OGAWA v University of Melbourne
[2004] FMCA 515
•27 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OGAWA v UNIVERSITY OF MELBOURNE | [2004] FMCA 515 |
| TRADE PRACTICES – Application to transfer to Federal Court – application previously transferred to Federal Magistrates Court from Federal Court under objection from both parties – consideration of matters relevant to transfer application. |
Trade Practices Act 1974, ss.51AB, 52
Federal Magistrates Act 1999, s.89
Federal Court of Australia Act 1976, s.47F
Federal Magistrate Court Rules 2001, r.8
Kurniadi & Ors v Loh [2004] FMCA 5
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FLR212
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1522 (2000) 104 FCR 5641
| Applicant: | MEGUMI OGAWA |
| Respondent: | THE UNIVERSITY OF MELBOURNE |
| File No: | MZ 463 of 2004 |
| Delivered on: | 27 July 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 27 July 2004 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M O'Brien – pro bono |
| Counsel for the Respondent: | Mr MC Garner |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The applicant's application to transfer to the Federal Court is dismissed.
The respondent's application is adjourned to 5 August at 9.30 am.
The respondent file and serve an outline of argument of its strike-out application on or before 4 pm on 30 July.
The respondent's costs of today are to be paid by the applicant, the costs to be taxed in accordance with the Federal Court Rules.
Certify for advocacy.
That any written outline or submission in reply upon which the applicant wishes to rely be filed and served by 4 pm on Wednesday, 4 August.
The directions hearing is adjourned to 9.30am on 5 August.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 463 of 2004
| MEGUMI OGAWA |
Applicant
and
| THE UNIVERSITY OF MELBOURNE |
Respondent
REASONS FOR JUDGMENT
There are two applications before the court today, only one of which has been argued. The existence of the second one has some relevance to the first one. The first is an application by the applicant to transfer the proceedings back to the Federal Court and the second is an application by the respondent to strike out or have summarily dismissed certain parts of the statement of claim as it currently exists in its second further amended form.
The proceedings were commenced in the Federal Court in Brisbane, were then transferred by order of Kiefel J to the Melbourne registry and then transferred by order of Marshall J to the Federal Magistrates Court.
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. These are representations about the manner in which her studies would be supervised and resourced. She alleges in her statement of claim that her candidature for PhD was withdrawn or cancelled by the university and she alleges that that was brought about because the supervision that she was given was inadequate and for other reasons as well. She alleges that there were misrepresentations which gave rise to loss and damage and she also seeks an order that her PhD studies be re-instated. She alleges, as well, unconscionable conduct pursuant to s.51AB of the Trade Practices Act, breach of natural justice, breach of contract and defamation. The applicant is a Japanese citizen but was pursuing PhD studies in the faculty of law at the University of Melbourne.
Mr O'Brien appears pro-bono for the applicant and Mr Garner appears for the respondent. The arguments that are put in favour of transfer are, firstly, that it is in the interests of the administration of justice that that be done. The statutory and regulatory provisions which govern transfer from this court to the Federal Court are s.39 of the Federal Magistrates Act 1999 and r.8 of the Federal Magistrates Court Rules 2001. One of the matters to be taken into account under s.39 is the interests of the administration of justice. That is sub-ss.39(3)(d). The applicant resides in Brisbane and she has no resources so it is submitted she will need to appear in the proceedings by way of video‑link.
I have been provided with a copy of the transcript of the directions hearing before Marshall J where his Honour, on the Court's own motion, transferred the proceeding to the Federal Magistrates Court. In his Honour's reasons, one of the matters and possibly the most significant of the matters, was the question of cost of video-link. His Honour said on page 5 of his reasons, line 26 that:
The question of costs and convenience I think is overwhelmingly in favour of transfer. The pleadings are generally less formal in the Federal Magistrates Court than they are here and the video-link consideration that I have already referred to is effectively decisive, in my view, in this matter. It is also likely with one recent announcement or soon to be announced appointment and two post-budget appointments to the Federal Magistrates Court in Melbourne, the resources of that court will be bolstered soon to allow an earlier hearing. Certainly if the matter was to remain in my docket it could not be heard before next year at the earliest.
The video-link consideration which his Honour referred to is on page 4 of his reasons, line 5, that is:
on 1 April of this year the Federal Court introduced a policy with respect to video-links which required the parties or one of them to fund the link.
His Honour said that:
Inquiries made of the Federal Magistrates Court reveal that there is no such policy so it would be possible to have a video‑linked hearing in the Federal Magistrates Court but not in the Federal Court unless the university was prepared to pay for it.
Mr O'Brien points to s.47F of the Federal Court of Australia Act 1976 which gives the Federal Court a discretion to waive the fees on video-links. So far as the policy of this Court is concerned, it will not necessarily remain as it exists at the moment. It is a matter of budgets and funding and it may well be that when this application comes on for hearing, if it remains in this Court, that the parties will be required to fund the video-link subject to a similar discretion to waive the fee.
The second thing which Mr O'Brien puts is that there are questions of general importance involved. That is one of the considerations which is contained within r8.024(a). The question of general importance here, Mr O'Brien puts, is the nature of the relationship between a student and a university, whether it is one which can be capable of founding a proceeding under s.52 of the Trade Practices Act, and s.51AB of the Trade Practices Act as well. This includes questions such as whether a university is a trading corporation and whether a student is a consumer. There is also a question of whether a student has a contract with a university and if so, what the nature of that contract is. Those are questions of general importance. Mr O'Brien points to what he says is the changing nature of the relationship between a university and its students and universities becoming more businesslike in their dealings with their students and with the world at large.
Another matter which Mr O'Brien puts is concern with the strike-out application on foot. The notice of motion which the respondent has filed seeks to strike out all of the statement of claim except for the unconscionable conduct claim, the claim under s.51AB of the Trade Practices Act. This Court does not have direct jurisdiction under s.51AB. As the proceeding is currently pleaded, as Mr O'Brien concedes, this Court has jurisdiction over the claim under s.51AB under its associated jurisdiction, and jurisdiction over the common law matters pleaded in its accrued jurisdiction. What Mr O'Brien puts is that if all the s.52 claim is struck out, there is no primary jurisdiction left for other claims including the s.51AB to attach to. If the claim under s.52 of the Trade Practices Act is struck out, there is then nothing left which gives this Court primary jurisdiction and so no basis for associated or accrued jurisdiction for the other matters. The Federal Court has primary jurisdiction under s.51AB so that if the application was transferred back to the Federal Court, there would not be this jurisdictional error.
Mr O'Brien referred me to a decision of McInnis FM in Kurniadi & Ors v Loh (2004) FMCA 5 where his Honour transferred proceedings back to the Federal Court which had come into the Federal Magistrates Court by way of transfer from the Federal Court. The case illustrates, if it does need to be illustrated, that the fact that something has been transferred from the Federal Court to the Federal Magistrates Court is not a bar for it to be transferred back. Except that it illustrates that point, Kurniadi is of little assistance here because of different circumstances. A number of applications had been consolidated. They were becoming more complicated. It became apparent that they were becoming more complicated as the interlocutory proceedings proceeded on and his Honour came to the conclusion that it was beyond the resources of the Federal Magistrates Court to deal with the applications. He transferred them back to the Federal Court.
It appears to me that what the applicant seeks to do is re-agitate the matters which had been considered by Marshall J. Marshall J transferred the proceedings on the Court's own motion and against the opposition of both parties. One thing which, it is put, has changed is the position of payment for the video-link. But so far as having fees waived in the Federal Court is concerned, at the time Marshall J made his determination that possibility existed. Section 47F of the Federal Court Act is not a new section. It was in existence on 4 May 2004. His Honour does not refer to it specifically but it was in existence. His Honour considered the question of matters of general importance and did not see that as a reason for keeping the matter in the Federal Court.
So far as the strike-out application is concerned, Mr Garner offered some submissions for the assistance of the Court. The respondent's position is that it neither supports nor opposes the application. Its position before Marshall J is quite clear. It opposed the transfer. But now the position that the respondent takes through Mr Garner is that it is anxious to have the proceedings move on and be dealt with. If they went back to the Federal Court, that would be yet another step along the way which would not advance the substantive issues any further.
Mr Garner also clarified the respondent's position in relation to the strike‑out application. The argument he proposes to advance is narrower than the notice of motion. The respondent seeks to strike out the pleadings insofar as they refer to written representations contained in paragraphs 2 and 3 of the current statement of claim but not the allegation contained in paragraph 4 which is an allegation of an oral representation. Therefore, even if the strike-out application succeeds, there would still remain some primary jurisdiction in this Court.
Mr Garner referred to Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FLR212 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1522 (2000) 104 FCR 5641 where it was said that even although the claim which gives rise to a primary jurisdiction are disposed of by way of dismissal or withdrawal or settlement, it does not remove the jurisdiction the Court has at that point in its associated and accrued jurisdiction unless the primary claims are merely colourable claims.
I consider this application is an attempt to re-agitate what was dealt with by Marshall J. I do not see that there is any significant difference in the situation now. The unconscionable conduct claim has come by way of amendment since the transfer from the Federal Court. I have dealt with the relevance of that. I do not see that there is any significant difference in the situation now to the one dealt with by Marshall J. In those circumstances, I do not believe there should be an order transferring the proceedings back to the Federal Court. The application for transfer is dismissed.
The question of today's costs has to be dealt with. What has occurred today is that the applicant's application to transfer the whole proceedings back to the Federal Court has been dismissed. Mr O'Brien has appeared pro-bono on the applicant's behalf. When Mr O'Brien accepted a pro-bono referral, he was only made aware of the application to transfer to the Federal Court and he did not become aware of the strike-out application until too late for him to deal with it even if it was within his pro-bono referral. He is not able to continue his pro-bono involvement beyond today. The Court accepts that and is grateful for the effort Mr O'Brien has already put into it. It is not an easy case. It is particularly difficult for pro-bono counsel to deal with an applicant who is in Queensland and who does not have a solicitor acting for her. It is not only understandable but I think proper on Mr O'Brien's behalf to say to the Court that he cannot deal with the application. He has not attempted to deal with it on the run, so to speak, which could have disadvantaged the applicant.
Mr Garner, who appears for the respondent, has accepted what I have put about what might well happen if I was to proceed on with the strike-out application in the absence of the applicant. It might cause more trouble than it was worth. The matter has to be adjourned and will be adjourned until next Thursday at 9.30am. The respondent has incurred costs. It is no fault of the respondent that the costs have been incurred. In the circumstances, I think the respondent should be entitled to those costs. Mr Garner has sought indemnity costs. He said that the applicant's conduct has been high-handed in not ensuring that her pro-bono counsel knew of what was occurring today and then not making herself available, or then asking for a video-link and then not being available to deal with the application on her own behalf.
The history of the matter gives some ground for concern about the attitude that the applicant is taking to the application, but I consider I can take into account that she is not a citizen of Australia. She is a citizen of Japan who is studying in Australia and it seems, from what I can gather, intends returning to Japan. She is not going to become a permanent resident of Australia so she is not particularly familiar with our system of law. She may well have misunderstood what was involved in having pro-bono counsel appointed. She may have had some notion that she had a court-appointed lawyer who was going to act for her which is not the case.
I could simply adjourn the question of costs for further consideration. That would require affidavits and so more costs to consider. I should deal with costs today. The respondent has incurred costs which are not its fault. In those circumstances it is entitled to recover those costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 20th August 2004
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