Ogawa v Secretary, Department of Education, Science & Training
[2005] FCA 1472
•21 OCTOBER 2005
FEDERAL COURT OF AUSTRALIA
Ogawa v Secretary, Department of Education, Science & Training
2005 FCA 1472ADMINISTRATIVE LAW – Judicial Review - whether Secretary/Minister correctly exercise or failed to exercise their discretion on University of Melbourne’s alleged breach of the Education Services for Overseas Students Act 2000 (Cth) and National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students – whether the Ombudsman (Vic) is an “independent grievance handling/dispute resolution” process required for international students by the National Code – whether the applicant is “aggrieved” and the “decision” was “made under the enactment” to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies
WORDS AND PHRASES – ‘independent grievance handling/dispute resolution’
Education Services for Overseas Students Act 2000 (Cth) ss 15, 19, 33, 34, 38, 43, 83, 104, 107, 108
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 7
Judiciary Act 1903 (Cth)
Trade Practices Act 1974 (Cth)
Criminal Code (Cth) s 5.6
Education Services for Overseas Students Regulations 2001 (Cth)Ombudsman Act 1973 (Vic) ss 13, 17, 23
Melbourne University Act 1958 (Vic)Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 followed
Mark v Australian Broadcasting Tribunal (1991) 32 FCR 476 followed
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 applied
Griffith University v Tang (2005) 212 ALR 724 distinguishedNational Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students
MEGUMI OGAWA v SECRETARY OF THE DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING AND MINISTER FOR EDUCATION, SCIENCE AND TRAINING
QUD 161 of 2005
DOWSETT J
21 OCTOBER 2005
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 161 OF 2005
BETWEEN:
MEGUMI OGAWA
APPLICANTAND:
SECRETARY OF THE DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
FIRST RESPONDENTMINISTER FOR EDUCATION, SCIENCE AND TRAINING
SECOND RESPONDENTJUDGE:
DOWSETT J
DATE OF ORDER:
21 OCTOBER 2005
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application filed 4 October 2005 be dismissed.
2.The motions identified in the notices of motion filed on 21 September 2005 be dismissed.
3.The applicant pay the respondents’ costs of the proceedings, including the motions and including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 161 OF 2005
BETWEEN:
MEGUMI OGAWA
APPLICANTAND:
SECRETARY OF THE DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
RESPONDENTMINISTER FOR EDUCATION, SCIENCE AND TRAINING
SECOND RESPONDENT
JUDGE:
DOWSETT J
DATE:
21 OCTOBER 2005
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BACKGROUND FACTS
The applicant was born in Japan and was educated there, taking the degrees of Bachelor of Arts in Law and Master of Arts in International and Business Law. On 24 November 1999 she came to Australia as a Rotary Ambassadorial Scholar and enrolled in the University of Queensland as a student seeking the degree of Doctor of Philosophy. The applicant claims that from December 2000 the University of Melbourne sought to induce her to transfer to that university, offering to enrol her as a probationary candidate for the degree of Doctor of Philosophy with Associate Professor Megan Richardson as her supervisor. The applicant did not accept that offer but, after further negotiations with the university, she received an amended offer dated 1 August 2001, which offer she accepted. The applicant claims that she transferred to the University of Melbourne on 24 November 2001.
It seems that she very soon fell out with her supervisor and thereafter, had an ongoing dispute with the university as to her supervision. The nature of this dispute is not directly relevant for present purposes. The applicant’s version of it appears from her letter dated 21 October 2002 to the Vice-Chancellor of the university. Following her falling out with Associate Professor Richardson, Professor Ricketson was appointed as her supervisor. The applicant alleges that he refused to meet with her other than in the presence of another senior staff member. In her letter of 21 October 2002, she claimed:
‘I am convinced that I have been discriminated in the Law School by the Dean Professor Ian Ramsay and Associate Deans Professor Cheryl Saunders and Professor Tim McCormack who did not provide a supervisor for me for three months and allow Professor Ricketson to make a discriminatory treatment to me. I also believe that Professor Ricketson has discriminated me by setting an extraordinary condition of a meeting .
…
I also had to put up with disadvantages during the term that I did not have a supervisor, for example, my application for research support funds were not considered, my computer allocation was postponed unreasonably.
I would like to have an ordinary supervisor who could meet with me in an ordinary way. If there is nobody in this Law School who could be my supervisor, I would like to have an external supervisor.
On 21 October 2002 when I met with the Dean Professor Ramsay and his antagonistic assistant Jean Molloy and told them the above requests, I was recommended to apply for the University of Queensland. I could not believe it. The Law School did not provide a supervisor for me and when I requested a supervisor, the Dean said to me that I should apply for the University of Queensland. The Law School does not have intention to provide a supervisor for me. I hope this is not a University policy .
I have had this supervisor problem since April and my completion date is in November, I urgently need to have an ordinary satisfactory supervisor. If the above request is too difficult, I am prepared to consider changing the institution. However, in that case, I think that the Melbourne Law School, which has been irresponsibly accepting me, had not provided a supervisor for me for three months and still has not provided a satisfactory supervisor for me, should arrange an institution for me.
I hope that you could rectify this problem.’
On 7 October 2002 the applicant had written to the Department of Education Science and Training (the “Department”) seeking its assistance in connection with her complaint. The first respondent (the “Secretary”) is the permanent head of the Department. The second respondent (the “Minister”) is the responsible Minister. On 14 November 2002, the university advised the applicant that if she did not accept a proposal made at that time for her supervision, her candidature would be terminated. She had apparently stipulated 24 November 2002 as her “submission date”, presumably for her thesis. Later correspondence discloses that the university considered that, in the absence of an extension, her enrolment would expire on that date.
On 19 November 2002 an officer of the Department wrote to the university, briefly outlining the applicant’s complaint. The letter then continued:
‘Our responsibility in this area is not to intervene in individual student complaints, as such, but rather, to ensure compliance with the requirements of the Education Services for Overseas Students Act 2000 [the “ESOS Act”]
and its National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students … .As you are aware, under the National Code, the University is responsible for ensuring that appropriate support services are made available to overseas students enrolled in its registered courses. These include appropriate arrangements for independent grievance handling or dispute resolution, which are inexpensive and include a nominee of the student if the student so chooses; and the appointment of a qualified student contact officer who is able to assist students to resolve problems that could impede successful completion of their study programs.
The procedures must allow for prompt resolution having regard to the duration of Ms Ogawa’s stay in Australia on a student visa. Ms Ogawa should also have prompt access to this information to assist her with the most efficient process for resolution.
I have attached a copy of paragraphs 45 and 48 of the National Code for your information … .
In order for me to form an opinion as to whether the University is in breach of the National Code, I request the following information by COB Monday 25 November 2002:
·evidence of what steps have been put in place to comply with the student support services provisions of the National Code;
·information on the outcome of any dispute resolution with regard to Ms Ogawa’s complaint.’
I will return to the cited legislation and to the National Code of Practice (the “National Code”) at a later stage.
On 23 November 2002 the applicant sent an email to the Department, reiterating her complaints and stating:
‘I would like to have your advice whether I should lodge an appeal to the academic board or I can leave this problem to the Commonwealth Government to sort out.
The best solution for me was to have an appropriate supervisor in the Melbourne Law School and continue to study at the Melbourne. However, it looks impossible because the Melbourne Law School does not seem to have intention to provide a supervisor for me.’
On the same day an officer of the Department responded as follows:
‘As explained to you by telephone, our responsibility in this area is not to intervene in individual student complaints, as such, but rather, to ensure compliance with the requirements of the Education Services for Overseas Students Act 2000 and its National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students … .
As you are aware, under the National Code, the University is responsible for ensuring that appropriate support services are made available to overseas students enrolled in its registered courses.’
It was then indicated that the writer had written to the university and continued:
‘I have requested the University’s response on this matter.
I cannot advise you on what to do with your case, however you are entitled to take your complaint to the board or any other organization to assist with resolving this matter. Please do not hesitate to contact an independent resolution service to assist you with this process. There (are) services that can assist you for little or no cost through community service organisations.’
On 25 November 2002 the Vice-Principal and Academic Registrar of the university wrote to the Department, responding to the letter of 19 November 2002 relevantly as follows:
‘The University of Melbourne believes that is has fully complied with the requirements of both the Act and the National Code in the support and grievance resolution services it has provided to (Ms Ogawa). I wish to stress that Ms Ogawa’s complaint is being dealt with at the most senior levels of the University and large amounts of resources have been applied to the consideration and attempted resolution of her objections.
The issues Ms Ogawa has raised in her letter of 21 October have been investigated fully by Professor Barbara Evans, the Dean of the School of Graduate Studies, in conjunction with senior staff in the Faculty of Law. Professor Evans is the senior officer in the University responsible for the quality of supervision and the management of research higher degree candidatures at the University.
In response to your two questions I provide the following information:
1.Student Services provided to Ms Megumi Ogawa in accordance with the National Code
Ms Ogawa sought and has received ongoing advice and assistance from the University’s International Student Services Office from 9 October. During this period her assigned International Student Adviser brokered two meetings with relevant staff in the Faculty of Law in an attempt to resolve her concerns. The International Student Adviser offered to support her at these meetings and additional assistance has been provided to Ms Ogawa by the University of Melbourne Postgraduate Students’ Association. Ms Ogawa has also been encouraged to bring a “friend” to discussions with the staff from the Faculty of Law.
Ms Ogawa cancelled one of these meetings and during the other rejected all suggestions to resolve the issues she had raised. Staff from International Student Services have recognised Ms Ogawa’s distress and agitated state and on many occasions encouraged her to seek assistance from University Health Services. Ms Ogawa rejected these suggestions. In response to Ms Ogawa’s claims of racial discrimination, staff from International Student Services referred Ms Ogawa to the University network of Anti-Discrimination Advisers, and to the Equal Opportunity Unit. Ms Ogawa did not choose to consult these advisers or the Unit.
Ms Ogawa did ask on a number of occasions for the contact details of the University’s independent arbitrator, however staff explained to Ms Ogawa the need for her to utilize the University’s internal grievance procedures prior to any call to an external mediator.
2.Evidence of dispute resolution undertaken with regard to Ms Ogawa’s complaint
I attach a copy of the University’s grievance procedures, which are documented on the University’s web pages and are readily available to students. Ms Ogawa’s case is being dealt with in accordance with these procedures.’
The letter then set out the nature of the applicant’s complaints and continued:
‘Ms Ogawa’s PhD candidature expired yesterday and she has not indicated agreement to the final proposal put to her on 14 November. Given this lack of acceptance of the arrangements proposed, we will now refer her grievance to the Academic Board in relation to her allegation that the University has failed to provide her with adequate supervision, and to the Equal Opportunity Unit in relation to her allegation of racial discrimination (Step three of our documented processes).
Following discussions I had with both DIMIA and the State Office of Higher Education (with its director, Dr Terry Stokes) in February this year about the role of the external conciliator, the University understands that an independent conciliator was to be provided after the University’s grievance procedures were fully exhausted. We understand that the Victorian Ombudsman has agreed act in this capacity when matters remain unresolved. It is our belief that this is not yet the case for Ms Ogawa.
I hope that this reassures the Department that the University is addressing Ms Ogawa’s concerns with appropriate diligence and sensitivity.’
Attached to the letter was a copy of a document headed ‘The University of Melbourne Student Grievances’. It described an internal system of grievance resolution and referred to “external regulation” in connection with equal opportunity, sexual harassment and theft. It said nothing about any other external grievance handling/dispute resolution arrangements.
On 26 November 2002 the applicant advised the Department that she had appealed to the Academic Board. On that date, the university wrote to her, advising that her PhD candidature had not been extended. However her enrolment was to be continued until 24 December 2002 to enable hearing of her appeal to the Academic Board. On 27 November, the university again wrote to the applicant confirming that her enrolment had ceased on 24 November, the submission date (presumably for her thesis) negotiated with the Law Faculty, but had been extended until 24 December 2002.
On 12 December 2002 an officer of the Department wrote to the university concerning its handling of Ms Ogawa’s complaint as follows:
‘After assessing the information provided by the University in response to our request, it appears that the University has given Ms Ogawa every opportunity to receive the required support for her to successfully complete her studies and assist her in resolving her complaints.
However, the Department believes that the University could improve its grievance handling procedures, especially with regard to timeliness and access to the grievance handling advice.
For example Ms Ogawa raised her concerns with the University in April, but only in October did the University begin its grievance handling procedures. Paragraph 45 of the National Code requires the provider to have procedures in place which allow for prompt resolution, having regard to the duration of the overseas student’s stay in Australia on a student visa.
For the University to achieve a best practice approach to grievance handling it should ensure that commencing overseas students are made fully aware of the University’s grievance handling procedures.
The procedures also need to be made clearer and address the issue of independent grievance handling. While this may be something the University may not wish to offer domestic students, it must still be available for overseas students on a student visa. I have made some suggestions to the University’s grievance handling document (see Attachment).
The University also needs to ensure that commencing students have access to its support and counselling services including:
·Orientation (sub-paragraph 46.1)
·Academic progress (sub-paragraph 46.2)
·Further study (sub-paragraph 46.3)
·Accommodation (sub-paragraph 46.4)
The information should include the contact details of the suitably qualified person the University has appointed to assist students. This officer must be aware of their responsibilities under the National Code.
Thank you for your assistance with this matter. We will be writing to Ms Ogawa to advise her of the University’s compliance with the ESOS requirements.’
The attachment suggested numerous amendments to the notification given to overseas students concerning the university’s grievance procedure. In particular, it recommended addition of the following paragraph:
‘Under paragraph 45 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the National Code), overseas students on a student visa are also entitled to independent grievance handling/dispute resolutions, which is inexpensive and can include a nominee of the student if the student so chooses. The University would consider the Victorian Ombudsman, as independent, and the final appeal body.’
On 16 December 2002 the Department wrote to the applicant concerning her complaints as follows:
‘Our responsibility in this area is not to intervene in individual student complaints, as such, but rather, to ensure that providers of education and training to overseas students comply with the requirements of the Education Services for Overseas Students Act 2000 (the Act), the Education Services for Overseas Students Regulations 2001 (the Regulations) and the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the National Code).
As such, the Department wrote to the University to ensure it had appropriate grievance handling procedures and support services in place to comply with paragraphs 45-48 of the National Code. After investigation into the issues you raised, we are satisfied that the University has provided you with suitable student support services and has sufficient grievance handling procedures in place.
The University has provided this Department with a copy of the letter they wrote to you on 27 November 2002. This letter summarises the University’s attempts to resolve this dispute and provides you with steps that can be taken to seek further advice on the matters you have raised in your complaint against the University.
The University has also advised that it has not yet exhausted its internal procedures to resolve this dispute as an appeal has been lodged.
The findings of this Department however, do not preclude you from obtaining your own independent legal advice or taking action under Australia’s consumer protection laws.’
On 23 December 2002 the university advised the applicant that her appeal to the Academic Board had been unsuccessful and indicated that there would be no extension of her candidature beyond 24 December 2002. On 4 January 2003 the applicant sent an email to the Department as follows:
‘My legal adviser has suggested that I should lodge a formal complaint to DEST again just in case DEST needs it to investigate my problem.
The University of Melbourne did not arrange an independent grievance handling/dispute resolution procedure before my enrolment expired. Thus, the University’s internal procedures were not completed until a day before my candidature expired. The result is that the University has not provided an independent grievance handling/dispute resolution procedure during my stay in Australia on my student visa. The consequences for me are extremely serious since it appears that I will be unable to complete to submit my PhD thesis after three years hard work.
I would like to lodge a formal complaint since the University’s conduct does not comply with section 45 of the National Code. Accordingly, I request the Commonwealth Government Department of Education, Science and Training to investigate this the University of Melbourne’s failure to provide a proper independent grievance handling/dispute resolution procedure for overseas students.’
The Department responded on 6 January 2003, advising that the matter was receiving attention and that it would contact her if it required further information. On 16 January 2003 the applicant advised the university that:
‘I wish to invoke the independent grievance handling/dispute resolution procedures under Section 45 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students. Would you please provide me with the details of the University of Melbourne’s procedures under the latter section.’
The university responded on 20 January 2003 as follows:
‘You have already been provided with a copy of the University’s grievance procedures. The independent conciliator referred to in the ESOS Act Code is the Victorian Ombudsman. Since you have already lodged a complaint with the Ombudsman you are using the independent conciliator. Since you are in contact with these offices you will no doubt be kept informed of the progress of your complaints in this regard.
You have been referred to the policy on student grievances on several occasions, and this process was the subject of my email to you of 14 November. A hardcopy of the grievance procedures was also enclosed with my letter of 28 November which advised you of the outcome of your complaint about supervision made to the Vice Chancellor in your letter dated 21 October.’
On 13 March 2003 the applicant wrote to the Department as follows:
‘ I am writing this to ask you about the ESOS Act and the National
Code.I am currently researching the above legislation particularly regarding the independent grievance handling/dispute resolution under section 45 of the National Code.
I am looking for relevant documents which describe who should be the independent authority under the section, who decided the designated authority and what sort of decision or resolution decided that. Although I have been looking for these for some time, I am not successful.
I would greatly appreciate it if you could inform me any relevant material concerning the above question.’
The Department responded on 14 March 2003 as follows:
‘As discussed previously both in written correspondence and on the telephone, it is the responsibility of the provider to ensure they have in place appropriate arrangements for independent grievance handling/dispute resolution. Note 10 to paragraph 45 states that the dispute resolution services may be provided by the Authority, or by industry associations, or through other dispute resolution services including mediation or conciliation services. The provider when choosing the independent conciliator must ensure that the process is inexpensive and that the student can have a representative present if they so choose. The student is not responsible for choosing the conciliator.
I have attached some formal advice for your information, and highlighted the relevant paragraphs.
There is no further information I or any of my colleagues at the Department can provides to you on independent grievance handling and your current issues with Melbourne University. Therefore, unless you have new/different information to bring to light, we will not continue to respond on this matter.’
On 14 May 2003 the applicant wrote to the Minister making a “formal complaint” against the university. After setting out the nature of her complaint the applicant asserted:
‘I made a complaint about this discriminatory behaviour to the University and (the Department). (The Department) advised me to ask the University to arrange independent grievance handling/dispute resolution which the ESOS Act and the National Code requires the University to arrange.
However, the University has never arranged independent grievance handling/dispute resolution to date. Furthermore, the University cancelled my enrolment although I was about to complete my PhD within six months. I no longer have any place where I can bring my complaint.
I have enclosed my article, published in a prestigious Australian academic journal, about the problem I experienced at the University of Melbourne including a legal analysis of the problem.’
The applicant incorporated this article into her submissions in the present proceedings. I will return to it at a later stage. The letter concluded:
‘Dear Minister, please read my article and help me to resolve the problem.’
On 16 June 2003 an adviser to the Minister responded to the letter of 14 May 2003 relevantly as follows:
‘The issues you raise concern your supervision while studying a PhD at the University of Melbourne, your right to independent grievance handling and the cancellation of your enrolment. I understand that you had ongoing consultations with the Department of Education, Science and Training and the Victorian Office of Higher Education regarding these concerns.
In this circumstance, neither the Minister nor his Department can act on your behalf. Instead, the Department’s role is to look into whether the University has breached its legislative requirements with regard to overseas students under the Education Services for Overseas Students (ESOS) Act 2000 and the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the National Code).
The Department has investigated the alleged breaches made by the University, but found the minimum requirements under the legislation had been met. This included having in place appropriate arrangements for independent grievance handling/dispute resolution.
…
I understand that your complaint is currently with the Victorian Ombudsman; however, I suggest you continue to liaise with the University regarding your enrolment, and hope that you are able to satisfactorily resolve your issues.’
Although the material is not entirely clear on this point, it seems that on or about 26 June 2003, the applicant wrote to the Secretary, referring to correspondence dated 4 January 2003. This was her email referring to the lodging of a formal complaint with the Department. A departmental officer responded on behalf of the Secretary, confirming that the Department had found no breach of par 45 of the National Code by the university and referring to the interpretation of that paragraph previously forwarded to the applicant. The applicant responded on 26 June 2003 saying:
‘Thank you for your clarification regarding my enquiry whether there was a written response to the compliant I made on 4 January 2003. I understand from your email that there was no written response to my compliant.’
On or about 27 June 2003 an officer of the Department replied to the applicant’s email of 13 June 2003 to the Minister. The Department reaffirmed its advice that neither the Minister nor the Department could act on behalf of the applicant concerning her complaint and that the Department’s function was limited to considering whether or not the university had breached the legislative requirements. It again advised that the university’s arrangements satisfied the minimum requirements of the legislation, including the requirement that it have ‘appropriate arrangements for independent grievance handling/dispute resolution.’ On 24 December 2003 the applicant wrote to the Minister enquiring:
‘What are the minimum requirements under the National Code of Practice for Registration Authorities and Providers of Education and Training Overseas Students?’
The applicant also asserted that the university had not arranged independent grievance handling/dispute resolution in her case. On 8 May 2004 the applicant wrote to the Department outlining her experiences with the university and her complaints concerning its conduct. She also outlined her previous dealings with the Department and noted that the matter had been referred to the Victorian Ombudsman. She asserted that:
‘He required half a year to form his view that he did not have jurisdiction over the supervision issues, the kernel of this dispute. He reviewed the procedure adopted by the University to terminate my candidature but believed that the University took reasonable steps based on the University’s assertion that it had done so. He did not even investigate the two version document issue.’
Elsewhere in the material it appears that the ‘two version document issue’ concerned a report to the Academic Board. It seems that at some stage, a draft emerged which differed in some respects from the final report. This was not an issue in the proceedings before me. The applicant said that she then petitioned the university’s Visitor, the Governor of Victoria. According to her, he ignored the petition until it was too late and then, one of his staff informed her that:
‘Neither the Governor nor his assessor have begun to inquire into the matter.
There are other avenues still open to you and you will, he believes, receive a more expeditious hearing and have the right of appeal if you choose to follow this course.’
The applicant then commenced proceedings against the university in this Court.
In a letter dated 3 September 2004, an officer of the Department responded to the applicant’s letter of 8 May 2004, confirming the Department’s view that the university had met the relevant statutory requirements. On 15 September 2004 an officer of the Department, apparently in reply to the applicant’s letter of 24 December 2003 to the Minister, confirmed the view that the university had complied with the Act. I should also refer to a letter dated 23 June 2003 from the Ombudsman to the applicant. The letter stated in part:
‘Firstly, it may be helpful if I explain that my role in this matter is to look at the administrative actions of the University and to form an opinion as to whether those actions were adequate and reasonable. It is not my function to form an opinion about your concerns as they pertain to the quality of your supervisory relationship with individual supervisors. In addition, it is not my role to make an authoritative finding on facts in dispute where those facts do not impact on my ability to form an opinion about whether the University’s administered actions in supervising your PhD were adequate and reasonable. Finally, it is not my role to inquire into matters that are not connected to my forming an opinion on whether the University’s administrative actions were adequate and reasonable .
Specifically, my function in relation to your complaint is to form an opinion as to:
·Whether the University’s policies and procedures in relation to PhD supervision are adequate and reasonable or whether, in this instance, the University’s application of those policies and procedures was adequate and reasonable.
·Whether the procedures followed by the University in terminating your PhD was adequate and reasonable and whether the University’s decision was one that it was reasonably able to make.
·Whether the University’s policies and procedures in dealing with student appeals are adequate and reasonable or whether the decision of the Appeal panel was one that it was reasonably open to make.’
The applicant asserts that these views demonstrate that the Ombudsman was not willing to address the real dispute between her and the university, namely the question of her supervision arrangements. At first sight, there may appear to be substance in this complaint, but in the end, I consider it to be unjustified. A grievance handling/dispute resolution process is designed to resolve disputes rather than to determine the rights and wrongs of the matter. In this case, the university appears to have accepted that it would have to make arrangements, other than those initially proposed, for the applicant’s supervision. In those circumstances, the questions identified by the Ombudsman on the first page of his letter were at the heart of the applicant’s complaint. It is reasonable to infer that had the Ombudsman formed an adverse view of the university’s conduct, he would have made appropriate recommendations as to the applicant’s enrolment and supervision. Such steps are authorized by s 23 of the Ombudsman Act 1973 (Vic) (the “Ombudsman Act”). I will return to that Act at a later stage. Those steps are also typical of the way in which a mediator might seek to resolve a dispute.
The applicant has other concerns about the Ombudsman’s involvement in the matter. I will deal with them at a later stage. However it is clear that he dealt with the substance of the applicant’s complaints. The thrust of his findings is that the relationships between the applicant and various supervisors had broken down. He did not inquire into the rights and wrongs of those breakdowns. The Ombudsman also concluded that the university had ‘administered the supervision of your candidature adequately’. I take this to mean that the university had taken all reasonable steps to provide supervision. This was the nub of the applicant’s complaint.
THE APPLICANT’S COMPLAINTS
The applicant’s complaints against the respondents appear from her second further amended application and her written outline of submissions. The application is for relief pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) and/or the Judiciary Act 1903 (Cth) (the “Judiciary Act”). The specified grounds for relief are all grounds specified in s 5 of the ADJR Act. The relief claimed is extensive. I will return to it at a later stage. On the first page of the application the following “decisions” are identified as its subject matter:
‘(1)The decision made by the Respondents not to take an action or the failure of the Respondents to decide to take an action against the University of Melbourne, a CRICOS provider under the Education Services for Overseas Students Act 2000 (Cth), for the breach of paragraph 45 of the National Code and Part 4 of the Education Services for Overseas Students Act 2000 (Cth) of the University of Melbourne;
(2)The decision made by the Respondents not to take an action or the failure of the Respondents to decide to take an action against the University of Melbourne and/or Professor Barbara Evans and/or Ms Lin Martin and/or Mr Michael Dean and/or Ms Zan Daroseman for their providing of false or misleading information pursuant to sections 19(1), (2), 104 and 108 of the Education Services for Overseas Students Act 2000 (Cth);
(3)The decision made by the Respondents not to take an action or the failure of the Respondents to decide to take an action against the University of Melbourne for the breach of section 15 of the Education Services for Overseas Students Act 2000 (Cth) of the University of Melbourne.’
I will refer to these “decisions” as “decision (1)”, “decision (2)” and “decision (3)” respectively. Each of these decisions involves an alleged decision and alternatively, an alleged failure to decide. Section 5 of the ADJR Act applies only to decisions. Review of failures to decide is provided for in s 7. The grounds specified in s 5 do not apply to applications pursuant to s 7. The application does not identify any valid grounds for review of the alleged failures to decide. The applicant also seeks to review ‘such further and other decisions or conduct not presently within the apprehension of the unrepresented applicant’. However the applicant has not sought to amend the second further amended application to go beyond the decisions specified in the paragraphs set out above.
Decision (1) arises out of the fact that no action was taken concerning the applicant’s complaint that the university had not complied with par 45 of the National Code. Decision (2) concerns the applicant’s allegation that the university falsely advised the Department that she had ceased studying for her degree, and that it thereby committed an offence created by s 108 of the ESOS Act. The subject matter of decision (3) has not been identified.
There are two respondents, the Secretary and the Minister. The application proceeds upon the basis that both made all relevant decisions. The applicant said that she had not understood that there was any need to distinguish between the two. In the end it emerged that to the extent that she attacked decisions by the Secretary, those decisions were, in her submission, made pursuant to s 43 of the ESOS Act. The applicant experienced considerable difficulty in identifying the actual decisions of which she complained. Broadly speaking, she asserts that her correspondence with the Department in 2003 constituted a request that the Secretary investigate her allegations against the university and take action against it for alleged breaches of par 45 of the National Code and of the ESOS Act. The email from Ms Hall to the applicant dated 26 June 2003 (ex P to Mr Lewis’s affidavit) evidences the relevant “decision”. On 10 May 2005, the applicant asked the Secretary to “take appropriate action against the University of Melbourne’ concerning her complaints. The Secretary took no action in response to that request. The applicant seeks review of both “decisions” or failures to decide. The Minister’s relevant “decisions” are said to be evidenced by the letters which are exs Q and U to Mr Lewis’s affidavit. The applicant submits that such decisions were made pursuant to s 83 of the ESOS Act.
I will initially deal with the matter as an application under the ADJR Act. To the extent necessary, I will then consider whether the applicant has raised any case for relief pursuant to the Judiciary Act.
RELEVANT STATUTORY AND REGULATORY PROVISIONS
The ESOS Act regulates the provision of educational services to overseas students. It requires that providers of such education be registered and places certain obligations upon them. In effect, a provider must be registered to provide a particular course within a State (which term includes the Australian Capital Territory and the Northern Territory). Registration is effected by the Secretary upon the recommendation of a ‘designated authority for a State’. That terms means, ‘… a person responsible under the law of the State for approving providers to provide courses to overseas students in the State.’ There is no doubt that the University of Melbourne was, at all material times, a registered provider for the State of Victoria in connection with the course offered to the applicant.
Section 15 of the ESOS Act provides:
‘A registered provider must not engage in misleading or deceptive conduct in connection with:
(a) the recruitment of overseas students or intending overseas students; or
(b) the provision of courses to overseas students.’
Section 19(1) provides, in part:
‘A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:
…
(d)any termination of studies by an accepted student before the student’s course is completed;
…’
Pursuant to s 107 it is an offence to provide false or misleading information in complying with, or purporting to comply with that obligation.
Section 33 provides that the Minister must establish a national code called the ‘National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students’. Section 34 provides that the purpose of such a code is:
‘… to provide nationally consistent standards for the registration and conduct of registered providers and the conduct of persons who deliver educational services on behalf of registered providers.’
The content of the National Code is prescribed by s 38. The relevant provision for present purposes is par 38(i) which provides that it may deal with ‘any other matters that are necessary or convenient to give effect to the purpose of the (National Code)’. Such a code has been adopted. Paragraph 45 of the National Code provides:
‘The registered provider must have in place appropriate support services and be able to demonstrate the advice provided to intending overseas students on these services. These must include appropriate arrangements for independent grievance handling/dispute resolution, which are inexpensive and include a nominee of the student if the student so chooses. The procedures must allow for a prompt resolution having regard to the duration of the overseas student’s stay in Australia on a student visa.’
There is a footnote to this paragraph which states:
‘Dispute resolution services may be provided by the Authority, or by industry associations, or through other dispute resolution services including mediation or conciliation services.’
The reference to the “Authority” appears to be to the “designated authority” for the relevant state, that is the person or body responsible under the law of that state for approving providers of courses to overseas students.
I have previously referred to s 43 which provides:
(1) This section applies if:
(a)the Secretary has information suggesting a possible breach of the national code by a registered provider for a State; and
(b)the source of the information is not the designated authority of that State.
(2)Before the Secretary investigates the matter further or takes any other action under this Act, the Secretary must notify the designated authority of the possible breach and request the authority to investigate the matter or take any other suitable action.
(3)However, the Secretary may investigate the matter or take any other action:
(a)without notifying the designated authority; or
(b)without waiting for the designated authority to investigate or take any other action;
if, in the Secretary’s opinion, the circumstances of the possible breach require urgent action.’
The section implies that the primary obligation for investigating any possible breach of the National Code is to lie with the designated authority for the relevant state. To that end, the Secretary is to give the designated authority an opportunity to investigate, save in the case of urgency. Section 43 contemplates an investigation by the Secretary only in the case of urgency or, presumably, if the designated authority fails to investigate.
I have also referred to s 83 which provides:
‘(1)The Minister may take one or more of the actions listed in subsection (3) against a registered provider if the Minister believes on reasonable grounds that the registered provider or an associate of the registered provider is breaching, or has breached, this Act, the national code or a condition of the provider’s registration.
(1A) …
(2)The Minister may also take one or more of those actions against a registered provider for a course if the Minister believes on reasonable grounds that a provider that is providing the course with the registered provider is engaging, or has engaged, in misleading or deceptive conduct in connection with:
(a)the recruitment of overseas students or intending overseas students to the course; or
(b) the provision of the course to overseas students.
Note: Section 93 sets out the procedure for taking the action.
(3) The actions are:
(a)to impose one or more conditions on the registered provider’s registration either generally or in respect of any one or more specified courses for any one or more specified States (see section 86);
(b)to suspend the registered provider’s registration for any one or more specified courses for any one or more specified States (see section 95);
(c)to cancel the registered provider’s registration for any one or more specified courses for any one or more specified States.
(4)The Minister may take action under this section against a registered provider’s registration for a particular course for a State even if the conduct, or the situation, that results in the Minister taking the action does not relate to that particular course.’
REVIEW UNDER THE ADJR ACT
Subsection 5(1) of the ADJR Act provides:
‘A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision … .’
The expression ‘a decision to which this Act applies’ is defined in s 3 to mean:
‘… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition);
(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment ; … .’
The term “enactment” includes Commonwealth legislation and any instrument, including rules, regulations or by-laws, made thereunder. It may be accepted for present purposes that decisions made under the ESOS Act are reviewable pursuant to s 5 of the ADJR Act. In order that the applicant be entitled to review:
·there must be a decision under an enactment; and
·she must be a person aggrieved by such decision.
As I have previously pointed out, the present application relies upon the grounds prescribed in s 5 of the ADJR Act. That section is concerned with decisions. The applicant, at least nominally, also seeks review of alleged failures to make decisions. Such review must be pursuant to s 7. However the application fails to identify any basis for review of those failures.
THE DECISIONS
The Secretary
As I have said, the applicant asserts that relevant decisions by the Secretary were made under s 43 of the ESOS Act. That section is concerned only with possible breaches of the National Code. Thus it has no relevance to decisions (2) and (3) as identified in the application. As to decision (1), the applicant’s complaint is that the Secretary did not investigate her complaint concerning the university’s arrangements for grievance handling/dispute resolution. Section 43 only operates where the Secretary is in possession of information which suggests a possible breach of the National Code by a registered provider. I leave that question for consideration at a later stage. I will first consider the two “hurdles” referred to above.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the High Court considered the definition of “decision” which appears in subs 3(1) of the ADJR Act. At 337, Mason CJ said:
‘… a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.’
Brennan and Deane JJ agreed with his Honour’s reasons. At 377, Toohey and Gaudron JJ said:
‘A decision under an enactment is one required by, or authorized by, an enactment.’
Section 43 regulates the conduct of the Secretary, but it does not provide for, require or authorize the making of any particular decision. Decision (1) refers to ‘the decision … not … to take an action against the University of Melbourne …’ and alternatively, to a failure to so decide. Section 43 is not concerned with taking action against a registered provider but, with the protocol to be followed in the event that the Secretary considers that there should be an investigation of a possible breach. It follows that decision (1) is not a decision made under the ESOS Act.
I turn to the question of whether the applicant is a person who is “aggrieved” by the relevant decision. Even if there had been a decision not to take action against the university, and that decision was made under the ESOS Act, the applicant is not such a person. The best guide to the proper approach to this question is found in the decision of Davies J in Mark v Australian Broadcasting Tribunal (1991) 32 FCR 476. At 477 his Honour observed:
‘To bring an application under the ADJR Act, a person must have an interest in the subject matter of the proceedings extending beyond that of a member of the general public and other than that of a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. A person bringing proceedings under the ADJR Act must identify a relevant interest and establish a sufficient relationship between that interest and the decision sought to be reviewed.’
Although the applicant may feel aggrieved by the absence of what she considered to be an appropriate grievance handling/dispute resolution process, the present proceedings will not assist her in that regard. Investigation of the alleged breach by the Secretary will not, of itself, lead to the provision of arrangements which meet the requirements of the National Code, nor will the imposition of sanctions upon the university achieve that result. In any event it is no part of the Secretary’s duty to seek or to impose sanctions.
The absence of any relevant interest is demonstrated by the relief sought in the application. Firstly, the applicant seeks that the relevant decision be set aside. Whatever the decision may be, its setting aside will not, of itself, assist the applicant. In pars 2-8 of the prayer for relief, the applicant seeks declarations as to contravention of the ESOS Act by the university and its officers and as to the commission of offences. None of this relief is appropriately sought in proceedings between the applicant and either respondent. Similarly, the relief sought in pars 9, 10, 11 and 12 has nothing to do with the respondents. Paragraph 13 is a prayer for cancellation of the university’s registration as a provider. Such an order would be of no assistance to the applicant in having her dispute resolved. In any event, it could not be granted other than in proceedings to which the university was a party. Paragraph 14 seeks an order that the respondents “arrange” a student visa for the applicant, clearly a matter which is beyond the power of either of them. Paragraphs 15 and 16 claim compensation and damages, presumably for failure to ensure that the university complied with par 45 of the National Code. The Secretary owed no duty to the applicant. Further, it is not possible to say that any failure to investigate caused any loss to the applicant. Quite apart from these matters, the ADJR Act does not authorize the award of compensation or damages. See Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 at 645. Finally, no evidence was led as to the quantum of any such compensation or damages. In the course of argument, the applicant suggested that she still desired resolution of her dispute by a process of the kind contemplated in par 45. However none of the relief sought in the application could lead to that result.
The applicant has failed to demonstrate a relevant interest in the review of any decision of the Secretary.
The Minister
Section 83 authorizes the Minister to impose sanctions for any breach of the ESOS Act or the National Code. For present purposes I assume that a decision by the Minister to impose, or not to impose, sanctions would be a decision under an enactment. The applicant complains of the Minister’s failure to impose sanctions for a breach of par 45 of the National Code and for the allegedly misleading information provided to him by the university. However for the reasons similar to those given in connection with the Secretary, the applicant is not a person aggrieved by any failure by the Minister to impose sanctions. Further, the imposition of sanctions upon the university, assuming that it was in breach, would not in any way assist the applicant.
THE MERITS
Quite apart from the difficulties discussed above, I consider that the applicant’s complaints are misconceived. The applicant submits that the university failed to establish appropriate arrangements for independent grievance handling/dispute resolution as contemplated by par 45 of the National Code. The correspondence demonstrates that the university had in place an internal system for grievance handling/dispute resolution. It seems that early in 2002 (prior to the applicant’s dispute with the university) it had decided that, for the purposes of par 45, the Victorian Ombudsman would act as an “independent conciliator”, once the university’s internal procedures were fully exhausted. The Department apparently accepted that this proposal would satisfy the requirements of par 45. The applicant submits that it does not do so.
It is difficult to attribute precise meaning to the requirements of par 45 in so far as they concern grievance handling and dispute resolution. Paragraph 45 does not require that the university have in place a system of arbitration or other extra-judicial decision-making. However, in argument, it seemed that the applicant believed that she was entitled to demand a cheap, non-judicial procedure for enforcing legal rights. That is not grievance handling or dispute resolution. Those terms imply resolution rather than arbitration. Thus it must be accepted that any such arrangements might, in a particular case, not resolve the dispute. Such a failure would not mean that the arrangements were inappropriate. Another uncertainty in par 45 is the role to be played by the student nominee. The requirement that the arrangements “include” such a nominee says nothing about his or her role. It cannot have been intended that such person have arbitral powers. The better view is that the nominee is to assist and support the student complainant throughout the process.
The applicant’s criticism of the university’s arrangements appear to be:
·that there were no such arrangements;
·that it was not legally possible for the Victorian Ombudsman to fulfil that role; and
·that if the Ombudsman was involved, it was not possible for a student nominee to be involved.
As to the first of these grounds, it seems quite clear that the university had approached the Ombudsman with a view to providing external grievance handling/dispute resolution. The Ombudsman’s letter to the applicant dated 23 June 2003 suggests that no final arrangements were in place at that time, but that he considered that he was legally competent to fulfil the relevant function. I will return to that matter at a later stage. Even if such arrangements had not been formalized, it would be difficult to assert that either the Secretary or the Minister erred in any way in not investigating that matter (in the case of the Secretary) or not imposing sanctions (in the case of the Minister). The making of such arrangements inevitably involved some delay. Given that the Ombudsman was willing to act on an ad hoc basis, as he did in this case, there was no apparent reason why either the Secretary or the Minister should have insisted upon immediate compliance.
As to the question of whether or not the Ombudsman was legally competent to perform the duties, he considered that he was. As much appears from the letter of 23 June 2003. In that letter he referred to his functions pursuant to ss 13 and 17 of the Ombudsman Act. Subsection 13(1) provides:
‘The principal function of the Ombudsman shall be to enquire into or investigate any administrative action taken in any Government Department or Public Statutory Body to which this Act applies or by any member of staff of a municipal council.’
I have referred to the Melbourne University Act 1958 (Vic) and am satisfied that the university is a public statutory body for the purposes of the Ombudsman Act. There can, to my mind, be little doubt that conduct by the university in connection with the appointment of supervisors for its post-graduate students is an administrative action. The applicant seemed to suggest that such a view was precluded by the decision of the High Court in Griffith University v Tang (2005) 213 ALR 724. However, as I understand that decision, it establishes that the decision to exclude a student in that case was made under the contract between the student and the university and was not a decision made under the Act establishing the university in question. That decision is not relevant to the operation of s 13 of the Ombudsman Act. A decision to enter into a contract to regulate a student’s enrolment would, in my view, be an administrative action, as would any action taken pursuant thereto. Thus, in my view, a dispute between the university and a student could reasonably be the subject of an investigation and determination by the Ombudsman. Section 23 contemplates the possibility that the Ombudsman will conclude that a particular action was contrary to law, unreasonable, unjust, oppressive or improperly discriminatory and make recommendations to remedy the situation. Those powers are appropriate to the resolution of a dispute between the university and a student. In my view the Ombudsman’s duties and powers under the Ombudsman Act are sufficient to enable him to perform the function contemplated by par 45 of the National Code and in no way inconsistent with his undertaking that function.
I turn to the question of involvement of a student nominee. I have already expressed my view as to the role of such a person. There is no reason why the Ombudsman’s investigation could not accommodate a person fulfilling that role.
I cannot see that either the Minister or the Secretary erred in accepting these arrangements as appropriate to satisfy the relevant requirements of par 45 of the National Code.
As to the question of providing misleading information contrary to s 19 and s 108, I find no evidence that the university or any of its officers did so. The relevant notification is ex MO5 to the applicant’s affidavit. It is true that it gives, as the reason for the applicant’s having ceased to be a student, ‘Student Notified Cessation of Studies’. In fact, the university considered that her enrolment had ceased because her submission date had passed and had been extended only until 24 December. The document must be read as a whole. Elsewhere in the document, it is said that:
‘The student’s candidature has expired on 24 December 2002. The student has therefore left the University of Melbourne but she may be eligible to change to another provider.’
The applicant has not sought to show that such a view was inconsistent with the relevant rules of the university or the contract between it and her, or that officers of the university did not honestly hold that view. Although the matter was not argued, it seems that intention is a necessary element of the offence constituted by s 108. See s 5.6 of the Criminal Code (Cth). In those circumstances, there was no basis for the Minister to suspect any breach of the ESOS Act.
Even on the merits (if that is the right word) the applicant must fail.
TIME
The applicant would, in any event, be out of time to seek relief under the ADJR Act in connection with the decisions by the Minister and the Secretary in 2003. It is true that earlier this year, she again asked the Secretary to act and purports to seek review of the Secretary’s failure to do so. For the reasons given above, that aspect of the application must fail. In any event, I would not be inclined to grant discretionary relief in connection with that decision, given that the Secretary’s decision in 2003 was not challenged within the prescribed time frame.
JUDICATURE ACT
I have not yet dealt with the question of the applicant’s purported reliance on the Judicature Act. She made no attempt to mount any argument other than that based on the ADJR Act. There is therefore no reason to consider the operation of the Judicature Act.
OTHER MATTERS
There are a number of other matters with which I should deal.
On 21 September 2005 the applicant filed two notices of motion returnable on the hearing date of the present application. In one notice of motion the applicant sought an order that this matter (or part of it) be heard with proceedings in application No QUD 245 of 2004. In that case, the present applicant seeks relief against the university under the Trade Practices Act 1974 (Cth). The National Code seems also to be in some way involved in those proceedings. Nonetheless, there could be no justification for forcing the present respondents to become involved in those proceedings, particularly having regard to my views concerning the applicant’s claims against them. In any event, I am not sure that the applicant persisted in that aspect of the motion. In this notice of motion the applicant also sought pro bono legal assistance. I will deal with that matter at a later stage.
In the other notice of motion, the applicant sought a stay of these proceedings pending the hearing and determination of a notice of motion for leave to appeal against my order of 29 July 2005 by which I gave directions as to the conduct of this matter and set it down for hearing. My understanding is that Spender J directed that the Registrar not accept that notice of motion. Again, I am not sure that the applicant pursued this matter. In any event, she will be able to ventilate her concerns in any appeal from this judgment.
In this notice of motion she again sought pro bono legal assistance. I indicated that I would not consider that question unless I was first satisfied that the applicant had some arguable case. I indicated that I would commence the hearing, intending that, if I came to the conclusion that there was an arguable case, I would consider her application. For the reasons which I have given, I now consider that there is no arguable case which would justify me in seeking pro bono legal assistance for her.
In the course of the hearing the applicant applied to me for the provision of an interpreter at Court expense. I indicated that if she wished to have the services of an interpreter, she was welcome to obtain them at her own expense but that I would not provide an interpreter at Court expense. I indicated that as far as I could see, the applicant had a very good command of English and was able to express herself clearly and to understand others. Throughout the hearing I saw no evidence to suggest that she was experiencing difficulty in understanding anything that was said. Indeed, she seemed to understand perfectly. I experienced only minimal difficulty in understanding her. She had prepared various documents in connection with the application, including an outline of argument, all of which were in reasonably good, idiomatic English. I pointed this out to her. She did not suggest that anybody else had been responsible for the preparation of these documents. In the course of her submissions she adopted arguments advanced by her in an article which she had written and which, she said, had been published. The article also discloses that she has the capacity to use English and a quite reasonable understanding of relevant legal issues. I indicated to her that I inferred from the article that she was able to express herself in English. Again, she did not suggest that anybody else was the author of the article. I find as a matter of fact that the applicant is competent to express herself in English and understands English, both written and oral.
The applicant failed to deliver her outline of argument until the morning of the hearing, notwithstanding my direction that she do so ten days prior to the hearing date. I had not read her outline by the time that the proceedings commenced, but I then read them in her presence. Thereafter, in answer to questions concerning her case, she frequently and gratuitously asserted that I had not read her outline. I repeatedly pointed out to her that I had read it in her presence. She nonetheless continued to assert that I had not done so. Eventually, I indicated that I would not permit her again to make that assertion. Shortly thereafter, when I again questioned her about aspects of her case, she responded by saying ‘lazy Judge’. I indicated to her that I proposed to ignore her remark but that if she again insulted me, I would deal with her for contempt of court. It is not necessary that I deal further with these matters.
ORDERS
The application and the motions will be dismissed with costs, including reserved costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Associate:
Dated: 20 October 2005
Counsel for the Applicant:
The Applicant appeared in person.
Counsel for the Respondents:
Mr S McLeod
Solicitor for the Respondents:
Clayton Utz
Dates of Hearing:
4-5 October 2005
Date of Judgment:
21 October 2005
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