Mbuzi v Griffith University

1. The appeal be dismissed.
2. The appellant pay the respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 I have had the benefit of reading in draft the reasons for judgment of Griffiths J. I agree with those reasons and the orders which his Honour proposes. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Introduction 2 Pursuant to leave granted on 9 September 2015 (see Mbuzi v Griffith University [2015] FCA 862), Mr Mbuzi appeals from a judgment and orders made by the primary judge on 5 December 2014. The primary judge rejected various causes of action relied upon by Mr Mbuzi in respect of a decision to terminate his doctoral candidature at Griffith University (the University) on 26 July 2013. 3 The primary judge rejected Mr Mbuzi's claims that the termination of his candidature: (a) contravened both the implied freedom of political communication under the Constitution and "due process" rights which were said to arise under the Constitution; (b) constituted unconscionable conduct contrary to ss 20, 21 and 22 of the Australian Consumer Law; (c) involved misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law; and (d) constituted conduct in breach of an alleged contract between Mr Mbuzi and the University. 4 In addition to dismissing Mr Mbuzi's amended originating application, the primary judge upheld the University's cross-claim in which it sought to have Mr Mbuzi declared a vexatious litigant under s 37AO of the Federal Court of Australia Act 1976 (Cth) (the FCAA). 5 Mr Mbuzi represented himself in the appeal (as he also did in the proceeding below). The University was represented by Mr J D McKenna QC, who appeared with Mr P F McCafferty. 6 It is desirable to summarise the background facts and the primary judge's reasons for judgment before considering the eleven grounds of appeal set out in the notice of appeal dated 17 September 2015.

Background facts summarised 7 Mr Mbuzi became a candidate for the degree of Doctor of Philosophy (PhD) at the University on 7 March 2011. His doctoral thesis, which was undertaken in the School of Humanities at the University, was entitled "Community perceptions of development programmes by Government & NGO - Indigenous Australian Experience". Mr Mbuzi had previously been a doctoral candidate at the University. His initial candidature was terminated on 14 March 2003. Mr Mbuzi had also been enrolled previously in the PhD programme at the University of Queensland. In 1993 he completed a Master's degree in Development Studies at Deakin University. 8 Mr Mbuzi's second doctoral candidature at the University commenced after he had received a letter of offer dated 7 January 2011. He was told that the Dean of the Graduate Research School at the University had approved his application for admission as a higher degree research candidate at the University in the PhD programme. Mr Mbuzi's supervisors were specified as Dr Susanna Chamberlain (principal supervisor) and Dr Kerrie Foxwell (associate supervisor). Both these supervisors were members of the University's School of Humanities. The letter of offer stipulated that Mr Mbuzi's candidature would be subject to "Candidature Milestones", which were described as follows: All students are admitted to candidature subject to completing an early and mid-candidature milestone as well as completing your candidature confirmation. Your milestone and confirmation of candidature due date will be provided to you on enrolment. 9 Mr Mbuzi was also notified in the letter of offer that the School of Humanities would support his research within Australia but that extra funds would have to be sought by him elsewhere for any research undertaken by him in Africa. 10 In mid-February 2011 Mr Mbuzi accepted the offer of candidature by submitting a signed copy of the "Acceptance of Offer" form. That form included the following statement: I acknowledge that while I am enrolled as a student of Griffith University I am subject to the Statutes, Rules and Policies of the University and to the lawful instructions of the authorities of the University. 11 The University's policies included the Higher Degree Research Policy (HDR Policy). It required Mr Mbuzi to obtain "confirmation" of his candidature within the requisite period. Under the HDR Policy, the "confirmation" process included a review of Mr Mbuzi's supervision arrangements and a determination had to be made by the Head of School as to whether or not the candidature and supervision arrangements should be recommended for confirmation or, otherwise, be the subject of an "unsatisfactory recommendation". Also, under that Policy, a PhD student was required to have two supervisors at all times. An effective relationship between the student and his or her supervisors was described in the HDR Policy as a "necessity" and as requiring "mutual respect, trust and a willingness for the relationship to continue from both supervisor and student". 12 By mid-2011, it became apparent that Mr Mbuzi did not want Dr Foxwell to continue as his associate supervisor. Dr Foxwell was content to step aside from that role. Mr Mbuzi identified Professor Cordia Chu to replace Dr Foxwell. Professor Chu agreed to become Mr Mbuzi's associate supervisor. On 2 September 2011, Mr Mbuzi lodged a form entitled "Higher Degree Research: Appoint/Change Supervisor Form", which had been signed on 30 August 2011 by Professor Chu as Mr Mbuzi's prospective associate supervisor. Under the University's "Higher Degree Research Supervisor Accreditation Policy", a principal supervisor must have supervised at least one HDR candidate to successful completion and have demonstrated professional engagement in HDR education and training (cl 3.1). Associate Professor Macleod gave evidence below that Dr Chamberlain's status as an accredited principal supervisor was "updated" in mid-2011 on the basis that she had supervised a PhD student to completion at another university. 13 In September 2011, Mr Mbuzi was required to complete his early candidature milestone. The purpose of the candidature milestone was described in cl 4.13.2 of the University's HDR Policy as being to assess if the candidate has a viable research project and to define the education/training requirements and resources needed by the candidate to ensure timely completion. Mr Mbuzi was also required to complete his 2011 Annual Progress Report. Around this time, Mr Mbuzi complained about Dr Chamberlain's failure to give priority to his Progress Report and her insistence that he address the early candidature milestone. Mr Mbuzi informed Associate Professor Macleod (who was the Acting Dean, Learning and Teaching, Arts, Education and Law at the University) that he wished Dr Chamberlain to cease acting as his principal supervisor. Dr Chamberlain was willing to step aside but she was asked by Associate Professor Macleod not to withdraw until a replacement principal supervisor could be found. 14 A panel was constituted to assess Mr Mbuzi's 2011 Annual Progress Report (the Panel). The Panel comprised Professor Richard Bagnall (Dean of Research (Arts, Education and Law)), Associate Professor Macleod, Dr Chamberlain, Professor Chu and Dr Margaret Gibson (Deputy Head of School (Research) and Acting HDR Convenor). On 9 November 2011, the Panel concluded that, in its academic judgment, Mr Mbuzi's work to date was "not of doctoral standard, in that it fails to engage with scholarship in the field of his proposed research in a scholarly manner, it being neither adequately descriptive nor critically informed". The Panel set out various requirements which it said Mr Mbuzi had to meet in preparation for the confirmation of his candidature, including that he develop his approach to the research task, detail his research methodology and obtain written authorisation to conduct research in the selected indigenous communities and obtain the required research ethics clearances. The latter was a reference to the fact that, because Mr Mbuzi's research involved indigenous persons, he had to comply with certain ethical obligations imposed by the National Statement on Ethical Conduct in Human Research (published by the National Health and Medical Research Council) and the Guidelines for Ethical Research in Indigenous Studies (published by the Australian Institute of Aboriginal and Torres Strait Islander Studies). 15 As noted above, from at least September 2011, Dr Chamberlain had requested that she be replaced as Mr Mbuzi's principal doctoral supervisor, however, she remained in that role at Associate Professor Macleod's request pending Associate Professor Macleod's attempts to find a replacement. The primary judge found that Associate Professor Macleod had made "extensive endeavours" to obtain a replacement. Her Honour also found that Mr Mbuzi had refused to work with two other academics in the School of Humanities at the University who were closely related to his research topic (namely Dr Foxwell and Associate Professor Alexander). 16 On 20 May 2013, Dr Chamberlain notified Professor Berners-Price (the Dean (Griffith Graduate Research School) and Chair of the Board of Graduate Research) that she was no longer willing to be recorded as Mr Mbuzi's principal supervisor. In late January 2013 Mr Mbuzi had submitted an application to have Dr Chamberlain's name removed as his principal supervisor but this had not occurred at that time because no suitable replacement had either been identified or agreed to perform that role. 17 Mr Mbuzi's confirmation seminar was rescheduled to May 2013, when Professor Chu would be available to participate. The seminar was organised by Associate Professor Macleod. The Assessment was carried out by Associate Professor Fiona Kumari Campbell and Professor Chu on 15 May 2013. Dr Chamberlain was also present, but not as an assessor. The assessors advised that the work presented by Mr Mbuzi at the seminar was not of the standard expected for a doctoral degree and that it was unlikely that his thesis could be completed within the period remaining after confirmation. 18 On 20 May 2013, Dr Chamberlain sent an email to Associate Professor Macleod stating that she was withdrawing as Mr Mbuzi's principal supervisor, effective immediately. On 27 May 2013, Professor Chu advised the relevant University personnel that she wanted to withdraw from the position of associate supervisor to Mr Mbuzi. In a detailed email bearing that date, Professor Chu described an incident which had taken place in her office a few days before Mr Mbuzi's confirmation seminar. Professor Chu had asked Dr Dung Phung (a post-doctoral fellow at the University) to help Mr Mbuzi prepare for the seminar. In broad terms, Professor Chu described how Mr Mbuzi and Dr Phung had clashed in her office. Professor Chu said that she was "terribly offended and upset" by Mr Mbuzi's claim that Dr Phung had committed a criminal offence by assaulting him in the course of their altercation, which Professor Chu witnessed. In her email, Professor Chu said (errors in original): I was terribly offended and upset by this untrue accusation. Not only he had insulted someone I had asked to help him, but by doing so he had also being very dis-respectful to me with an intention of causing trouble. This is the last straw. I like to withdraw from his supervision team. He will attempt to see me again to discuss other ways of dealing with this matter. I want to put this in record to you beforehand. I am not willing to spend more time to deal with such upsetting and offensive matter anymore. 19 Dr Phung filed a formal report and complaint concerning the altercation with Mr Mbuzi. In an email dated 31 May 2011, Professor Chu told Professor Berners-Price that she had witnessed the altercation, that it was Mr Mbuzi who had acted aggressively, loudly and in a threatening way towards Dr Phung, and that Dr Phung had sought to defend himself by raising his hand but that he did not apply any force. 20 On 3 June 2013, Mr Mbuzi sent an email to Professor Berners-Price regarding the altercation to which he attached an incident report of what he described as Dr Phung's assault against him on 14 May 2013. There was a reference in Mr Mbuzi's email to "Professor Cordia Chu's blackmail in her efforts to suppress a criminal liability complaint". 21 Clause 4.13.3 of the HDR Policy dealt inter alia with the confirmation of candidature and supervision arrangements for a higher degree candidate. It relevantly provided: Confirmation of Candidature and Supervision Arrangements All candidates will be reviewed for confirmation of candidature, including supervision arrangements, excepting candidates who have changed candidature from MPhil to PhD under section 4.8.3 of this Policy. The review of PhD candidates will occur around the first twelve months of enrolment in the case of full-time candidates, and the first eighteen months of enrolment in the case of part-time candidates … Where a major change in the direction of the research has occurred or in exceptional circumstances, the Dean (Research) may approve an extension to the confirmation of candidature due date of up to six months FTE for a PhD … As part of the confirmation procedure the candidate must present a research seminar together with a written submission. The seminar and written submission will be assessed by the principal supervisor/s; associate supervisor/s (if available); and an independent assessor, approved by the Dean (Research). On receipt of a recommendation for confirmation of candidature from the Head of Element, the Dean (Research), will determine that: a) candidature and supervision arrangements are confirmed; or b) the confirmation date is postponed for no more than six months; On receipt of an unsatisfactory recommendation for confirmation of candidature from the Head of element to the Dean (Research), the Dean, Griffith Graduate Research School will determine that: c) candidature is terminated; or d) in the case of PhD candidates, the candidate is offered the opportunity to be admitted as a candidate to one of the University's masters degrees. 22 Clause 4.14 of the HDR Policy also dealt with termination of candidature in other specified circumstances. It relevantly provided: 4.14 Termination of Candidature The Dean, Griffith Graduate Research School may terminate candidature if the candidate has failed to make satisfactory progress, meet any candidature requirements or comply with any other condition imposed by the Dean, Griffith Graduate Research School. Candidature may be terminated only after a reasonable attempt has been made by the supervisor/s and the Dean/Deputy Dean (Research) to ensure that the candidate has been: • clearly warned of shortcomings in performing the research and/or meeting candidature requirements; • advised of ways in which such shortcomings might be remedied. The Dean, Griffith Graduate Research School will provide the candidate with an opportunity to respond. After considering the candidate's response, the Dean, Griffith Graduate Research School may terminate candidature or, after consultation with the Dean/Deputy Dean (Research), determine that the candidature continues. In such a case the Dean, Griffith Graduate Research School may prescribe special conditions to be fulfilled. In the case of a PhD the candidate may be offered the opportunity to be admitted to one of the University's masters degrees. 23 On 30 May 2013, Professor Berners-Price informed Mr Mbuzi that both Dr Chamberlain and Professor Chu had indicated that they were no longer willing to supervise him and that, pursuant to cl 4.13.3, his supervision arrangements were subject to review as part of the confirmation of candidature process. He was also advised that the University was investigating alternative arrangements for his supervision. On 6 June 2013, Mr Mbuzi asked Professor Berners-Price to remove herself from any role she had in his confirmation process because he alleged that she was using complaints against him in the decision-making process concerning the confirmation of his candidature. 24 By an email dated 7 June 2013, Associate Professor Macleod told Professor Berners-Price that there was no suitable academic in the School of Humanities to be Mr Mbuzi's principal supervisor and that no other colleague was willing to supervise him. He said that he had sought to identify appropriate supervisors outside the School but that he had been unsuccessful in finding anyone who could supervise Mr Mbuzi according to the University's criteria. He said that he had identified Dr Halim Rane as someone who was prepared to take on the role of principal supervisor but only as an interim measure and that Mr Mbuzi's research topic was outside Dr Rane's area of expertise. Professor Berners-Price had in a previous email, dated 7 June 2013, stated that, in these circumstances, she could not approve Dr Rane as Mr Mbuzi's principal supervisor. 25 On 24 June 2013, Associate Professor Macleod recommended to Professor Gerard Docherty (Dean Research (Arts, Education and Law)) that Mr Mbuzi's candidature not be confirmed because: (1) Mr Mbuzi had not made suitable progress during the initial stage of his candidature; (2) to reach an appropriate standard to pass his confirmation Mr Mbuzi would need extensive and detailed supervision; and (3) suitable supervision was a fundamental problem in relation to his candidature because: Mr Mbuzi had rejected both the supervisors from the School of Humanities who had been assigned to him; Professor Chu was not willing to supervise him; extensive efforts had been made to find an appropriate supervisor but these efforts were unsuccessful; and in these circumstances, Associate Professor Macleod could not see how Mr Mbuzi could advance to a point where he could fulfil the relevant conditions for confirmation of his candidature. 26 Mr Mbuzi was told of Associate Professor Macleod's views at a meeting between them on or about 18 July 2013. Subsequently, on 19 July 2013, Professor Berners-Price wrote to Mr Mbuzi and told him that, pursuant to both cl 4.13.3 and Associate Professor Macleod's recommendation, she had determined to terminate his candidature. Part of her stated reasons was that "the School of Humanities has not been able to identify any staff member with the relevant expertise to supervise you within the School, and has been unable to find a suitable supervisor elsewhere in the University". This termination formally occurred on 26 July 2013. 27 Mr Mbuzi appealed the termination decision to the University Appeals Committee, which determined that the decision was properly taken and was in accordance with the academic standards and policies of the University.

Primary Judge's reasons summarised 28 It is convenient to first summarise her Honour's reasons for dismissing Mr Mbuzi's amended originating application before summarising her Honour's reasons for accepting the University's cross-claim.

(a) Dismissal of Mr Mbuzi's amended originating application 29 The primary judge rejected Mr Mbuzi's claims arising under the Constitution concerning the implied freedom of political communication and due process. It is unnecessary to set out her Honour's reasoning on these matters because the grant of leave to appeal did not include these matters. 30 As to Mr Mbuzi's claims in contract, her Honour held that on the basis of the limited evidence before her, she did not accept that there was a contractual relationship between Mr Mbuzi and the University. Rather, applying the principles in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 (Tang), the relationship between them was found to be merely consensual or voluntary. Mr Mbuzi's argument that the provision of funding by the Commonwealth Government to the University for doctoral candidates constituted "consideration" was expressly rejected. Her Honour held that the University was entitled to proceed in accordance with its broad policies, including cl 4.13.3 of the HDR Policy. Her Honour rejected Mr Mbuzi's argument that there was no power in the Dean to terminate his doctoral candidature under that provision. 31 The primary judge also rejected Mr Mbuzi's submission that the document signed by Professor Chu on 30 August 2011 by which she agreed to become his supervisor constituted a contract. Her Honour described the document as merely an expression of Professor Chu's willingness to perform that role. Her Honour rejected Mr Mbuzi's related claim that the signed document was evidence of the University's performance under contract. 32 Independently from her rejection of Mr Mbuzi's claim that he was in a contractual relationship with the University, the primary judge also found that Mr Mbuzi had failed to substantiate his claim that the University had chosen not to provide him with supervisory services which, he alleged, constituted a breach of contract. In rejecting that submission, her Honour accepted Associate Professor Macleod's evidence as to the extensive steps he took to identify new supervisors for Mr Mbuzi. As to Mr Mbuzi's separate submission to the effect that there was evidence from other academics at the University who were willing and able to supervise him, her Honour observed that none of those persons had given evidence in the proceedings. Her Honour also noted an email dated 28 October 2013 from Dr Kerwin to Professor Bagnall, which had been copied to Mr Mbuzi and which was tendered by Mr Mbuzi. That email contained a statement to the effect that Dr Kerwin had agreed to supervise Mr Mbuzi, but her Honour ruled that it should be given no weight because: (a) the email post-dated the termination of Mr Mbuzi's candidature; (b) the email contained anomalies and may have been selectively edited; (c) Dr Kerwin was not called as a witness to verify the contents of the email; and (d) the evidence of Associate Professor Macleod and Professor Berners-Price should be accepted, including their lack of awareness that Dr Kerwin was interested in supervising Mr Mbuzi and that they did not even know who Dr Kerwin was. 33 Mr Mbuzi's claims arising under the Australian Consumer Law were all rejected by the primary judge. While expressing a tentative view that the University was engaged in trade or commerce by providing supervisory services to Mr Mbuzi, her Honour found it unnecessary to determine that issue because she found that the University's conduct was not unconscionable. After summarising relevant principles relating to unconscionability (as established in cases such as Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90), her Honour considered and rejected each of the following six matters relied upon by Mr Mbuzi as constituting unconscionable conduct. 34 First, her Honour found that the University had never imposed a requirement on Mr Mbuzi that he should undertake research only in Australia. Rather, it indicated that, should he choose to engage in research in Africa, he would need to find funding other than from the University. 35 Secondly, her Honour rejected Mr Mbuzi's claim that the University had engaged in unconscionable conduct because it had failed to identify suitable supervisors for him after almost two years. Her Honour's reasoning is encapsulated in [127] of her reasons for judgment: In my view these facts demonstrate that the lack of suitably qualified members of staff at the university available to supervise Mr Mbuzi was due largely to his own conduct over the period of his candidature. As I have already stated, it was not feasible in the circumstances for the university to endeavour to compel staff such as Professor Chu to supervise Mr Mbuzi. I am satisfied that, at the time of the termination of Mr Mbuzi's candidature, there were no suitably qualified staff at Griffith University prepared to supervise him despite efforts which had been made to identify such a person. 36 Thirdly, as to Mr Mbuzi's claim that the University had directed him to accept Dr Chamberlain as his principal supervisor, her Honour found that Mr Mbuzi was aware that Dr Chamberlain continued to act as his principal supervisor only until a replacement supervisor could be found. Moreover, her Honour found that any lack of accreditation for Dr Chamberlain to be Mr Mbuzi's principal supervisor made no difference to the reasons why his candidature was terminated. 37 Fourthly, the primary judge found that, on the basis of the evidence before her, no unconscionable conduct had been established on the part of the University in relation to the incident involving the altercation between Mr Mbuzi and Dr Phung. Her Honour stopped short of making a conclusive finding that Professor Chu never threatened to withdraw supervision in the event that Mr Mbuzi reported the alleged assault by Dr Phung. However, on the material before her, her Honour considered such a threat to be "highly unlikely". She added that she did not regard it as unreasonable for Professor Chu to seek to dissuade Mr Mbuzi from making a report to the police which Professor Chu considered seriously misrepresented Dr Phung's conduct. Her Honour found that there was "absolutely no evidence" that the University had "required" Mr Mbuzi not to report a crime of assault committed against him. 38 As to that part of Mr Mbuzi's case which asserted misleading or deceptive conduct on the part of the University in contravention of s 18 of the Australian Consumer Law, her Honour noted that no pleaded claim had been made in respect of this matter. However, it was raised by Mr Mbuzi in a document entitled "Outline of Essential Facts". The relevant claims were rejected by the primary judge on the basis that: (a) the University never required Mr Mbuzi to undertake research within Australia as a condition of approving his candidature and it simply indicated that it could not financially support any research by him outside Australia; (b) the University took reasonable efforts to identify a suitably qualified member of staff to supervise Mr Mbuzi, but had been unable to do so; and (c) any suitably qualified member of staff had either been rejected by Mr Mbuzi or was not willing to supervise him and cross-reference was made to the earlier findings regarding Dr Kerwin. 39 For those reasons, Mr Mbuzi's amended originating application was found by her Honour to be without merit and she dismissed it. 40 It is convenient to now summarise the primary judge's reasons for upholding the University's application under s 37AO of the FCAA.

(b) Acceptance of the University's cross-claim 41 As mentioned above, the University sought orders under ss 37AO(2)(a) and (b) of the FCAA: (a) staying or dismissing all of the proceeding instituted by Mr Mbuzi; and (b) prohibiting him from instituting proceedings in this Court against the University or any employee, officer, Council member or student of the University. 42 At the relevant time, s 37AO provided as follows: Making vexatious proceedings orders (1) This section applies if the Court is satisfied: (a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or (b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal. (2) The Court may make any or all of the following orders: (a) an order staying or dismissing all or part of any proceedings in the Court already instituted by the person; (b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; (c) any other order the Court considers appropriate in relation to the person. Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs. (3) The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following: (a) the Attorney-General of the Commonwealth or of a State or Territory; (b) the Registrar of the Court; (c) a person against whom another person has instituted or conducted a vexatious proceeding; (d) a person who has a sufficient interest in the matter. (4) The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. (5) An order made under paragraph (2)(a) or (b) is a final order. (6) For the purposes of subsection (1), the Court may have regard to: (a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and (b) orders made by any Australian court or tribunal; and (c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal); including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section. 43 "Vexatious proceedings" were defined in s 37AM of the FCAA as including: (a) a proceeding that is an abuse of the process of a court or tribunal; (b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; (c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and (d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 44 The primary judge noted the term "frequently" is not a defined term, however, her Honour made reference to authorities which establish that it is "a relative term and must be looked at in the context of the litigation being considered: Attorney-General in and for the State of NSW v Gargan [2010] NSWSC 1192 at [7]; Fuller v Toms [2013] FCA 1422 at [76]". (It should be noted that an appeal from the latter decision was dismissed: Fuller v Toms [2015] FCAFC 91). 45 The primary judge described the numerous proceedings which had been instituted by Mr Mbuzi in various courts and tribunals. The first tranche of his proceedings were against a Queensland barrister, Mr Favell, following Mr Favell's success in the District Court of Queensland in a defamation proceeding in which Mr Favell had sued Mr Mbuzi and was awarded damages of $15,000. The primary judge noted that although Mr Mbuzi did not appeal the District Court's judgment, he subsequently instituted several related proceedings. They included an application to the Supreme Court of Queensland seeking judicial review of the directions of the District Court. After this application was summarily dismissed, Mr Mbuzi unsuccessfully appealed against that decision and then, subsequently, failed in an application by him for special leave to appeal in the High Court. 46 Mr Mbuzi's separate application to the Supreme Court of Queensland to have the District Court judgment set aside was unsuccessful, as was his subsequent appeal to the Court of Appeal and a further application by him for special leave to the High Court. In 2012, Mr Mbuzi sought leave to appeal the District Court's judgment, but leave was refused by the Queensland Court of Appeal and he was ordered to pay indemnity costs. The primary judge noted that part of the reasons for the award of indemnity costs was that Fraser JA found that there was no merit in the application and his Honour stated that Mr Mbuzi had "used the application as a vehicle to make irrelevant and defamatory allegations against the respondent, including but not limited to those which had resulted in the judgment which should have put the defamatory allegations to rest". 47 The primary judge described a second tranche of proceedings instituted by Mr Mbuzi, which related to an insurance claim by him against AAMI and four of its directors for an amount of $3,276 in respect of a stove cook-top. Queensland State Magistrate Hall disclosed that she knew two directors of the insurance company but she declined to recuse herself and she ultimately dismissed Mr Mbuzi's claim. Mr Mbuzi then sought judicial review of Magistrate Hall's decision in the Supreme Court of Queensland. When that application was dismissed by White J, Mr Mbuzi unsuccessfully sought leave to appeal from the Court of Appeal. Justice Fryberg described Mr Mbuzi as an "experienced" litigant and stated that "Mr Mbuzi's reply comprised mainly an offensive and rambling personal attack on the directors, White J and counsel for his opponents". Further proceedings were brought by Mr Mbuzi in the Court of Appeal in relation to the Court of Appeal's earlier judgment. This application was also dismissed and Mr Mbuzi was ordered to pay costs on an indemnity basis. Part of the basis for that costs order was that Mr Mbuzi's application was found to be based upon a serious misstatement of the relevant facts and misrepresented what had occurred. 48 The respondents in the various proceedings relating to the insurance claim obtained an order under r 389A of the Uniform Civil Procedure Rules 1999 (Qld) that Mr Mbuzi not file any judicial review application in relation to the proceeding without leave. The primary judge (at [158]) noted the following remarks made by the Supreme Court in making the order in Mbuzi v Hall [2010] QSC 359: [85] I conclude that the applicant has adopted a vexatious mode of conducting the litigation. This conclusion does not rest on his general lack of success in bringing or resisting interlocutory applications and associated applications for leave to appeal: his only success seemingly being not having the application for judicial review summarily dismissed against AAMI. It rests on the vexatious nature of the applications that he has brought, his advancing arguments that lack a proper foundation, his persistence in unfounded arguments that have been determined against him, his lodging of applications for leave to appeal that have no reasonable prospect of success and the inclusion in affidavits and submissions of scandalous allegations. This course of conduct has delayed the resolution of the judicial review proceeding, and generated substantial costs. It has been harassing and vexatious to the other parties to applications, not to mention their lawyers who have been the subject of many ill-founded accusations of having misled the court. 49 There were two further proceedings in the Court of Appeal arising from these matters. In the first (Mbuzi v Hall [2010] QCA 253), it was held that Mr Mbuzi had filed an application in contravention of the orders made in Mbuzi v Hall [2010] QSC 359. Subsequently, in Mbuzi v Hall [2010] QCA 356, the Court of Appeal dismissed an application for leave to appeal against the Supreme Court's decision in Mbuzi v Hall [2010] QSC 359. 50 The primary judge described a third tranche of proceedings brought by Mr Mbuzi against the University of Queensland or its staff, all of which were unsuccessful. In Mbuzi v University of Queensland [2010] QSC 153 de Jersey CJ dismissed Mr Mbuzi's application for judicial review of various decisions made by the University of Queensland when Mr Mbuzi had been enrolled there as a PhD student. In dismissing the application de Jersey CJ described Mr Mbuzi's application as vexatious. Mr Mbuzi's appeal against this decision was unsuccessful (Mbuzi v University of Queensland [2010] QCA 336). 51 A fourth tranche of proceedings related to the University. After Mr Mbuzi was accepted as a doctoral candidate at the University, he commenced proceedings in the Supreme Court of Queensland against eight University employees after a decision had been made to refer him to the University's Student Misconduct Committee. Mr Mbuzi's application for injunctive relief to prevent the Committee from meeting was unsuccessful. He subsequently sought default judgment against two of the employees, however, he then withdrew that application. He then commenced fresh proceedings in the Supreme Court of Queensland against the same two employees and sought default judgment in both actions. His application was dismissed by consent. Following an adverse decision by the Student Misconduct Appeals Committee Mr Mbuzi sought judicial review of the Committee's decision in the Supreme Court of Queensland. 52 In this context, the Crown Solicitor sought to have Mr Mbuzi declared a vexatious litigant under the Vexatious Proceedings Act 2005 (Qld). After another application by Mr Mbuzi for default judgment, that was dismissed by consent, Mullins J made orders under the Vexatious Proceedings Act 2005 (Qld) against Mr Mbuzi (see Cooper v Mbuzi [2012] QSC 105). The primary judge noted (at [171] and [172]) the following observations and findings of Mullins J: [71] Mr Mbuzi is not legally qualified, but in recent years has appeared for himself in many court proceedings and it is apparent from many of the documents he has filed and the submissions he has made that he has therefore gained experience from his own litigation and familiarity with court procedures and some aspects of the law. Despite the fact that on occasion judicial officers have made positive comments about Mr Mbuzi's familiarity with the UCPR, what is also apparent from his documents and submissions that I have considered in connection with this proceeding is that his knowledge of court procedure and law is superficial. He is focused on the process relating to his claims, rather than the substance of his claims and generally shows no understanding of the consequences for the other parties of the proceedings he brings which are unmeritorious and the oppressive manner in which he conducts them, such as by bringing unnecessary interlocutory applications. (Emphasis added.) … [74] It is incomprehensible that Mr Mbuzi's claim under his contents insurance for $2,099 which was the cost of the damaged cooktop resulted in so many applications and proceedings. The fact that Mr Mbuzi was appearing for himself and therefore not incurring the legal costs associated with retaining a lawyer to act in the various applications on his behalf facilitated his bringing so many proceedings. As I read one transcript and decision after another arising out of the small claim made before Magistrate Hall, I concluded that this series of proceedings amounted to a travesty of justice. This set of proceedings (more than any other) shows Mr Mbuzi's complete fixation with court processes out of all proportion to the original claim and lack of judgment. Mr Mbuzi emphasises his success in the course of the judicial review application which was the subject of the Hall appeal of obtaining an adjournment of the application for summary dismissal by AAMI and the four directors before me on 29 June 2009 for short service and the refusal of White J on 9 July 2009 to give AAMI the benefit of summary dismissal as matters that have to be weighed against the other aspects of the judicial review proceeding. This typifies Mr Mbuzi's pre-occupation with the procedure, rather than looking at the objective merits of his course of action. Mr Mbuzi claims to be empowered by his capacity to apply to the courts for vindication of his rights. He has shown no regard, whatsoever, for the rights of other persons whom he brings into his proceedings unnecessarily where he has no legitimate right to protect. He should not use his belief that he is vindicating his rights to infringe the rights of others. It is of concern that in the course of this application under the Act, Mr Mbuzi was still endeavouring to re-argue the propriety of having joined the four directors to the judicial review proceeding that was the subject of the Hall appeal. … [79] Proceeding BS5009 of 2011 is vexatious, as it has been used by Mr Mbuzi for his own purposes, has been an abuse of the process of the court, and caused unnecessary court appearances on behalf of the respondents. Even allowing for the fact that Mr Mbuzi did not continue against the second to the sixth respondents from 15 November 2011, his misuse of the UCPR in this proceeding had been extreme. [80] My conclusions as to which of the numerous proceedings brought by Mr Mbuzi are vexatious satisfy the requirement under the Act that such proceedings must have been brought frequently. 53 The primary judge's reasons for making the orders sought by the University were broadly as follows. 54 First, the primary judge held that the University had standing under s 37AO(3)(d) because it had a "sufficient interest" in circumstances where it was being sued by Mr Mbuzi and he had also forecast future litigation against the University and persons associated with it. 55 Secondly, although her Honour had found Mr Mbuzi's amended originating application lacked merit, she declined to find that the proceeding itself was vexatious by lacking reasonable grounds within the meaning of s 37AO(3)(c). 56 Thirdly, her Honour took into account the fact that Mr Mbuzi had frequently instituted or conducted vexatious proceedings in various Australian courts and tribunals, as described above. Mr Mbuzi's overall conduct in those proceedings was taken into account having regard to s 37AO(6) of the FCAA. The primary judge also took into account the fact that Mullins J had declared Mr Mbuzi to be a vexatious litigant for the purposes of the Vexatious Proceedings Act 2005 (Qld). The primary judge noted that Mr Mbuzi had commenced approximately 20 separate proceedings in the space of eight years and that in many of those matters adverse comments had been made regarding Mr Mbuzi's conduct and the vexatious nature of his claims. This underpinned her Honour's conclusion that Mr Mbuzi "has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals within the meaning of s 37AO(1)(a)". 57 Fourthly, the primary judge noted that she had a discretion whether or not to make orders of the type sought by the University under s 37AO(2)(b) and that such orders should only be made with "the upmost caution" because of the serious consequences of prohibiting a person from commencing litigation. Her Honour explained why she considered this to be an appropriate case in which to make such orders, taking into account: (a) Mr Mbuzi's "appetite for litigation" and his preparedness to commence Court proceedings with very little provocation and in circumstances where it was evident that Mr Mbuzi seemed to consider that he is vindicated in respect of his perceived rights by commencing litigation and bringing multiple applications in respect of the same litigation; (b) Mr Mbuzi's multiple cases had the effect of subjecting the affected individuals to the trauma and potential expense of litigation which frequently proved to be unmeritorious; and (c) it was likely that, despite Mr Mbuzi's failure in the proceeding before the primary judge, he would commence fresh proceedings relating to the same events against either the University or its staff personally. This would be consistent with the history of him bringing multiple serial applications in the State Courts. Her Honour found that this would have a serious impact not only on the resources of the University and its staff, but also on the Court itself. 58 Having regard to all these matters, her Honour determined to make the orders sought by the University in respect of future litigation by Mr Mbuzi against the University and persons associated with it, subject to the usual qualification that any such future proceeding brought by Mr Mbuzi had to be with the leave of the Court.

Grounds of appeal 59 Mr Mbuzi raised the following eleven grounds of appeal in respect of the primary judge's decision to dismiss his amended originating application and to uphold the University's cross-claim:

1. The primary judge was not entitled to apply and rely on the principles of Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 in relation to this case.
2. The primary judge erred in finding that there was no contract between the respondent and the appellant.
3. The primary judge erroneously interpreted the context in which the appellant submitted the evidence of a signed document by Professor Chu to be the appellant's supervisor.
4. The primary judge erred in finding that clause 4.13.3 of the University's HDR Policy empowers termination of PhD candidature.
5. The primary judge's finding that the respondent did not contravene the Australian Consumer Law goes against the ample evidence on record.
6. The primary judge erred in denying the existence on record of the respondent's own decree in writing, three times, directing that the appellant's two supervisors; namely; Professor Chu and Dr Chamberlain, were to so remain in place until the respondent itself made alternative supervisory arrangements.
7. The primary judge erred in accepting the respondent's counter-claim that was not validly filed.
8. The primary judge erred in making an order under s 37AO(2)(b) in relation to a proceeding that was specifically and explicitly judged not to be vexatious and also for which there was no validly filed counter-claim.
9. The primary judge's finding that there were no staff members able and willing to supervise the appellant is contrary to the abundance of evidence put on record both by the appellant and the respondent itself.
10. The primary judge erred in failing to properly address the context, circumstances and reasons for the withdrawal from providing supervision to the appellant of the respondent's pivotal and relevant staff member, Professor Chu.
11. The primary judge erred in failing to determine that the respondent did not have a sufficient interest in the matter to warrant an order of the width of the vexatious proceeding order made by the judge. 60 It is evident that grounds 1-6 and 9-10 relate to the dismissal of Mr Mbuzi's proceeding, whereas grounds 7, 8 and 11 relate to the orders made by her Honour under s 37AO of the FCAA.

Mr Mbuzi's submissions outlined 61 Mr Mbuzi filed a brief written outline of submissions and also made oral submissions. His written submissions were as follows (errors in original): 1. The primary judge relied on, and applied the principles of Griffith University v. Tang (2005) 221 CLR 99; HCA 7 when there was no entitlement or basis to do so as the cases are distinguishable and unrelated. The issue in that High Court case was within the judicial review regime and it concerned the question of whether the decision to expel Ms Vivian Tang for academic misconduct (plagiarism) was one to which the Judicial Review Act 1991 (QLD.), "The Review Act", applied. There were no issues of Constitution, The Consumer Law, or contract in that case. This case, however, is one for which there is no issue of either academic misconduct, or the application of the Queensland State's Judicial Review Act. Further, this case involves a contractual relationship in commerce, establishing the essential elements a contract in terms of a written "OFFER" made by the respondent on 13 January 2011; which was followed by "ACCEPTANCE" by the appellant via a signed "Acceptance of Offer" form on 14 February 2011. Payment by the appellant was via the Research Training Scheme (RTS) for which students who are either citizens or permanent residents of Australia are eligible. If the appellant had been outside that eligible group he would have had to pay by his own other means. 2. The ruling that there was no contract between the parties when even the respondent does not dispute the elements of "offer"; "acceptance "; and "consideration". Further even the court itself determined that the relationship between the parties was within the framework of dealing in commerce and trade. The respondent has not appealed that determination. 3. The interpretation of the context in which the appellant submitted the evidence of a signed document by Professor Chu to be the appellant's supervisor. The primary judge interpreted that signed document as if it was what the appellant was relying upon as evidence of "a contract", when in fact, the appellant submitted the document as evidence of performance by the respondent under the terms of the contract. 4. That clause 4.13.3 of the University's Higher Degree Research (HDR) Policy empowers termination of PhD candidature, when in fact that termination relates to masters candidature. 5. A finding that the respondent did not contravene the ACL, when in fact the evidence on record demonstrates contravention in terms of unconscionable conduct, breach of contract. And deceptive and misleading conduct relating to availability of supervision and changes to supervisory arrangements. 6. Denial of the existence on record the respondent's own decree in writing, three times, directing that the appellant's two supervisors; names; Professor Chu and Dr Chamberlain, were to so remain in place until the respondent itself approved and made alternative supervisory arrangements. 7. Acceptance of the respondent's counter-claim that was not validly filed as the step to file it was taken prior to the respondent filing and serving its notice of address for service as mandated by court rules. 8. Making an order under s 37AO (2) (b) in relation to a proceeding that was specifically and explicitly determined by the court itself as not being vexatious and also for which there was no validly filed proceeding seeking such order. 9. A finding that there were no staff members able and willing to supervise the appellant. The find is contrary to evidence on record submitted by both sides. 10. Failing to properly address the context, circumstances and reasons for the withdrawal of the relevant staff member (Professor Chu) from providing supervision to the appellant. Consideration of the context, circumstances and reasons giving rise to the withdrawal discloses unfairness and being without justification. 11. Failure to determine that the respondent did not have a sufficient interest in the matter to warrant an order of the width of the vexatious proceeding order that the primary judge made. The category of "interest in the matter", under which the order was made, relates to third parties and does not apply to original and principles parties in a proceeding. 62 Mr Mbuzi filed written submissions in reply. He reiterated many of his submissions in chief. In addition, Mr Mbuzi made the following submissions: (a) Significance should attach to the fact that Rangiah J granted Mr Mbuzi leave to appeal in respect of the eleven grounds of appeal which must, therefore, have substance. (b) The basis for standing under s 37AO(3)(d) of the FCAA of having "a sufficient interest" applies only to a third party who is joined in a proceeding and has no application to the original parties. (c) Only Professor Chu was supervising Mr Mbuzi leading up to the confirmation review. Dr Chamberlain had no involvement in his supervision during the course of the review and was not, in any event, accredited to be a supervisor. Professor Chu's expressed wish to withdraw as his associate supervisor only occurred after the review process and was driven by "vengeance" and "retaliation". The University never approved the expressed wishes of Professor Chu and Dr Chamberlain to withdraw as his supervisors. (d) The Full Court should review and determine for itself whether the stated intentions of Professor Chu and Dr Chamberlain to withdraw as Mr Mbuzi's supervisors was "justified, fair and just" and also whether there were other staff members who were willing and able to supervise him. (e) The University had stated that the only basis for terminating Mr Mbuzi's candidature was the lack of supervisors. 63 Mr Mbuzi's oral submissions were lengthy but added little of substance to his written submissions other than by way of emphasis. Broadly, his additional contentions were as follows: (a) in her letter dated 19 July 2013, Professor Berners-Price stated that the termination decision was based only on the absence of satisfactory supervision arrangements; (b) under cross-examination, Associate Professor Macleod had accepted the proposition that he could not say that there was no one at the University who could supervise Mr Mbuzi; (c) Professor Bagnall had agreed to supervise him and there was evidence that others were also willing to do so; (d) charges of misconduct had been laid by the University against Professor Chu; and (e) the Court should take judicial notice of the terms and conditions upon which the Commonwealth pays the fees of higher degree candidates.

University's submissions summarised 64 The University made written and oral submissions. It is unnecessary to summarise those submissions because I substantially agree with them. They are reflected in the reasons given below for dismissing the appeal.

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).

Conclusion 109 For these reasons the appeal must be dismissed. Mr Mbuzi must pay the University's costs as agreed or assessed. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths

PAGONE J: 110 I have had the benefit of reading a draft of the reasons of Griffiths J and respectfully agree that the appeal should be dismissed with costs. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.