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Moore v Bond University Ltd

Moore v Bond University Ltd

Case [2023] NSWSC 1129 7 September 2023

Fiduciary Duty

Interlocutory Orders

Injunction

Undertaking as to Damages

Discovery & Disclosure

Res Judicata

Equity

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Moore v Bond University Ltd [2023] NSWSC 1129
Hearing dates: 7 September 2023
Date of orders: 7 September 2023
Decision date: 07 September 2023
Jurisdiction: Equity
Before: Meek J
Decision:
Notice of motion seeking freezing orders dismissed. Notice of motion seeking suppression order dismissed.

Catchwords:
EDUCATION — Relationship as between student and university — Plaintiff in 2007-2009 attended as a student at the University operated by the defendant — Plaintiff submitted coursework for assessment and grading — Plaintiff accepted or did not dispute that his submitted works could be reviewed by staff of the University for the purpose of assessing or grading his works for the legitimate purpose of determining whether he had satisfied necessary course requirements to enable the conferring of a degree — The plaintiff argued that: (a) he owned property in submitted works which property he described not in terms of rights in expression (as might be the subject of copyright) but in terms of rights in the reasoning, strategies, line of argument and systems noted in the works and research therein; (b) the University owed a specific fiduciary duty not to use such “property” for other than assessing and grading purposes; (c) the staff and University breached the fiduciary duty by mixing the plaintiff’s works and or otherwise applying the works to (i) in the case of the staff – publications of their own and (ii) in the case of the University – to publications, syllabuses and otherwise to the strategic direction and business of the University; and (d) thereby the University derived a benefit, proceeds and/or profit from such unauthorised use – which the plaintiff claimed is held on a constructive trust for him — Plaintiff brought applications to seek preservation of the “property” and to suppress details of the sum of his claim
EQUITY — Fiduciary obligations — Relationship of university and student is not per se amongst the established categories of fiduciary relationships — Consideration of whether a fiduciary duty arose in the particular circumstances of the facts of the case in the context as between student and University — Consideration of the necessity to identify the scope and content of fiduciary duties — Consideration of the question of breaches of fiduciary duty — Weak prima facie case of duty, scope and breach — Application dismissed
PROPERTY — Consideration of the nature of proprietary rights — “Property” is a comprehensive term that can be used to describe all or any of very many different kinds of relationship between a person and a subject matter — In all cases, the term “property” takes its meaning from its context
CONFIDENTIAL INFORMATION — Consideration of the requirements to establish a case of breach of confidence — Requirements for alleged breach not established
AFFIDAVITS — Failure of affidavit to identify whether affidavit is sworn or affirmed
CIVIL PROCEDURE — Interim preservation — Distinction between a freezing order (also known as an asset preservation order) and an injunction to preserve…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moore v Bond University Ltd

Details

AGLC: Moore v Bond University Ltd [2023] NSWSC 1129
Case: [2023] NSWSC 1129
Decision Date: 07 September 2023

CaseChat Overview and Summary

The case of Moore v Bond University Ltd involved the plaintiff, who was a former student of Bond University, bringing an action against the university for alleged breaches of fiduciary duty and other claims related to the use of his submitted coursework. The plaintiff argued that he owned certain intellectual properties in his submitted works, which he claimed the university had misappropriated for its own benefit. The plaintiff sought an interim preservation order and injunctions to prevent the university from using his works, as well as suppression of the amount of damages he was seeking.

The legal issues before the court included whether a fiduciary duty existed between a university and its student, the nature and scope of any such duty, whether there had been a breach of any fiduciary duty, and whether the plaintiff had established a prima facie case for relief. Additionally, the court had to consider the appropriate form of interim relief, the requirements for a freezing order, and the principles governing interlocutory injunctions.

The court found that the relationship between a university and its student did not fall within the established categories of fiduciary relationships, and there was no evidence of a fiduciary duty arising in the particular circumstances of the case. The court noted that the plaintiff had not established a prima facie case for relief and had not demonstrated a risk of non-preservation or the practical aspects of the balance of convenience. The court also found that the application for an injunction to preserve property was misconceived as it did not show how the publications could be at risk of non-preservation. Furthermore, the plaintiff failed to provide an undertaking as to damages and did not identify the specific sum sought to be suppressed. As a result, the court dismissed the application for interim preservation and injunctions, and the application to suppress the sum sought by the plaintiff.

The court also noted that the plaintiff's affidavit failed to indicate whether it was sworn or affirmed, and there were procedural issues with the application for suppression and non-publication orders. Overall, the court found that the plaintiff had not met the necessary requirements for any of the reliefs sought.

Orders