Curtis v Charles Darwin University

Judgment 1In September 2011, Mr John Curtis was a student of Charles Darwin University. A dispute arose between Mr Curtis and the University, which culminated in a number of offensive emails being sent by Mr Curtis to various staff members of the University. As a result, the access of Mr Curtis to certain on-line modules was blocked. 2Mr Curtis sued the University in the Local Court at Wollongong for breach of contract. After a one day hearing on 24 June 2013, Magistrate Dick found in favour of the University. 3An important part of the hearing at first instance was a dispute as to when that blocking of access occurred. Mr Curtis submitted that it occurred on 19 September 2011; counsel for the University submitted that it occurred on 21 September 2011, two days later. 4Mr Curtis appeals against the decision of the Magistrate pursuant to s 39, or alternatively s 40, of the Local Court Act 2007 (NSW). 5The issue for determination by me is whether or not Mr Curtis has established an error of law or, if leave is granted, an error of mixed law and fact, in the judgment of the Local Court. Extension of time to appeal 6Mr Curtis necessarily sought an extension of time to appeal. Rule 50.3 of the Uniform Civil Procedure Rules provides that a summons commencing an appeal must be filed within 28 days after the decision is given, or within such further time as the appellate court may allow. In fact, the summons was filed on 23 September 2013. 7Mr Curtis made a number of submissions in support of this application. These submissions were based on the affidavit sworn by him on 29 October 2013. 8First, Mr Curtis submitted that that although he ordered a transcript of the proceedings before Magistrate Dick on 26 June 2013 (two days after the adverse decision was made), he did not receive it until 22 August 2013. 9Secondly, Mr Curtis submitted that he initially sought to have the order set aside pursuant to r 36.15 of the Uniform Civil Procedure Rules so that his matter could be re-heard in the Local Court. A notice of motion to this effect was heard in the Local Court on 12 August 2013 and refused. 10It appears that once it became clear to Mr Curtis that it was necessary to file an appeal to this Court, that was done relatively promptly. So much can be inferred from the judgment of Campbell J of 18 October 2013, which concerned the validity of the notice of appeal filed on 23 September 2013: see Curtis v Charles Darwin University [2013] NSWSC 1558. 11Counsel for the University submitted that the question of whether an extension of time to appeal should be granted was a matter for my discretion. He invited my attention to Dillon v Boland; Dillon v Cush [2012] NSWCA 364 and Tomko v Palasty (No 2) [2007] NSWCA 369. 12In Dillon v Bolan an application for leave to appeal was refused in circumstances where there was a delay of more than two months between oral delivery of reasons and the provision of revised judgment, and the application for leave to appeal was filed more than three months after the decision was made. The Court emphasised the need for legal practitioners, especially solicitors, to make proper notes of proceedings. 13In Tomko v Palasty (No 2) the Court of Appeal set out in some detail the principles that apply to a consideration of whether an extension of time to appeal should be granted. In that case an application to review a decision of a Registrar to refuse an extension of time to file a cross-appeal was dismissed. The appellant put forward various reasons for the eight-month delay in formally initiating a cross-appeal, none of which are apposite here. 14Turning to my determination of this threshold question, the summons commencing the appeal was filed in this Court less than two months after the decision was made in the Local Court, and is therefore merely one month out of time. Mr Curtis was unrepresented both at the hearing and in this Court. In those circumstances, I consider that it is appropriate for an extension of time to appeal to be granted. Grounds of appeal 15Mr Curtis raised four grounds of appeal based on questions of law. It is well established that an appeal concerning a question of law lies as of right pursuant to s 39(1) of the Local Court Act. (i) The failure of the Magistrate to recuse himself 16The first ground of appeal was that Magistrate Dick erred by refusing the application of Mr Curtis that he recuse himself. It is convenient to set out the portion of the transcript that concerns this application [commencing at 1.24]: PLAINTIFF: Thank you, your Honour, but before we get onto the case I must ask you to recuse yourself? You will remember that earlier this year I sent you an email in connection with the case Pink (?) v The State of New South Wales and 16 others, in which I put to you that I and Mr Pink, because of a decision you made on 8 April 2010 with the effect that he stay a [sic] psychiatric hospital for two weeks longer than he should have done, that we were considering adding your name as a defendant to that case in the Supreme Court. I, therefore, have no faith that you can give me a fair trial. I ask you to recuse yourself. HIS HONOUR: I have no knowledge of that, Mr Curtis. I have been given this case as a special fixture to hear the case. I will decide the case on the information I have available today. To be quite frank, I have no knowledge of what you are talking about. I know that I have done some ...(not transcribable)... hearings but I don't know any specifics as to what you've raised and even if I did I certainly wouldn't use those inappropriately. I am going to decide this matter on the information that is available. The file is at a point where we have statements tendered by the plaintiff, that is you, statements tendered by the defence. That's in accordance with the practice direction. The matter is ready to proceed and it will be determined on that - evidence that is available today. THERE ARE NO GROUNDS FOR ME TO DISQUALIFY MYSELF SO THE APPLICATION IS REFUSED. 17Mr Curtis submitted on appeal that Magistrate Dick was not being truthful when his Honour said that he had "no knowledge" of the prior matter and the correspondence to which Mr Curtis referred. He submitted that the correspondence was "fairly hard hitting", and that the nature of the correspondence meant that it was something Magistrate Dick was unlikely to forget, notwithstanding that three years had passed. 18Counsel for the University submitted that there was no substance to the allegation that the Magistrate should have recused himself on the basis of apprehended or actual bias. He invited my attention to the decision of Johnson v Johnson [2000] HCA 48; 201 CLR 488. At [11], the majority said: ... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [Footnotes omitted] 19Turning to my determination, I do not accept that it has been established that the Magistrate was lying when his Honour stated that he had no memory of the matter. Nor do I consider that it has been demonstrated that his Honour explicitly or implicitly applied a wrong test with regard to the application: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [19]-[37]. Finally, I do not consider that the result of the application itself inherently demonstrates error. 20I would reject ground one. (ii) Admission of hearsay evidence 21The second ground of appeal concerned the admission into evidence of an email from Michael Davey of 12 September 2011 as part of the University's case. 22Mr Curtis submitted that this document was inadmissible because of the rule against hearsay, initially enunciated in Subramaniam v DPP [1956] 1 WLR 965, and now contained in the Evidence Act 1995 (NSW) (with some modification). 23Counsel for the University submitted that the evidence was not objected to at the hearing and, in any event, the document was admissible pursuant to the exception to the hearsay rule for "business records" contained in s 69 of the Evidence Act. 24Mr Curtis submitted that this document did not fall within this exception as it was being used "as a record of the student's attendance at the university", rather than as a business record. 25Mr Curtis conceded that he had not objected to the admission of the document at the hearing. He submitted that judicial officers have a discretion to override the rules of evidence, and that in this instance Magistrate Dick should have refused admission of the document unless tendered with an affidavit of Mr Davey. 26Finally, counsel for the University submitted that Mr Curtis could have made a request pursuant to ss 166 and 167 of the Evidence Act requesting that the maker of the document be called as a witness. Mr Curtis did not respond to this submission. 27I consider that this ground must be rejected. That is so for four reasons. 28First, Mr Curtis did not object to the evidence at the hearing. 29Secondly, Mr Curtis did not require the author of the document for cross-examination, either formally or informally. 30Thirdly, the email sent by the employee of the University fell within the definition of a business record contained in s 69 of the Evidence Act, and therefore constituted an exception to the rule against hearsay contained in the same Act. 31Fourthly, I do not consider that it was incumbent upon the Magistrate to reject the admission into evidence of the email of his Honour's own motion. That is especially so in light of my determination of its admissibility pursuant to the Evidence Act. 32I would reject this ground. (iii) Consideration point 33The third ground of appeal was that the Magistrate erred in law in determining that no consideration had passed from Mr Curtis to the University, and therefore the relationship between the parties was not contractual in nature. 34In this Court and in the Local Court Mr Curtis submitted that his diligent study, or alternatively the payment of fees by the Commonwealth Government on his behalf, constituted sufficient consideration. With regard to the latter submission, Mr Curtis said that in time he would likely repay the Commonwealth Government for his tuition, and accordingly the relationship between himself and the University was analogous to the contractual relationship between a vendor of a house and a buyer who was purchasing the house by means of a mortgage securing a loan from a bank. 35Counsel for the University submitted that diligent study could not constitute consideration, as the University had not bargained for this. Furthermore, it would be nonsensical to suggest that the University could bring an action for breach of contract if a student did not work diligently and spent his or her time carousing. Mr Curtis submitted in response that in such circumstances, if fees had already been paid, the University would not suffer damage as a result of such a breach, and would therefore have no right to sue. 36With regard to payment of fees constituting consideration, counsel for the University submitted that monetary consideration must move from the promisee. He invited my intention to the decision of the High Court in Pico Holdings Inc v Wave Vistas Pty Ltd (formerly Turf Club Australia Pty Ltd) and Another [2005] HCA 13; 79 ALJR 825. He pointed out that, while the purchaser of a house can sue the vendor for the purchase price, the University could not sue Mr Curtis if the Commonwealth Government failed to pay his fees. 37Finally, counsel for the University submitted that even if I were to find that there was a contract between Mr Curtis and the University, Mr Curtis has failed to establish that the by-laws (which Mr Curtis alleges were breached) were an implied term of this contract. Counsel for the University submitted that the by-laws would not be implied into such a contract, as it would not be necessary to do so: see BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. With regard to this submission, he invited my attention to X v University of Western Sydney [2014] NSWSC 82 at [261]. 38Turning to my determination, I reject the proposition that the diligent study of Mr Curtis could constitute legally sufficient consideration to found an action for breach of contract. That is not least because of the obvious difficulties involved with ordering specific performance or assessing damages in the event of a breach: see for example Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130. 39It is well established that consideration must move from the promisee: see Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd [1915] AC 847 at 853; Pico Holdings Inc v Wave Vistas Pty at [66]. I consider that Mr Curtis did not pay for his attendance at University; the Commonwealth Government did. Accordingly, the payment of those fees cannot constitute consideration founding an action for breach of contract by Mr Curtis. 40Separately, I note that the written submissions of counsel for the University correctly point out that the "primary reason" for the finding of the Magistrate was that Mr Curtis breached the by-laws of the University, and accordingly it was appropriate for his access to be cut-off. The submissions of Mr Curtis with regard to breach of contract were an ancillary point. I consider that it was perfectly open to the Magistrate to determine that, in light of the undisputed emails that Mr Curtis transmitted to members of the staff of the University, the University was entitled to cancel his access to online modules in accordance with the by-laws of the University. 41I would reject this ground of appeal. (iv) Procedural fairness 42The fourth and final ground of appeal founded on a question of law concerned various allegations of procedural unfairness. 43Mr Curtis submitted that a fair reading of the transcript revealed that the Magistrate did not treat him courteously or fairly throughout the hearing. 44He submitted that he was denied the opportunity to make an opening address, which put him at a serious disadvantage. However, he was unable to take me to a part of the transcript where he explicitly sought to make an opening. 45Furthermore, he submitted that he was not permitted to examine or to object to the affidavits tendered by the University, or to make submissions on these affidavits. He conceded that he had not required that defence witnesses be available for cross-examination, and that he was given the opportunity to make uninterrupted oral submissions, as well as written submissions. 46Counsel for the University submitted that Mr Curtis could have invoked the Uniform Civil Procedure Rules and asked for the opportunity to make an opening address, but did not do so. He submitted that Mr Curtis was later permitted to address the Magistrate, and was in fact allowed to have the last word in addresses. In light of this, he submitted that there was nothing to suggest that Mr Curtis was deprived of a fair opportunity to be heard. 47With regard to the examination of affidavits, counsel for the University submitted that the transcript records that the affidavits were admitted without objection or the requirement that their deponents be called for cross-examination. 48Turning to my determination, I do not consider that Mr Curtis can validly complain on appeal about forensic decisions (such as not to make an opening address) that he made at first instance. Indeed, a reading of the transcript leads me to the view that, if Mr Curtis had so applied, the application would have been granted. 49A fair reading of the transcript of the hearing as a whole shows that Mr Curtis was treated courteously and provided an ample opportunity to place his case before his Honour. I detect no sign of denial of procedural fairness at first instance. 50I would reject this ground of appeal. Questions of fact 51Mr Curtis sought to raise an additional ground of appeal based on various findings of fact. Standing in the way of that is the fact that the Local Court Act does not permit of appeals to this Court based on questions of fact. 52The distinction between a question of fact and a question of law, and the circumstances in which a finding of fact can found an appeal based on a question of law has been the subject of a great deal of judicial consideration. Hall J sets out a useful summary of principles in US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705 at [45]-[55]. 53Section 40 of the Local Court Act provides that grounds of appeal founded on a question of mixed law and fact may be heard by leave of this Court. Again, what constitutes a question of mixed fact and law is subject to debate, and will depend in large part on the circumstances in which the question arises: see the discussion by Windeyer J in Da Costa v The Queen [1968] HCA 51, (1968) 118 CLR 186 at 194-196. 54In the event that this purported ground of appeal raises a question of mixed fact and law, I consider that, in light of the fact that Mr Curtis was unrepresented at first instance and on appeal, I would grant leave as necessary. 55The primary finding of fact challenged by Mr Curtis concerns the date at which his access to the online modules was cut-off. The relevant section of the transcript of his Honour's decision states (at 26.22): The plaintiff claims that on 19 September 2011 the uni withdrew access to four subjects. The paperwork provided to the Court, provided by the uni, would show otherwise. I am satisfied, on the balance of probabilities, that the withdrawal of complete access occurred on 21 September not 19th as was claimed by the plaintiff. 56At the hearing of the appeal, I inferred that Mr Curtis was content to formulate this ground on the basis that the factual finding about the date upon which the email was sent was so perverse as not to be reasonably open. Counsel for the University was content to proceed on that basis. That is so notwithstanding that this casts the question to be determined by me more leniently than the established tests for disturbing factual findings on appeal, and accordingly operates in favour of Mr Curtis: see in particular RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 at [13]. In light of the position of counsel for the University, I determine the matter on that basis. 57To the contrary of the submissions of Mr Curtis, I consider that the finding made by the learned Magistrate was reasonably open. In cross-examination of Mr Curtis it was established that, although he sent a number of very blunt emails to University employees after 19 September 2011 and before 21 September 2011, he did not complain of his online access being cut off during that time. Mr Curtis explained that the situation was so obvious as to not require reference to it in his emails; the learned Magistrate was entitled to reject that explanation on the balance of probabilities. 58Although (if necessary) I would grant leave to argue this ground, I would not uphold it. Conclusion 59The result is that I reject all grounds of appeal. 60There is no basis upon which the unsuccessful appellant should not pay the costs of the successful respondent. Orders 61I make the following orders: (1)An extension of time to appeal is granted. (2)Appeal dismissed. (3)The appellant is to pay the costs of the respondent.