Disposition of the appeal
65 It is convenient to deal with grounds 1, 2 and 3 together, which all relate to Mr Mbuzi's unsuccessful case in contract.
66 The primary judge did not err in applying relevant paragraphs from Tang, particularly in circumstances where there was so little relevant evidence before her Honour concerning the parties' relationship. Tang was a judicial review case, which involved a PhD student whose candidature had been cancelled for misconduct. The case was conducted on the basis that the parties agreed that there was no contractual relationship (see at [12] per Gleeson CJ and at [57] per Gummow, Callinan and Heydon JJ). This gave rise to two consequences. First, if there had been a contractual relationship between the parties, existing authority would indicate that the decision to terminate the candidature was not a decision which was susceptible to judicial review under the Judicial Review Act 1991 (Qld). Secondly, if there was a contractual relationship, the plurality indicated at [58] in Tang that there may have been a need to consider whether or not there was an exclusion from justicibility of issues of academic judgment, referring to the decision of the Court of Appeal of England and Wales in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988; [2000] 3 All ER 752.
67 In Tang, Gleeson CJ emphasised that there was no evidence of any contract and the available evidence indicated that the relationship between the parties was voluntary (see at [20]). To similar effect, the plurality stated at [91] that there "was at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality". Tang does not establish a general proposition that the relationship between a PhD student and his or her university is always consensual or voluntary. Rather, Tang reflected its own facts and the limited evidence there relating to the parties' relationship.
68 The primary judge viewed Tang as being relevant because the evidence before her Honour relating to the precise nature of the parties' relationship was also quite limited. Her Honour stated at [83] of her reasons for judgment that there was "little evidence before me as to the exact nature of the relationship between Griffith University and Mr Mbuzi". After referring to Tang, her Honour concluded that, having regard to the limited evidentiary material before her, the principles in Tang applied. Her Honour added that she did not accept that the provision of Commonwealth funding to the University for doctoral candidates constituted consideration.
69 No appealable error has been established in relation to this aspect of her Honour's reasoning. Mr Mbuzi carried the onus of establishing that the relationship was contractual. Her Honour effectively held that he had failed to discharge that burden. That is unsurprising in circumstances where it appears from the appeal book that there was scant evidence below concerning the nature and extent of any such funding and how it applied to Mr Mbuzi's individual circumstances. The letter of offer dated 7 January 2011 simply stated that "Research Higher Degree candidates are funded through the Commonwealth Government's Research Training Scheme" and that Mr Mbuzi would be exempt from the payment of tuition fees for the duration of his approved candidature. The Court cannot take judicial notice of the details of the Scheme because they are not notorious. No light is cast upon them by the legislation which broadly underpins the Scheme, namely the Higher Education Funding Act 1988 (Cth) and the Higher Education Support Act 2003 (Cth). The absence of any detailed evidence below on the Scheme may be explained by the fact that Mr Mbuzi's case in contract only emerged in its developed and final form during the course of his oral submissions (see [73] below).
70 Even if the primary judge erred in finding that there was no contractual relationship, that error would be immaterial unless Mr Mbuzi also established that her Honour erred in rejecting his claim that the University's conduct was in breach of contract because the University had broken a relevant contractual promise to him. Mr Mbuzi contended that, by withdrawing the University's supervision services to him, the University was in breach of a promise that it would provide these services.
71 In my respectful view, the primary judge was correct in finding that Mr Mbuzi's claim that the University chose not to provide him with supervision services could not be substantiated. Rather, it made extensive efforts to try to arrange satisfactory supervision for Mr Mbuzi despite the fact that he had alienated three of his supervisors. At the time of the confirmation review, the HDR Policy required the Head of the School of Humanities to make an evaluative recommendation as to whether or not the supervision arrangements appertaining to Mr Mbuzi were satisfactory. The primary judge found that the recommendation which was made by Associate Professor Macleod was one which was appropriately made. It was this recommendation which led to Mr Mbuzi's candidature being terminated. That recommendation was based in part on the fact that suitable supervision was a "fundamental problem" in relation to Mr Mbuzi's candidature because he had rejected both Dr Chamberlain and Dr Foxwell as supervisors and Professor Chu was unwilling to continue to supervise him any longer. Moreover, the extensive inquiries made by Associate Professor Macleod to identify a suitable replacement supervisor had failed. I will return below to explain why the primary judge correctly rejected Mr Mbuzi's claims that he himself had found academics who were willing and able to supervise him.
72 No appealable error has been established in respect of these aspects of the primary judge's reasoning and findings.
73 As the University pointed out in the appeal, Mr Mbuzi sought to widen his case below by seeking, during the course of oral submissions, to rely upon his original enrolment documents with the University as being the source of the relevant promise. The primary judge was correct to reject this widened case. Irrespective of whether the enrolment documents were contractual, they contained no promise by the University which precluded the appointed University officers from carrying out the confirmation review as required by the HDR Policy. Indeed, the enrolment documents expressly stated that all students who were admitted to candidature were "subject to… completing your candidature confirmation". By accepting the University's letter of offer, Mr Mbuzi acknowledged that his enrolment was subject inter alia to the University's policies, which included the confirmation review.
74 For these reasons, the primary judge was correct to conclude that, even if there had been a contractual relationship between the relevant parties, Mr Mbuzi failed to establish that any contractual promise to him was breached by the University's conduct which culminated in his candidature being terminated.
75 As to ground 3, Mr Mbuzi's complaint appears to be that the primary judge viewed Professor Chu's signed document as being relevant only to his argument that there was a contract with the University, when he also submitted that the document was evidence of performance by the University under the terms of the contract. There is no substance in this ground. It is clear from [90]-[93] of her Honour's reasons for judgment that she rejected both of Mr Mbuzi's arguments concerning the significance of Professor Chu's signature on the document dated 30 August 2011. Both arguments were rejected because Professor Chu's signature was viewed as signifying no more than a willingness on her part to act as Mr Mbuzi's associate supervisor. It was found not to be a contract in its own right, nor was it evidence of the University's performance under contract in circumstances.
76 For these reasons, grounds 1, 2 and 3 are rejected.
77 Ground 4 relates to the primary judge's finding that cl 4.13.3 of the HDR Policy empowered the Dean to terminate Mr Mbuzi's candidature. The terms of that provision are set out in [21] above. Mr Mbuzi argued that the power of termination under that provision was confined to a candidature for a Master's degree. His argument turns on the fact that paragraph (d) deals specifically with PhD candidates and provides that the Dean may, on receipt of an unsatisfactory recommendation for confirmation of candidature, offer the PhD candidate the opportunity to be admitted as a candidate to a Master's degree. Mr Mbuzi argued that the power in paragraph (c) to terminate the candidature should be construed as applying only to a Master's candidature. His argument is effectively relies on the maxim expressio unius est exclusio alterius. It is well settled that, in a statutory construction context, this maxim needs to be applied with considerable caution (see, for example, Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 94 and Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250).
78 There is no basis for adopting the narrow construction of cl 4.13.3 advanced by Mr Mbuzi. Its acceptance would mean that the University is powerless to terminate a PhD candidature notwithstanding the receipt of an unsatisfactory recommendation and a reasonably based belief that the candidate is not suitable to undertake either a PhD or a Master's degree. That would be a strange outcome which can hardly have been intended. Acceptance of Mr Mbuzi's construction would mean that the University has no option but to always offer an opportunity to a person who was a PhD candidate and in relation to whom there is an unsatisfactory recommendation to be admitted as a candidate for a Master's degree notwithstanding that the University has reasonable grounds for believing that the candidate is not suitable to undertake any higher degree.
79 On their proper construction, paragraphs (c) and (d) of cl 4.13.3 are not mutually exclusive. Bearing in mind that the HDR Policy deals with both PhD and Master's degree candidates for higher degrees, in the circumstances specified in that provision the relevant University officer can determine whether or not the candidature of a student in either higher degree stream is to be terminated or, specifically in the case of a PhD candidate, offered an opportunity to become a candidate to a lower higher degree, namely a Master's degree. Presumably the reason why paragraph (d) is drafted as it is is because the only two degrees covered by the HDR Policy were those for a PhD and a Master of Philosophy. The Policy did not apply to any degree lower than a Master's degree. Ground 4 is rejected.
80 Grounds 5, 6, 9 and 10 all relate to claims which were based on the Australian Consumer Law.
81 As to Ground 5, on its proper construction it simply amounts to a sweeping statement of disagreement by Mr Mbuzi with her Honour's various findings of fact and reasons for rejecting his contention that the University's conduct constituted unconscionable conduct and was deceptive or misleading. No particular finding of fact is identified as being in error nor did Mr Mbuzi point to any reason for contending that any such finding was not reasonably open on the evidence. I accept the University's submission that ground 5 is devoid of content and should be rejected.
82 Ground 6 relates to Mr Mbuzi's claim that the University had on three occasions directed Professor Chu and Dr Chamberlain to remain as his supervisors until replacement supervisors were found. Contrary to Mr Mbuzi's assertion, the primary judge did not deny the evidence on this part of his case. Indeed, her Honour viewed the University's request to Dr Chamberlain that she continue to be Mr Mbuzi's principal supervisor until a replacement could be found as reasonable and lawful. Similarly, it is evident that her Honour saw nothing unlawful or unreasonable in Dr Chamberlain's conduct, after having effectively given notice eighteen months earlier that she wished to withdraw from her supervisory role because she was not prepared to continue any longer with the interim arrangement. As to Professor Chu, the primary judge found that she was Mr Mbuzi's associate supervisor from September 2011 (when she agreed to take on that role) until late May 2013, when she told her University colleagues that she wanted to withdraw from that role following the incident with Dr Phung. Accordingly, the primary judge did not ignore the evidence on these matters: she summarised it and determined that it did not support Mr Mbuzi's claims.
83 The primary judge rejected Mr Mbuzi's contention that the decision to terminate his candidature was flawed because it was "premised on a false assumption that supervision had been withdrawn". Mr Mbuzi relied on the fact that the University had not formally approved either Professor Chu or Dr Chamberlain withdrawing as supervisors. This submission glosses over the fact that such formal approval was not necessary for the purposes of cl 4.13.3. That provision simply states that all higher degree candidates will be reviewed for confirmation of candidature "including supervision arrangements". Associate Professor Macleod described the problems with those arrangements in his recommendation dated 24 June 2013. In addition, Mr Mbuzi was on notice from at least 30 May 2013 that since neither Professor Chu nor Dr Chamberlain were willing to supervise him, his supervision arrangements would be reviewed as part of the confirmation process. Indeed, as noted in [16] above, Mr Mbuzi himself had made a formal application in late January 2013 to have Dr Chamberlain's name removed as his principal supervisor. The primary judge rejected Mr Mbuzi's contention that Dr Chamberlain and Professor Chu had no choice but to remain in their roles as supervisors. Her Honour found that it was neither "feasible nor workable" for that to occur when the relevant relationships had soured so badly. It was open to her Honour to come to this view, particularly in light of the nature of the relationship between a supervisor and a PhD candidate. Mr Mbuzi did not point to any power in the University to compel an unwilling supervisor to continue to supervise a student
84 The reasons why there was "a fundamental problem" with his supervision arrangements were clearly spelled out in Associate Professor Macleod's recommendation. The primary judge found that those reasons were supported by the evidence relating to all the difficulties which had been experienced with Mr Mbuzi's supervision, much of it resulting from his own actions. No appealable error has been demonstrated in respect of these matters.
85 Contrary to Mr Mbuzi's submissions in reply, it is not the Full Court's role to determine for itself whether the expressed wishes of Professor Chu and Dr Chamberlain to cease to supervise Mr Mbuzi was "justified, fair and just". On an appeal by way of rehearing, Mr Mbuzi carries the onus of demonstrating appealable error on the part of the primary judge. For the reasons given above, he has failed to do so. Ground 6 is rejected.
86 Ground 9 relates to Mr Mbuzi's claim that the primary judge erred in finding that there were no staff members able and willing to supervise him. In his written reply submissions, Mr Mbuzi submitted that the Full Court should determine this factual matter for itself. That submission should be rejected as it is premised on a fundamental misunderstanding of the nature of an appeal by way of rehearing.
87 Her Honour's reasons for rejecting Mr Mbuzi's claim that there were three people available to supervise him are set out in [32] above. The evidence indicated that, despite all the extensive inquiries made by both the University and Mr Mbuzi himself, only one person (Dr Rane) was identified at the relevant time as being willing to supervise Mr Mbuzi and that was only on an interim basis and in circumstances where Mr Mbuzi's research project was outside the area of Dr Rane's own expertise.
88 In the appeal, Mr Mbuzi relied on an email dated 6 June 2013 which he received from Professor Bagnall. Professor Bagnall told him that he was "willing to meet with you to discuss your research design, considerations and processes…". In its own terms this email does not contain any offer let alone agreement to supervise Mr Mbuzi. A willingness to hold a discussion is not the same as agreeing to become a supervisor.
89 Mr Mbuzi also relied on Associate Professor Macleod's acceptance during cross-examination of the proposition that it would be incorrect to say that no one was willing to supervise him. Significantly, however, the context of this line of cross-examination and Associate Professor Macleod's responses was that, because he personally did not know every academic at the University, he could not say unreservedly that no one was willing to supervise Mr Mbuzi. Associate Professor Macleod did not qualify his earlier statement to Professor Berners-Price that his extensive enquiries had not produced anyone who was willing and able to supervise Mr Mbuzi.
90 In her letter dated 19 July 2013, Professor Berners-Price said that she had taken into account Mr Mbuzi's response letter dated 16 July 2013 in which he set out information concerning other staff whom he said were willing to supervise him. Professor Berners-Price said:
There is no indication that any of these academics is willing to take on the role of your principal supervisor. Nor have you indicated that you have made any application to have a new principal or associate supervisor appointed.
The primary judge accepted this evidence. It was open to her Honour to do so.
91 No appealable error has been established in respect of the primary judge's findings concerning the unavailability of suitable academics to supervise Mr Mbuzi's research.
92 I also accept the University's submission that this ground of appeal is misdirected because the relevant question is not confined to the information which was available to the relevant University officers at the relevant time, but must take into account the fact that such officers were required to undertake an evaluative judgment about the suitability of the supervision arrangements. Ground 9 is rejected.
93 Ground 10 involves a claim that the primary judge failed to address the context, circumstances and reasons for Professor Chu's withdrawal from supervising Mr Mbuzi. This is a reference to Professor Chu's statement that she was no longer willing to act as Mr Mbuzi's supervisor following his altercation with Dr Phung and Mr Mbuzi's subsequent conduct, including his threat to press criminal charges for assault against Dr Phung. The primary judge rejected Mr Mbuzi's claims that Professor Chu's actions were driven by vengeance and retaliation.
94 In oral submissions in the appeal, Mr Mbuzui contended that he had made complaints of misconduct concerning Professor Chu in relation to her reaction to his altercation and allegations against Dr Phung. One of the bodies to whom he complained was the University. He contended that all the bodies to whom he complained, including the University, had "accepted" his complaints. When asked to clarify what he meant by these contentions, Mr Mbuzi confirmed that he was saying that his complaints resulted in charges being laid against Professor Chu and that the charges had been "made good".
95 It was not only incorrect but also inappropriate of Mr Mbuzi to claim that the University had "charged" Professor Chu with misconduct and that the charges had been "made good". Evidence was given below by Ms Janine Walker, who was the Director of the Office of Human Resource Management of the University. Ms Walker described how the University had commenced an investigation into Professor Chu's conduct relating to the incident between Mr Mbuzi and Dr Phung following a complaint it received by Mr Mbuzi. That investigation was conducted under Part 7 of the Academic Staff Enterprise Agreement of the University. There were no "charges" as such, merely allegations by Mr Mbuzi. Moreover, perhaps even more significantly, Ms Walker gave unchallenged evidence below that, as at the date of the hearing, no determination had been made in relation to Mr Mbuzi's allegations. Mr Mbuzi's claims were seriously overstated and are without foundation.
96 No appealable error has been demonstrated in respect to her Honour's reasoning on this topic (see [37] above). Ground 10 is rejected.
97 Grounds 7, 8 and 11 all relate to the primary judge's acceptance of the University's cross-claim, which led to the relevant orders being made concerning Mr Mbuzi's status as a vexatious litigant. For the following reasons, there is no substance in any of these grounds of appeal.
98 As to ground 7, Mr Mbuzi complains that the counter-claim was not validly filed because it was filed on 15 August 2013 prior to the University filing and serving its notice of address for service. There is no substance in this complaint. As the University pointed out, the matter was resolved at a directions hearing before Rangiah J on 16 August 2013 when Mr Mbuzi complained that the cross-claim had been filed prior to the University filing an address for service. That was merely a procedural irregularity which did not invalidate the proceedings (see s 51 of the FCAA). Moreover, the matter was disposed of at that directions hearing by a direction that the University file a notice of address for service, which occurred on that day and before the directions hearing ended.
99 Ground 8 raises a complaint that the primary judge erred in making an order under s 37AO(2)(b) of the FCAA in the context of a proceeding which her Honour found not to be vexatious. This ground must also be rejected. It is based on an erroneous belief that there is no power under s 37AO to make an order unless the order is made in the course of proceedings which are themselves vexatious. There are two conditions to the Court's power or discretion to make such an order. The first is that the relevant person "has… instituted or conducted vexatious proceedings" (which need not be the current proceeding). The second is that the vexatious proceedings have been instituted or conducted "frequently".
100 The fact that the primary judge viewed the particular proceeding before her as at least being arguable did not prevent her Honour from having regard to all the other proceedings instituted by Mr Mbuzi in various courts and tribunals and described above and to the adverse comments which were made in respect of his conduct in many of those proceedings. Moreover, it was open to her Honour to take into account Mr Mbuzi's history of bringing multiple proceedings against various people in relation to the same subject matter and her apprehension that he would do the same in this Court in respect of his grievances arising from the termination of his PhD candidature (see Legal Aid Western Australia v Wheaton [2006] WASC 219). At [174] of her Honour's reasons for judgment, reference is made to a letter dated 16 September 2013 in which Mr Mbuzi threatened to join six University employees in his Federal Court action. Ground 8 is rejected.
101 As to ground 11, no appealable error has been established in respect of the primary judge's finding that the University had a sufficient interest in the matter for the purposes of s 37AO(3)(d). As her Honour pointed out, the University was not only being sued by Mr Mbuzi in the primary proceeding, but he had also forecast future litigation against the University and persons associated with it. These matters amply support the primary judge's finding that the University had a sufficient interest to make the application.
102 As to Mr Mbuzi's submissions in reply concerning the proper construction of s 37AO(3)(d), there is no proper basis for confining that paragraph to a person who has been joined as a party in existing proceedings and not applying it to a party who is a respondent from the outset. There is nothing in the text or context of that provision to support such a narrow construction. It is also inconsistent with Pagone J's decision in Garrett v Commissioner of Taxation [2015] FCA 117 at [6]. To the extent that Mr Mbuzi's construction is based on the express reference in s 37AO(3)(c) to the applicant in a proceeding, I refer again to the limitations of the maxim expressio unius est alterius (see [77] above).
103 No appealable error has been demonstrated in respect of the primary judge's reasoning and findings. Ground 11 is rejected.
104 The University's written submissions included the contention that "to the extent that it is material, the conduct by a publicly-funded University of its internal academic reviews of non-paying research students should not properly be characterised as conduct 'in trade and commerce'". It is unnecessary to determine this issue in the appeal. As noted above the primary judge expressed only a tentative view on the matter and she gave detailed reasons for rejecting Mr Mbuzi's claims in relation to the Australian Consumer Law even if the conduct was regarded as being in trade and commerce.
105 Finally, Mr Mbuzi's written and oral submissions in reply appeared to assume that, because Rangiah J had given leave for him to appeal on the eleven grounds set out in his notice of appeal, the grounds should be upheld. Such leave, which is more accurately described as leave to file a notice of appeal so as to institute an appeal, was required under s 37AO(2) of the FCAA (see Fuller v Toms [2015] FCAFC 91 at [18] per Besanko, Logan and McKerracher JJ). Mr Mbuzi's submissions reveal a fundamental misunderstanding of the distinction between the grant of leave to appeal and the necessity for him in the appeal to make good each of his grounds of appeal. For the reasons given above, I consider that he has failed to make good any of those grounds.
106 On the issue of costs, Mr Mbuzi contended in his oral submissions that he should not have to bear the University's costs if his appeal failed because:
(a) his financial position was very different from that of the University;
(b) he was forced to litigate because the University would not discuss his grievances with him after his candidature was terminated and instead referred him to the University's lawyers;
(c) Professor Chu's withdrawal as his supervisor was unjustified;
(d) the substantive merits of his appeal were sound, as is reflected in Rangiah J's grant of leave; and
(e) he should not be punished by an adverse order for costs.
107 I do not consider that these matters, either individually or collectively, displace the general principle that costs should follow the event. Mr Mbuzi's financial position, whether looked at in isolation or in comparison with that of the University, is neither relevant nor determinative. His submissions regarding Professor Chu and the grant of leave to appeal have been dealt with above. It was both reasonable and understandable that the University required Mr Mbuzi to deal with its lawyers, particularly in circumstances where he had formally complained against Professor Chu and the matter was under investigation. It is also well settled that the purpose of a costs order is not to punish an unsuccessful party - rather, it serves to compensate the successful party.
108 Mr Mbuzi must take responsibility for having commenced the proceedings below and then brought this appeal, both of which have been unsuccessful. He made no submission that his proceedings were "public interest litigation", which may have required consideration of that matter in the context of costs (see generally Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72).