Moore v Bond University Ltd

[2023] NSWSC 1129

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 an asset

CIVIL PROCEDURE — Interim preservation — Freezing orders — Application misconceived — No evidence before the Court that there is any risk that the defendant intends to dissipate its assets

CIVIL PROCEDURE — Application for injunctive relief misconceived as a freezing order but treated by the Court as in substance a form of application in nature of a mandatory injunction to preserve property — Orders sought that Registrar of the Court and the defendant preserve in such form and substance

as they existed as at the “dates of publication” 263 publications, syllabuses and other documents said to be created and published in breach of an alleged fiduciary duty — No indication of control that the Registrar or defendant might have over the publications to enable preservation — No elucidation by the plaintiff as to how or why the publications might be in some form of danger of being not preserved such as to necessitate an order that they be preserved — Application dismissed

INJUNCTIONS — Interlocutory injunctions — Discussion of principles in relation to the approach of the Court regarding the requirements in respect of finding a prima facie case for relief — Discussion of risk of non-preservation and practical aspects of balance of convenience — Failure to establish — Application dismissed

INJUNCTIONS — Interlocutory injunctions — Undertaking as to damages — Nature of undertaking — Failure of plaintiff to proffer undertaking as to damages

CIVIL PROCEDURE — Suppression and non-publication orders — Application to suppress the sum sought by the plaintiff as relief sought in a statement of claim allegedly being the amount of a benefit, proceeds and/or profit from such unauthorised use of the plaintiff’s property — Pleadings are not subject to any Hearne v Street obligation — Failure by the plaintiff to identify the sum sought to be suppressed other than by reference to property allegedly held on constructive trust which the plaintiff contended to be worth a significant amount of money — Application dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Competition and Consumer Act 2010 (Cth)

Copyright Act 1968 (Cth)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Fauna Conservation Act 1974 (Qld)

Limitation of Actions Act 1974 (Qld)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75

Alamin v Islam [2023] NSWSC 701

Breedon v Oosthuizen [2023] NSWSC 859

BreenvWilliams (1996) 186 CLR 71; [1996] HCA 57

Cahn v Antioch University 482 A2d 120 (DC app 1984)

Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419

ElSayedvElHawach (2015) 88 NSWLR 214; [2015] NSWCA 26

Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; (2008) 217 FLR 366

Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672

Firmtech Aluminium Pty Ltd v Xie [2022] NSWSC 1031

HearnevStreet (2008) 235 CLR 125; [2008] HCA 36

Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64

In Re Antioch University 418 A 2d 105 (DC 1980)

In re Celtic Extraction Ltd [2001] Ch 475

In the matter of Carbon Copies Composites Pty Ltd [2022] NSWSC 1762

Ip v Chiang [2019] NSWSC 1549

JohnAlexander'sClubsvWhite City Tennis Club (2010) 241 CLR 1; [2010] HCA 19

Jones v Treasury Wine Estates Ltd (No 4) [2020] FCA 1131; (2020) 146 ACSR 302

Kerridge v Foley [1968] 1 NSWR 628

Kirby v Thorn EMI plc [1988] 1 WLR 445

McGee v Australian Auctioneers Pty Ltd [2002] NSWSC 839

MurdochvMudgee Dolomite & Lime Pty Ltd (inliq) [2022] NSWCA 12; (2022) 398 ALR 658

National Australia Bank Ltd v Bond Brewing Holdings Limited (1990) 169 CLR 271; [1990] HCA 10

Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014

Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281

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

Patterson v BTR Engineering (Aust) Limited (1989) 18 NSWLR 319

Re Rosie (No 2) [2022] NSWSC 1750

WarmanInternationalLtdvDwyer (1995) 182 CLR 544; [1995] HCA 18

Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53

Texts Cited:

Halsbury’s Laws of Australia (online)

Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis)

Jackson, Jim and Jill Cowley, “Blinking Dons or Donning Blinkers: Fiduciary and Common Law Obligations of Members of Governing Boards of Australian Universities” (2002) 6 Southern Cross University Law Review 8

Category:

Procedural rulings

Parties:

Sim (aka Simeon Peter Moore) Moore (Plaintiff)
Bond University Ltd (Defendant)

Representation:

Counsel:
E Doyle-Markwick (Defendant)

Solicitors:
Self-represented (Plaintiff)
MinterEllison (Defendant)

File Number(s):

2022/312244

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: The plaintiff, Mr Sim Moore, formerly known as Simeon Peter Moore, is aged 43. In about 2007 through to 2009, when he was aged 27 to 29, he attended as a student at the university operated by the defendant (the University).

2. The plaintiff has two applications before the Court:

1. An application pursuant to r 25.11 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that a registrar of the Court or, alternatively, the University cause preservation of 263 publications, being items 17 to 279 listed in the plaintiff’s statement of claim in such form and substance as they existed as at the date of publication noted against each publication (freezing orders motion).

2. An application for a suppression order that:

1. the sum sought by the plaintiff is not to be published or otherwise known to any person who is not a party to the proceedings except for the purposes of case management and/or the determination of the proceedings; and

2. 16 items, being works prepared by the plaintiff as listed in Annexure 1 of the statement of claim, are not to be made available to persons who are not a party to the proceedings except for the purposes of case management and/or the determination of the proceedings (suppression orders motion).

3. A consequential order is sought that, if the defendant intends to make the 16 items available to persons who are not parties to the proceedings, it must advise the plaintiff of the identity of such persons 14 days prior to doing so.

4. The relief is opposed by the University.

5. I have determined to dismiss both motions.

6. It is appropriate that I set out the reasons for dismissing the motions.

7. The plaintiff’s applications were supported by three “affidavits” in which he appears to be the deponent, namely:

1. an affidavit dated 24 March 2023 in support of the freezing orders motion: Tab 1 of the Court Book;

2. an affidavit dated 24 March 2023 said to be in support of the suppression orders motion: Tab 2 of the Court Book; and

3. an affidavit dated 15 May 2023: Tab 6 of the Court Book.

8. I pause to observe that the first two “affidavit” documents do not indicate whether they have been sworn or affirmed and, at first blush, there was a question as to whether they are documents properly described as affidavits. An essential part of an affidavit is an indication of whether the affidavit has been sworn or affirmed: see Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; (2008) 217 FLR 366 at [15]-[41].

9. On enquiry, the plaintiff indicated to me that the affidavits were sworn, and I had no reason to doubt his assertion in that regard. Ms Doyle-Markwick, who appeared for the University, was content to proceed on that basis.

10. The affidavit dated 15 May 2023 comprises 32 pages and exhibits to that affidavit 276 pages. The plaintiff also tendered a document being “Legal Regulatory Framework for the Sustainable Extraction of Australian Offshore Petroleum Resources” which was a dissertation by Tina Hunter (Ms Hunter) in April 2010 for the degree of Doctor of Philosophy (PhD) at the University of Bergen. The plaintiff did not provide this in hardcopy form and only provided it in electronic form. While it was able to be viewed in electronic form, it was not able to be printed because it is password-protected. The electronic version of the document was nominated to be marked as Exhibit P1. The plaintiff undertook to provide to the Court a version of that document on a USB stick.

11. The University did not adduce any evidence on the applications.

12. Each of the parties provided submissions which submissions were contained within the Court Book.

Background

13. The plaintiff was conferred with a Bachelor of Arts at the University of Sydney in or around 2007. In January 2007, he commenced a Juris Doctor degree (JD) at the University and was conferred with that degree in February of 2009.

14. The plaintiff asserts that, at the request of the University, he commenced a Doctor of Legal Science (SJD) in the May semester of 2009.

15. He says that he received the Dean’s Scholarship in respect of the candidature and further says that Professor Farrar enrolled and “articulated” him to undertake a PhD in law on or about 9 October 2009.

16. The use of the word “articulate” by the plaintiff in the statement of claim is laden with allegations of threat and demand.

17. The plaintiff has also informed me (just prior to concluding his submissions) that he was admitted as a solicitor in the Australian Capital Territory in 2014 and is entitled to practice in New South Wales and indeed holds a practicing certificate in New South Wales.

Substantive claims

18. The plaintiff states that whilst a JD student he prepared and submitted to various persons (whom I will for want of a better description call “supervisors”) at the University including Professor Farrar, Ross Buckley and Ms Hunter various academic papers, articles or works (works) in 2008 which works were received and graded by the various supervisors.

19. In its defence, the University provides a specific pleading to allegations regarding various supervisors the plaintiff references in his statement of claim. There are some admissions that some of the supervisors were employed by the University. Most of the persons referenced, it is pleaded, are not currently employed by the University.

20. In 2009, for the purposes of the SJD, the plaintiff submitted other works and a thesis.

21. He claims that at least on three works he wrote a copyright marking, by which he says he intended to retain his copyright and property in or in respect of the works so that his works could be identified and so he could trace and indicate his property in respect of such works.

22. In other words, he indicates that he incorporated a copyright marking not only to retain his copyright, but also so his works could be identified.

23. He says that, during 2008 and 2009, whilst in the degrees, he stored digital copies of his works, as well as drafts and research in respect of the works, in a storage facility or digital repository, referred to as an “H drive”, provided by the University to students.

24. At least one of the works was a thesis referred to as “The New International Law and Global Economic Order: As of Necessity.”

25. The critical part of the plaintiff’s case is that he says that the University used his works (including drafts) in various ways “by causing [to be integrated] or otherwise integrating” his works and applying the works to the strategic direction and business of the University.

26. He claims that, as a result of that use or application, the University breached a fiduciary duty and generated secret profits.

27. He also alleges that, in breach of a fiduciary duty, the University caused his works to be provided to Duke University and the University of Bergen.

28. He claims that during 2009, he complained to the University that it was using his property contrary to his authority, ownership and best interests, but did not know at that point of time the extent to which the University had used his works.

29. The plaintiff claims that he had property in his works and that the relationship between himself (I infer as a student) and the University was fiduciary in nature and that the University owed him a fiduciary duty in respect of the papers he had submitted.

30. These proceedings were commenced by summons on 19 October 2022.

31. Following directions on 15 November 2022, it was ordered that the matter proceed by pleadings or at least the parties agreed that.

32. On 16 January 2023, the plaintiff filed a statement of claim and on 8 May 2023, the University filed a defence.

33. The statement of claim seeks by way of relief the following:

RELIEF CLAIMED

1. The Plaintiff seeks a declaration that BU holds the Plaintiffs works on constructive trust and such sum, as equates to the benefit, proceeds and/or profit derived from and by BU, DU, UiB, UM, UNSW, MI and NZUA by BU's unauthorised use of the Plaintiffs works and in breach of BU's fiduciary duty owing to the Plaintiff are held on constructive trust for the Plaintiff in such sum as is yet to be pleaded, and, which sum includes such sum as equates to the profits derived thereby and/or flowing therefrom in the hands of any publishers, universities and/or policy centres who profited from unauthorised use of the Plaintiffs works with the identity of such publishers yet to be finalised but including those publishers as pleaded by the plaintiff.

2. That within seven days of the date of final orders in these proceedings the defendant causes payment of such sum as referred to Order 1.

3. That the defendant forthwith admit the Plaintiff to the Doctor of Philosophy in Laws award and confer that award to the Plaintiff.

4. Interest.

5. Costs.

34. The University admits that it made a digital storage facility available to its enrolled students, referred to as an “H drive”. It says the H drive is not permanently backed up and student and/or employee files are deleted when that person is no longer enrolled at or employed by the University.

35. The University does not admit that the plaintiff stored any files, including digital copies of his works, drafts or research in respect of the works on the H drive.

36. In particular, the University says that the plaintiff has failed to identify in the statement of claim or in any particulars:

1. the parts of his works which were drafts or drafts of his works which he alleges have been integrated into the works listed in Annexure A in the statement of claim;

2. how they were integrated;

3. where in those works they were integrated; and

4. how his works have been mixed or otherwise applied to or used to determine the University’s strategic direction and business.

37. The University denies that any such fiduciary duty was owed or breached.

38. In further answer to the whole of the plaintiff’s claim, the University states that the plaintiff was, at least at November 2010, aware of the facts relied upon in the statement of claim and that at various times in November 2010 and March 2012 corresponded with the University, noting that he intended to commence proceedings (against the University) initially in the Supreme Court of New South Wales, but also in the Federal Court of Australia.

39. The University alleges that the plaintiff is guilty of prolonged and inordinate and inexcusable delay in bringing the proceedings and that the delay has occasioned detrimental prejudice to the University and that the Court should apply relevant statutory periods by analogy and refuse the equitable relief claimed by the plaintiff. In this regard, the University refers to s 10 of the Limitation of Actions Act 1974 (Qld), s 137 of the Copyright Act 1968 (Cth) (Copyright Act) and/or s 236 of the Australian Consumer Law (see Sch 2 of the Competition and Consumer Act 2010 (Cth)).

The plaintiff’s works and alleged use of them

40. The annexure to the statement of claim lists an index of 290 items.

41. The first 16 items are works which the plaintiff says he submitted to the University in or about 2008 and 2010. Then follows a list of works by 13 staff or supervisors of the University, being items 17 to 245, broadly speaking, published in the period 2007 to 2010, although there are some items said to be published outside that period, but none later apparently than 2012. The remaining items listed are conference papers – 12 items; journals – 4 items; and syllabus items relating to the University, the University of New South Wales, the University of Sydney and Duke University – 29 items.

Freezing orders motion

42. The freezing orders motion is framed as an application under r 25.10 UCPR.

43. In Firmtech Aluminium Pty Ltd v Xie [2022] NSWSC 1031, I briefly outlined the requirements for relief in the nature of a freezing order at [15]-[17]:

15. As a condition of the making of a freezing order, an applicant for the freezing order ought to provide an undertaking as to damages in the usual form; see Cardile v LED Builders at [42] and the Practice Note at [16].

16. The duration of an ex parte freezing order should be limited to a period terminating on the return date of the notice of motion or document for relief, in this case the summons, which would be as early as practical and usually no more than a day or two after the order is made, when the respondent would have an opportunity to be heard: see Practice Note at [9]. A freezing order should reserve liberty for a respondent to apply on short notice to discharge or vary the freezing order: see Practice Note at [10]. The value of the assets covered by the freezing order should not likely exceed a likely maximum amount of the applicant's claim, including interest and costs: see Practice Note at [11].

17. An applicant for an ex parte freezing order is under a duty to make full and frank disclosure of all material facts to the Court, including, as noted above, possible defences known to the applicant and information which may cast doubt on the applicant's ability to meet the usual undertakings as to damages and assets within Australia: see Practice Note [19].

44. The freezing orders motion is misconceived.

45. The motion does not seek to freeze the assets of the University.

46. There is no evidence before the Court there is any risk that the University intends to dissipate its assets.

47. In exceptional cases, one can infer the existence of dissipation, partly or wholly, from the proof of a prima facie case. Thus, where there is evidence which discloses some form of fraudulent conduct or dishonest scheme, it may be that the nature of the conduct or the scheme might allow the Court to draw an inference that the defendant is not the sort of person or entity who would, unless restrained, preserve his or its assets intact so that they might available to a judgment creditor: Patterson v BTR Engineering (Aust) Limited (1989) 18 NSWLR 319 at 325E-326A per Gleeson CJ, 326D per Meagher JA.

48. However, there is no evidence here that would permit any such inference to be made.

Preservation of property order

49. There is a distinction between a freezing order (also known as an asset preservation order) on the one hand and an injunction to preserve property, the subject of proceedings, on the other. The distinction is discussed by Parker J in Ip v Chiang [2019] NSWSC 1549 at [126]-[129].

50. It seems to me that the substance of the plaintiff’s application for interlocutory relief is in the nature of a type of property preservation order pursuant to r 25.3 UCPR.

51. I propose to deal with each matter accordingly.

Principles

52. In proceedings concerning property, or in which any question may arise as to property, the Court may make orders for the detention, custody or preservation of the property: r 25.3(1) UCPR.

53. Here, what is sought is not a type of restraining injunction, but rather a mandatory injunction for preservation of property.

54. I recently addressed principles in relation to injunctions in Breedon v Oosthuizen [2023] NSWSC 859 at [50]-[55]:

50. In an application for an interlocutory injunction there are two main enquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The second is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction is granted: see e.g. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 (ABC v O’Neill) at [19] per Gleeson CJ and Crennan J, at [65]-[72] per Gummow and Hayne JJ citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 (Beecham) at 622-623 per Kitto, Taylor, Menzies and Owen JJ.

51. The notion of a “prima facie case” does not mean that the plaintiff must show that it is more probable than not (or that there is a more than an even chance) that at the trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O’Neill at [65] citing Beecham at 620; Shercliff v Engadine Acceptance Corp Pty Ltd [1978] 1 NSWLR 729 (Shercliff) at 735D per Mahoney JA (Glass and Samuels JJA at 731E agreeing). The Court on such applications does not attempt to forecast what will happen at the hearing; it cannot do so: Shercliff at 735D, 736E-F.

52. The function of the Court is not to conduct a preliminary trial of the action, nor is it, in general, to resolve the conflict between the parties’ evidence and grant or refuse the application upon the basis of such findings. Where there is conflict of evidence, the use which may be made of the defendant’s evidence in determining whether the plaintiff has made out a prima facie case is said to be a limited one: Shercliff at 734D-E.

53. It is clear that the Court ought to take into account all the evidence adduced on the application for the purpose of determining whether to grant the relief or not. That includes (lest there be any doubt about it) the evidence of the defendant (or opposing party): Shercliff at 734B-D.

54. In exercising the discretion to grant or withhold injunctive relief the Court has regard to the circumstances as at the date of the hearing. Thus, even where, judged as of the date of the contract, a restraint is reasonable and valid, the Court may, on discretionary grounds, withhold injunctive relief if at the date of the hearing there is no protectable interest, or, if in the events which have happened (as distinct from those foreseeable at the date of the contract) the restraint is wider than necessary for the reasonable protection of the covenantee’s legitimate interests: Tullett Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 852; (2008) 175 IR 414 (Tullett) at [88], [91] per Brereton J (as his Honour then was).

55. The second aspect referred to in ABC v O’Neill (whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction is granted) has traditionally been referred to in a shorthand way under the description “balance of convenience”: e.g. see recently A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144 at [22] per Payne JA, Simpson and Basten AJJA. I will refer to it by that description.

55. The principles in relation to interlocutory mandatory injunctions are those in relation to interlocutory injunctions generally: see In the matter of Carbon Copies Composites Pty Ltd [2022] NSWSC 1762 (Carbon Copies Composites).

56. Mandatory injunctions are, as noted by Black J in Carbon Copies Composites, relatively rare, although a leading text, JD Heydon, MJ Leeming and PG Turner’s Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis) (Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies) at [21-395] indicates that that is partly because a mandatory injunction is usually more onerous for a defendant to comply with than a prohibitive injunction: see Carbon Copies Composites at [18].

57. There are cases in which the Court has considered making injunctive orders to preserve or restrain the sale of unique chattels or items: see McGee v Australian Auctioneers Pty Ltd [2002] NSWSC 839.

58. In considering the question of whether to grant or withhold preservation relief, Slattery J recently stated the following in Alamin v Islam [2023] NSWSC 701 at [40]:

40. Then, it becomes a matter of analysing if in all the circumstances of the case, considering the balance of convenience and issues of hardship, the Court should nonetheless exercise its discretion by declining to issue an interlocutory injunction: Equity Doctrines and Remedies at [21–350]; and see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; (2001) 185 ALR 1; (2001) 76 ALJR 1; (2001) 54 IPR 161; [2001] Aust Torts Reports 81-627; [2001] HCA 63 and Beese (Managers of Kimpton Church of England Primary School) v Woodhouse [1970] 1 All ER 769; [1970] 1 WLR 586. Other factors to which the Court will have regard include the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, but hardship and the balance of convenience are very important: Equity Doctrines and Remedies [21 – 375]. If any infringement of a plaintiff’s right between writ and hearing would be properly compensated in damages, that fact alone can, but not must, be a ground for declining an injunction: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210; (1918) 35 WN (NSW) 85.

Proprietary interests

59. When one has regard to the statement of claim, the plaintiff’s principal ground for relief is the assertion that he had property and that the University owed him a fiduciary duty in respect of its use of his property.

60. That begs the questions of (a) what is a proprietary right and (b) what is Mr Moore’s asserted proprietary right.

61. In Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53, Gleeson CJ, Gaudron, Kirby and Hayne JJ, in the context of considering the question of what was “fauna” for the purposes of the Fauna Conservation Act 1974 (Qld), addressed some comments more generally to the concept of what is property (at [17]).

62. Their Honours stated the following at [17]-[20] (footnotes omitted):

“Property”

17. The word “property” is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, “property” does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of “property” may be elusive. Usually it is treated as a “bundle of rights”. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said, that “the ultimate fact about property is that it does not really exist: it is mere illusion”. Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by “property” in a subject matter. So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of “property” as an analytical tool. No doubt the examples could be multiplied.

18. Nevertheless, as Professor Gray also says, “An extensive frame of reference is created by the notion that ‘property’ consists primarily in control over access. Much of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.”

19. “Property” is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not “a monolithic notion of standard content and invariable intensity”. That is why, in the context of a testator's will, “property” has been said to be “the most comprehensive of all the terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have”.

20. Because “property” is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B? The statement that A has property in B will usually provoke further questions of classification. Is the interest real or personal? Is the item tangible or intangible? Is the interest legal or equitable? For present purposes, however, the important question is what interest in fauna was vested in the Crown when the Fauna Act provided that some fauna was “the property of the Crown and under the control of the Fauna Authority”?

63. Their Honours noted that the concept of property may be elusive. Usually, it is treated as a “bundle of rights”. It is a term that can be and is applied to many different kinds of relationships between a person and a subject matter.

64. In equity, it is said that an examination of the nature of equitable estates and interests demonstrates that there is no system or hierarchy of property concepts which, once comprehended, is a sufficient guide for all purposes and at all times: see Meagher, Gummow & Lehane’s Equitable Doctrines and Remedies at [4-005]. The learned authors discuss the notion of property in some detail at [4-010]-[4-020].

65. In all cases, the word “property” takes its meaning from its context: MGL at [4-015] citing In re Celtic Extraction Ltd [2001] Ch 475 at 486 [26] per Morritt LJ (referring to Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 at 1051 per Lord Porter; Kirby v Thorn EMI plc [1988] 1 WLR 445 at 452 per Nicholls LJ).

66. The learned authors of MGL indicate at [4-015] that an assessment of property interests may usefully be done by reference to at least four criteria, namely:

1. the power to recover the property, the subject of the interest or income thereof (that is, a “property right”) compared with the recovery of compensation from the defendant payable from no specific fund;

2. the power to transfer the benefit of the interest to another;

3. the persistence of remedies in respect of the interest against third parties who thus assume liability thereto; and

4. the extent to which the interest may be displaced in favour of competing dealings by the grantor or others with interests in the subject matter (i.e. priorities).

67. During the course of submissions, I asked Mr Moore what he claimed was his property. He said that his property in his papers was, in essence, his “reasoning, the strategies, the line of argument, the systems that were evidently noted in that document, the case that was put forward, the research that was therein, the line of reasoning and the like”: at T 28.44-47.

68. Understood that way, Mr Moore’s assertion appears to be that his property, which he says has been infringed or used by the University, is not the physical document containing words which he submitted to the University staff, but rather the reasoning or arguments contained within the document. In this respect, he did not appear to be asserting rights in particular forms of expression that he used as distinct from rights in the concepts or arguments expressed.

69. Ms Doyle‑Markwick addressed Mr Moore’s use, in the statement of claim, of notions of property, by which he claims that his works were mixed with or traced into some of the publications.

70. She submitted that ideas per se or concepts and arguments are not a form of property which the law protects.

Prima facie case – copyright eschewed

71. For reasons which escape me, the plaintiff does not claim copyright in the works nor relief in respect of any breach of the copyright, as part of the relief in the statement of claim. On the directions listing of the matter on 29 August 2023, I specifically asked the plaintiff whether he had made any such claim and he rejected any alleged breach of copyright, reinforcing that his argument was actually that he was contending that there was a constructive trust which arises; T 3. He confirmed that position in the hearing before me today.

72. Had the plaintiff alleged a breach of copyright, there is power for an appropriate Court to grant injunctive relief in respect of infringement of copyright, subject to such terms if any as the Court might think fit; see s 115(2) Copyright Act. The principles on which such injunctions are granted are those applicable under the general law; see Halsbury’s Laws of Australia – (11) Remedies – Infringement of Copyright, Injunctive relief (online) at [240‑2873].

73. However, no copyright relief is claimed here. Even if the plaintiff were to belatedly allege and claim some form of copyright relief, he does not plead matters which would be necessary for him to make out such a claim, including that his works were original and that the allegedly infringing works had copied a substantial part of his allegedly original works. The plaintiff in his affidavit nonetheless does make reference to copyright as he does in the pleadings. He asserts that the tables he prepared in the affidavit show some of the strategies, reasoning, arguments, points of enquiry, contentions, propositions and reasoning taken from his papers.

Prima facie case – fiduciary duty

74. A fiduciary duty may arise in relationships between parties which are traditionally recognised as giving rise to such duties, including, for example, trustee and beneficiary, and solicitor and client.

75. The University submits, and I accept, that the relationship of university and student is not per se amongst the established categories of fiduciary relations. There seems to be, perhaps unsurprisingly, little commentary in relation to whether universities owe fiduciary duty to students. The prospect of fiduciary duties arising in relation to universities was the subject of an article by Jim Jackson and Jill Cowley, “Blinking Dons or Donning Blinkers: Fiduciary and Common Law Obligations of Members of Governing Boards of Australian Universities” (2002) 6 Southern Cross University Law Review 8 (Jackson and Cowley).

76. The article examines the equitable obligations of members of governing bodies of Australian public universities. Jackson and Cowley cite a decision of In Re Antioch University 418 A 2d 105 (DC 1980) (Re Antioch) and a later appeal of Cahn and Cahn v Antioch University 482 A2d 120 (DC app 1984) (Cahn v Antioch). In Re Antioch, and Cahn v Antioch, it was held that the former deans of the law school owed a fiduciary duty to the university, not to students and clients of the law school: Jackson and Cowley at 30.

77. Accepting as I do for the moment that there is no recognised category of fiduciary duty as between a university per se and the students, the possibility remains that a fiduciary duty may also arise having regard to the particular facts of any given case. The plaintiff provided extensive submissions in relation to what he said was a form of fiduciary duty as between himself and the University. He cited passages from Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 (Hospital Products). The University also cited from Hospital Products.

78. In Hospital Products, Gibbs CJ observed that the caselaw provided no comprehensive statement of the criteria by reference to which the existence of a fiduciary duty may be established: at 68.

79. Mason J (as his Honour then was) stated (at 96‑97) that:

The critical feature of [the accepted fiduciary relationships] is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense.

80. His Honour further stated (at 97) that:

The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position … It is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed …

81. In Breen v Williams (1996) 186 CLR 71; [1996] HCA 57 (Breen v Williams), Gaudron and McHugh JJ (at 107) observed that (footnotes omitted):

the categories of fiduciary relationship are not closed, and the courts have identified various circumstances that, if present, point towards, but do not determine, the existence of a fiduciary relationship. These circumstances, which are not exhaustive and may overlap, have included: the existence of a relation of confidence; inequality of bargaining power; an undertaking by one party to perform a task or fulfil a duty in the interests of another party; the scope for one party to unilaterally exercise a discretion or power which may affect the rights or interests of another; and a dependency or vulnerability on the part of one party that causes that party to rely on another.

82. It is necessary for the plaintiff to establish, if he is to succeed, that the University in some way undertook or agreed to act for or on behalf of, or in the interests of him, as he alleges in a practical or legal sense. In this regard, Ms Doyle‑Markwick also refers to the decision of the High Court in John Alexander's Clubs v White City Tennis Club (2010) 241 CLR 1; [2010] HCA 19 at [87] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.

83. The plaintiff’s submissions asserted that:

1. The plaintiff, as a candidate, occupied a position of significant vulnerability vis-à-vis the University;

2. The plaintiff was obliged to submit his property to the University otherwise he would not have been admitted to any of the degrees he was seeking;

3. The University was entrusted with the property in circumstances amounting to a special opportunity to exercise the power or discretion to the detriment of the plaintiff, and the plaintiff remained vulnerable to abuse of such power in a practical and legal sense;

4. His property and his works are traceable into an identifiable fund;

5. Property stolen is held on a constructive trust in the hands of the thief or the recipient of the property;

6. Tables provided by the plaintiff demonstrate that several persons, including Ms Hunter and Steven Schwarcz (Professor Schwarcz), caused his property to be indistinguishably mixed with theirs; and

7. The University holds on trust for the plaintiff’s benefit, no less than that sum that is the value of the undivided share of the investment, being the published items 17 to 290.

84. Although it is not clear, it appears that the plaintiff claims that various supervisors or staff members are liable under some form of accessorial liability principle (although they have not been joined to the proceedings).

85. The crux of the plaintiff’s pleading regarding the alleged fiduciary duty appears in paragraph 63 of the statement of claim. Paragraph 63 is in the following terms:

63. BU owed a fiduciary duty to the Plaintiff:

a. In causing or otherwise accepting the Plaintiff to enrol in the Doctor of Legal Science and Doctor of Philosophy (Laws) BU brought itself into a fiduciary relationship with the plaintiff whereby the Plaintiff entrusted BU with his works and trusted BU to use the Plaintiff's works for the purposes of grading and/or otherwise evaluating his works for the purposes of admitting him into the SJD and then PhD and to provide supervision in respect of those submissions to the extent that such supervision was required for admission to the admission, and, for his works to be published and attributed to the Plaintiff, and, for the Plaintiffs benefit and advancement, not the advancement of BU and/or its partners to the exclusion of the Plaintiff.

b. BU held a position of fiduciary vis-a-vis the Plaintiff, that is, the university brought itself into a relationship of trustee vis-a-vis the plaintiff as a result of the constructive trust caused by the University in using the plaintiffs property to gain the profits made by BU and/or its partners.

c. The Plaintiff occupied a position of vulnerability vis-a-vis BU arising from the fact that the plaintiff would and could not be admitted to the qualification of Doctor of Legal Science and/or the Doctor of Philosophy in Laws unless the plaintiff submitted his works to the Plaintiff for the purposes of assessment and publication.

d. In the hands of BU the Applicant's works, and the contents thereof, constituted confidential information, the property in, in respect of and/or with respect to which as well as rights and ownership of which is the Plaintiffs, and, with which, BU was entrusted, in accordance with the agreements between the Plaintiff and BU, for the very purpose of his candidature, that is, to cause his works to be published, attributed to the Plaintiff, and for the Plaintiff to receive the profits and/or benefits of the publication of the Plaintiffs works.

e. By way of the very relationship of professor and doctoral candidate, BU undertook and was under a duty to cause the Plaintiffs works to be published and for the Plaintiff to receive the benefit of his works as it is inherent in that relationship as the very purpose of his candidature was for his work to be used, including published, in such manner as was attributed to the Plaintiff, and for the Plaintiff to receive the benefit(s) of the publication of his works, otherwise, there would be little purpose from the plaintiff's viewpoint, for enrolling and in any and/or all of the JD, SJD and/or PhD, including providing consideration to BU for those enrolments, and, accordingly, BU was under a duty to act in the best interests of the Plaintiff in respect of the Plaintiff's works.

86. Whilst paragraph 63 and the plaintiff’s submissions undoubtedly pick up the types of wording that might in any given factual circumstance give rise to a fiduciary duty, when one examines that paragraph and the statement of claim as a whole, it is far from clear that there are particular factual circumstances which enable a finding of a fiduciary duty.

87. The plaintiff’s pleading does not include any particular facts which distinguish him in any way from, for example, hundreds of thousands of students who might undertake courses at the University.

88. Enrolling in a course and submitting coursework to university staff or a tutor or a supervisor per se, does not obviously give rise to a fiduciary duty.

89. Whilst the plaintiff pleads that he was in a position of vulnerability vis-à-vis the University, the basis for his alleged vulnerability is that he would not be admitted to the degree unless he submitted his works to the University for assessment. That mere fact per se does not obviously give rise to a fiduciary duty. If that is the case, then every student who ever attended university and submitted materials would be owed a fiduciary duty.

90. In any event, it is necessary, quite apart from the question of whether the duty arises, to analyse the scope of a fiduciary obligation that a person is said to be subject to when determining whether any breach of duty has arisen; see El Sayed v El Hawach (2015) 88 NSWLR 214; [2015] NSWCA 26 at [62]‑[63].

91. Fiduciary duties in Australian law have a proscriptive rather than a prescriptive nature: Breen v Williams at 113 per Gaudron and McHugh JJ.

92. Generally speaking, subject to the following comments, there are various proscriptive duties. These include that (a) the fiduciary not place himself or herself in a position where there may be a conflict of interest between the duty owed as fiduciary and his or her interest or duty to a third party (no‑conflict duty), and (b) the fiduciary must not make a profit out of a fiduciary relationship, except with the informed consent of the principal (no-profit duty).

93. In the statement of claim, the plaintiff claims relief that the University holds his works on a constructive trust and such sum as equates to the benefit, proceeds and/or profit derived from and by the University and others.

94. Fiduciary duties aim to preclude a fiduciary from being swayed by considerations of personal interest and from accordingly misusing the fiduciary position for personal advantage; Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18 at 557‑558 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ.

95. Even in cases of recognised fiduciary duties, it is important to look at the facts to understand what the scope of the duty is. This was the point made by Leeming JA (with whom Macfarlan and Gleeson JJA agreed) in Murdoch v Mudgee Dolomite & Lime Pty Ltd (in liq) [2022] NSWCA 12; (2022) 398 ALR 658 at [79]‑[92].

96. The scope of a fiduciary duty takes its content from the nature of the particular relationship and the facts of the particular case. It is necessary to focus on the actual functions or responsibilities assumed by the fiduciary to determine the subject matter over which the fiduciary obligations extend.

97. The failure of the plaintiff to define by way of his pleading, or to outline in his submissions the scope of the fiduciary obligations said to be owed is a significant impediment in determining whether there is an arguable case that there has been any breach of duty.

98. Even if one were to assume that the facts that the plaintiff pleads or asserts might give rise to a fiduciary duty, and one were able to, in some acceptable way, define the scope of the duty, there is a question of whether any such duty has been breached.

99. For the purposes of the applications, to establish the alleged breach of duty, it appears that the plaintiff was alive to the need in some way to articulate the alleged relationship between his works and those which he claims have infringed his rights as set out in Annexure 1 to the statement of claim.

100. The statement of claim does not do that. As I understand it, there has been some process of the University seeking particulars. However, it is not clear to me what, if any, particulars were provided. Nonetheless, it appears that the evident purpose of the plaintiff’s affidavit of 15 May 2023 is to seek to make good his assertion that there is some form of tracing link of his works into other works.

101. The plaintiff, in his affidavit, annexes as items SM1 to SM4 four articles which he says he submitted to staff including Ms Hunter and Louise Parson (Ms Parson).

102. He refers to the articles in a shorthand way by reference to a number of names:

1. SM1 is an article submitted to Ms Hunter, “Energy 1” in July 2008;

2. SM2 is an article submitted to Ms Hunter, “Energy 2” in August 2008;

3. SM3 is an article submitted to Ms Parson, “B & F” in November 2008; and

4. SM4 is an article submitted to Ms Hunter, “NILGEO” in August 2009.

103. The plaintiff annexes as SM5 and SM6 two articles which he says were written by Professor Schwarcz, “RCFM”, and Ms Hunter, “Comparative Law as an Instrument in Transnational Law”.

104. The plaintiff invited me generally to look at the similarity of the articles as a whole and, in particular, use the tables at pages 6-31 of his affidavit to identify particular instances of tracing. It is not clear to me whether the details in the tables are what is said by the plaintiff to be a sample of the high points or “purple patches” of the alleged infringement or mixing or tracing of materials.

105. In any event, having examined the tables on pages 6-31 of the affidavit and having looked at the articles as a whole generally, I confess that I have not been able to readily see or understand how there has been any impermissible tracing even as an arguable case bearing in mind the interlocutory threshold.

106. The University submits, and I agree, that any correlation between a part of the plaintiff’s work and a part of the impugned work is de minimis. The University cites, as an example, the plaintiff’s reference to the use of the phrase “herd behaviour” on page 11 of his affidavit and “gamble mind set” on page 12 of his affidavit.

107. It is far from clear to me how the generalised allegations of the plaintiff that I have listed above form an arguable case to establish a fiduciary duty and, particularly, the content of the duty.

108. I have considered the plaintiff’s submissions in reply filed on 31 August 2023 to understand whether those submissions might assist in making good the contentions regarding a prima facie case and, indeed, on any of the criteria that need to be established for the relief to be given.

109. Intriguingly, the submissions argued that no limitation period applies in relation to the plaintiff’s relief, and, in particular, no limitation applies to the relief that the plaintiff seeks regarding the award of a PhD in law.

110. No particular submissions were provided which really address the limitation point in terms of the substantive relief sought.

111. However, it is clear that there has been a significant delay in the plaintiff commencing proceedings and seeking interlocutory relief.

112. Quite apart from the limitation issue, the plaintiff has not set out any clearly defined basis on which the University grants PhDs or the criteria by which it ought to grant such a degree or established what power the Court has to order that the University confer on him a PhD.

Prima facie case – confidence

113. During his submissions, at times Mr Moore referred to his property in terms of confidential information. However, a claim for breach of confidence and relief in respect of breach of confidence per se is not pleaded or claimed. In any event, there are, generally speaking, at least four elements required to establish a case of breach of confidence, namely:

1. the information in question must be identified with specificity;

2. it must have the necessary quality of confidence;

3. it must have been received by the recipient (in this case, the University) in circumstances importing an obligation of confidence; and

4. there must be an actual or threatened misuse of the information without the plaintiff’s consent: see e.g. Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281 at [39] per Finn, Sundberg and Jacobson JJ.

114. The plaintiff has not addressed all the requirements for a breach of confidence case.

115. Mr Moore referenced in his pleading his inscription on documents in terms of copyright, for example at paragraphs 50 and 52:

50. The Plaintiff wrote the following:

"Copyrighted by Bond SID 12905728 – Cert IV Audio Engineering SAE (Distinction); BASc Syd (psych); JD Bond (Hons); GDLP ANU (candidate); SJD Bond (candidate); Trainee Solicitor XXXXX and Associates - the property contained in this paper is not to be utilized without the author's written permission"

on the following work(s):

a.    'Playing with Fire: The regulatory failures which shall cause a future "major fire tragedy" in NSW'

b.    'Playing with Fire: The law's failure to prevent a future "major fire tragedy" in NSW'

…

52. The Plaintiff wrote the following on the work 'The New International Law and Global Economic Order: As of Necessity':

"Copyrighted by Bond SID 12905728: Cert IV Audio Engineering SAE (Distinction); BASc (psych); JD Bond (Hons); GDLP (candidate); SJD Bond (candidate); Junior Solicitor XXXXX and Associates. The property in this paper is not to be used in any way and/or for any purpose, (sic.) without the author's written permission. Footnotes shall be added but have been withheld so as to protect the author's property".

The Plaintiff wrote these words to so that his work could be identified and to retain and reserve his rights and be able to identify, trace and vindicate his property in, in respect of and/or with respect to the work(s).

i.    Admitted to the Certificate IV in Audio Engineering SAE (Distinction)

ii.    Admitted to the Bachelor of Arts and Sciences with a psychology major from the University of Sydney

iii.    Admitted to the Juris Doctor from BU with Honours

iv.    Was (at the time) enrolled in the Australian National University to undertake a Graduate Diploma in Legal Practice

v.    Was (at the time) enrolled in the Doctor of Legal Science at Bond University

vi.    The Plaintiff had at that point in time gained some unpaid experience with Moore & Associates and was, in any event, noting the work with biographical information so that it could be tracked and claimed by the Plaintiff, noting, that Moore & Associates was (then) the firm of his father Peter Stewart Moore, also noting, that xxxxx was intended to denote "Moore".

116. He accepted or at least did not dispute the notion that works he submitted could be reviewed by staff of the University for the purpose of assessing or grading works for the legitimate purpose of determining whether he had satisfied whatever necessary requirements there are for completing the course to enable the conferring of a degree.

117. For essentially the same reasons as I addressed in relation to whether there is any case of breach of fiduciary duty, at least on the facts, I am not satisfied that there is any compelling case of breach of confidence.

118. Overall, bearing in mind the threshold that is required on an interlocutory basis, my assessment of the matter is that the plaintiff has a very weak arguable case for final relief in relation to any of the ways that he puts his claims.

Alleged profit

119. The plaintiff’s claim for financial relief is also uncertain. In particular, as I have noted, he claims a sum that equates to the benefit, proceeds or profit derived from or by the University through their allegedly unauthorised use of his works.

120. He makes the assertion in his second affidavit dated 24 March 2023 that in the financial year 2009/2010, the University reported a net operating profit of $156 million.

121. The plaintiff, in his submissions, repeats reference to this figure. The plaintiff’s reasons for referencing that figure were not adequately detailed or explained. However, to the extent that the figure is said to give rise to the sum of profits that the plaintiff seeks, it is entirely unclear how any such figure is even remotely a means of assessing profits or benefits. The plaintiff makes no attempt to identify what, if any, part of the University’s net operating profit was referable to publications he alleges were made by or on behalf of the University using his works.

122. The plaintiff also claimed that any amount which he could be awarded would be “substantial”. Yet again, what that means is entirely unclear.

Risk of non-preservation

123. Subject to the following, the plaintiff has not identified any risk to the integrity of the publications. The plaintiff does not elucidate how or why the publications might be in some form of danger of being not preserved such as to necessitate an order that they be preserved.

124. The plaintiff’s written and oral submissions asserted that on 31 May 2023, he conducted a search of the Australian Corporate Law Teachers Association website. He identifies two articles which are said to have been attributed to Professor Farrar and to Professor Schwarcz. He claims that they are not publicly available.

125. It is unclear what “not publicly available” means. However, in any event, such a limited search is hardly a rational basis for inferring that many of the publications listed in Annexure 1 to the statement of claim are in danger of not being preserved.

Balance of convenience

126. In relation to the balance of convenience, the plaintiff asserted that the balance of convenience favours his application because of three matters.

127. First, he referred to legal principles of the High Court in Hospital Products at “paragraph 97” citing a reference to Cardozo J.

128. There is no paragraph 97 in the CLR report of the case. However, Mr Moore, upon enquiry by me, indicated that he referenced an online version of the judgment.

129. The only part of the judgment that I can readily find which refers to Cardozo J is at 108 of the CLR report, which is still in Mason J’s reasons for judgment. On that page, his Honour said (footnotes omitted):

In Beatty v. Guggenheim Exploration Co., Cardozo J. observed that an agent or a partner who promised or covenanted not to engage in some other business does not, as a matter of course, become chargeable as a trustee for the profits of the forbidden venture. For this proposition he cited well-known authorities which included Dean v. MacDowell, and Aas v. Benham. He went on to say:

"A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee."

Later he said:

"A court of equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of relief."

130. It is entirely unclear to me how that passage bears upon the question of balance of convenience.

131. Secondly, the plaintiff referred to an “extended period of the respondent disavowing its fiduciary duties owed to the plaintiff in Equity as trustee and as fiduciary”. The claims of the plaintiff were seemingly first raised in 2012. However, notwithstanding some foreshadowing of litigation, the plaintiff waited until 2022 before bringing any claim against the University. If one were to assume for the moment that any such fiduciary duty as the plaintiff alleges (or any other duty) arose, it is far from clear to me how the University has disavowed any such duty over an extended period. If anything, the plaintiff himself has delayed in making a claim for an extended period.

132. Thirdly, the plaintiff alleges that the University by “its relationship of Trustee in Equity vis-à-vis the Applicant is, in any event, compelled to seek the Freezing Order/s”. I simply do not understand what that submission is or how it relates to the balance of convenience.

133. There is a fourth point which the plaintiff references in relation to balance of convenience, but it is specifically a submission as to the undertaking as to damages, which I address below after addressing the question of what type of preservation is sought and the balance of convenience.

The type of preservation sought and balance of convenience

134. The relief sought is that a registrar of this Court (or, alternatively, the University) cause “preservation” of the 263 publications in such form and substance as they existed as at the dates of publication.

135. It is evident from Annexure 1 to the statement of claim that the 263 publications are publications by individuals in some cases or law publishers in other cases. Some items, e.g. item 22, are publications in the Bond Law Review. Although, most of the other publications are entirely by individuals or third-party law publishers or other publishers. Many of the articles have been published by publishers not merely in Australia but around the world.

136. In a very practical sense, the plaintiff has not explained to the Court the type of preservation relief he seeks.

137. If what he seeks to preserve in his description of property is his arguments and ideas, he has not explained to the Court how a registrar of the Court or the University is able to preserve such ideas or arguments in the form that they were at the date of publication.

138. Nor has he explained to the Court how it is that a registrar of this Court and the University have the ability to control or to otherwise be able to preserve rights to ideas or arguments embodied in such publications that have been published by individuals or third parties, such as entities or publishers that are not parties to the proceedings.

139. If what he seeks to preserve is the physical document or article published by individuals or submitted by individuals to publishing houses for publication, likewise, he has not explained to the Court how it is that a registrar of the Court or the University has the ability to implement such preservation.

140. Leaving aside publications made by publishing houses, even in respect of the individuals named in the statement of claim, none of those persons are defendants to the proceedings. Based on the pleadings, most of the persons referenced in the schedule, even if they were staff at the University in or about 2007, 2009 or even up to 2012, they are not currently staff at the University. It has not been shown that the University has any power to attach or control such items by the authors at the time that they were published for the purpose of preserving them.

141. There are other significant practical issues which go to the balance of convenience. Without listing the issues in any specific order, the following may be noted:

1. The publications on the face of it appear to be publications which were in the public domain in or about 2005 to 2012.

2. Other than referring to the fact of publication, the plaintiff has not identified, as at the date of the publication, the location of the 263 items sought to be preserved.

3. Even if the plaintiff were able to identify where those publications are currently held the plaintiff has not demonstrated that a registrar or the University has any ability to access those items.

Undertaking as to damages

142. The Court will usually require the plaintiff who seeks an injunction, or who obtains an undertaking in lieu of an injunction, to give an undertaking as to damages. The Court cannot compel the giving of such an undertaking, but it may, and in some cases should, refuse the application for interlocutory relief unless an undertaking is offered: see National Australia Bank Ltd v Bond Brewing Holdings Limited (1990) 169 CLR 271; [1990] HCA 10 at 277 per Mason CJ, Brennan and Deane JJ.

143. It has been said that an undertaking as to damages is, in effect, the price that an applicant for interim relief must be prepared to pay in order to obtain the orders sought: Kerridge v Foley [1968] 1 NSWR 628 at 630 per Sugerman, Asprey and Holmes JJA; Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75 at 284 per Aickin J (first instance) and on appeal at 313 per Gibbs J (as his Honour then was) and 319 per Stephen J.

144. The undertaking may be required whether the claim arises under the general law or from a particular statutory provision. The usual undertaking as to damages is specified in r 25.8 UCPR as follows:

The “usual undertaking as to damages”, if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking.

145. The plaintiff expressly provides no undertaking as to damages. He states that he relies in doing so on a statement in Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 at [120] per Spigelman CJ which proceeds as follows:

120. It is of some significance in this case to emphasise the perspective from which equity approaches issues of consent. The focus is whether or not the fiduciary, having placed himself or herself in a position of conflict between interest and duty, ought be permitted to make a profit - relevantly by acquiring a corporate opportunity - by the use of his or her fiduciary position. The issue is not whether the beneficiary - relevantly the company entitled to the opportunity - would, or even could, otherwise have availed itself of that opportunity. Equity is concerned with the protection of the fiduciary relationship and frequently does so with a strictness which has a consequence that errant fiduciary must account for profits which the beneficiary would never have obtained (see Furs v Tomkies (supra) at 592) e.g. by reason of a legal disability or an insufficiency of funds (e.g. Regal (Hastings) v Gulliver). As a joint judgment of the High Court put it:

“… it is no defence that the plaintiff was unwilling, unlikely or unable to make the profits for which an account is taken ….” ( Warman International Ltd v Dwyer (1994-1995) 182 CLR 544 at 558).

146. It is not clear to me that the statement of Spigelman CJ addresses in any way the requirement as to an undertaking as to damages. I am not satisfied that any injunctive relief should be given in the absence of an undertaking as to damages.

Determination

147. I consider that the plaintiff has a very weak prima facie case for final relief. There is no satisfactory evidence even on an interlocutory basis of the risk of non‑preservation. I am not satisfied in the context of what is essentially a claim for a mandatory injunctive order that the balance of convenience in any way favours the granting of such an order. Further, having regard to the absence of an undertaking as to damages, I dismiss the claim for the preservation order.

Suppression motion

Suppression order principles

148. I addressed the operation of the Court Suppression and Non-publication Orders Act 2010 (NSW) (CSNPO Act) in Re Rosie (No 2) [2022] NSWSC 1750 at [362]-[374]. I stated as follows:

362. The provisions of the CSNPO Act expressly do not limit or otherwise affect the Court’s inherent jurisdiction: s 4.

363. A non-publication order is an order that prohibits or restricts the publication of information (but does not otherwise prohibit or restrict the disclosure of information): s 3 CSNPO Act.

364. A suppression order on the other hand is an order that prohibits or restricts the disclosure of information (by publication or otherwise): s 3 CSNPO Act.

365. In that respect, a suppression order will often be broader than a non-publication order.

366. In either case, in determining whether to make such an order the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6 CSNPO Act.

367. The power of the Court to make orders is addressed in s 7 CSNPO Act and the grounds on which any such order may be made is addressed in s 8 CSNPO Act.

368. In proceedings involving a secure accommodation order, at the very least there is sufficient grounding to make a suppression order or non-publication order in circumstances where the order is necessary to protect the safety of a CYP: s 8(1)(c).

369. An order may be made on the application of a party to the proceedings or any other person considered by the Court to have a sufficient interest in the making of the order: s 9 CSNPO Act.

370. There are specific provisions indicating who can or must be heard on such an application: s 9(2) CSNPO Act.

371. Provisions of the CSNPO Act address other matters including:

1. the time for making such an order: s 9(3);

2. the specification of grounds on which the order is made: s 8(2); and

3. the making of orders on terms and the wording of any such orders: s 9(4)-(5).

372. An order can be made to apply outside New South Wales (i.e. to anywhere in the Commonwealth) where the Court is satisfied that the order is necessary for achieving the purpose for which the order is made: s 11(2), (3) CSNPO Act.

373. The extent of the operation of the order ought to be specified in the wording of the order: s 11(1) CSNPO Act.

374. Further, the wording of the order must indicate a period for which the order is operative which is no longer than is reasonably necessary to achieve the purpose for which it was made: see s 12 CSNPO Act; DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [42]-[50] per Leeming JA, Bell P (as his Honour then was) at [1] and Meagher JA at [2] agreeing.

149. The grounds for making a suppression order are set out in s 8 as follows:

8   Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds—

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

150. Of the above grounds, upon enquiry, the plaintiff indicated that he only relied upon ground 1(a).

Discussion and determination

151. There are various factors which are fatal to the plaintiff’s application for a suppression order.

152. First, he has not identified in any way the sum of the so‑called benefit, proceeds and/or alleged profit which he claims the University and other universities obtained by their alleged use of his works. He indicated that at some later point of time that information would be provided. However, it has not been provided at the moment and the sum he seeks to protect has thus not been identified.

153. I have referred above to the plaintiff’s evidence regarding the alleged profit of the University in 2009 and 2010. In any event, it is entirely unclear, even if the plaintiff were to rely upon such a figure, how such figure even remotely is a means of assessing profits.

154. Secondly, the Court operates on a system of open justice. Ms Doyle‑Markwick reminded the Court of the provisions of s 6 of the CSNPO Act that in deciding whether to make a suppression order the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

155. It is commonplace in court proceedings for parties to identify, at least at some point of time, and certainly before the hearing, the extent of their claim to what I will call some form of monetary relief, whether it is a claim, as the plaintiff alleges here, for benefit, proceeds and/or profit derived from unauthorised use of property or some other form of monetary claim.

156. The reference to some such benefit or the like is contained within paragraph 1 of the statement of claim. Occasionally, questions arise as to whether materials in certain court documents should be suppressed. Documents and information that have been compulsorily disclosed to parties for the purpose of the proceedings are subject to a restriction confining their use and disclosure to the same purpose: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 (Hearne v Street).

157. However, pleadings are not subject to any Hearne v Street obligation: see Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 at [35] per Brereton J (as his Honour then was); Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419 at [126] per Henry J; see also Jones v Treasury Wine Estates Ltd (No 4) [2020] FCA 1131; (2020) 146 ACSR 302 at [75] per Foster J.

158. The plaintiff has not identified any reason why disclosure of the amount of his claim in the statement of claim would be such as to give rise to prejudice to the proper administration of justice, nor why it is otherwise in the public interest for there to be suppression.

159. Accordingly, I dismiss the motion for the suppression order.

Costs

160. Costs are in the discretion of the Court, subject to the Civil Procedure Act 2005 (NSW) (CPA), the rules of Court and any other Act: s 98(1)(a) CPA.

161. The Court has full power to determine by whom, to whom and to what extent costs are to be paid: s 98(1)(b) CPA.

162. The Court may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98(1)(c) CPA.

163. The general position is that if the Court makes any order for costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR.

164. The University tendered on the application a letter from MinterEllison dated 23 May 2023 to Mr Moore:

Dear Mr Moore

Sim Moore v Bond University Limited

Supreme Court of New South Wales Proceeding (2022/00312244)

We write in relation to the notices of motion filed by you seeking orders pursuant to rule 25.11 of the Uniform Civil Procedures Act 2005 (NSW) (Freezing Order Motion) and section 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (Suppression Order Motion) (collectively, Motions). We also refer to the affidavit evidence served in support of those Motions on 24 March 2023 and 15 May 2023.

After careful review of these documents, we are unable to understand the relief you are seeking by the Motions or the basis for that relief. For example:

(a) the Freezing Order Motion relies on a rule of court by which freezing orders may be made "for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied'' (r 25.11 ). We do not understand how that rule could be used to obtain preservation of "publications" as sought in your motion. You do not appear to have addressed any danger of judgment being unsatisfied in your evidence.

(b) As to the Suppression Order Motion, you do not appear to have served any evidence relating to the confidentiality of any material that could be the subject of non-publication orders. You also seek -publication orders with respect to material that is not before the court (being material that is referred to in the Annexure to the statement of claim).

Our client opposes the Motions and intends to seek orders that you pay its costs of and incidental to them.

Yours faithfully

…

165. The University claims that Mr Moore lacked substance and that his conduct in pursuing the motions was unreasonable in light of the letter which is Exhibit D1.

166. Mr Moore asserted that the University was far better resourced than he as a basis for opposing costs.

167. An award of indemnity costs is compensatory, not punitive, and, relevantly, it presupposes some unreasonable action including relevant misconduct in connection with the conduct of the application or proceedings: eg Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.

168. Whilst I consider that there is very substantial force in what Ms Doyle‑Markwick has said, and that there were substantial evidentiary and other deficiencies in the plaintiff’s claims for interlocutory relief which have caused them to fail, ultimately, I am not satisfied that this is an appropriate case for the award of indemnity costs.

169. In the circumstances, I order the plaintiff to pay the University’s costs of and incidental to the notices of motion on the usual ordinary basis.

170. Ms Doyle-Markwick asked for an order that the costs be payable forthwith. The general position is that unless the Court orders otherwise, the costs of an application are to be paid and otherwise dealt with in the same way as the general costs of the proceedings, and unless the Court orders otherwise, the costs do not become payable until the conclusion of the proceedings: r 42.7 UCPR.

171. In the circumstances of this case, I am not persuaded that there is good reason to depart from that general position.

Orders

172. The orders of the Court are:

1. The freezing order notice of motion filed on 28 March 2023 be dismissed.

2. The suppression order motion filed on 28 March 2023 be dismissed.

3. The plaintiff to pay the defendant’s costs of and incidental to both notices of motion on the ordinary basis.

173. [Other procedural orders for the filing and service of evidence were then made].

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Decision last updated: 20 September 2023