Mbuzi v Griffith University - [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 159
Favell v Mbuzi [2005] QDC 356
Fuller v Toms [2013] FCA 1422
Garrett v Make Wine Pty Ltd [2014] FCA 1258
Griffith University v Tang (2005) 221 CLR 99
Hogan v Hinch (2011) 243 CLR 506
Kerrison v Melbourne City Council [2014] FCAFC 130
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Mathews v University of Queensland [2002] FCA 414
Mbuzi v Attorney-General of Queensland and Favell [2006] QCA 381
Mbuzi v Attorney-General of Queensland [2008] HCASL 1
Mbuzi v Favell [2007] QCA 393
Mbuzi v Favell [2008] HCASL 243
Mbuzi v Favell [2012] QCA 17
Mbuzi v Hall [2009] QCA 405
Mbuzi v Hall [2010] QCA 5
Mbuzi v Hall [2010] QCA 23
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
Monis v The Queen (2013) 249 CLR 92
Quickenden v O’Connor (2001) 109 FCR 243
Rana v Australian Human Rights Commission [2014] FCA 1092
Razdan v Westpac Banking Corporation [2014] NSWCA 126
Shahid v Australasian College of Dermatologists (2008) 168 FCR 46
Tajjour v New South Wales [2014] HCA 35
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Unions NSW v New South Wales (2013) 304 ALR 227

M McHugh, “Does Chapter III of the Constitution protect substantive as well as procedural rights?” (2001) 21 Australian Bar Review 235
S Corones, “Consumer Guarantees and the Supply of Educational Services by Higher Education Providers” (2012) 35(1) UNSW Law Journal 1

Date of hearing: 4 and 5 March 2014

Date of last submissions: 24 April 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 196

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr JD McKenna QC with Mr PJ McCafferty

Solicitor for the Respondent: Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 479 of 2013

BETWEEN:
JOSIYAS MBUZI
Applicant

GRIFFITH UNIVERSITY
Cross-Claimant

AND:
GRIFFITH UNIVERSITY
Respondent

JOSIYAS MBUZI
Cross-Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

5 DECEMBER 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
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.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 479 of 2013

BETWEEN:
JOSIYAS MBUZI
Applicant

GRIFFITH UNIVERSITY
Cross-Claimant

AND:
GRIFFITH UNIVERSITY
Respondent

JOSIYAS MBUZI
Cross-Respondent

JUDGE:

COLLIER J

DATE:

5 DECEMBER 2014

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Before the Court are a claim and a cross-claim involving the same parties. Mr Mbuzi has been self-represented throughout the proceedings. The respondent/cross-claimant, Griffith University, has been represented by solicitors and Counsel.
In his amended originating application filed 25 November 2013 Mr Mbuzi applied for the following relief pursuant to s 39(1A)(b) of the Judiciary Act 1903 (Cth) (“Judiciary Act”), ss 20, 21, 22, 232 and 236 of the Australian Consumer Law (“ACL”) (being Sch 2 of the Competition and Consumer Act 2010 (Cth)), and the common law:
1.An injunction restraining the respondent by itself, its agents or otherwise however, from terminating the applicant’s Doctoral candidature
2.        Preservation of Applicant’s PhD candidature at Griffith University
3.$90,000.00 for lost opportunity compensatory damages due to unconscionability and breach of contract
4.        $2,550.00 being conferences’ costs in Perth, Western Australia
5.$200,000.00 non-economic compensatory damages for inconvenience, annoyance, and emotional distress
6.        $10,000.00 exemplary damages
7.To strike out Respondent’s counter-claim on grounds of being scandalous, irrelevant, inappropriate, vexatious, filed in breach of court rules, embarrassing and does not amount to a cause of action and is bound to fail.
On 15 August 2013 Griffith University filed a notice of cross-claim in which it sought the following orders:
1.An order under section 37AO (2)(a) of the Federal Court of Australia Act 1976 (Cth) staying or dismissing all of the proceeding instituted by Mr Mbuzi
2.An order under section 37AO (2)(b) of the Federal Court of Australia Act 1976 (Cth) prohibiting Mr Mbuzi from instituting proceedings against Griffith University or any employee, officer, Council member or student of Griffith University in the Court
3.An order that Mr Mbuzi pay Griffith University the costs of its cross-claim.
It was clearly this cross-claim to which paragraph 7 of Mr Mbuzi’s application was directed.
The matter was heard over two days. As it transpired, Mr Mbuzi presented his claims, and I then heard both parties in respect of Griffith University’s cross-claim.
It is convenient to deal with Mr Mbuzi’s claims first.
MR MBUZI’S CLAIMS
Background
There is a great deal of correspondence before the Court, generated by interactions between Mr Mbuzi and staff of Griffith University in relation to this matter. Much of the evidence relating to these facts can be drawn from affidavits of Mr Mbuzi, and from affidavits affirmed on 6 December 2013 by Associate Professor Norman James Macleod (at material times the Acting Dean, Learning and Teaching, Arts, Education and Law) and Professor Susan Berners-Price (at material times the Dean (Griffith Graduate Research School) and Chair of the Board of Graduate Research).
Commencement of candidature
Mr Mbuzi commenced candidature for the degree of Doctor of Philosophy (“PhD”) on 7 March 2011 in the School of Humanities at Griffith University. Mr Mbuzi initially expressed an interest in the topic “community perceptions and attitudes towards development programmes delivered by non-governmental organisations (NGOs) and governments for poverty alleviation and empowerment”. The topic of his doctoral thesis was formally “Community perceptions of development programmes by Government & NGO – Indigenous Australian Experience”.
This was the second time Mr Mbuzi had been a PhD candidate at Griffith (his first candidature was terminated on 14 March 2003).
On 13 January 2011 Ms Joanne Umemoto, the Higher Degree Research Officer (Arts, Education and Law) sent Mr Mbuzi an email with a letter of offer attached, informing him that the Dean (Griffith Graduate Research School) had approved his application for admission as a higher degree research candidate at Griffith University. The letter of offer listed Mr Mbuzi’s supervisors as Dr Susanna Chamberlain (principal supervisor) and Dr Kerrie Foxwell (associate supervisor). Both Dr Chamberlain and Dr Foxwell were members of the School of Humanities. The letter stated that Mr Mbuzi’s candidature would be subject to “Candidature Milestones” 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 dates will be provided to you on enrolment.
The letter also informed Mr Mbuzi that the School of Humanities would support his research within Australia but extra funds for research in Africa would need to be sought elsewhere.
On or about 14 February 2011 Mr Mbuzi accepted the offer of candidature by submitting a signed copy of the “Acceptance of Offer” form. On that form, immediately before the signature panel, was 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.
Doctoral supervisors
It is not in dispute that the university’s Higher Degree Research Policy (“HDR Policy”) requires a doctoral candidate at all times to have two university supervisors – namely a principal supervisor and an associate supervisor. Further, on 18 November 2010 the Higher Degree Research Supervisor Accreditation Policy (“Accreditation Policy”) was approved. Paragraph 3.1 of the Accreditation Policy required, among other things, that in order to be a principal supervisor a staff member must have supervised at least one higher degree research candidate to successful completion and have demonstrated professional engagement in higher degree research education.
Associate Professor Macleod deposed that in or around June 2011 he became aware that Mr Mbuzi did not want Dr Foxwell to continue as associate supervisor, and that Dr Foxwell was content to be removed from that position. Mr Mbuzi at that time identified Professor Cordia Chu to replace Dr Foxwell.
In or around July 2011 both Associate Professor Macleod and Mr Mbuzi were hopeful that Professor Chu could be appointed Mr Mbuzi’s principal supervisor. On 1 September 2011 however Professor Chu advised Associate Professor Macleod that, because of changed circumstances, she could only commit to be Mr Mbuzi’s associate supervisor. Relevant correspondence was also copied to Mr Mbuzi, and on 2 September 2011 Mr Mbuzi lodged a “Higher Degree Research: Appoint/Change Supervisor Form”, signed by Professor Chu as Mr Mbuzi’s prospective associate supervisor.
Candidature milestone and progress report
In September 2011 Mr Mbuzi was required to complete his early candidature milestone. Clause 4.13.2 of the university’s HDR Policy states that the purpose of the early candidature milestone is to assess if the candidate has a viable research project, and to define the education/training requirements and resources needed by the candidate to ensure timely completion. The milestone is assessed as “satisfactory” or “unsatisfactory”. Mr Mbuzi was also required to complete his 2011 Annual Progress Report. There was correspondence between Mr Mbuzi, Dr Chamberlain and Associate Professor Macleod in which Mr Mbuzi complained about Dr Chamberlain’s failure to give priority to the Progress Report (which Mr Mbuzi said was overdue) and her insistence that Mr Mbuzi address the early candidature milestone. At this time Mr Mbuzi informed Associate Professor Macleod that he wished Dr Chamberlain to cease acting as his principal supervisor. Dr Chamberlain conveyed similar sentiments to Associate Professor Macleod in respect of her position as principal supervisor to Mr Mbuzi, however Associate Professor Macleod requested her not to withdraw from that role until a replacement principal supervisor could be found.
It appears that Mr Mbuzi completed his 2011 Annual Progress Report, however the Panel assessing the report (namely Professor Richard Bagnall (Dean of Research (Arts, Education and Law), Associate Professor Macleod, Dr Chamberlain, Professor Chu and Dr Margaret Gibson (Deputy Head of School (Research) and Acting HDR Convenor) decided on 9 November 2011:
1.That Mr Mbuzi be considered to have completed the early candidature milestone process.
2.That the panel, in its academic judgment, considers that his work to date, nevertheless, is not of doctoral standard, in that it fails to engage with scholarship in the field of his proposed research in a scholarly manner, it being neither adequately descriptive nor critically informed.
3.That, in preparation for the confirmation of his candidature and the preparation of his confirmation document and seminar presentation, he must:
a.Undertake appropriately focused critical reviews of informing literature in the contextual fields of (1) poverty alleviation (2) community development (3) empowerment and clients’ needs, and (4) program evaluation, drawing from these reviews arguments to articulate a clear line of questioning to guide his doctoral research.
b.Develop a contextual review of the Cape York communities in which he intends to locate his research: a review that serves to argue for their use in the research and explain them as research sites.
c.Develop his approach to the research task, explaining and justifying that approach using appropriate methodological literature.
d.Detail his research methodology, grounded appropriately in the literature.
e.Obtain written authorisation to conduct the research in the selected communities and obtain the required research ethics clearances.
That the timeline for the completion of these tasks to doctoral standard be that which is articulated in the Higher Degree Research guidelines.
Contemporaneous litigation with Griffith University
Around this time Mr Mbuzi was engaged in litigation in the Supreme Court of Queensland against Associate Professor Malcolm Alexander and Dr Cathy Jenkins of Griffith University. Mr Mbuzi and Associate Professor Macleod engaged in email correspondence in November 2011 in which Mr Mbuzi stated that there was a potential for him to subpoena Associate Professor Macleod to also appear in those court proceedings. I do not understand this to have eventuated.
Replacement principal supervisor
From at least September 2011 Dr Chamberlain had requested that she be replaced as Mr Mbuzi’s principal doctoral supervisor. On 30 November 2011 Dr Gibson emailed Associate Professor Macleod informing him that she had met Dr Chamberlain and it was no longer tenable for Dr Chamberlain to continue as Mr Mbuzi’s principal supervisor because of the stress Dr Chamberlain was experiencing. In his affidavit Associate Professor Macleod deposed however:
76.Before Mr Mbuzi could be transferred out of the School of Humanities, it was necessary to find a new principal supervisor in another element of the University who had the relevant expertise and was willing to take on the role of principal supervisor. I had not identified anyone outside the school who was willing to take on the role.
On 24 February 2012 Mr Mbuzi sent an email to the university, copied to Associate Professor Macleod, stating that in his view it was not feasible for his confirmation of candidature process to be overseen by Dr Chamberlain as she had not been involved in his academic work for approximately eight months. On the other hand, Mr Mbuzi was prepared to continue with the timeline for confirmation because Professor Chu was adequately providing and meeting his supervision requirements.
It appears from his evidence that Associate Professor Macleod made extensive endeavours to obtain a new principal supervisor for Mr Mbuzi. At [90]-[93] of his affidavit Associate Professor Macleod deposes:
90.On 24 August 2012 at or about 4.25pm Dr McKay [the HDR convenor] sent an email to me, forwarding the email referred to at paragraphs 88 and 89 above. In that email Dr McKay advised me that the School of Humanities could not provide appropriate supervision for Mr Mbuzi and that a replacement supervisor needed to be found for Dr Chamberlain …
91.I was still considering all options to find Mr Mbuzi a suitable replacement principal supervisor within the School of Humanities. However, as indicated in my emails above, I believe that I had exhausted all options for finding a supervisor within the School of Humanities and it remained my view that efforts would need to be made to find someone outside the academic element.
92.At this point in time I do not recall consulting with Mr Mbuzi about potential alternative supervisors. Rather I was looking for someone who might be willing to take on the role and who had the necessary expertise. If such a supervisor could be found, it was my intention to ask Mr Mbuzi whether he was willing to take that person on as the new principal supervisor.
93.I was aware that Mr Mbuzi was also making efforts himself to find an alternative supervisor to replace Dr Chamberlain as principal supervisor at or about this time. I recall that Mr Mbuzi from time to time suggested names to me. I do not recall Mr Mbuzi ever identifying anyone who I thought would have the appropriate expertise to take on the role of principal supervisor. I do recall however encouraging Mr Mbuzi to follow up with any suggested principal supervisors to determine whether they might be able to take on the role and if so whether they had the relevant expertise.

It appears that Associate Professor Macleod met with Mr Mbuzi on or about 30 January 2013 to discuss his supervisory arrangements. It does not appear to be in dispute that, at that time, Dr Chamberlain did not wish to continue in the role of principal supervisor for Mr Mbuzi, and Mr Mbuzi also refused to work with the other two Humanities academics most closely related to his research topic (Dr Foxwell and Associate Professor Alexander). On 1 February 2013 Mr Mbuzi reiterated in an email to Associate Professor Macleod that Dr Chamberlain be immediately removed as his principal supervisor. Associate Professor Macleod deposed that in or about March 2013 he had face to face meetings with the Heads of the School of Criminology and Criminal Justice, the School of Law and the School of Education and Professional Studies at the university seeking assistance to identify a new principal supervisor for Mr Mbuzi, but was unsuccessful.
On 20 May 2013 in an email to Professor Berners-Price, Dr Chamberlain stated that she was no longer willing to be recorded as Mr Mbuzi’s principal supervisor.
Need for ethics approval
At the same time there was some difficulty in relation to obtaining appropriate ethics approval in respect of Mr Mbuzi’s research. Because Mr Mbuzi’s research involved indigenous persons the National Statement on Ethical Conduct in Human Research (published by the National Health and Medical Research Council) and the Guidelines for Ethical Research in Indigenous Studies (published by the Australian Institute of Aboriginal and Torres Strait Islander Studies) certain obligations were imposed, including:
·the researcher is required to address relevant issues of research design, ethics, culture and language;
·research must be reviewed and approved by a Human Research Ethics Committee;
·regard must be had to the Guidelines for Ethical Research.
Some time before 9 May 2012 Mr Mbuzi applied to the Office for Research at the university for ethical review of his project. On 9 May 2012 Dr Gary Allen, the Senior Policy Officer, Office for Research of Griffith University, sent Mr Mbuzi an email in which he said (materially):
Further to your discussion with Ms Rhiannon Campbell I feel we need to discuss informed consent materials, prior to this being sent for review. There is certainly precedent, and indeed value, in focussing on the discussion to ensure individuals are able to exercise a truly informed and voluntary decision about their participation in a research project. We do however (as discussed in Booklet 22 of the Griffith University Research Ethics Manual (see attached) recommend that an information sheet is produced and left with participants at the end of the verbal consent discussion – for their later reference and discussion with others. The language and format of these materials should be appropriate and respectful. I would be doing you a disservice if I sent your application onto review without these materials.
I recommend you discuss this issue with a member of your supervisory team and the Research Ethics Advisor for Environment.
On 12 April 2013 Mr Mbuzi emailed Dr Kristie Westerlaken, Policy Officer Research Ethics and Integrity at the university and informed her that:
… Based on my lengthy consultations with the community representatives/elders on phone email and in person during meetings, it was put to me that the community members realised their right to provide consent, except that they wished such ‘consent’ to be ‘verbal’ and ‘non-written’. Your response incorrectly (through misapprehension) states that the communities/community members ‘may not wish to provide verbal and not written consent’. They put to me that the community members would not like to be “handed forms to keep”. Given the initial response from Dr Gary Allen which was insisting on “participants still need to be given forms to keep”, similarly to your expressed view, I had sought a meeting with the element Dean (Research), Professor Richard Bagnall, to seek his advice on the situation where Dr Allen was essentially telling me to ignore the community wishes in order to respect the committee’s requirements. As a community development practitioner of over 12 years myself, I was concerned with taking a position which was essentially not respecting the wishes of the communities concerned. Professor Bagnall’s advice was for me to explain what I explained to you in my email that “written consent” and “forms for the participants to keep” were anathema due to historical experiences of the communities. It should also be noted that the thrust of my research project relates to the importance or respecting community wishes.
Given that “written consent” and “forms for the participants to keep” are still being insisted upon by you or your committee, I will prepare the forms and I have copied Professor Bagnall into this email so that he is aware of the situation. If your committee receives feedback from the university community, I would like an opportunity at an appropriate time to do so.
In relation to Mr Mbuzi’s email however a contrary opinion was expressed by Professor Paul Tacon in an email to Associate Professor Macleod of 26 April 2013. Professor Tacon is Chair in Rock Art Research in the School of Humanities. Materially Professor Tacon wrote:
There are national policies about ethics in research with Aboriginal and Torres Strait Islander communities and the Griffith policy is based on them. It is now a requirement that consent be obtained in writing. … I discussed this with Joe some time ago and suggested that he obtain written consent whenever possible but he said he could not because the community members did not want to. I don’t know of any community members I’ve or colleagues have worked with ever refusing unless they did not want to participate.
When I undertake ethnographic research, I am required to get community consent and I am required to get individuals to sign forms giving their consent even though I have been working in Aboriginal Australian communities for over 30 years. I and my students have followed this procedure the eight years I’ve been at Griffith …
…
If we do not have proof of consent the researcher, the community members and the University are all at risk should something go wrong. The whole purpose of University ethics is to protect all key stakeholders and to establish an agreed easy to follow protocol. Joe’s assessment of the University’s ethics policy and its ethics officers is totally unreasonable, aggressive and down right wrong.
Another reason for written consent is to add a certain level of reliability to ethnographic evidence collected orally.
Finally, in order to undertake ethnographic research anywhere in Australia researchers need to have a permit from the relevant local land council, community or other type of governing body. These are signed written documents, not oral agreements, that the Aboriginal communities produce …
Associate Professor Macleod deposed at [111] of his affidavit that he accepted Professor Tacon’s advice, because he was aware that Professor Tacon is a very experienced researcher in areas involving indigenous communities.
Confirmation seminar
Before enrolling as a doctoral candidate at Griffith University, Mr Mbuzi had been enrolled in the doctoral programme at the University of Queensland. On 20 June 2012 Professor Berners-Price informed Mr Mbuzi that, although he had received confirmation of candidature at the University of Queensland, he was nonetheless required by Griffith University’s HDR Policy to be reviewed for confirmation of candidature, including supervision arrangements, unless:
·he could demonstrate satisfactory completion of a candidature confirmation at another institution; and
·the Dean (Research) recommended exemption.
In an email of 29 August 2012 the Dean (Research), Professor Bagnall, recommended to Professor Berners-Price that Mr Mbuzi not be exempted from the requirement to complete confirmation of candidature. Professor Berners-Price invited submissions from Mr Mbuzi in relation to this issue and Mr Mbuzi responded accordingly. On 22 October 2012 however Professor Berners-Price emailed a letter to Mr Mbuzi in which she said:
I have determined that you should complete the University’s candidature confirmation procedure for the reasons given in Professor Bagnall’s recommendation of 29 August 2012, including that the confirmation document for which confirmation was granted at The University of Queensland does not address methodological issues crucial to the study towards which you are now working, including the Australian indigeneity of the intended participants.
Professor Berners-Price indicated however that she was prepared to give Mr Mbuzi a reasonable extension of time in which to complete his confirmation of candidature. In later correspondence she indicated that this process should formally involve Dr Chamberlain, who at that time was Mr Mbuzi’s principal supervisor. Professor Bagnall signed off on an application for an extension of the date of Mr Mbuzi’s confirmation of candidature seminar to 15 March 2013.
In late January 2013 Mr Mbuzi submitted an application at the university to have Dr Chamberlain’s name removed as his principal supervisor. This application was refused because no suitable alternative principal supervisor had either been identified or agreed to perform that role.
The confirmation seminar was rescheduled to May 2013 because Professor Chu was unavailable until then.
Because, however, Dr Chamberlain took no active part in supervising Mr Mbuzi’s doctoral studies, at Professor Bagnall’s request Associate Professor Macleod organised Mr Mbuzi’s confirmation seminar. Associate Professor Fiona Kumari Campbell was identified as an appropriate independent assessor, with Professor Chu also nominated as an assessor. The confirmation seminar was held on 15 May 2013 at the Nathan campus of the university. Associate Professor Macleod deposed that after the seminar he conferred with the assessors, and it became clear to him that there was some doubt whether Mr Mbuzi’s candidature would be confirmed following the seminar, based on the assessors’ initial views (affidavit of Norman James Macleod dated 6 December 2013 at [122]). On or about 22 May 2013 Associate Professor Campbell and Professor Chu completed their assessments of Mr Mbuzi following the confirmation seminar. Both assessors advised, inter alia, that the work presented by him was not of the standard expected for the doctoral degree.
Withdrawal of Professor Chu
On 27 May 2013 Professor Chu informed Associate Professor Macleod and Professor Berners-Price that she wanted to withdraw from the position of associate supervisor to Mr Mbuzi. In an email of that date, Professor Chu said the following:
Dear Jock and Sue:
As you can see from the emails trail, Joe has finally burnt the bridges with me and our Centre with unacceptable behaviour.
One week before Joe’s confirmation seminar, the CEPH PhD students have made a special effort to attend a pre-confirmation seminar to help him. By answering questions aggressively and being overly defensive, Joe had managed to offend nearly everybody there. One student commented “we are not your enemy, why are you acting this way.”
Three days before Joe’s confirmation seminar, I asked my post-doctoral fellow Dr Phung to stay behind two hours for two nights in a roll [sic] to accompany me to advise Joe to help him to improve his oral presentation for the confirmation seminar. After the second meeting I asked Dr Phung to show Joe a couple techniques about ppt back to his office as I had to attend to other matters. Instead of learning how to do it, Joe asked Dr Phung to do it for him in a commanding manner. So Dr Dung [Phung] said that he was not his research assistant and his job was only to show him how to do it. Joe became very aggressive and impolite and using insulting language such as “rubbish” to Dr Phung. They then got into heated argument and came back to my office. I told Joe that I was really busy and had no time to deal with this kind of matter. Dr Phung then asked him politely to leave to go home as he had a lot to do for the seminar and leaving me to do my work. Right in front of me, Joe suddenly turned very loud, shouting out to Phung, “Don’t touch me and you have no right to ask me to leave.” I then asked him to leave. After he left he called me back and told me that by asking him to leave and touch him at the same time, Dr Phung had committed a criminal offence. I could not believe he could make such an untrue accusation to a kind person as Dr Phung who had to delay going home for dinner in order to help him, not to mention I had witnessed the whole process and wasting a lot of time to endure such unacceptable behaviour.
He returned today to my office saying that because he was going to the field next week and had a one hour discussion with you Jock after the confirmation and you advised him to come to talk to me about it. I told him that I know nothing about the indigenous culture and people and that I do not know about his research settings and he had to talk to his principle [sic] supervisor instead. He then changed the subject and told me that if Phung does not apologize to him, he would report to the police that Phung had committed a criminal offence against him.
I was terribly offended and upset by this untrue accusation. Not only he had insulted someone I asked to help him, but by doing so he had also being [sic] very dis-respectful to me with an intention of causing trouble.
This is the last straw. I like to withdraw from his supervision team. He will attempt to see me again to discuss other ways of dealing with this matter. I want to put this in record to you beforehand. I am not willing to spend more time to deal with such upsetting and offensive matter anymore.
Complaints by Dr Phung and Mr Mbuzi
In an email of 31 May 2013, Professor Chu informed Professor Berners-Price that Dr Phung had filed a formal report and complaint with her concerning the events involving Dr Phung and Mr Mbuzi. Professor Chu said:
… I witnessed the event and would add that it was Joe who acted aggressively, loudly, in a threatening way towards Dr Phung. Phung merely put his hand up to defend himself and to stop Joe from approaching further but did not apply any force. I was extremely angry witnessing such bullying behaviour from Joe …
On 3 June 2013 Mr Mbuzi emailed an incident report of the same event to Professor Berners-Price, stating as follows:
Please find attached my incident report of assault by Dr Dung Phung against me on 14^th May 2013 and Professor Cordia Chu’s blackmail in her efforts to suppress a criminal liability complaint.
In his report Mr Mbuzi wrote:
Dr Dung Phung thrashed one of his hands on my under right shoulder and successfully made contact with that part of my body. He did so without my permission and while shouting at me saying “leave now”. I had to stop him the continuation of his assault on me by saying words to the effect, “don’t touch me and you have no right to be telling me to leave”. Eventually both Dr Phung and I were requested to leave the office concerned by its owner, Professor Cordia Chu who had witnessed the assault against me. Later that night (14^th May) and also on 27^th May Professor Chu demanded that I should not make a complaint of assault against Dr Phung and that if I did, she would withdraw her stop her role as my supervisor. She further added that she was the one to decide whether or not an assault had been committed by Dr Phung and that it was not the duty of the Queensland Police. I told her that I would proceed to make a complaint and I understand she has implemented her blackmail.
Termination of Mr Mbuzi’s candidature
Clause 4.13.3 of the university’s HDR Policy (approved 18 July 2013) (which for present purposes is not materially different from the HDR Policy approved 18 November 2010) provides as follows:
Confirmation of Candidature and Supervision Arrangements
All candidates will be reviewed for confirmation of candidature, including supervision arrangements, excepting candidates who have changed candidature from MPhil to PhD under section 4.8.3 of this Policy.
The review of PhD candidates will occur around the first twelve months of enrolment in the case of full-time candidates, and the first eighteen months of enrolment in the case of part-time candidates …
Where a major change in the direction of the research has occurred or in exceptional circumstances, the Dean (Research) may approve an extension to the confirmation of candidature due date of up to six months FTE for a PhD …
As part of the confirmation procedure the candidate must present a research seminar together with a written submission. The seminar and written submission will be assessed by the principal supervisor/s; associate supervisor/s (if available); and an independent assessor, approved by the Dean (Research).
On receipt of a recommendation for confirmation of candidature from the Head of Element, the Dean (Research), will determine that:
a)        candidature and supervision arrangements are confirmed; or
b)        the confirmation date is postponed for no more than six months;
On receipt of an unsatisfactory recommendation for confirmation of candidature from the Head of element to the Dean (Research), the Dean, Griffith Graduate Research School will determine that:
c)        candidature is terminated; or
d)in the case of PhD candidates, the candidate is offered the opportunity to be admitted as a candidate to one of the University’s masters degrees.
On 30 May 2013 Professor Berners-Price wrote to Mr Mbuzi advising him that both Dr Chamberlain and Professor Chu had indicated that they were no longer willing to be his supervisors, and that pursuant to clause 4.13.3 of the HDR Policy his supervision arrangements were subject to review as part of the confirmation of candidature process. Professor Berners-Price invited Mr Mbuzi to provide any response that he wished to make to the comments of Dr Chamberlain and Professor Chu, and said that the university was currently investigating alternative arrangements for the supervision of his candidature.
In an email to Professor Berners-Price dated 6 June 2013 Mr Mbuzi said that it appeared Professor Berners-Price was using complaints against him in the decision-making process concerning his confirmation of candidature, and requested her to remove herself from any role she had in his confirmation process.
Following email correspondence between Professor Berners-Price and Associate Professor Macleod, on 7 June 2013 in an email to Professor Berners-Price, Associate Professor Macleod said the following in relation to identification of suitable doctoral supervisors for Mr Mbuzi:
ŸMr Mbuzi’s formal supervisor (Dr Susanna Chamberlain) and Associate Supervisor (Prof Cordia Chu) have both asked to be withdrawn as his supervisors. In Dr Chamberlain’s case, Mr Mbuzi has refused to work with her for over 12 months, and has repeatedly made it clear he does not consider her his supervisor.
ŸThe School has only three suitably qualified staff who could act as Mr Mbuzi’s principal supervisor. Assoc Prof Malcolm Alexander (recently retired but still an adjunct with the School), Dr Chamberlain, and Dr Kerrie Foxwell (his original associate supervisor). Mr Mbuzi has progressively excluded them as his supervisors, and none of them is willing to supervise him.
ŸI can confirm there is no other academic in the School who meets your criteria for principal supervisor.
ŸOver this period I have sought other colleagues who might have been able to supervise Mr Mbuzi, provided Prof Chu (who has expertise in the area) remained as associate supervisor. These are colleagues who have some loose connection to his topic, but do not have expertise in it. None of these colleagues is willing to supervise Mr Mbuzi.
ŸI can confirm that I have identified Dr Rane as the most recent of these colleagues. Mr Mbuzi’s topic lies outside Dr Rane’s area of expertise, and Dr Rane was only prepared to take on the role of principal supervisor as an interim measure until Mr Mbuzi resubmits for confirmation. Given these circumstances, I accept your decision to refuse to appoint Dr Rane as Mr Mbuzi’s principal supervisor.
ŸI have also sought to identify appropriate supervisors outside the School. I believe Mr Mbuzi has also done this. I have been unsuccessful in finding anyone who could supervise Mr Mbuzi according to the criteria you have laid out.

On 24 June 2013 Associate Professor Macleod as Head of School recommended to Professor Gerard Docherty, then Dean Research (Arts, Education and Law) that Mr Mbuzi’s candidature not be confirmed, because in summary:
·Mr Mbuzi had not made suitable progress during the initial stage of candidature.
·For Mr Mbuzi to reach a standard where he would be able to re-present and pass his confirmation, he would need extensive and detailed supervision which he would need to apply.
·Suitable supervision was a fundamental problem in relation to Mr Mbuzi’s candidature as:
othis would not appear to be possible because Mr Mbuzi had rejected both Humanities supervisors assigned to him;
o Professor Chu was not willing to supervise him;
oextensive efforts had been made to find a supervisor with the expertise to supervise Mr Mbuzi’s studies but these efforts had been unsuccessful;
oin the circumstances Associate Professor Macleod could not see how Mr Mbuzi could advance to a point where he could fulfil the conditions for confirmation of his candidature at the university.
Mr Mbuzi met with Associate Professor Macleod on or about 18 July 2013 at Mr Mbuzi’s request. At that meeting Associate Professor Macleod told Mr Mbuzi in person the reasons for his recommendation that Mr Mbuzi’s candidature not be confirmed.
On 19 July 2013 Professor Berners-Price caused a letter to be sent to Mr Mbuzi informing him that pursuant to clause 4.13.3 of the HDR Policy and following receipt of a recommendation that his candidature not be confirmed from the Head of School to the Dean (Research), she had, in her role as the Dean, Griffith Graduate Research School, determined that his candidature be terminated.
Mr Mbuzi’s doctoral candidature was terminated on 26 July 2013.
In his affidavit sworn 26 July 2013 Mr Mbuzi deposed that the true basis for the termination of his candidature was because he reported a crime of assault against him by Dr Phung. He also states that he has made significant progress in his candidature, and that only about one more year remains until he completes the doctoral degree.
Mr Mbuzi sought to appeal the termination decision to the university Appeals Committee. On 23 October 2013 Professor Peter Healy, the Chair of the university Appeals Committee, wrote to Mr Mbuzi advising him that the Committee had determined that the decision to terminate his candidature on the ground that he did not have adequate supervision was properly taken and in accordance with the academic standards and policies of the university.
In his affidavit sworn 18 December 2013 Mr Mbuzi gave evidence that, inter alia:
·There is reason to infer that in her affidavit Professor Berners-Price has demonstrated apprehended bias against him in respect of the termination of his candidature.
·He denies absolutely the allegation that he had abused anyone at Griffith University, or did anything wrong for someone to be “in tears”.
·His working life has mostly been in multi-national and multi-cultural settings in a number of African countries, Australia, New Zealand, Britain, Canada and the United States of America.
·In 1990 he was a spokesperson for a group drawn from all Commonwealth countries, including Australia, India, Britain, Canada, New Zealand and African, Asian and Pacific nations, on a cultural exchange programme involving eight major towns of New Zealand.
·He has been involved in personal negotiations with government officials of Australia, Britain, Ireland, Canada, USA, Germany and Hong Kong for the funding of community development programmes in the course of his work as a development practitioner for over 12 years.
·Dr Chamberlain remained his principal supervisor for some time despite his complaint about the lack of supervision from her and her lack of accreditation to be a principal supervisor.
·Dr Chamberlain sent Associate Professor Macleod an email suggesting Professor Cordia Chu be responsible for the selection of an assessor for the confirmation process.
Submissions of Mr Mbuzi
The primary claim before me is that of Mr Mbuzi. Mr Mbuzi’s submissions were oral, as well as set out in three sets of submissions. It is convenient to summarise them as follows.
Mr Mbuzi submits that his application has three components, namely:
1.To challenge the respondent’s decision to terminate his candidature.
2.Compensatory damages for loss.
3.To strike out in whole the respondent’s counterclaim.
He relies on:
·the Constitution relating to protection of rights;
·the ACL;
·the common law;
·section 37AO of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”);
·rule 16.21 of the Federal Court Rules 2011 (Cth).
In relation to these points he submits further (in summary):
·The Constitution protects rights in terms of implied rights, freedom of political communication and the right to due process.
·The implied right to freedom of communication on political matters also has a broad notion of freedom of expression.
·Relevant cases in respect of the implied freedom of communication, and the fact that this right goes beyond legislative or executive power to include individuals like the applicant, include Coleman v Power (2004) 240 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (“ACTV”); Attorney-General v Times Newspapers Ltd [1974] AC 273 at 315 and in particular Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
·In his doctoral thesis he proposed to defend the position that the arrival of Europeans in Australia ought to be a relevant consideration in the analysis of poverty and disadvantage among indigenous communities. Mr Mbuzi, as a member of the Australian community, was disseminating information, opinions and arguments contained in his academic document about Federal government policies which contributed, and continue to contribute, to the state of poverty, powerlessness and other disadvantages among indigenous Australians. It is as a result of Mr Mbuzi exercising that freedom that the university began its steps leading to the termination of his doctoral candidature.
·The complaint against him which resulted in the termination of his candidature was an infringement of the broader notion of implied right of communication because that complaint related to allegations of being “aggressive”, “impolite”, “loudly speaking” and using “offensive language”.
·The Constitution also protects due process rights. If there had been substance to the complaint of Professor Chu, Mr Mbuzi would have been charged by the student’s misconduct committee, and this did not happen.
·There is no power under clause 4.13.3 of the HDR Policy to terminate his candidature. This is because clause 4.13.3 states that:
On receipt of an unsatisfactory recommendation for confirmation of candidature from the Head of element to the Dean (Research), the dean, Griffith Graduate Research School will determine that:
…
…
(c)       Candidature is terminated; or
(d)In the case of PhD candidates, the candidate is offered the opportunity to be admitted as a candidate to one of the University’s masters degrees.
·The Australian Consumer Law is relevant so far as concerns breach of contract and unconscionable conduct because:
o         the university requires to be funded for all PhD students;
oif a candidate is not an Australian citizen or Australian permanent resident the funds must come from outside the Commonwealth Government;
o         the Australian government “pays” on Mr Mbuzi’s behalf;
ohe is rightfully a consumer, with Griffith University a provider of educational services.
·There is a contract between Mr Mbuzi and Griffith University in that:
o         on 13 January 2011 the university made an offer to Mr Mbuzi (“offer”);
o         Mr Mbuzi accepted the offer in writing (“acceptance”);
oMr Mbuzi’s payments were to be via the Commonwealth Government’s Research Training Scheme and under that scheme the university advised Mr Mbuzi that he was not required to make any out of pocket payments (“consideration”);
oin return, the university’s obligation under contract related to providing PhD education services, which includes as a matter of necessity, supervision as described in the policy;
othe documents in the bundle illustrate an intention by the parties to be bound. So much cannot be denied by the university because it seeks to rely on the policy which is part of the terms of the contract.
·Provision of supervisory services by the university is evidenced by the signed agreement of Professor Chu. It is clear that the university no longer wishes to provide these supervisory services. Failure to provide supervisory services is a breach of a condition of the contract.
·The respondent has engaged in misleading and deceptive conduct, and also unconscionable conduct, because:
oit is perpetuating a myth that there is nobody able and willing to supervise him when there is evidence that Dr Halim Rane, Dr Dale Kerwin and Professor Richard Bagnall are all willing and able to do so;
oboth Dr Chamberlain and Professor Chu must continue to remain Mr Mbuzi’s supervisors until changes are made to his supervisory arrangements.
·No weight should be given to the evidence of complaints against Mr Mbuzi at the university, because no witnesses of the alleged complainants were produced for cross-examination.
·As is clear from cases including Quickenden v O’Connor (2001) 109 FCR 243 universities engage in trade or commerce. That the university has engaged in trade and commerce to enliven the operation of the ACL in this case is clear from the provisions of s 5 of the Griffith University Act 1998 (Qld) (“Griffith University Act”) s 5(g) and (h) which provide:
The university’s functions are—
…
(g)to provide facilities and resources for the wellbeing of the university’s staff, students and other persons undertaking courses at the university; and
(h)to exploit commercially, for the university’s benefit, a facility or resource of the university, including, for example, study, research or knowledge, or the practical application of study, research or knowledge, belonging to the university, whether alone or with someone else; …
·The university should be held accountable for wanting to supply services – that is, supervision – to induce, or attempt to induce the applicant not to report a crime to the police.
·The Court should determine whether it is factually accurate to say that “there is nobody able and willing to supervise Mr Mbuzi at Griffith University”.
·Mr Mbuzi was ordinarily exempt from having to undertake the confirmation process on account of having submitted documentation demonstrating satisfactory completion of a candidature confirmation procedure at the University of Queensland.
·Mr Mbuzi’s thesis has been judged by every academic who has looked at it as a very significant and original research topic not just nationally, but also globally.
·There is no evidence that the university supports the decision of Professor Chu to withdraw her wish to supervise Mr Mbuzi. In any event, both Professor Chu and Dr Phung are under police investigations as well as investigation by the university because of the events involving them and Mr Mbuzi.
·The fact that the university failed to call either Professor Chu or Dr Phung as witnesses should cause the Court to draw an adverse inference against the respondent, to the effect that there is no evidence they could lead to contradict Mr Mbuzi’s evidence.
·Mr Mbuzi is entitled to one year’s worth of lost opportunity in respect of his candidature.
·Mr Mbuzi rejects the proposition that he rejected Dr Chamberlain and Dr Foxwell as supervisors – rather they were rejected by the respondent’s own policies on account of being ineligible.
Submissions of the university
The legal representatives for the university have provided the Court with lengthy and detailed submissions. They are neatly summarised at [171] of the submissions filed on 25 February 2014, as follows:
The documents relied upon by the Applicant to set out his case have a tendency to state conclusions without identifying, in any logical or coherent way, the factual and legal basis said to give rise to those conclusions. This approach proves problematic when an attempt is made to provide a reasoned response to the causes of action. The task is not however impossible and is greatly assisted by the simple fact that the majority of the facts relied upon by the Applicant as giving rise to his causes of action are simply wrong.
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.
Sections 7, 24, 64 and 128 of the Constitution imply a right of freedom of political communication, including dissemination and receipt of information concerning government and political matters in Australia. There have been numerous cases both in the High Court and the Full Court of the Federal Court analysing this right. The majority in Hogan v Hinch (2011) 243 CLR 506 explained at [92]:
It is made clear in Lange and Coleman v Power that the implied freedom of political communication operates as a constraint upon legislative power in a particular sense.
(Emphasis added, footnotes omitted.)
In other words, the implied right of freedom of communication is a “shield”, not a “sword”, and can be invoked in circumstances where an existing law allegedly impacts on the freedom of the citizen. As the High Court explained in Lange at 560:
That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanou, they are “a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ‘right’ in the strict sense”. In Cunliffe v The Commonwealth, Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said:
The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.
French CJ in Hogan v Hinch further explained at [47]:
The test adopted by this Court in Lange v Australian Broadcasting Corporation, as modified in Coleman v Power, to determine whether a law offends against the implied freedom of communication involves the application of two questions
1.Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?
2.If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people?
(Footnotes omitted.)
(cf Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in Hogan v Hinch at [94]-[97]; Kerrison v Melbourne City Council [2014] FCAFC 130 at [119]); Unions NSW v New South Wales (2013) 304 ALR 226 at [35], [44]).
The Chief Justice reiterated these comments in Tajjour v New South Wales [2014] HCA 35 at [32] where his Honour observed:
The implied freedom of communication on governmental or political matters defines a limit on the legislative power of the Commonwealth, State and Territory Parliaments and informs the common law of Australia.
(cf Hayne J at [60], Crennan, Kiefel and Bell JJ at [104], Gageler J at [140], Keane J at [195]).
The implied right is relevant both during and outside election periods (Lange at 561) and includes publication in the press (Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Lord Simon of Glaisdale in Attorney-General v Times Newspapers Ltd at 315; ACTV at 139, 211-212, 231). It includes the freedom to discuss public and political affairs and to criticise federal institutions (ACTV at 129). It extends to all political matters in Australia, including matters relating to other levels of government within the national system which exist under the Constitution (ACTV at 169, 216; cf French CJ in Hogan v Hinch at [48]-[49]), but may not extend to political matters which are not relevant to Australia (Monis v The Queen (2013) 249 CLR 92 at [249]). Relevant subjects of political and governmental communication include the activities of the executive arm of government, including Ministers, public servants, statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature (McHugh J in Coleman v Power at 45).

However the freedom of communication which the Constitution protects does not allow an absolute and uncontrolled licence, and is limited to what is necessary for the effective operation of the system of representative and responsible government. So, for example, in Lange the High Court held that laws relating to defamation were not inconsistent with the implied right of freedom of communication.
Examining the principles upon which Mr Mbuzi seeks to rely in the context of the authorities, it is clear that there is no substance to his claim that rights conferred on him by the Constitution have been infringed.
The dispute between Mr Mbuzi and Griffith University is a private matter. There is no exercise of either executive or legislative power preventing Mr Mbuzi producing a body of work of his choosing, or any such law being challenged. A decision by Griffith University in respect of Mr Mbuzi’s candidature at that university pursuant to the internal policies of the university is not one which attracts the implied right of freedom of communication relied on by Mr Mbuzi.
Second, and in any event, Mr Mbuzi draws a very long bow in alleging that because his doctoral thesis apparently includes criticism of Federal Government policies concerning indigenous people, his right of freedom of communication is breached by Griffith University terminating his candidature. Placing to one side the distinct dearth of evidence before me as to the nature of this criticism, and more broadly the nature of the discussion of political and governmental matters proposed by Mr Mbuzi in his doctoral paper:
·There is nothing before me to support a finding that Mr Mbuzi is being prevented by Griffith University disseminating information concerning the topics of government policy and indigenous poverty. It is simply that as a result of the decision to terminate his candidature he will be unable to produce a thesis pursuant to a degree at Griffith University.
·Although the effect of the termination of Mr Mbuzi’s candidature is that he will not be able to produce the thesis he had sought to undertake, it is perfectly legitimate for the university to have rules permitting termination of candidature in the event that adequate supervision cannot be arranged for a doctoral student, both in the interests of the university and the student.
·Mr Mbuzi’s submission, taken to extremes, would necessarily entail a finding that any decision of the examiners of his thesis to fail it for being of insufficient standard to warrant the award of the doctoral degree (or, for that matter, a refusal of a publisher to publish his thesis for any reason) would similarly fall foul of the implied right of freedom of communication, because it would similarly deny him the publication of his views. This proposition is equally without foundation.
Third, there is no evidence before me that any decision of Griffith University concerning Mr Mbuzi’s candidature could be attributed in any way to his thesis topic or the proposed content of the thesis. I make no comment on the originality of Mr Mbuzi’s thesis topic however it is reasonable to take judicial notice of the fact that published criticism of government policies concerning indigenous peoples in Australia, and the impact of such policies on indigenous poverty, is not new. I am not satisfied that any steps taken by Griffith University were caused by Mr Mbuzi exercising the freedom to write a thesis of his choosing raising such topics or including such criticism.
Fourth, Mr Mbuzi claims that the decision to terminate his candidature was based upon “aggressive, impolite and insulting language.” Other than by reference to a tone of communication, I am unable to see the relevance of this contention to the implied Constitutional right of freedom of discussion of political or government matters alleged by Mr Mbuzi. There was discussion of the use of insulting language in Coleman v Power but that was solely within the context of the legislation the subject of challenge before the High Court in that case.
Finally in respect of this issue, there is no evidence before me to support a finding that Mr Mbuzi’s candidature was terminated because he allegedly used “aggressive, impolite and insulting language”. There is evidence before me to suggest that his conduct (possibly including the use of such language) has alienated his supervisors such that they withdrew from their respective roles. This, however, does not invoke any Constitutional protection for Mr Mbuzi.
This ground has no merit.
Due process
Mr Mbuzi also claims that the Constitution protects due process rights, and if there had been any substance to Professor Chu’s complaint Mr Mbuzi would have been charged by the student’s misconduct committee.
Although Kirby J suggested in Al-Kateb v Godwin (2004) 219 CLR 562 at [154] that there would be a gradual acceptance that Chapter III of the Constitution protects due process rights (cf M McHugh, “Does Chapter III of the Constitution protect substantive as well as procedural rights?” (2001) 21 Australian Bar Review 235 at 238), there is no specific recognition of rights of due process in the Constitution.
Even if such an implied right does exist by virtue of the Constitution I am unable to see how it is relevant in this case. Griffith University informed Mr Mbuzi that his candidature was terminated because of a lack of availability of supervisor, not because of any complaints of Professor Chu. Professor Chu withdrew from her role as associate supervisor of Mr Mbuzi for the reasons she gave in her email to Professor Berners-Price and Associate Professor Macleod.
At this point it is convenient to address a contention of Mr Mbuzi in relation to his supervision – namely his claim that there is no scope for the university to say that it was unable to provide adequate supervision for Mr Mbuzi, because there were clearly qualified staff (for example, Professor Chu) and the university should simply have given such staff a direction to supervise Mr Mbuzi. Relevant questions by Mr Mbuzi and evidence given by Associate Professor Macleod during the hearing were as follows:
HER HONOUR: So can I just clarify. So she was doing a favour?---She was doing a favour. She was being a collegial member of staff.
Okay?---Yes. In the case of Professor Chu, Professor Chu made it very – Professor Chu is outside my school. Professor Chu made it very clear that she was not going to supervise you after the incident that she referred to in her email. I had absolutely – I mean, let’s put it this way, Mr Mbuzi. In a collegial institution, there is no way that Professor Chu would have been forced to continue your supervision unless she had been prepared to do it, just as Dr Chamberlain was not forced to continue her supervision but agreed to do it – under duress, I grant, but agreed to do it for the sake of getting you through to confirmation. It is not quite the picture that you’re painting.
MR MBUZI: Let me tell you this. Can I tell you, in society, in Australia, anywhere else, people who are employed do what their employers want. Is that an unreasonable statement to make?---I don’t think it’s quite as simple as that.
Let me ask you this question. Is it true that if I’m employed by somebody, whether at court or anywhere else, the tasks I’m going to do will depend on my employer. Is that an unreasonable thing to say?---In broad terms, yes.
Okay. Are you telling me that at this university staff are such that they do what they want? Is that what you want me to - - -?---I am not saying that.
Good. Let me ask you, if what you’re saying is true, that it is not ..... why hasn’t the approval to withdraw by Professor Chu been granted? And you are saying you don’t ..... why hasn’t it been granted if, indeed, things worked as you claim to be?---I do not know the – I do not know what the consequence from the dean, graduate studies, was to Professor Chu’s resignation as a supervisor.
Okay. Do you know the term “resignation”? Do you know the term “intention to withdraw”? Do you know the term “unwillingness”? Do you know that “resignation” means that it’s not definitive; it’s subject acceptance. You know that, don’t you?---Yes, that’s true.
Okay. And you know that – that you knew from what you are saying that what the so called resignation you are referring to was subject to approval. Unless you are saying, “No, it doesn’t .....” you just said it’s subject to approval. Why did you not wait until that definitive approval was given? Why did you not do that?---Because at that stage I was already three weeks, as you will recall, past when I had hoped to do it and there was a need to get the recommendation through. It was very clear from the tone of Professor Chu’s email that she was not prepared to continue supervising you.
(Transcript 5 March 2014 pp 221-222.)
In my view however the evidence of Associate Professor Macleod supports a finding that Griffith University could not compel any member of its staff to supervise Mr Mbuzi’s PhD candidature against their will. Professor Berners-Price in her affidavit gave similar evidence, in particular at [46] where she deposed:
The opening words of clause 10 of the Supervision Policy provide that quality supervision arises from the positive interaction between supervisors and students. Without that positive interaction between a supervisor and a student, it is my view that a student would be unable to complete his or her PhD candidature. For this reason I would not compel a supervisor to continue to supervise a student if it was clear to me that the relationship between the student and the supervisor was no longer workable.
The evidence also supports a finding that a PhD candidate cannot be forced to accept a supervisor against their will. Indeed Mr Mbuzi himself recognised this throughout his candidature in that he requested the removal of Dr Chamberlain as principal supervisor and Dr Foxwell as associate supervisor.
Further Mr Mbuzi gave oral evidence during the hearing that, because of the need for mutuality, the supervision relationship can only work if both parties are willing to work together for it to continue (transcript 4 March 2014 p 44 ll 33-35).
While a refusal of a staff member to perform his or her duties can be an issue for performance management in the university setting, the necessity of an effective relationship subsisting between supervisor and student in the PhD setting means that there must be mutual respect, trust, and a willingness for the relationship to continue from, both supervisor and student. In the absence of such a relationship between Professor Chu and Mr Mbuzi I am satisfied that it would not have been practical for Griffith University to have given Professor Chu a direction to supervise Mr Mbuzi against her will.
In this respect questions of “due process” concerning the reception of Professor Chu’s email by Professor Berners-Price and Associate Professor Macleod are irrelevant.
Consideration – contractual issues
I am not satisfied that there was a contract between Griffith University and Mr Mbuzi for the provision of supervisory services to him as part of his PhD candidature. I am also not satisfied that the university no longer wishes to provide supervisory services to Mr Mbuzi as contended by him.
Consensual relationship
There is little evidence before me as to the exact nature of the relationship between Griffith University and Mr Mbuzi. However in Griffith University v Tang (2005) 221 CLR 99 the High Court considered, among other things, a decision to exclude the respondent from the PhD candidature programme conducted by the university, and – importantly in the present context – the nature of the relationship between the university and the respondent in that case. After examining relevant constituent legislation, at [20] Gleeson CJ observed:
So far as appears from the evidence, the relationship between the appellant and the respondent was voluntary. Neither party was bound to continue in the relationship, although the respondent would have had a legitimate expectation that certain procedures would be followed before the appellant terminated the relationship. The Griffith University Act provided the legal context in which the relationship existed. The Higher Education (General Provisions) Act also provided part of the wider context. On the other hand, the decision of the appellant, which was to terminate that relationship, was not a decision which took legal force or effect, in whole or in part, from the terms of either statute.
(Emphasis added.)
Similarly Gummow, Callinan and Heydon JJ in the same case said:
91.Counsel for the University correctly submitted that, given the manner in which the respondent had framed her application for judicial review, there had subsisted between the parties no legal rights and obligations under private law which were susceptible of affection by the decisions in question. There was at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality. That mutual consensus had been brought to an end, but there had been no decision made by the University under the University Act. Nor, indeed, would there have been such a decision had the respondent been allowed to continue in the PhD programme.
92.It may, for the purposes of argument, be accepted that the circumstances had created an expectation in the respondent that any withdrawal from the PhD candidature programme would only follow upon the fair treatment of complaints against her. But such an expectation would create in the respondent no substantive rights under the general law, the affecting of which rendered the decisions she challenged decisions made under the University Act. What was said by Kiefel J and Lehane J on the point in Lewins, and subsequently by this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, supports that conclusion.
(Emphasis added, footnotes omitted.)
On the material before me it appears that similar principles apply in this case. The university accepted Mr Mbuzi as a doctoral student, with his candidature subject to compliance with university policies. Mr Mbuzi himself was at liberty to withdraw as a doctoral candidate at any time without giving any reason. It is difficult to see the relationship between them as other than consensual. I do not accept that the provision of funding by the Commonwealth government to the university for doctoral candidates was “consideration” within the contractual meaning of that term, so far as concerns the relationship between Mr Mbuzi and Griffith University.
University policies
Further, while the university is itself a creature of statute, it is not in dispute that there are no internal statutes governing procedures, but rather delegations of power to particular university officers and publication of broad policies which are intended to guide those officers in the exercise of their powers. In respect of doctoral candidates, for example, the Higher Degree Research Policy (Doctor of Philosophy, Master of Philosophy) and the Code of Practice for the Supervision of Higher Degree Research Students provide relevant policy guidelines. As I have already noted in this judgment, clause 4.13.3 of the HDR Policy deals with Confirmation of Candidature and Supervision Arrangements and provides, inter alia:
On receipt of a recommendation for confirmation of candidature from the Head of Element, the Dean (Research), will determine that:
a)        Candidature and supervision arrangements are confirmed; or
b)        The confirmation date is postponed for no more than six months.
On receipt of an unsatisfactory recommendation for confirmation of candidature from the Head of Element to the Dean (Research), the Dean, Griffith Graduate Research School will determine that:
c)        Candidature is terminated; or
d)In the case of PhD candidates, the candidate is offered the opportunity to be admitted as a candidate to one of the University’s masters degrees.
In relation to clause 4.13.3 it is useful to make the following two points.
First, paragraphs (c) and (d) of clause 4.13.3 are clearly alternatives in respect of PhD students. In relation to a PhD student who has been the subject of an unsatisfactory recommendation, the only discretion that the Dean, Griffith Graduate Research School, has is to determine whether candidature is terminated or whether the student is offered the opportunity to move to the Masters programme. There is no discretion for the Dean to permit the student to otherwise continue as a doctoral candidate. Mr Mbuzi is incorrect in submitting that there is no power in the Dean to terminate his candidature pursuant to clause 4.13.3.
Second, it is plain on the facts of this case that, at material times, Associate Professor Macleod was the Head of the relevant Element (being the School of Humanities) and Professor Berners-Price was the Dean, Griffith Graduate Research School. Both were witnesses in the trial, and both gave extensive evidence in relation to the recommendation made by Associate Professor Macleod and the decision by Professor Berners-Price to terminate Mr Mbuzi’s candidature. I cannot identify any irregularity in compliance with the relevant University policy concerning the termination of Mr Mbuzi’s doctoral candidature.
Supervision form
In his “Outline of Essential Facts Relied Upon” filed 27 November 2013 Mr Mbuzi alleges that:
5.By a signed agreement exhibited and marked “JM 14” to the affidavit of Josiyas Mbuzi sworn on 21 November 2013, the respondent agreed to provide PhD supervisory services to the applicant.
In that Mr Mbuzi claims that this document, being the form “HIGHER DEGREE RESEARCH: Appoint/Change Supervisor” signed by Professor Chu on 30 August 2011 constituted a contract between himself and Griffith University, this claim cannot stand. The form appears, as submitted by the university, to be an administrative form for internal University purposes. Perusal of the form indicates that it can more particularly be described as a request by the student to change the supervisor, and – if signed by the staff member – a consent by that staff member to act. In my view Professor Chu’s “agreement” to act as Mr Mbuzi’s associate supervisor as expressed on the form can be read no higher than a willingness on her part to act.
There are no other terms of that “agreement” apparent on the form, such that it should be construed as having contractual effect.
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.
The respondents subsequently sought an order under r 389A of the Uniform Civil Procedure Rules 1999 (Qld) that Mr Mbuzi not file any application in relation to the judicial review proceeding without the leave of the Court. Rule 389A relevantly applied if the court was satisfied that a party to a proceeding had made more than one application in relation to an existing proceeding that was frivolous, vexatious or an abuse of process. In Mbuzi v Hall [2010] QSC 359 the Supreme Court made such an order. Relevantly the Court observed:
[85]I conclude that the applicant has adopted a vexatious mode of conducting the litigation. This conclusion does not rest on his general lack of success in bringing or resisting interlocutory applications and associated applications for leave to appeal: his only success seemingly being not having the application for judicial review summarily dismissed against AAMI. It rests on the vexatious nature of the applications that he has brought, his advancing arguments that lack a proper foundation, his persistence in unfounded arguments that have been determined against him, his lodging of applications for leave to appeal that have no reasonable prospect of success and the inclusion in affidavits and submissions of scandalous allegations. This course of conduct has delayed the resolution of the judicial review proceeding, and generated substantial costs. It has been harassing and vexatious to the other parties to applications, not to mention their lawyers who have been the subject of many ill-founded accusations of having misled the court.
In Mbuzi v Hall [2010] QCA 253 the Court of Appeal held that Mr Mbuzi had filed an application in contravention of the orders made by the Supreme Court in Mbuzi v Hall [2010] QSC 359. In Mbuzi v Hall [2010] QCA 356 the Court of Appeal dismissed an application for leave to appeal against the decision of the Supreme Court in Mbuzi v Hall [2010] QSC 359.
University of Queensland
Mr Mbuzi has brought a number of unsuccessful applications against the University of Queensland and its staff.
In Mbuzi v University of Queensland [2010] QSC 153 Mr Mbuzi sought judicial review of various decisions made by the University of Queensland where he had been enrolled as a PhD student in the School of Social Work and Applied Human Sciences. In summary: the university had received complaints from fellow students, alleging that Mr Mbuzi had been guilty of sexual harassment. A Disciplinary Board found Mr Mbuzi guilty of misconduct, and suspended him for twelve months. In dismissing Mr Mbuzi’s application for judicial review de Jersey CJ said:
[49]There is nothing in the conduct of the University authorities in this case which could give rise to even suspicion that they were not committed to the proper discharge of their responsibilities in the matter. I have read all of the correspondence and carefully considered the applicant’s complaints. They are without foundation. The University officers were apparently scrupulous in determining to process the matter with fairness, and they did so. The applicant was afforded every reasonable opportunity to answer the complaints, and to cooperate in the process which led to suspension.
[50]None of the grounds advanced by the applicant was established. There was no evidence of breach of natural justice, failure to follow applicable procedures, excess of authority, improper exercise of power, error of law, absence of evidentiary foundation for decisions made, bad faith or improper motive or of one officer acting as the cipher or at the behest of others.
[51] The applicant’s application is properly characterized as vexatious.
Mr Mbuzi’s appeal against this decision was dismissed in Mbuzi v University of Queensland [2010] QCA 336.
Proceedings against persons associated with Griffith University
On 14 June 2011 while a doctoral candidate at Griffith University, Mr Mbuzi commenced proceedings in the Supreme Court of Queensland against eight employees of the university (BS5009 of 2011) following a decision to refer him to the university’s Student Misconduct Committee. In that application Mr Mbuzi sought damages for, inter alia, defamation. On 15 June 2011 Mr Mbuzi sought an urgent injunction to prevent the Student Misconduct Committee meeting from taking place. The application was dismissed by Byrne SJA.
On 11 August 2011 Mr Mbuzi sought default judgment against two of the employees (namely Associate Professor Malcolm Alexander and Dr Cathy Jenkins). The Judge was unable to find the claim and the statement of claim on the Court file, and raised a question whether the Court had issued the relevant originating process. Mr Mbuzi withdrew the application.
On 12 August 2011 Mr Mbuzi filed fresh proceedings in the Supreme Court of Queensland against Associate Professor Alexander and Dr Jenkins (BS7052 of 2011).
On 23 August 2011 Mr Mbuzi sought default judgment in respect of both actions. Boddice J dismissed this application by consent, and ordered Mr Mbuzi to file and serve a statement of claim in BS5009 of 2011 by 6 September 2011.
Following a decision of the Griffith University Student Misconduct Appeals committee in respect of Mr Mbuzi, Mr Mbuzi filed an originating application in the Supreme Court of Queensland against the Chairman of the committee seeking judicial review of the committee’s decision (BS9129 of 2011).
On 13 October 2011 the Crown Solicitor filed an application seeking orders that Mr Mbuzi be declared a vexatious litigant under the Vexatious Proceedings Act 2005 (Qld) (“Vexatious Proceedings Act”). This application was listed for 17 November 2011.
On 11 November 2011 Mr Mbuzi filed an application for default judgment in respect of proceedings BS5009. This application was dismissed by Mullins J on 15 November 2011 by consent.
On 17 November 2011 the application filed by the Crown Solicitor against Mr Mbuzi was heard by Mullins J. Her Honour’s judgment in that matter appears as Cooper v Mbuzi [2012] QSC 105. In that case her Honour considered the meaning of “vexatious” and noted:
[67]In Re Cameron [1996] 2 Qd R 218, 220, Fitzgerald P considered what makes legal proceedings vexatious:
It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis ... .
After examining proceedings commenced by Mr Mbuzi in the State Courts her Honour observed:
[71]Mr Mbuzi is not legally qualified, but in recent years has appeared for himself in many court proceedings and it is apparent from many of the documents he has filed and the submissions he has made that he has therefore gained experience from his own litigation and familiarity with court procedures and some aspects of the law. Despite the fact that on occasion judicial officers have made positive comments about Mr Mbuzi’s familiarity with the UCPR, what is also apparent from his documents and submissions that I have considered in connection with this proceeding is that his knowledge of court procedure and law is superficial. He is focused on the process relating to his claims, rather than the substance of his claims and generally shows no understanding of the consequences for the other parties of the proceedings he brings which are unmeritorious and the oppressive manner in which he conducts them, such as by bringing unnecessary interlocutory applications.
(Emphasis added.)
In respect of the litigation arising from Mr Mbuzi’s insurance claim, Mullins J said:
[74]It is incomprehensible that Mr Mbuzi’s claim under his contents insurance for $2,099 which was the cost of the damaged cooktop resulted in so many applications and proceedings. The fact that Mr Mbuzi was appearing for himself and therefore not incurring the legal costs associated with retaining a lawyer to act in the various applications on his behalf facilitated his bringing so many proceedings. As I read one transcript and decision after another arising out of the small claim made before Magistrate Hall, I concluded that this series of proceedings amounted to a travesty of justice. This set of proceedings (more than any other) shows Mr Mbuzi’s complete fixation with court processes out of all proportion to the original claim and lack of judgment. Mr Mbuzi emphasises his success in the course of the judicial review application which was the subject of the Hall appeal of obtaining an adjournment of the application for summary dismissal by AAMI and the four directors before me on 29 June 2009 for short service and the refusal of White J on 9 July 2009 to give AAMI the benefit of summary dismissal as matters that have to be weighed against the other aspects of the judicial review proceeding. This typifies Mr Mbuzi’s pre-occupation with the procedure, rather than looking at the objective merits of his course of action. Mr Mbuzi claims to be empowered by his capacity to apply to the courts for vindication of his rights. He has shown no regard, whatsoever, for the rights of other persons whom he brings into his proceedings unnecessarily where he has no legitimate right to protect. He should not use his belief that he is vindicating his rights to infringe the rights of others. It is of concern that in the course of this application under the Act, Mr Mbuzi was still endeavouring to re-argue the propriety of having joined the four directors to the judicial review proceeding that was the subject of the Hall appeal.
…
[79]Proceeding BS5009 of 2011 is vexatious, as it has been used by Mr Mbuzi for his own purposes, has been an abuse of the process of the court, and caused unnecessary court appearances on behalf of the respondents. Even allowing for the fact that Mr Mbuzi did not continue against the second to the sixth respondents from 15 November 2011, his misuse of the UCPR in this proceeding had been extreme.
[80]My conclusions as to which of the numerous proceedings brought by Mr Mbuzi are vexatious satisfy the requirement under the Act that such proceedings must have been brought frequently.
After further discussion her Honour considered that it was appropriate that she should exercise her discretion under the Vexatious Proceedings Act and make the orders sought against Mr Mbuzi.
Submissions of Griffith University
In support of its application Griffith University submits, in summary, as follows:
·When Mr Mbuzi received notification from the university of the decision to terminate his candidature his first option was not to lodge an internal appeal but rather to commence proceedings in the Federal Court.
·Mr Mbuzi notified various members of the university’s staff that he had commenced these proceedings, including threatening to issue subpoena’s to compel attendance of university staff. Mr Mbuzi also purported to boast of his experience and success in litigation.
·On 31 July 2013 the solicitors for Griffith University sent correspondence to Mr Mbuzi informing him (inter alia) that they were acting for the university, and requesting that all future correspondence concerning the proceedings be sent to them. On 16 September 2013 Mr Mbuzi sent the following email to fourteen staff of Griffith University in the following terms:
I write to put on notice Professor Ian O’Connor, Professor Gerry Docherty, Professor Sue Berners-Price, A/Professor Jock Macleod, Professor Cordia Chu and Ms Alyson McGrath, that you would be sued in your individual capacities and added as parties to my Federal Court suit against Griffith University as an institution (QUD 479/13).
I intend to add you as parties following my success on 16 August 2013 defeating three lawyers representing Griffith University and led by barrister Thomas Bradley in their nonsensical, ill-informed and dumb submissions….The fact that the court set the matter for a two-day full hearing speaks volumes of the competence (or more appropriately in this case, incompetence) of Griffith University’s three lawyers. Further, questions should be raised about the value for money of university’s-appointed lawyers…
Please note that the grounds for the inclusion of Professor O’Connor would be for negligence as a result of paying a blind eye to administrative bullying and illegitimate authority by Mr Colin McAndrew and Professor Berners-Price, blackmail by Professor Chu in which she intimidated me in order to cover up a crime; lies and misrepresentations by Professor Docherty and A/Prof. Macleod to my detriment.
In relation to Professor Chu, it would be for defamation and administrative bullying. Professor Docherty, A/Prof. Macleod and Ms Mcgrath would be sued for negligence and defamation for republication of Prof. Chu’s defamatory publication.
…
You would all be aware that my suit against Mr Colin McAndrew in his personal capacity is already on foot.
Upon amendment of my Federal Court suit, it would be filed and served accordingly.
·Mr Mbuzi has repeated his course of conduct by continuing to copy members of the university’s staff into correspondence relevant to these proceedings.
·On 25 October 2013 Mr Mbuzi emailed Professor Healey, the Chairman of the Appeals Committee, requesting various statements relating to the decision to terminate Mr Mbuzi’s doctoral candidature and threatening to sue Professor Healy in the Supreme Court of Queensland if Professor Healy did not comply. This email was followed up on 26 November 2013 with a copy of an application to the Supreme Court seeking leave to file and serve an application commencing proceedings against Professor Healey.
·On 13 August 2013 Mr Mbuzi filed an application in the Supreme Court seeking leave to commence proceedings in the Queensland Civil and Administrative Tribunal. This application was dismissed on 15 August 2013.
·In previous proceedings Mr Mbuzi has pursued remedies without reasonable grounds.
·This litigation is not different in substance to litigation in which Mr Mbuzi has previously been involved.
·Mr Mbuzi has an appetite and propensity for conducting vexatious litigation.
Mr Mbuzi’s submissions
Mr Mbuzi submits that the university’s cross-claim should be struck out because, in summary:
·The university lacks standing to commence this cross-claim.
·The university in its submissions mis-states findings of the Supreme Court of Queensland in respect of Mr Mbuzi’s litigation in that Court.
·The lawyers of the university have disregarded requirements of this Court, including the Court’s requirement not to take any step in the proceeding before filing a Notice of Address for Service, and failing to comply with timeframes set by the Court.
·The university and its lawyers have had no regard to the disruptive nature to the proceedings of their decision to cut Mr Mbuzi off from internet and email access.
·The university has not accepted positions settled by the Court, such as the Court’s decision that Mr Mbuzi’s application was rightly brought under the Constitution.
·The university had engaged in misleading claims to the Court, such as the assertion that the Vice-Chancellor received emails from Mr Mbuzi on occasions when this could not have happened as the Vice-Chancellor was away from his office.
·The university has presented demonstrably incorrect information, such as nobody was able and willing to supervise Mr Mbuzi at Griffith University.
·The communication of Mr Mbuzi with Griffith University staff is not a legitimate concern of the Court.
·Mr Mbuzi has had a 100% success rate in matters in this Court.
·The respondent has respect for Justice Mullins – indeed as at April 2014 Mr Mbuzi had four matters pending before Justice Mullins.
Consideration
The first issue for consideration is whether the university has standing to bring this cross-claim under s 37AO(3).
Clearly Griffith University does not fall into the categories described in s 37AO(3)(a) and (b). However I am satisfied that, at the very least, Griffith University has standing to commence this cross-claim because it is currently being sued by Mr Mbuzi, and Mr Mbuzi has already forecast future litigation against the university and persons associated with it. As a result Griffith University has sufficient interest in the matter within the meaning of s 37AO(3)(d).
Although I have found that Mr Mbuzi’s claims in his amended originating application lacked merit, I am not prepared to find that the proceeding was vexatious because it was instituted or pursued “without reasonable ground” within the meaning of s 37AO(3)(c). While Mr Mbuzi’s Constitutional arguments were, in my view, doomed to fail from the outset, his contentions concerning contract and ACL proceedings required some consideration before they were dismissed. In this respect I consider this proceeding distinguishable from, for example, that recently considered by Mortimer J in Garrett v Make Wine Pty Ltd [2014] FCA 1258, where the applicant continued to relitigate issues addressed in previous litigation.
The second question is whether Mr Mbuzi has frequently instituted or conducted vexatious proceedings in Australian Courts or Tribunals. Section 37AO(6) permits the Court to consider not only proceedings in other Courts or Tribunal and orders made, but also the person’s overall conduct in those proceedings. To that extent, it is appropriate for me to have regard to the proceedings previously instituted by Mr Mbuzi in the Queensland Courts (namely the Queensland Civil and Administrative Tribunal, the Small Claims Tribunal, the Magistrates Court, the District Court of Queensland, the Supreme Court of Queensland and the Court of Appeal of Queensland) as well as the High Court of Australia.

In Cooper v Mbuzi, Mullins J made orders pursuant to the Vexatious Proceedings Act declaring Mr Mbuzi to be a vexatious litigant in light of the myriad of proceedings commenced by Mr Mbuzi in the Queensland Courts. I have already examined her Honour’s judgment in that matter.
In response to the university’s cross-claim Mr Mbuzi submitted, inter alia, that Mullins J – presumably in her Honour’s judgment in Cooper v Mbuzi – “rejected all but one of the cases said to be ‘vexatious proceedings’”. This is not correct. Mullins J found that Mr Mbuzi’s proceedings in the Supreme Court and the special leave application to the High Court arising from the small claim before Magistrate Hall were vexatious and oppressive (at [75]). Similarly her Honour found that Mr Mbuzi’s judicial review proceedings and associated litigation against the University of Queensland were vexatious (at [76]) and proceeding BS5009 of 2011 against Griffith University was vexatious. Indeed at [80] her Honour observed:
My conclusions as to which of the numerous proceedings brought by Mr Mbuzi are vexatious satisfy the requirement under the Act that such proceedings must have been brought frequently.
The only proceedings instituted by Mr Mbuzi in the Queensland courts examined by her Honour which her Honour did not find oppressive related to notices of intention to suspend Mr Mbuzi’s driver’s licence for unpaid fines: Cooper v Mbuzi at [77].
Earlier in this judgment I summarised the proceedings brought by Mr Mbuzi in the Queensland State Courts and relevant findings of Judges in those Courts. In relation to four tranches of litigation in the Queensland Courts including appeals for special leave to the High Court (namely the Favell litigation, the Hall litigation, the University of Queensland litigation and the Griffith University litigation), it appears that Mr Mbuzi has commenced approximately 20 separate proceedings in the space of eight years. As I have also observed, in many of those decisions the Judge hearing the matter commented adversely on Mr Mbuzi and the vexatious nature of his claim, culminating in the decision of Mullins J in Cooper v Mbuzi. I am satisfied that Mr Mbuzi has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals within the meaning of s 37AO(1)(a).
Finally, section 37AO(2) grants the Court a discretion to make orders of the type sought by Griffith University in their cross-claim. Griffith University has sought orders pursuant to s 37AO(2)(b).
Proscribing a person from commencing litigation is a very serious matter. An order to this effect should be approached by the Court with the utmost caution. However so far as concerns potential actions by Mr Mbuzi against Griffith University and persons associated with the university I consider it is appropriate to make orders pursuant to s 37AO(2)(b). I have formed this view for the following reasons.
First, as the university contends, Mr Mbuzi clearly has an appetite for litigation. He appears to take a very broad – and, it may be said, frequently unreasonable – view of what constitute “his rights”, which he is prepared to defend to the ultimate extent. He is prepared to commence Court proceedings with very little provocation, and, as is clear from perusal of correspondence before the Court, appears to relish doing so. That this is so is further demonstrated by:
·the frequency of litigation initiated by him over the last few years;
·the fact that Mr Mbuzi in correspondence with the university has compared his “wins” in litigation with those “wins” of the university, almost like balancing a ledger;
·the relatively minor matters which Mr Mbuzi has insisted proceed to the highest appellate Courts in the land (including a dispute over an insurance claim for $3,276 which Mr Mbuzi attempted to press as far as the Queensland Court of Appeal); and
·the regularity in his correspondence in which Mr Mbuzi either adverts to or threatens litigation as a means of enforcing “his rights”.
To illustrate this last point I note, appended to the supplementary submissions of the university, a table summarising correspondence received by university staff from Mr Mbuzi during the course of these proceedings from 22 July 2013 until 3 March 2014. There are 37 separate items of correspondence to a wide variety of persons in which Mr Mbuzi either references Court action or threatens Court action to enforce compliance with his demands.
That many of the problems Mr Mbuzi has experienced, inspiring his litigation, appear self-inflicted (and in this respect I particularly note the current proceedings, and apparently the Favell litigation and the University of Queensland litigation) do not deter him in the slightest. Rather, Mr Mbuzi seems to consider that he is vindicated in respect of his rights by commencing litigation.
Mr Mbuzi has no hesitation in bringing multiple applications in respect of the same litigation, and in particular applications against multiple personal respondents associated with decisions of institutions. A very real question arises whether Mr Mbuzi does so to attempt to intimidate those individuals in respect of decisions of the institution with which they are associated. In any event, those individuals are subjected to the trauma and potential expense of litigation which, as history has demonstrated, in the case of proceedings instituted by Mr Mbuzi is frequently unmeritorious.
Significantly, Mr Mbuzi already has a history of commencing unmeritorious claims against Griffith University, both in this Court – that is, this proceeding – and in the Supreme Court of Queensland. I consider it very likely, now that he has been unsuccessful in this proceeding, that unless the Court grants the orders sought by Griffith University, Mr Mbuzi will commence fresh proceedings closely related to the events I have documented in this judgment against either the university or staff personally. I note that Mr Mbuzi has already made threats of personal litigation in emails to Griffith University staff. I infer from this correspondence that Mr Mbuzi is “warming up” in respect of litigation against Griffith University and its staff, and because he is precluded from commencing litigation in the Supreme Court he will return to this Court with more litigation, similarly to what was seen by the State Courts in the tranches of litigation commenced there. Those tranches of litigation demonstrate that Mr Mbuzi will continue to litigate his grievances – however unmeritorious – until all avenues of appeal are exhausted.
I am concerned about the impact, not only on the resources of Griffith University and its staff, but on resources of this Court should Mr Mbuzi embark upon an operation of commencing further unmeritorious actions. I note that Mr Mbuzi complained in this hearing about the volume of material filed by Griffith University and the length of their submissions. The reality of litigation is that claims of the wide variety and potential complexity of those pressed by Mr Mbuzi require a considerable amount of work by respondents to meet, even if that work is to discredit those claims. Where respondents choose to engage legal representatives, as they are entitled to do and as Griffith University has done here, that considerable amount of work can entail extensive financial and staff resources.
So far as the resources of the Court is concerned, this claim has already required a two day hearing, and a significant amount of judicial time to examine what emerge, on proper investigation, to be completely baseless claims by Mr Mbuzi.
Mr Mbuzi has been given ample opportunity to ventilate, both in this Court and the State Courts, his grievances against Griffith University. His emailed threats to commence fresh proceedings against Professor O’Connor, Professor Chu, Professor Docherty, Associate Professor Macleod and Ms Mcgrath relate to proceedings already instituted by him, and which were dismissed. While in correspondence Mr Mbuzi appears to be contemplating the prospect of defamation proceedings against a number of staff I note that:
·Such proceedings would be clearly related to, and would involve issues raised, in this proceeding which has been dismissed.
·Mr Mbuzi did not press any defamation claims in this proceeding, which would have enabled the Court to deal with those matters and save future Court time and resources, as well as that of the respondents.
·To my knowledge, Mr Mbuzi has not yet filed defamation proceedings against any individuals associated with Griffith University in any Registry of this Court.
·In any event, there is no evidence before me of anything but the possibility of Mr Mbuzi commencing litigation in the terms he appears to have threatened.
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.

I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.
Associate:
Dated: 4 December 2014

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 159 Favell v Mbuzi [2005] QDC 356 Fuller v Toms [2013] FCA 1422 Garrett v Make Wine Pty Ltd [2014] FCA 1258 Griffith University v Tang (2005) 221 CLR 99 Hogan v Hinch (2011) 243 CLR 506 Kerrison v Melbourne City Council [2014] FCAFC 130 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Mathews v University of Queensland [2002] FCA 414 Mbuzi v Attorney-General of Queensland and Favell [2006] QCA 381 Mbuzi v Attorney-General of Queensland [2008] HCASL 1 Mbuzi v Favell [2007] QCA 393 Mbuzi v Favell [2008] HCASL 243 Mbuzi v Favell [2012] QCA 17 Mbuzi v Hall [2009] QCA 405 Mbuzi v Hall [2010] QCA 5 Mbuzi v Hall [2010] QCA 23 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 Monis v The Queen (2013) 249 CLR 92 Quickenden v O’Connor (2001) 109 FCR 243 Rana v Australian Human Rights Commission [2014] FCA 1092 Razdan v Westpac Banking Corporation [2014] NSWCA 126 Shahid v Australasian College of Dermatologists (2008) 168 FCR 46 Tajjour v New South Wales [2014] HCA 35 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 Unions NSW v New South Wales (2013) 304 ALR 227
M McHugh, “Does Chapter III of the Constitution protect substantive as well as procedural rights?” (2001) 21 Australian Bar Review 235 S Corones, “Consumer Guarantees and the Supply of Educational Services by Higher Education Providers” (2012) 35(1) UNSW Law Journal 1
Date of hearing:	4 and 5 March 2014
Date of last submissions:	24 April 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	196
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr JD McKenna QC with Mr PJ McCafferty
Solicitor for the Respondent:	Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 479 of 2013

JUDGE:	COLLIER J
DATE OF ORDER:	5 DECEMBER 2014
WHERE MADE:	BRISBANE

JUDGE:	COLLIER J
DATE:	5 DECEMBER 2014
PLACE:	BRISBANE