Ogawa v University of Melbourne
[2005] FMCA 1118
•8 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OGAWA v UNIVERSITY OF MELBOURNE | [2005] FMCA 1118 |
| PRACTICE & PROCEDURE – Trade Practices – applicant not appearing at final hearing – whether court should proceed with hearing generally – whether application should be dismissed for lack of evidence – whether indemnity costs should be ordered. |
| Federal Magistrates Court Rules 2001, rr.2,13, 16 Ogawa v The University of Melbourne(No 2) [2004] FCA 1275 |
| Applicant: | MEGUMI OGAWA |
| Respondent: | THE UNIVERSITY OF MELBOURNE |
| File Number: | MLG 463 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 8 August 2005 |
| Date of Last Submission: | N/A |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2005 |
REPRESENTATION
| No appearance for the Applicant |
| Counsel for the Respondent: | Mr C.M. Caleo |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application is dismissed.
The matter be adjourned to 18 August 2005 at 10.00am for the question of costs.
The respondent file and serve a calculation of the costs it seeks by 4.00pm on Monday 15 August 2005, including costs of and relating to today's hearing on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 463 of 2004
| MEGUMI OGAWA |
Applicant
And
| THE UNIVERSITY OF MELBOURNE |
Respondent
REASONS FOR JUDGMENT
Today is the date fixed for the final hearing of an application which commenced in the Federal Court and was then transferred to this Court. The applicant has not appeared. The respondent submits that I should proceed with the hearing generally pursuant to r.13.03A(d) of the Federal Magistrates Court Rules 2001.
The applicant was enrolled as a PhD student at the University of Melbourne. She alleges that representations were made to her which constituted misleading and deceptive conduct pursuant to s.52 of the Trade Practices Act 1974 (Cth). The representations she alleges are about the manner in which the studies would be supervised. She alleges that her candidature for PhD was withdrawn or cancelled by the respondent. She alleges that that was brought about because the supervision that she was given was inadequate. She alleges that she has suffered loss and damage and she seeks an order that her PhD studies be reinstated. She alleges unconscionable conduct pursuant to s.51AB of the Trade Practices Act.
The application first came before me in the Federal Magistrates Court in June 2004 after transfer from the Federal Court.
Matters which I dealt with included an application by the applicant to transfer the proceedings back to the Federal Court, which I refused to do on 27 July 2004. On that occasion, the applicant was represented by counsel appearing pro bono. Before the Court on that day was an application by the respondent to strike out parts of the statement of claim, which I adjourned until 5 August 2004. On 5 August 2004, the strike out application was heard. On 27 July 2004 when that application was originally before me, counsel appeared in the Court in Melbourne. Arrangements had been made for a video-link to Brisbane so that the applicant could be present in that way, but she was not present in the Brisbane Court.
When the strike out application was heard on 5 August 2004, I had determined that the application could be done by way of telephone link. Arrangements were made for that to be done to a courtroom in Brisbane. The applicant did not appear in the courtroom in Brisbane. As I set out in my reasons given on 5 August 2004, which were reasons for not adjourning the application, I had been informed by my associate that the applicant had left a message giving both a landline number and a mobile telephone number. She was at that point connected to the Court by a landline number. I interpreted what she said on that day as being an application for an adjournment which I then refused. I then proceeded to hear the strike-out application because the matter was proceeding by way of pleadings.
The applicant participated for a period in the sense that she remained on the telephone line for the audio-link, but then she disconnected and I proceeded with the hearing. That judgment was delivered on
3 September 2004. I made an order which struck out various parts of the statement of claim. The applicant applied to the Federal Court for leave to appeal against the order refusing to transfer on 27 July 2004 and the strikeout order on 3 September 2004. Both applications were dismissed by Kenny J. on 1 October 2004 – Ogawa v The University of Melbourne (No 2) [2004] FCA 1275.
The order made on 3 September 2004 gave the applicant leave to file an amended statement of claim which would have been the third amended statement of claim. The applicant did not file a further amended statement of claim.
The matter then came back for directions on 28 October 2004. On that date I fixed the application for hearing today, 8 August 2005. I made directions for the respondent to file and serve an amended defence.
I gave directions for the filing and serving of affidavits of evidence. The applicant was to file her affidavits of evidence by 4 pm on
11 March 2005. That did not occur. The applicant did not appear at that directions hearing on that day even though arrangements had been made for her to appear by audio-link.
Liberty to apply was reserved on 28 October 2004 and pursuant to that liberty to apply, the matter was again listed for directions on 26 May 2005. The respondent applied for the matter to be listed again for directions. Again the applicant did not appear, although arrangements were made for her to appear by audio-link. The dates for filing affidavits of evidence were extended. Those for the applicant were extended to 4 pm on 23 June 2005. On both dates on which directions were given for the filing of affidavits, the filing of the respondent's affidavits was to be after the applicant's affidavits, the nature of the proceedings being such that the only sensible way to proceed was to have the applicant file her affidavits and the respondent then reply. The applicant did not comply with that order to file and serve any further affidavits. The matter therefore has been fixed for hearing today since 28 October of last year.
In the course of last week my associate communicated with the applicant. She did that by email because it had become apparent that that was the applicant's preferred method of communication. The email asked whether the applicant wished to have arrangements made for an audio or video-link for the hearing commencing today. The applicant resides in Brisbane. When the matter was in the Federal Court she had appeared by video-link from Brisbane. The applicant replied to my associate’s inquiry. The relevant part of the response was that she would not be appearing.
There has been filed today an affidavit by Michelle Shannon Power, who is a partner in the solicitors for the respondent, Minter Ellison. That affidavit is confined to setting out some procedural history and correspondence. Included amongst that correspondence is a letter which was sent on 4 August 2005 to the applicant which reads as follows:
We refer to your email to the court at 3.14 pm on 3 August 2005 advising that you will not be appearing in the Federal Magistrates Court proceeding listed for 8 August 2005. As you are well aware, the court has ordered that the matter be heard on 8 August 2005. There has been no order by either the Federal Magistrates Court or the Federal Court to the contrary; in particular, no order has been made staying or otherwise adjourning the hearing of proceeding MZ 463 of 2004. If you wish to be heard in relation to the subject matter of the Federal Magistrates Court proceeding you must appear on 8 August 2005 in accordance with the court's order. We will be appearing on behalf of the University on that date.
There was a reply from the applicant by email to that letter to Minter Ellison which reads as follows:
Dear Minter Ellison, You know that we cannot ignore the Federal Court. At least your counsel has obligation to the court and cannot ignore the Federal Court proceeding. We also ignore the High Court. I attended a two-day hearing last week ex parte and I received an email from the High Court yesterday notifying me that it had decided to call in all defendants for the next hearing. If you have not received a notice from the High Court you will receive it shortly. The matter has been back in the Federal Court and will be heard in the Federal Court.
Elsewhere in Ms Power's affidavit is material which shows that the applicant in December 2004 instituted proceedings in the Queensland registry of the Federal Court. The statement of claim filed in that proceeding by and large contains the same allegations as the statement of claim in this proceeding; that is, the second further amended statement of claim in its form prior to parts of it being struck out by the order I made on 3 September 2004.
The respondent University in the Federal Court proceeding has made application to have that application stayed or dismissed. That came before Ryan J. After an oral hearing he gave the applicant leave to file submissions in writing and gave a considerable period of time for her to do that. That has occurred and His Honour's decision is pending. Ms Power's affidavit also contains some email correspondence which took place at an earlier stage. On 19 July 2005 an email was sent by a registrar of the Court, Registrar Mussett, to my associate, the applicant and Minter Ellison. The email reads:
I have just been speaking with Ms Ogawa. She has asked me to raise with Phipps FM that she wants to vacate the hearing date in this matter. I advised her it is a matter for Phipps FM and she should file a notice of motion supported by an affidavit if she wants to pursue vacation of the hearing date. Perhaps you could respond to her to confirm my advice.
A response came from the applicant the same day which went to the registrar, to my associate and to the respondent’s solicitor.
I note that Registrar Jane Mussett's email was false in that she had already received my request over the telephone and she rejected my request. Hence, I am now precluded from filing a notice of motion.
That, on any view, cannot be a correct interpretation of what the Registrar said. What the Registrar had said was straightforward and correct; that if the applicant wished to vacate the hearing date she should file an application which she could do by way of notice of motion. Given that the proceeding is on my docket and was before me, it normally would be fixed for hearing before me. But if for any reason it was not appropriate that it come before me, or I was not available, it would be heard by another Federal Magistrate. What the Registrar said was correct.
I note, in any event, that if by some far-fetched interpretation what occurred could be taken as a decision by a registrar to refuse to accept the filing of the document, there is another remedy. Registrars of this Court do have the power to refuse to accept the filing of a document in certain circumstances. Rule 2.06(1) provides:
A registrar may refuse to accept a document for filing if:
(a) the document appears on its face to be an abuse of process or frivolous, scandalous or vexatious.
When Registrar Mussett had her communication with the applicant there was no document presented for filing. The rule could not have applied. The Registrar was not making a decision in futuro, so to speak. What she did was to say to the applicant that what she should do is file a document. But even if by some far-stretched interpretation what the Registrar had said could be taken as a refusal to accept a document, the applicant's remedy is set out in r.2.06(2) which provides:
The person seeking to file the document may apply to the court for review of the registrar's decision in accordance with Division 20.2.
I have referred to only some of the document exhibited to Ms Power's affidavit. Other letters exhibited, sent to the applicant by the respondent’s solicitors, to which I have not referred, contain advice to the applicant that the respondent’s intention is that the hearing on
8 August 2005 proceed.
What can be concluded from the matters to which I have referred to is that the applicant has made a deliberate decision not to appear at the hearing of her application today. I repeat that the application was fixed for final hearing in October 2004 and directions for the filing of trial affidavits were made which gave the applicant ample time to prepare her case.
There have been a number of appeals or applications for leave to appeal from decisions that I have made to the Federal Court by the applicant. There have also been a number of applications to the High Court in which the applicant has been seeking an order nisi for a prerogative writ to prevent the proceedings in this Court going forward. That is probably an imperfect summary of those matters, but all appeals, all applications for leave to appeal and all applications for order nisi have been dismissed.
The only conclusion that can be reached from what has happened is that the applicant has made a deliberate decision not to proceed with her case in this Court. She has commenced a separate proceeding in the Federal Court. She seems to consider that proceeding can go forward but not this one. However, the proceeding which is now before me originally commenced in the Federal Court. It was transferred on 4 May 2004 by order of Marshall J. to this Court. The applicant then applied to me to transfer the matter back to the Federal Court. I rejected that application. She applied for leave to appeal against that order. Leave to appeal was refused.
This Court has jurisdiction to hear the applicant's claim. In the circumstances which exist, I am obliged to proceed and deal with it.
The Federal Magistrates Court Rules 2001 deal with circumstances where a person does not appear in order 13.3A. That provides:
If a party to a proceeding is absent from a hearing, other than the first court date, the court may do any of the following
(a) adjourn the hearing to a specific date or generally
(b) order that there is not to be any hearing unless
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the court directs are taken
(c) if the party absent is an applicant or a respondent who has made a cross-claim, dismiss the application or the cross‑claim;
(d) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
The respondent has applied and submitted that I should proceed in accordance with r.13.03A(d); that is, proceed with the hearing generally. Mr Caleo, who appears for the respondent, quite frankly says that if I do adopt that course and dismiss the applicant's application, the approach that the respondent will take to the existing Federal Court proceeding or any subsequent proceedings is that the rule of res judicata applies so that the applicant is precluded from proceeding with a fresh application.
I make no comment about whether that is correct or not, other than to put it in my reasons so that it is clear that I am aware that I have been informed that that is the approach the respondent will take.
I note that if I do proceed with the application and dismiss it, and if Mr Caleo's submission that that would give rise to res judicata is correct, the applicant is not completely precluded from proceeding with the claim she makes in this application. Rule 16.05 deals with what happens if a person does not appear at a hearing and judgment is given or an order is made. That order provides, relevantly:
(1)The court may vary or set aside each judgment or order before it has been entered.
(2)The court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party.
If I do proceed with the hearing and dismiss the applicant's application, her remedy would be to apply to under r.16.05(2). I say nothing about the prospects of such an application succeeding.
I think that this is an appropriate case for me to proceed with the hearing generally pursuant to r.13.03A(d). There is a general principle that finality of litigation is desirable. The matters in dispute between the applicant and the respondent were fixed for hearing and resolution commencing today. The applicant, if she had so chosen, could have her case against the University commence today and proceed through to finality. She has chosen not to do that. She has not put before the Court any reason why that should not happen. From the correspondence, which includes the email correspondence to which I have referred, it appears that she wants to have her case heard in the Federal Court.
That question has been canvassed by Marshall J. in the Federal Court when he transferred the proceeding to this Court. I then dealt with an application by the applicant to transfer back to the Federal Court. Any avenues of appeal have either been explored by the applicant or are now well out of time. If the applicant was able to put forward any reason why the proceeding should not be heard in this Court, she has had the opportunity to put those reasons forward and they have been dealt with.
Quite apart from the general policy of the desirability of finality in litigation, the respondent as a matter of justice is entitled to have the application dealt with. There are serious allegations made against it and members of its staff. The respondent is entitled to have those dealt with and finality reached. The members of staff also can be said to have an interest in having the proceeding disposed of.
In summary, the dispute which exists between the applicant and the respondent is before this Court today. This Court has jurisdiction to hear it. The applicant has had ample opportunity to prepare and present her case today. She has made a deliberate decision not to do so. There is no valid reason for that deliberate decision. She has not applied for an adjournment or sought to discontinue the application. In those circumstances, I consider it is appropriate that I should proceed under r.13.03A(d) and proceed with the hearing generally.
There is no evidence before the Court. What is before the Court are pleadings. I said in my judgment on 3 September 2004 in the strike out application that the application was proceeding by way of pleadings.
I repeat what I said in my reasons for judgment on that day, Ogawa v University of Melbourne (No 3) [2004] FMCA 536 at [7]:
The application was commenced in the Federal Court by the filing of an application and statement of claim. The applicant’s statement of claim was filed pursuant to O 4 r 6 of the Federal Court rules. The second further amended statement of claim, the current statement of claim, was filed pursuant to my order of 11 June 2004. The Federal Magistrates Court Rules 2001 made no provision for pleadings. Section 43(2)(b) of the Federal Magistrates’ Act 1999 (Cth) permits the Court to apply the Federal Court rules where the Federal Magistrates Court rules are insufficient. The Federal Court rules contain provisions for pleadings. Given that the current statement of claim was filed pursuant to the order I made, the application, as it now is in the Federal Magistrates Court, is proceeding by way of pleadings.
Kenny J, in her Honour’s judgement of 1 October 2004, said at [36]:
36 I do not detect any real conflict between the approach adopted by the Federal Magistrate in Ms Ogawa’s case and the approach referred to in this passage. As this passage shows, the decision in Kurniadi acknowledges that pleadings may be appropriate in some, though not all, trade practices cases in the Federal Magistrates Court. In Ms Ogawa’s case, the Federal Magistrate indicated that, although pleadings were not generally required in the Federal Magistrates Court, he considered pleadings appropriate, particularly having regard to the procedural history of the Proceeding. Paragraph [7] of his Honour’s reasons for judgment reflects this.
What is therefore before the Court is the Second Further Amended Statement of Claim filed dated 9 July 2004 and filed 12 July 2004, or what has not been struck out in the Second Further Amended Statement of Claim, and the respondent's defence, the Further Amended Defence dated and filed 18 november 2004. There is no evidence before the Court.
The relevant allegations made in the statement of claim are first contained in what is left of paragraph 3 and in paragraph 3A. Those are an allegation that the respondent represented to the applicant by its email publication, "The Degree of Doctor of Philosophy Handbook", certain matters in relation to candidature for enrolment in PhD courses. The pleading then sets out a number of extracts from the handbook. It then alleges that they were representations with respect to future matters within the meaning of s.51A of the Trade Practices Act. That is contained in paragraph 5. The statement of claim then proceeds with a conventional misleading and deceptive conduct pleading to allege that the applicant relied on those representations, that the representations were false, and that as a consequence of that her candidature for PhD was terminated. Remedies she is seeking include an order that the University reinstate her candidature and damages.
There is a second claim made under s.52 for misleading and deceptive conduct, which is contained in paragraph 4 of the Second Further Amended Statement of Claim which alleges that Associate Professor Richardson represented that he would act as the applicant's supervisor throughout her candidature. That is alleged to have been a representation as to future matters, made without reasonable grounds and constituting misleading and deceptive conduct. In subsequent parts of the pleading the matters which are alleged to give rise to damages and right to relief in part are that Associate Professor Richardson did not act as the applicant's supervisor throughout her candidature.
Then there is an unconscionable conduct claim, a claim made under s.51AB commencing in paragraph 16 of the Further Amended Statement of Claim. It is alleged that Professor Evans insisted that the applicant's supervisor must be changed to Professor McCormick, who, the pleading alleges, was ineligible or inappropriate to be a supervisor of the applicant. The pleadings allege unconscionable conduct on the part of the University.
In the further amended defence there are formal admissions made as to the existence of the University and its establishment under the Melbourne University Act 1958 (Vic). I note that it does not admit that it is a corporation within the meaning of the Trade Practices Act and it does not admit that it is a trading corporation. It admits that "The Degree of Doctor of Philosophy Handbook" contained a section in relation to supervision. That commenced with the words:
The research of each candidate is supervised by members of the academic staff who have appropriate research experience and a continuing active participation in research.
Consequently, what there is before the Court is admissions which establish the existence of the University. There are admissions that the applicant applied for and was accepted as a candidate for a PhD degree in the law school of the University of Melbourne. There is an admission that the University's Doctor of Philosophy Web Handbook contained a statement in relation to supervision, but otherwise all the relevant allegations by the applicant are denied.
Dealing with the three causes of action alleged in order. First, the applicant alleges that there are representations as to future matters contained in the University handbook. If it is assumed that the portion of the handbook which is admitted to exist by the University is a representation as to future matters, that means that under s.51A of the Trade Practices Act, the onus is on the respondent University to establish that it had reasonable grounds for making those representations. Since the University has not called any evidence, and if the most favourable view for the applicant is taken, it can be assumed that the University has not satisfied the onus on it of establishing that the University had reasonable grounds for making the representation.
The applicant then has to call evidence to establish reliance, establish causation and prove damages and the matters she claims give rise to the right to the remedies she seeks.
There is no evidence from the applicant that she did rely on the handbook. There is no evidence that there were any shortcomings in her supervision. There is no evidence that there was any connection between her supervision and the termination of the candidature. There is no evidence of any damages and there is no evidence of any other matters which might give rise to the Court making an order that the respondent restore the applicant's candidature.
These are all matters where the onus of proof is on the applicant. There is no evidence. The claim fails. It has not been proved.
The second claim is an allegation that a representation was made to her that she would have Associate Professor Richardson as a supervisor throughout her candidature. The further amended defence, in paragraph 4, admits that there were discussions related to Associate Professor Richardson being a supervisor. However, the key allegation, that there was a representation that Associate Professor Richardson would be the supervisor throughout the applicant's candidature, is denied. The claim fails at the outset. The onus is on the applicant to establish the representation. There is no evidence of the representation.
The third claim, which is the unconscionable conduct claim, alleges that certain things were said by Professor Evans. The further amended defence denies the allegations. The onus of proof is on the applicant to prove the allegations. There is no evidence. The claim fails.
Accordingly, the applicant has not established her case. The application is dismissed pursuant to r.13.03A(d).
On the question of costs, the respondent is the successful party and therefore is entitled to an order for costs. Mr Caleo, on behalf of the respondent, has applied for an order that the costs of today be on an indemnity basis. The reasons I have given show that it is an appropriate exercise of the discretion on costs to order that today's costs be on an indemnity basis.
The applicant has, as I have set out in these reasons, made a deliberate decision not to appear. There is no valid reason for her doing so. She has made a deliberate decision not to present her case. She could have filed a notice of discontinuance, and discontinued her case without leave at any time up to 14 days before today, the date fixed for the final hearing, r.13.01(2)(a). That would have saved the respondent the cost of appearing today. In the circumstances, it is a clear case for indemnity costs.
I certify that the preceding Forty-nine (49) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date:
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