Ogawa v University of Melbourne (No.3) - [2004] FMCA 536

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OGAWA v UNIVERSITY OF MELBOURNE (No.3)

[2004] FMCA 536

PRACTICE & PROCEDURE – TRADE PRACTICES – Application to strike out statement of claim – trade practices claim proceeding by way of pleading – misrepresentations alleged without any claimed consequences – breach of natural justice alleged without description of how occurred or how claim to relief arises – breach of contract alleged without identifying terms of contract alleged to be breached – defamation alleged without specifying how words complained of connected to applicant – defamatory meaning of words not specified.

Trade Practices Act1974 (Cth), ss.51A, 51AB, 52, 82, 87
Federal Magistrates Act 1999 (Cth), s.42, 43
Education Services for Overseas Students Act 2000 (Cth)
Administrative Law Act 1978 (Vic),
University of Melbourne Act 1958 (Vic)
Federal Magistrates Court Rules2001, r.13

Brown v Jam Factory (1981) 53 FLR 340
Kioa v West (1985) 159 CLR 550 at 622
Bruce v Odhams Press [1936] 1 KB 697
Napier v National Australia Bank Ltd, Federal Court of Australia, Spender J. QG8/92, 16 April 1992

Applicant:

MEGUMI OGAWA

Respondent:

THE UNIVERSITY OF MELBOURNE

File No:

MZ 463 of 2004

Delivered on:

3 September 2004

Delivered at:

Melbourne

Hearing date:

5 August 2004

Judgment of:

Phipps FM

REPRESENTATION

The Applicant in person

Counsel for the Respondent:

Mr Garner

Solicitors for the Respondent:

Minter Ellison

ORDERS

That paragraphs 3(a), 3A, 23-26 (both inclusive), 27 and 28 , 29-34 (both inclusive) and the references to paragraph 3A in paragraphs 5, 6, 7 and 9 be struck out.
That the applicant have leave to file and serve a third further amended statement of claim within 28 days of the date of this order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 463 of 2004

MEGUMI OGAWA

Applicant

And

THE UNIVERSITY OF MELBOURNE

Respondent

REASONS FOR JUDGMENT

This is an application by the respondent to strike out or have summarily dismissed certain parts of the applicant's statement of claim as it currently exists in its second further amended form. Power to summarily dismiss a proceeding, or part of a proceeding if no reasonable cause of action is disclosed or the proceeding or claim is frivolous or vexatious is contained in rule 13.10 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 and the provision of resources. 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 and resources were 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, breach of natural justice, breach of contract and defamation.
The application was commenced in the Federal Court of Australia, Queensland Registry on 9 September 2003. The applicant filed an application and statement of claim. An amended statement of claim was filed pursuant to the order of Kiefel J on 19 September 2003.
On 25 November 2003, Kiefel J ordered that the matter be transferred to the Melbourne Registry. A further amended statement of claim was filed pursuant to the order of Weinberg J. made on 17 December 2003. On 4 May 2003, the proceeding was transferred to the Federal Magistrates Court of Australia by order of Marshal J. A second further amended statement of claim was filed pursuant to an order I made on 11 June 2004.
The respondent’s strike out application was originally set down for hearing on 27 July 2004. The application was adjourned until 5 August 2004 in circumstances which are described in the reasons I delivered on 27 July 2004.
On 5 August 2004, the applicant appeared by way of audio link. She had filed an application in the Federal Court for leave to appeal against the orders I made on 27 July 2004. I treated her position as an application for adjournment of the hearing of the notice of motion.

I refused the application for adjournment. The circumstances appear from the reasons I gave on 5 August 2004. The hearing of the notice of motion then proceeded. The applicant ceased participating in the hearing shortly afterwards. The circumstances appear from pp 5-7 of the transcript.
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.
The respondent seeks to strike out the following paragraphs of the statement of claim:
·paragraphs 3 and 3A, and those parts of paragraphs 5, 6, 7 and 9 insofar as they refer to paragraphs 3 and 3A;
·paragraphs 23-26 (inclusive);
·paragraphs 27 and 28;
·paragraphs 29-34 (inclusive) .
Paragraphs 3 and 3A allege that the respondent made various representations to the applicant by its e-mail publication, "The Degree of Doctor of Philosophy: Handbook". Paragraph 4, which the respondent does not seek to strike out, contains an allegation of an oral representation. Paragraph 5 alleges that the representations referred to in paragraphs 3, 3A and 4 were representations with respect to future matters within the meaning of s.51A of the Trade Practices Act. Paragraph 6 alleges that relying on the representations the applicant applied in writing for acceptance as a probationary candidate for the Degree of Doctor of Philosophy-Law, accepted an offer of enrolment, commenced enrolment and abandoned a scholarship at the University of Queensland.
Paragraph 7 alleges that the representations in paragraphs 3 and 3A were persisted in by the respondent and not withdrawn. Paragraph 9 alleges that the respondent did not have reasonable grounds for making, persisting in and not withdrawing the representations referred to in paragraphs 3, 3A and 4. Paragraph 9 alleges that the respondent did not have reasonable grounds for making the representations. Paragraph 10 alleges that the respondent's conduct was misleading or deceptive within the meaning of s.52 of the Trade Practices Act and paragraph 11 alleges loss and damage. Paragraphs 12, 13 and 14 seek orders pursuant to s.87 of the Trade Practices Act, the effect of which would be to have the applicant's PhD studies reinstated.
Paragraph 3 of the statement of claim commences this way:
The Respondent represented to the Applicant, by its e-mail publication, "The Degree of Doctor of Philosophy: Handbook"… in respect to candidature for and in enrolment in PhD courses, including PhD courses in Law thereof, and in particular in respect to the Applicant's candidature for a PhD course-Law, it would provide:
It then has two headings "(a) Infrastructure Support" and "(b) Supervision". Under each heading it has excerpts from the Handbook.
Paragraph 3A commences in a similar way and then, under a series of headings, has four pages of extracts from the Handbook.
The respondent’s submission in relation to paragraphs 3 and 3A are that they are embarrassing and so should be struck out. The submission is that it is impossible to distil from the paragraphs what the representations are which are the subject of the applicant's misleading and deceptive conduct claim. It is submitted that some of the statements in the extracted portions of the Handbook set out cannot constitute representations. And then, as to those which might constitute a representation, including a representation as to a future matter, the pleading does not make it clear whether only some, and if so which, are relied upon as constituting misleading and deceptive conduct.
In paragraph 5, the applicant alleges that the representations in paragraphs 3, 3A and 4 were representations with respect to future matters. Notwithstanding that s.51A places the onus of establishing the reasonableness of representations with respect to future matters on a respondent, by paragraph 9 the statement of claim alleges that the respondent did not have reasonable grounds for making the representations. Particulars of the absence of reasonable grounds are given. Predominantly, these particulars allege in various respects a failure in respect of supervision of the applicant's PhD studies.
Paragraph 10 alleges that the conduct referred to in paragraph 9 was misleading or deceptive or likely to mislead or deceive within the meaning of s.52 of the Trade Practices Act.
In paragraphs 9 and 10, the applicant alleges that the supervision of her PhD studies was inadequate. The inadequacy is particularised in various ways. Otherwise, there is no clear complaint about the conduct of the respondent. The one particular which is not concerned with supervision alleges "failed to ensure appropriate physical and intellectual environment would be provided for the Applicant". This may include an allegation of inadequate supervision, but otherwise nothing else in the paragraph clarifies what is meant by this particular.
The parts of paragraphs 3 and 3A which are not capable of being representations are both not capable of founding a cause of action and embarrassing and therefore should be struck out. Those parts of the paragraphs which are capable of constituting the representations but from which, in later paragraphs, no consequences are alleged to follow are embarrassing and should be struck out.
In Brown v Jam Factory (1981) 53 FLR 340 at 348 Fox J. said:
Section 52 is a comprehensive provision of wide impact. It does not adopt the language of any common law cause of action. It does not purport to create liability at all; rather it establishes a norm conduct. Failure to observe that norm of conduct has consequences provided for in Parts VC and VI of the Act.
An allegation that there were misrepresentations which constituted misleading and deceptive conduct without more is not an allegation of a cause of action. Consequences must be alleged giving rise to a claim from relief such as damages under s.82 or an order under s.87. Therefore, those parts of paragraphs 3 and 3A which contain representations without an allegation of consequences which followed cannot constitute a cause of action and are embarrassing.
Paragraph 3(b), which is an extract from The Degree of Doctor of Philosophy: Handbook referred to in the earlier part of paragraph 3, states:
Supervision
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 (refer to Prescription 15).
Both student and supervisors have an obligation to ensure that they confer on a regular basis throughout the candidature. Before any prolonged absence of the supervisor, arrangements satisfactory to the RHD Committee must be made for the appointment of a suitable replacement supervisor… (at p. 12 thereof).
Following paragraphs of the statement of claim allege that this is a representation as to future matters, that the respondent did not have reasonable grounds for making the representations, that the applicant relied on those representations in taking up candidature for PhD studies and ceasing her studies at Queensland University and that she suffered consequences which entitles her to relief under Part VI of the Trade Practices Act.
Paragraph 3 (b) might have been better expressed, but it is clear enough that it contains two allegations. The first is that the respondent represented that each candidate would be supervised by members of the academic staff who have appropriate research experience and a continuing active participation in research. The second is that in the event of any prolonged absence of the supervisor, the respondent had in place procedures to arrange the appointment of a suitable replacement supervisor. These are allegations from which, in following paragraphs, it is alleged that consequences flow and relief is sought. If paragraphs 3(a) and 3A are removed, paragraph 3(b) and the paragraphs which alleged that consequences flow from that representation contain an allegation of a cause of action which can be understood.
It follows from what I have said, that paragraphs 3(a) and 3A and the references to paragraphs 3A in paragraphs 5, 6, 7 and 9 are to be struck out.
The breach of contract claim is pleaded in paragraphs 23-26 of the statement of claim. The respondent's submission is that the fundamental vice in this claim is that the pleading fails to disclose (or plead at all) the terms of the alleged contract which the respondent is said to have breached.
Paragraph 23 alleges;
By a contract partly in writing, partly oral and partly implied, the Respondent and the Applicant agreed that the Applicant be enrolled in the course of PhD-Law of the Respondent from

24 November 2001.
Particulars of the contract identify the documents, the conversation and the matters from which it is alleged that terms are to be implied.
Paragraph 24 says "The Respondent committed breaches of the contract". Particulars are given which refer to paragraphs 8 and 9, further or alternatively 16 to 19 and further or alternatively that "the Applicant alleges that the Respondent did not appoint a supervisor to the Applicant from the date referred to in paragraph 8 to 1 July 2002".
Paragraph 25 alleges that the applicant suffered loss and damage and paragraph 26 claims orders as in paragraphs 14 and 15.
Paragraphs 8 and 9 have already been referred to. They deal with the alleged representations, mostly about the adequacy of supervision. Paragraphs 16 to 19 contain an allegation of unconscionable conduct and contain allegations about supervision and about matters concerning a hearing conducted by the Appeals Committee of the Academic Board of the respondent.
The documents alleged to be part of the contract are extensive. Included in the matters alleged to give rise to implied terms is a Commonwealth Statute, the Education Services for Overseas Students Act 2000 (Cth.) and the statutes and regulations of the Respondent. This may include the University of Melbourne Act 1958 (Vic). Even if it does not, the act of Parliament which constitutes the respondent may well be relevant to the terms of any contract which exists between the respondent and the applicant. It is relevant that whether the relationship between the respondent, a public University established by act of Parliament, and a student, can be in contract is an issue in the proceeding.
The statement of claim does not describe or identify the terms of the contract which it is alleged have been breached. It does not identify whether the terms which are claimed to have been breached are in writing, oral or implied.
Section 42 of the Federal Magistrates Act 1999 (Cth) requires that in the proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted. If, from the pleading, and perhaps from an examination of the documents, it was possible to identify the terms of the contract alleged to have been breached, s.42 might require the court to proceed even though the applicant had not specifically identified those terms. This is not such a case. The complications of the contract alleged are such that it would be unfair to the respondent to permit the applicant to proceed without them being identified. It would also be likely to unduly protract the proceedings. It would be necessary, in the course of the hearing, to identify which parts of the contract and what terms were relevant to the evidence as it proceeded. It would not be a satisfactory way to conduct a hearing.
Another complaint made about the contract pleading in that by paragraph 26, the applicant claims orders as in paragraphs 14 and 15. Paragraph 14 is relief under s.87 of the Trade Practices Act, not relief to be claimed for breach of contract.
One solution which might promote the requirements of s.42 of the Federal Magistrates Act would be to require the applicant to set out the terms of the contract which it is alleged have been breached and then set out the matters which it is alleged constitutes the breaches. I do not think that is the best way of dealing with the position. The better way is to strike out the whole contract pleading but make it clear that paragraph 23 is not objected to and that the problem is that the terms of the contract relied upon are not set out and the matters which are alleged to constitute the breaches need to be set out. Counsel for the respondent accepted that if the pleading was struck out the applicant should be given the opportunity to replead.
Paragraphs 27 and 28 allege breach of natural justice. Paragraph 27 reads:
The decision made on 19 December 2002 and notified to the Applicant on 23 December 2002 by the Academic Board was a breach of the rules of natural justice committed by the Respondent and null and void
The particulars of paragraph 27 refers to paragraphs 16 and 17, part of the unconscionable conduct pleading. Paragraph 16 contains allegations that the respondent insisted that the applicant must have Professor Tim McCormick as supervisor. It alleges that he was unsuitable as supervisor and that the applicant’s enrolment terminated in circumstances where the applicant was applying for an extension of time. It also alleges that ultimately the applicant did accept Professor McCormick as supervisor.
Paragraph 17 alleges that there was a hearing of the Appeals Committee of the Academic Board of the respondent and alleges that its decision was unfair, unreasonable and harsh and, amongst other things, alleges a breach of the rules of natural justice.
The respondent submits that it is left to speculate as to whether the claim has its foundation in contract (the obligation to accord natural justice being imposed by a term of the contract alleged in paragraph 23 of the statement of claim), or at common law (on the basis that the respondent was exercising a "public" power in respect of which a common law court would imply the requirement to observe natural justice), or under Statute (pursuant to the Melbourne University Act 1958 or to any Statutes made under that act) or whether the applicant is seeking judicial review under that the Victorian Administrative Law Act 1978 (Vic) in respect of an alleged "decision" (as defined in that Act) made by an alleged "tribunal" (as defined in that act).
A further problem is that the relief sought in paragraph 28 is the "orders in paragraphs 14 and 15". The orders sought in paragraph 14 for relief pursuant to s.87 of the Trade Practices Act and in paragraph 15 damages pursuant to s.82.
A further problem is that there is nothing in paragraphs 16 and 17 which identifies what is alleged to constitute the breach or breaches of natural justice. The two traditional rules of natural justice are that the decision maker is required to give a person a fair hearing before making a decision affecting the interests of that person and that there be no circumstances which raise doubts as to the decision-makers impartiality. These are procedural rules because they address the manner in which a decision is made, and not the merits of the decision itself (Kioa v West (1985) 159 CLR 550 at 622 (Brennan J.). No procedural breaches are alleged in any of the paragraphs containing the claim for breach of natural justice

Is not possible to see what it is that the applicant alleges that constituted breaches of natural justice and how the applicant alleges that she is entitled to relief. In those circumstances, the allegations as to the breach of natural justice do not disclose a cause of action and are embarrassing and must be struck out.
Paragraphs 29-34 of the statement of claim allege defamation. Paragraph 29 says:
On or about 15 Nov 2003, the Respondent wrote and published or caused to be written or published the words:
"The University fully understands its responsibilities under the ESOS Act and takes these responsibilities most seriously;"
within the statement entitled "Response from the University of Melbourne" in the Australian Journal of administrative Law, vol. 11 p. 44, which is in effect the only administrative law journal in Australia and has substantial readership amongst both academic and professional lawyers in and outside Australia.
Paragraph 30 pleads that in their natural and ordinary meaning, the words mean that the respondent discharged all duties provided by the ESOS Act, that is: the Education Services for Overseas Students Act 2000 (Cth) including the National Code. Paragraph 31 alleges that the words meant that the respondent provided the applicant with independent grievance/handling dispute resolution services under the National Code. Paragraph 32 alleges that the words are defamatory and Paragraphs 33 and 34 alleges injury to the applicant and claim damages.
There is no obvious connection between the pleaded words and the applicant. If the applicant alleges that there are facts which connect her to the words pleaded she needs to set those out. (Bruce v Odhams Press [1936] 1 KB 697). In the context of this case, this is not a technical pleading requirement but an essential requirement. On the face of the words there is no connection between them and the applicant. They are not about the applicant and so cannot be defamatory of her.
Even if there is a connection between the words and the applicant, on their face, the words are not capable of defaming the applicant. If the applicant is alleging that there is an innuendo, that is, that the defamatory meaning only arises because of facts which are known to the readers of the words, it is essential that those facts be identified.
For a number of reasons, the defamation pleading discloses no cause of action and must be struck out.
Counsel for the respondent accepted that if any part of the statement of claim was struck out the applicant, being unrepresented, should be given the opportunity to replead (see Napier v National Australia Bank Ltd, Federal Court of Australia, Spender J.QG8/92, 16 April 1992).
Paragraphs 3(a), 3A, 23-26 (both inclusive), 27 and 28 , 29-34 (both inclusive) and the references to Paragraph 3A in paragraphs 5, 6, 7 and 9 will be struck out. The applicant will have leave to file and serve another statement of claim.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 3^rd September 2004