Yee TAK On v Dr Linda Hort (Australian National University College)
[2012] FMCA 391
•11 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YEE TAK ON v DR LINDA HORT (ANU COLLEGE) | [2012] FMCA 391 |
| CONSUMER PROTECTION – Student claims against university of misleading conduct and maladministration in delivery of courses – summary dismissal application on grounds of no cause of action established and no reasonable prospect of success. |
| Federal Court of Australia Act 1976, s.31A Federal Magistrates Act 1999, s.17A Trade Practices Act 1974, s.51AB, 51AE, 55A Federal Magistrates Court Rules 2001, r.13.10 |
| Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd (2011) 203 IR 411; [2011] FMCA 116 Australian Competition and Consumer Commission and Another v Link Solutions Pty Ltd (ACN 126 049 214) and Others (No 2) (2010) 188 FCR 463; (2010) 272 ALR 280; [2010] FCA 919 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 Deputy Commissioner of Taxation v Southgate Investments Funds Limited [2010] FCA 1298 Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462 Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298 |
| Applicant: | YEE TAK ON |
| Respondent: | DR LINDA HORT (ANU COLLEGE) |
| File Number: | CAG 62 of 2011 |
| Judgment of: | Neville FM |
| Hearing date: | 8 May 2012 |
| Date of Last Submission: | 8 May 2012 |
| Delivered at: | Canberra |
| Delivered on: | 11 May 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Solicitor/Advocate for the Respondent: | Ms Reilly |
| Solicitors for the Respondent: | Moray & Agnew |
ORDERS
The Application filed on 2nd December 2011 and amended on 20th February 2012 be dismissed.
The Applicant pay the costs of the Respondent as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 62 of 2011
| YEE TAK ON |
Applicant
And
| DR LINDA HORT (ANU COLLEGE) |
Respondent
REASONS FOR JUDGMENT
Introduction
In its Program Guide, the ANU College (“the College”) is described as “the English language and academic pathway provider for The Australian National University….”[1] This is to say that the College provides a range of courses that are preparatory to students – primarily from overseas – seeking to enrol in degree programs at the Australian National University (“ANU”). The courses range from academic English to computer fundamentals to introduction to accounting.
[1] Two versions of the ANU College Program Guide were before the Court: the Program Guide for 2008/09, which became Exhibit A, and for 2009, which was Annexure A to Dr Hort’s affidavit, filed on 16th December 2011 (Dr Hort’s affidavit”). Dr Hort is the Principal and General Manager of ANU College.
Mr Yee was a student at the College and passed a number of courses it offered in 2009. The courses for which Mr Yee enrolled are set out in paragraphs 11 and 12 of his Affidavit, filed on 2nd December 2011.
As just indicated, by an Application, and Statement of Claim, filed on 2nd December 2011, and repeated in large measure in an Amended Application filed on 20th February 2012, Mr Yee complains that the College ‘improperly managed subject session times’, ‘maladministered’ courses, and otherwise breached various sections of the Trade Practices Act1974, for example, in the College conducting courses “illegally”.[2]
[2] See Mr Yee’s [Amended] Application, filed 20th February 2012, par.2(k).
Mr Yee also complains that the College was misleading, again contrary to the Trade Practices Act, in asserting the course components and requirements compared to what, he says, it actually provided to him.
Mr Yee contends that, because of the complaints to which I have generally referred, he suffered loss and damage, in large measure because it meant that he either (a) was not able to complete assignments (or courses), (b) had “lots of homework”,[3] (c) his results did not meet certain standards, and consequently, he was unable to proceed to enrol in a degree program, presumably at ANU.
[3] See the [Amended] Application, par.3(b).
For its part, the College contends that:
(a) Mr Yee’s complaints, as pleaded or otherwise, do not establish any cause of action,
(b) the ACT Accreditation and Registration Council found no relevant breach of any Code,[4]
(c) the Overseas Students Ombudsman did not consider the matters of complaint raised by Mr Yee as warranting any investigation,[5]
(d) there was no loss or damage suffered by Mr Yee that was attributable to the College,
(e) the College Program Guide clearly and regularly states words to the following effect: “information is subject to change” or “This guide contains information that was correct at the time of publication. ANU College reserves the right to change or amend the information as necessary”, and
(f) the College had resolved a complaint of Mr Yee made in July 2010, offered to provide him with a scholarship to ameliorate the claims he made, and granted him a pass grade for a course he did not complete as well as made an offer for a place in the next program.[6]
[4] See the email, dated 2nd June 2011, from Ms C. Simpson, at the ACT Department of Education & Training, to Mr Yee: annexure Q to the Notice to Admit Facts filed on 13th February 2012 by Mr Yee. The Code in question is the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students, The National Code, 2007.
[5] See the email, dated 19th July 2011, from Ms Hoskin, at the office of Overseas Students Ombudsman, to Mr Yee: annexure R to the Notice to Admit Facts filed on 13th February 2012 by Mr Yee.
[6] See Dr Hort’s affidavit filed 16th December 2011, par.9.
Finally, the College says that Mr Yee failed to attend semester three, when offered to him (as well as his rejection of a scholarship and a reduction in fees).
In all the circumstances, the College contends that the proper course is for the Court to dismiss summarily Mr Yee’s Application. In the alternative, the College seeks an order for security for costs against Mr Yee, on the basis that he is not a resident of Australia (and in fact resides in Hong Kong) and has no assets in this country.
These reasons deal only with the summary dismissal application, pursuant to s.17A of the Federal Magistrates Act 1999.
Summary Dismissal: General Principles
In Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd, I noted the following summary of principle in relation to summary dismissal applications. With some amendment, I draw from that judgment.[7]
[7] Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd (2011) 203 IR 411; [2011] FMCA 116. This matter went on appeal, but in the result, dealt only with an application for security for costs. See [2011] FCA 696.
By way of overview or introduction to due consideration of principle, in Three Rivers District Council v Governor and Company of the Bank of England (No.3) (“Three Rivers”),[8] which was cited with obvious approval by French CJ and Gummow J in their joint judgment in Spencer v Commonwealth,[9] Lord Hope said (internal citations omitted):
The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, ... that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.
[8] [2003] 2 AC 1 at p.260-261 [95].
[9] (2010) 241 CLR 118 at pp.130 & 132 [21] & [26].
The statutory basis upon which the Court considers and exercises an application of the kind currently before the Court is pursuant to s.17A of the Federal Magistrates Act 1999. That section provides:[10]
[10] s.17A of the Federal Magistrates Act mirrors s.31A of the Federal Court of Australia Act 1976. Thus, the jurisprudence in relation to s.31A is relevant to the consideration of s.17A.
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Rule 13.10 of this Court’s Rules also relevantly provides as follows:[11]
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; …
[11] This Rule also provides for the summary dismissal of matters where they are considered to be frivolous or vexatious, or an abuse of process. In my view, no such considerations apply in this case.
Subject to more recent guidance from the High Court and the Federal Court, considered shortly, it is convenient to note here the following cases which otherwise, respectfully, provide a convenient and helpful touchstone for the applications currently before the Court. Thus: White Industries Australia Ltd v Federal Commissioner of Taxation, Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd, and the Full Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd.[12]
[12] White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (Lindgren J), Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 (Rares J), and the Full Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 (Finkelstein, Rares & Gordon JJ). In the latter case, see especially the six principles set out by Gordon J at [123] – [134]. I am also conscious of Finkelstein J’s more recent helpful, and direct, discussion of Jefferson Ford in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41. See his “dialogue”, especially at [7] – [9], of the distinction between summary judgment and strike out applications. In a non-statutory context, see also the principles set out by Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at [14].
It is helpful to note also the summary of principle by Sundberg J in Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd.[13] At [37], his Honour said:
[37] In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
o In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J).
o The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).
o As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).
[13] [2009] FCA 499.
Sundberg J’s remarks have been endorsed in subsequent cases, some of which are post the High Court judgment in Spencer v Commonwealth (noted below). Thus: Kenny J in Deputy Commissioner of Taxation v Southgate Investments Funds Limited, and Ryan J in Helal v McConnell Dowell Constructors (Aust) Pty Ltd.[14]
[14] Respectively, [2010] FCA 129 at [22], and [2010] FCA 1462 at [12]. See also the comments of Bennett J in Australian Competition and Consumer Commission and Another v Link Solutions Pty Ltd (CAN 126 049 214) and Others (No 2) (2010) 188 FCR 463; (2010) 272 ALR 280; [2010] FCA 919 at [104] – [110].
To these cases, the following important matters need to be considered.
Most importantly, in Spencer v Commonwealth, the High Court considered the principles and operation of s.31A of the Federal Court of Australia Act1976. Thus, French CJ and Gummow J said, at [24]: “The exercise of powers to summarily terminate proceedings must always be attended with caution.” Their Honours further advised, at [25] – [26] (internal citations omitted):[15]
[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
[26] Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
[15] See also the detailed observations by Hayne, Crennan, Kiefel and Bell JJ at [51] – [60]. See, too, the earlier comments of Gleeson CJ, Gummow, Hayne & Crennan JJ in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at p.275 [46] (internal citations omitted): “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." These remarks from Batistatos were cited with approval in Spencer at pp.131-132 [24].
Discussion and Resolution
In short, I accept the submissions of the College.
Mr Yee is clearly somewhat disgruntled with some of the courses he took at the College, either or both as to content, organisation and result.
Whatever his state of discontent, the reality is – and in relation to which there is no dispute – Mr Yee did undertake courses of study that were offered by the College. He did so on the basis of what was set out in the College Program Guide(s). Those Guides contain standard disclaimers in relation to the accuracy of information provided at the time of publication, and confirmed that courses (and impliedly all matters relating to them, such as time-tables, content, and the like) could change, and that the College reserved the right to make changes. Such may be taken to be standard practice. It may also be taken that it is not uncommon that courses in educational institutions do change and, at times, are not delivered to the absolute, highest quality. Such is the reality of most human endeavour. However, it is one thing for educational courses, to be, among other things, of varying quality; it is quite another for the delivery of a course (or courses) to provide a base, in law, for a dissatisfied student to claim the relief sought by Mr Yee. On the facts and matters he has set out in his Application (initial and as amended) and Statement of Claim, I do not see that a legal base has been established, or that it could be established, to support the claims for which he contends.
I apprehend the nature of Mr Yee’s complaints to be what might be described as standard or typical complaints by students, namely, (a) that a certain lecturer was not as organised in the preparation and presentation of materials for a course as he or she could (or should) be, or (b) that a student’s performance was affected by pressures associated with the volume of work required, which in turn leads – but not inevitably so - to under-performance in (and dissatisfaction with) the result for a particular course (or courses).
Added to these observations is that I assume that Mr Yee was not the only student in the courses he undertook. Presumably, at least in general terms, other students were similarly affected by the same matters of which Mr Yee complains. But there are no other applications before this Court from any other student who was in the same or a similar position as Mr Yee.
I have also noted that the College, through Dr Hort, has endeavoured to ameliorate Mr Yee’s situation, but to no avail. I have also noted that relevant accreditation and complaint bodies have found there to be no basis for Mr Yee’s complaints.
While Mr Yee obviously has a grievance with the College, in my view, that grievance is insufficient, as a matter of law, to provide any foundation for the claims he has set out in his Application (and Amended Application) filed in this Court.
In my view, the following comments (noted earlier in these reasons) by the High Court in Spencer apply in this matter.
First, at [25], French CJ and Gummow J said: “Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success.” Respectfully, the same comment applies, with equal force, to s.17A of the Federal Magistrates Act 1999. Indeed, taking a ‘practical judgment’ in relation to the facts and circumstances of this matter, in my view, the prospect of success must be of the kind described by the Chief Justice and Gummow J.
Earlier, in the same judgment (at [21]), their Honours cited with approval the following comments by Lord Hope in Three Rivers:
… it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment.
[summary dismissal] is designed to deal with cases that are not fit for trial at all.
Respectfully, in my view, the facts and circumstances require findings that satisfy each of the descriptions referred to by Lord Hope, and approved by the High Court, to which I have referred in the preceding paragraph.
Accordingly, Mr Yee’s Application (and Amended Application) must be dismissed with costs as agreed or taxed.
For the sake of completeness, I note that Mr Yee has confirmed his intention (whatever the result of the Application before this Court) to pursue relief against the College before the ACT Civil and Administrative Tribunal because of his concerns in relation to this Court’s [alleged] lack of jurisdiction. I make no comment on these matters raised by Mr Yee.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 11 May 2012
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