Parties: JOSIYAS MBUZI v GRIFFITH UNIVERSITY
File number: QUD 479 of 2013
Judge: COLLIER J
Date of judgment: 5 December 2014
Catchwords:

CONSTITUTIONAL LAW – implied freedom of political communication – applicant doctoral candidate at university had candidature terminated – applicant alleged content of thesis critical of government policy used as ground for termination – whether candidature terminated on such a ground – application of implied freedom – constraint upon legislative and executive power – implied freedom does not confer personal rights – Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 – alleged breach of constitutional right of due process – whether claim referable to any right conferred by the Constitution

CONSUMER LAW – whether breach of unconscionable conduct provisions – ss 20, 21 and 22 Australian Consumer Law – whether provision of supervision services to doctoral candidate in trade and commerce – whether university acted unconscionably in terminating applicant’s candidature – where applicant alienated staff members qualified to supervise applicant’s thesis – where no academic at university able and willing to supervise applicant’s thesis

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

PRACTICE AND PROCEDURE – application for vexatious proceedings orders – s 37AO Federal Court of Australia Act 1976 (Cth) – whether applicant 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) – whether respondent has standing to bring application – s 37AO(3) Federal Court of Australia Act 1976 (Cth) – whether present proceedings vexatious – where applicant has history of joining persons as individuals to litigation involving actions taken in official or agency capacity for purposes of intimidation – where applicant in correspondence threatened action against staff of university for actions related to present proceedings
Legislation: Constitution ss 7, 24, 64, 128
Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)) ss 20, 21, 22, 232, 236
Federal Court of Australia Act 1976 (Cth) ss 37AM, 37AO, 37AO(2)(b), 37AO(3)
Higher Education Funding Act 1988 (Cth)
Higher Education Support Act 2003 (Cth)
Judiciary Act 1903 (Cth) s 39(1A)(b)
Griffith University Act 1998 (Qld) ss 5, 5(g), 5(h)
Vexatious Proceedings Act 2005 (Qld) s 6
Federal Court Rules 2011 (Cth) r 16.21
Cases cited: Al-Kateb v Godwin (2004) 219 CLR 562
Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557
Attorney-General v Times Newspapers Ltd [1974] AC 273
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90
Coleman v Power (2004) 240 CLR 1
Cooper v Mbuzi [2012] QSC 105
Elliot Daniel Sgargetta v National Australia Bank Ltd [2014] VSCA…

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AGLC
Mbuzi v Griffith University [2014] FCA 1323
Case
[2014] FCA 1323
Decision Date

CaseChat Overview and Summary

Josiyas Mbuzi brought a claim against Griffith University after his candidature as a doctoral candidate was terminated. Mr Mbuzi alleged that the university had breached his constitutional rights, engaged in misleading and deceptive conduct, and breached the terms of a contract. The Federal Court was asked to determine the merits of Mr Mbuzi's claim as well as whether the proceedings were vexatious. The court was also asked to make orders under s 37AO of the Federal Court of Australia Act 1976 (Cth) prohibiting Mr Mbuzi from instituting proceedings against the university without leave of the court. Griffith University brought a cross-claim seeking orders under s 37AO of the Federal Court of Australia Act 1976 (Cth) prohibiting Mr Mbuzi from instituting proceedings against the university and its employees without leave of the Court. The university also sought an order for costs.

The court found that Mr Mbuzi's constitutional claims had no merit. The court found that there was no contract between Mr Mbuzi and the university in relation to the provision of supervisory services. The court also found that the university had not engaged in misleading or deceptive conduct. The court found that Mr Mbuzi's candidature was terminated because he was aggressive, impolite, and used offensive language. The court found that Mr Mbuzi's candidature was also terminated because he alienated staff members qualified to supervise his thesis, and no academic at the university was able or willing to supervise him. The court found that Mr Mbuzi's proceedings were vexatious and that he had a history of instituting proceedings for purposes of intimidation. The court found that the university had standing to bring its cross-claim.

The court dismissed Mr Mbuzi's amended originating application with costs. The court made orders prohibiting Mr Mbuzi from instituting any proceedings in any Registry of the Federal Court of Australia against Griffith University or any employee, officer, Council member or student of Griffith University without the leave of the Court. The court ordered that Mr Mbuzi pay the costs of the cross-claim filed by Griffith University.

Orders

Orders of the court

1. The amended originating application filed 25 November 2013 of Josiyas Mbuzi is dismissed with costs, to be taxed if not otherwise agreed.

2. Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) Josiyas Mbuzi is hereby prohibited from instituting any proceedings in any Registry of the Federal Court of Australia against Griffith University or any employee, officer, Council member or student of Griffith University without the leave of the Court.

3. Josiyas Mbuzi pay Griffith University the costs of the cross-claim filed 15 August 2013, to be taxed if not otherwise agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Mbuzi subsequently claimed that the signed agreement of Professor Chu was evidence of the university’s performance under contract, namely the provision of supervisory services. In my view this submission takes Mr Mbuzi’s argument no further, and has no merit.The university “chose not to offer supervisory services” Mr Mbuzi submitted that it was clear that the university no longer wished to provide supervisory services for his doctoral candidature, and that this failure was a breach of a condition of the contract between them. I have already found that there is no contract between Mr Mbuzi and Griffith University in relation to his doctoral candidature and the provision of supervisory services. In any event, however, I am satisfied that Mr Mbuzi’s claim that the university chose not to provide him with supervisory services cannot be substantiated. I have formed this view for the following reasons. First, there is ample and detailed evidence before the Court, in particular from Associate Professor Macleod, that:·Mr Mbuzi had rejected the initial supervisors of his candidature (Dr Chamberlain and Dr Foxwell), necessitating the appointment of new supervisors; and·Associate Professor Macleod took reasonable steps over a period of twelve months to identify permanent new supervisors for him, in particular a principal supervisor, with no success. The steps taken by Associate Professor Macleod are set out at length in his affidavit, including identification of suitably qualified staff in the School of Humanities (whom Mr Mbuzi had excluded and who were not willing in any event to supervise him) and inquiries made of other Schools at the university. Queensland State Magistrate Hall heard an application by Mr Mbuzi against insurance company AAMI and four of its directors in respect of a claim for $3,276 in respect of a stove cook-top under an insurance policy. During the proceedings Magistrate Hall disclosed that she knew two of the directors of AAMI but declined to recuse herself. Magistrate Hall ultimately dismissed the application. Mr Mbuzi filed an application for judicial review of the decision of Magistrate Hall in the Supreme Court of Queensland. The application was dismissed. Mr Mbuzi then sought leave to appeal the decision of the Supreme Court. The Court of Appeal refused leave: Mbuzi v Hall [2009] QCA 405. Fryberg J described Mr Mbuzi as an “experienced” litigant and observed:23.Mr Mbuzi’s reply comprised mainly an offensive and rambling personal attack on the directors, White J and counsel for his opponents. In Mbuzi v Hall [2010] QCA 5 Mr Mbuzi brought a further application in the Court of Appeal pursuant to Rule 668 on the basis that the Court of Appeal in Mbuzi v Hall [2009] QCA 405, in giving judgment, had acted upon the affidavit and the submissions filed by the respondents after the hearing had concluded. The Court of Appeal dismissed this application. In Mbuzi v Hall [2010] QCA 23 Chesterman JA ordered that the costs of the respondents in Mbuzi v Hall [2009] QCA 405 should be paid by Mr Mbuzi on an indemnity basis on that the grounds that:·the precondition for the power conferred by r 668 had not been satisfied; and·Mr Mbuzi’s application was based upon a serious misstatement of the relevant facts and a misrepresentation of what occurred during the hearing of the appeal and during the subsequent exchange of written submissions delivered pursuant to the direction of the court.

Decision

Reasons for decision

Mr Mbuzi’s conduct satisfies the requirements of s 37AO(1)(a) of the Federal Court Act. In the circumstances I consider it appropriate to make the orders sought by Griffith University pursuant to s 37AO(2)(b) in respect of future litigation by Mr Mbuzi against the university and persons associated with the university. It is usual that such orders be made preventing future litigation “without the leave of the Court”, and I consider such a qualification appropriate in this case. As I have dismissed Mr Mbuzi’s claim on its merits, it is unnecessary for me to make an order dismissing this particular claim pursuant to s 37AO(2)(a).CONCLUSION Mr Mbuzi’s amended originating application filed 25 November 2013 has no merit. The usual rule in such cases is that costs follow the event. No reason has been advanced which supports any finding other than that Mr Mbuzi pay the university’s costs. Griffith University has been successful in its cross-claim. Similarly, the university is entitled to the costs of this cross-claim from Mr Mbuzi, to be taxed if not otherwise agreed.

Ratio Decidendi

Legal Principle Established

In summary the university contends:·Mr Mbuzi is wrong in his articulation of implied rights of freedom of political communication and the right to due process allegedly granted by the Constitution. Lange does not stand for the proposition alleged by Mr Mbuzi.·There is no contract between Mr Mbuzi and the university because:o the agreement of Professor Chu to supervise Mr Mbuzi was not a contract;o there is no consideration moving from Mr Mbuzi to the university;oif there is a contract it is open-ended and either party can terminate it on giving a reasonable period of notice;oit cannot have been the intention of the parties that the university had an unqualified obligation to provide services to Mr Mbuzi.·The conduct concerning Mr Mbuzi’s candidature and the provision by the university of supervision for research was not conduct “in trade or commerce”, but was conduct engaged in by the university as part of its educational functions under governing legislation, and internal administrative matters for the university.·Insofar as Mr Mbuzi claims that the university acted unconscionably, he misrepresents facts upon which this claim is based.·The university has not engaged in misleading or deceptive conduct in that:othere was never any requirement by the university that Mr Mbuzi had to undertake research within Australia as a condition of approving candidature – the university simply made it clear that it could not support his research financially it he chose to undertake research in Africa;onotwithstanding Mr Mbuzi’s insistence that the university falsely said that there was no-one willing or able to supervise him, there is no evidence that there was any suitable person willing or able to supervise him.Consideration – Constitutional issues Section 39B(1A)(b) of the Judiciary Act provides that the original jurisdiction of the Federal Court of Australia includes jurisdiction arising under the Constitution, or involving its interpretation.Implied freedom of political communication Before Rangiah J at an interlocutory level and before me Mr Mbuzi claimed that his implied right of communication under the Constitution had been infringed because complaints about him and (more particularly) the decision to terminate his candidature arose from allegations of him being “aggressive”, “impolite”, “loudly speaking” and using “offensive language”. Further Mr Mbuzi alleged, in summary, that the university took steps to terminate his candidature because his doctoral thesis was critical of the impact of Europeans and their arrival in Australia on indigenous Australians, and in particular that he was disseminating information, opinions and arguments about Federal government policies relating to indigenous affairs. The respondent rejects these contentions. Mr Mbuzi relies on a number of cases for this proposition including Coleman v Power; ACTV; Attorney-General v Times Newspapers Ltd at 315 and in particular Lange. I note that Mr Mbuzi also claimed that his Constitutional rights of due process had been infringed because he was not given a hearing in respect of Professor Chu’s complaints.