Ogawa v The University of Melbourne - [2005] FCA 1139 - FCA 2005 case summary — Zoe

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Ogawa v The University of Melbourne

[2005] FCA 1139

Federal Court of Australia|2005-08-22|Before: Kiefel J, Marshall J, Ryan J

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Source facts

Court

Federal Court of Australia

Decision date

2005-08-22

Before

Kiefel J, Marshall J, Ryan J

Source

Original judgment source is linked above.

Judgment (85 paragraphs)

[1]

Introduction 1 There is before the Court a motion on notice dated 21 March 2005 by the respondent, the University of Melbourne ("the University"). By its motion the University seeks; '1. An order pursuant to Order 20, rule 2(1)(b) and/or Order 20, rule 2(1)(c) of the Federal Court Rules that the whole of the proceeding be dismissed on the basis that the proceeding is frivolous or vexatious and/or an abuse of process of the Court. 2. Alternatively, an order pursuant to Order 11, rules 16(b) and/or Order 11, rule 16(c) of the Federal Court Rules, the whole of the applicant's statement of claim dated 6 December 2004 be struck out. 3. Further to paragraph 2, any application for leave to file and serve an amended statement of claim be made by notice of motion supported by affidavit exhibiting a draft of the proposed pleading on notice to the respondent, such notice to be given not less than 14 days prior to the hearing of the notice of motion. 4. The applicant obtain the leave of the Court before she institutes any further proceeding (including application) in the Court. 5. The applicant pay the respondent's costs of this motion and of the proceeding on an indemnity basis. 6. Such further or other orders as the Court considers fit.'

[2]

Background 2 The applicant is a citizen of Japan. She was enrolled as a student at the University of Melbourne leading to the degree of Doctor of Philosophy ("PhD"). By an application and statement of claim dated 3 December 2004 the applicant alleged that representations had been made to her which constituted misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the TPA"). The representations concerned the manner in which her studies would be supervised and resourced. The applicant alleged that the supervision which she received was inadequate and that, as a consequence of her dissatisfaction, the University withdrew or cancelled her candidature for a PhD. She alleged misrepresentations which gave rise to loss and damage. The applicant also sought an order that her PhD studies be re-instated. She alleged, as well, unconscionable conduct pursuant to s 51AB of the TPA, breach of natural justice, breach of contract and defamation. By an amended application and statement of claim filed by the applicant on 16 March 2005, the applicant added a claim for relief pursuant to the provisions of the Racial Discrimination Act 1975 (Cth) ("the RDA"). 3 A separate proceeding (Q136 of 2003) was instituted by the applicant against the University in this Court on 9 September 2003. After it was instituted, that proceeding was transferred by order of Kiefel J to the Melbourne Registry and then transferred by order of Marshall J to the Federal Magistrates Court where it was ascribed No. MZ463 of 2004. That proceeding is hereafter referred to as "the FMC proceeding". 4 On 11 June 2004 in the FMC proceeding the applicant sought to withdraw a motion which she had filed on 26 May 2004 seeking the transfer of the proceedings back to the Federal Court ("the first transfer motion"). The University did not object to the withdrawal of the first transfer motion but sought its costs of that motion. Phipps FM ordered, amongst other things, that the applicant pay the University's costs and that she have leave to file and serve a second further amended statement of claim. 5 On 18 June 2004 in Federal Court proceedings V778 0f 2004 the applicant sought leave to appeal from the order for costs made by Phipps FM on 11 June 2004. That application was stayed as the University undertook not to enforce the costs order until the FMC proceeding has been determined. 6 On 12 July 2004 the applicant filed a second motion on notice in the FMC proceeding seeking the transfer of the proceedings back to the Federal Court ("the second transfer motion"). That motion was heard on 27 July 2004 by Phipps FM who dismissed the applicant's motion and ordered that she pay the University's costs. 7 On 2 August 2004 in Federal Court proceedings V936 of 2004 the applicant sought leave to appeal from the orders made by Phipps FM on 27 July 2004 (the "first leave motion"). 8 On 5 August 2004 Phipps FM heard a motion on notice filed by the University which sought to have the applicant's second further amended statement of claim dismissed as failing to disclose a reasonable cause of action, or alternatively as frivolous or vexatious ("the pleadings motion"). The applicant sought an adjournment of the hearing of the pleadings motion because she had applied to the Federal Court for a stay of the FMC proceeding. Phipps FM gave ex tempore reasons for judgment refusing the applicant's application for adjournment. His Honour then heard the University's pleadings motion and reserved judgment. 9 Later on the same day, the applicant filed an urgent application in the Federal Court seeking a stay of the FMC proceeding. This was heard on 10 August 2004. North J refused the application and ordered that the applicant pay the University's costs of and incidental to that application. The applicant then sought to file an urgent notice of motion in the Federal Magistrates Court seeking a stay of the FMC proceeding until she had engaged pro bono counsel to act for her in Queensland. This motion was not accepted for filing by the Federal Magistrates Court. 10 On 12 August 2004 the University filed a notice of motion in Federal Court proceedings V936 of 2004 regarding the competency of the applicant's first leave motion. 11 On 23 August 2004, following attempts to obtain the University's consent to a stay in the FMC proceeding, the applicant filed an application in the High Court (proceedings M157 of 2004) seeking special leave to appeal from the decision of North J dated 10 August 2004. This special leave application, which was amended on 7 September 2004, has not yet been heard or determined. 12 On 3 September 2004 Phipps FM delivered reasons in the University's pleadings motion striking out certain paragraphs of the applicant's second further amended statement of claim and granting the applicant leave to re-plead within 28 days. The applicant did not file and serve an amended statement of claim. The second further amended statement of claim therefore remains the only pleading in the FMC proceeding. 13 On 17 September 2004 in Federal Court proceedings V1130 of 2004 the applicant sought leave to appeal from the orders which had been made by Phipps FM in the FMC proceeding on 3 September 2004 ("the second leave motion"). 14 On 23 September 2004 the applicant instituted proceedings in the High Court (M196 of 2004) seeking an order nisi for constitutional writs and associated relief. The application was dismissed with costs by Hayne J on 13 October 2004. 15 On 1 October 2004 in Federal Court proceedings V936 of 2004 and V1130 of 2004 Kenny J heard the applicant's first and second leave motions. Her Honour refused the applications for leave to appeal made thereby and dismissed the motions. The University was awarded costs on an indemnity basis in respect of the first leave motion and as between party and party in respect of the second leave motion. 16 On 26 October 2004 in High Court proceedings M194 of 2004 the applicant applied for special leave to appeal from the whole judgment of Kenny J in V936 of 2004. That application for special leave has not yet been heard or determined. Also on 26 October 2004, the applicant commenced proceedings in the High Court (M193 of 2004) seeking an order nisi for constitutional writs and associated relief. That application was dismissed with costs by Heydon J on 9 December 2004. 17 On 28 October 2004 Phipps FM gave directions designed to ready the FMC proceeding for trial on 8 August 2005. The applicant did not appear and was not represented at that directions hearing. 18 On 19 November 2004 the applicant commenced proceedings in the High Court (M200 of 2004) seeking an order nisi for constitutional writs and associated relief raising issues about the transfer of proceedings to the Federal Magistrates Court and pro bono representation for the applicant. It was heard with M193 of 2004 by Heydon J on 9 December 2004 and was similarly dismissed on that day. 19 On 24 November 2004 the applicant applied to the High Court for special leave to appeal from the whole judgment of Kenny J in V1130 of 2004 published on 1 October 2004 and sought an extension of time in which to make that application (M199 of 2004). That application for special leave has not yet been heard or determined. 20 On 23 December 2004 the applicant filed an application in the High Court (M224 of 2004) seeking leave to appeal from the judgment of Hayne J and an extension of time within which to make that application. That application for special leave to appeal has not yet been heard or determined. 21 On 7 February 2004 the applicant sought by summons an order for expedition of the hearing of her applications for special leave to appeal made in M157 and M194 of 2004 in the High Court. That application was dismissed by Gummow J on 11 February 2005. 22 The applicant has also indicated that she intends to apply for leave to appeal from judgments of Heydon J in M193 of 2004 on 9 December 20004 and Gummow J on 11 February 2005 in M157 and M194 of 2004 although at the date of hearing the present motion these applications had not yet been filed.

[5]

Vexatious proceedings 26 Mr Caleo of Counsel for the University relied on both sub-pars (b) and (c) of O 20 r 2(1) which are reproduced at [23] above in support of its claim for an order that the proceedings be summarily dismissed. It was submitted that in the context of the Federal Court Rules "vexatious" connotes a proceeding or claim that is "productive of serious and unjustified trouble and harassment": see Hamilton v Oades (1989) 166 CLR 486, at 502. 27 In the University's submission, it is vexatious and an abuse of process of the Court for an applicant to commence two proceedings against the same person in different courts in respect of the same factual matters; see Moore v Inglis (1976) 9 ALR 509 at 513-515; Lidden v Composite Buyers (1996) 139 ALR 549 at 559; Morningstar Research Pty Ltd v Fiduciary Ltd (2003) 131 FCR 236 at 240. The principle established by Moore v Inglis was said to focus, not upon the pursuit to judgment of two separate proceedings, but upon the commencement of the second proceeding in circumstances where the relief sought by the plaintiff or applicant is available in an existing proceeding commenced by that party. 28 Accordingly, the University's argument proceeded, the applicant's contention that she has "no intention to have two proceedings against the respondent in two different courts" (see par 51 of the applicant's affidavit dated 26 April 2005 and summarised below at [53] of these reasons) supports the conclusion that the commencement of this proceeding was an abuse of process. Mr Caleo submitted that this confirms that the applicant's extraneous purpose in instituting this proceeding has been to secure, in effect, a transfer to the Queensland District Registry of the Federal Court of her dispute with the University from the Federal Magistrates Court where it was to be heard in Victoria. 29 In the University's submission, the decision of Hely J in Morningstar Research Pty Ltd v Fiduciary Ltd (supra) does not support the applicant's contentions at par 18 of her written submissions dated 27 April 2005 which I have summarised at [53] below. That case, it was said, established, in the specific circumstances of the peculiar jurisdictional tangle that faced the Court, that it is not an abuse of process to institute proceedings in the Federal Court in order to seek a consolidation in another Court under the cross-vesting legislation which could not otherwise be achieved. Putting those unusual circumstances to one side, Hely J indicated that a course similar to that pursued by the present applicant is an abuse of process. His Honour observed, at 240; 'The decision of the Full Court in Palm Springs Ltd v Darling (2002) 123 FCR 527 is authority for the proposition that it is not an abuse of process to choose the Federal Court as a forum for contemplated proceedings because that forum has the advantage of permitting cross-vesting. The case is not authority for the proposition that it is legitimate to initiate proceedings for the predominant purpose of cross-vesting other proceedings. Such a course remains an abuse of process: ECC Lighting Ltd v McGurk (unreported, Supreme Court of NSW 3851 of 1993, Santow J 15 June 1995).' (emphasis added)

[25]

(a) Jurisdictional limit 36 The University disputed the applicant's contention that the commencement of this proceeding is not an abuse of process because the monetary amount claimed as part of that relief could not be recovered in the Federal Magistrates Court. The first contention advanced by the University in this respect was that no adequate foundation has been established to make out an arguable entitlement to the monetary amount claimed. Alternatively, if her dispute with the University is more appropriate for hearing in the Federal Court, the applicant should have made an application in the FMC proceeding for a transfer to the Federal Court rather than instituting fresh, additional, process in the form of the current application, Q245 of 2004. 37 The principal basis for the applicant's contention that the relief she seeks is not available in the Federal Magistrates Court is that her claim for damages for contravention of the TPA exceeds the jurisdictional limit of the Federal Magistrates Court ($200,000). The University pointed out that this assertion had been considered by Marshall J on 4 May 2004 after the University had responded that the applicant's assertion that she might recover damages in excess of $200,000 was "plainly spurious". His Honour was said to have accepted that contention when he observed at [44] of his reasons (Ogawa v University of Melbourne [2004] FCA 491); 'As the matter before the Court came into this Registry in a part heard state, the Court considered that it should deal with the matter before seeking the views of the parties about possible transfer to the Federal Magistrates´ Court. That Court has the jurisdiction to deal with claims under the TP Act in which damages of less than $200,000 are sought. The Court is unable to perceive that damages in that sum are sought in this proceeding.' 38 Counsel for the University also submitted that, when the applicant had raised the same assertion in her application to transfer the FMC proceeding to the Federal Court,Phipps FM had rejected it. Moreover, it was further submitted that there was no additional foundation in the material adduced in this Court by the applicant for her assertion that she may recover damages in excess of $200,000.

[26]

(b) Pro bono representation 39 The second limb of the applicant's contention that the relief she seeks is not available in the FMC proceeding is her assertion that there is some relevant limitation on the availability of pro bono assistance in the Federal Magistrates Court. To this contention, the University responded that Pt 12 of the Rules of Court does not limit assistance to "types" of cases. Nor, it was said, is there any evidence to support the applicant's assertion; such evidence as there is discloses, first, that she had been assisted by Mr M O'Brien as pro bono counsel in the FMC proceeding dated 27 July 2004. In the second place, when requested, pro bono assistance in Melbourne has been promptly provided, as evidenced by the email dated 13 July from Registrar Adele Byrne of the Federal Magistrates Court to the applicant which is reproduced at[64] below. 40 According to the University, the response to the applicant's requests for pro bono assistance has been in accordance with these observations of Hayne J in Re Ogawa; ex parte Marshall [2004] HCA Trans 404 at p 14; 'But the order of Justice Weinberg [for pro bono assistance] is not set aside or revoked. That is a direction made in this proceeding that Ms Ogawa have pro bono assistance up to and including trial. Now, the fact that the proceeding is later transferred to the Federal Magistrates Court does not seem to me, at first sight, at least, that the order ceases to have effect. The order has effect according to its terms.' 41 The University claimed that the evidence reveals conduct by the applicant which has hindered the efforts made by the Federal Court and the Federal Magistrates Court to obtain pro bono assistance for her. Nor, it was submitted, are the applicant'ssubmissions that the Federal Magistrates Court's pro bono scheme does not provide assistance in trade practices matters supported by the Federal Magistrates Court Annual Report 2003-2004 (See the discussion of the applicant's submissions at [63] below.)

[38]

Costs 49 In the event that it succeeds in its claim for relief pursuant to O 20 r 2, the University seeks an order that the applicant pay its costs of the proceedings, including the present motion, on an indemnity basis because the conduct of the applicant in instituting the proceedings constitutes "special circumstances" which justify an order for costs on that basis; see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, at 232-233 and Ruddock v Vardalis (2001) 115 FCR 229 at 234. It was further submitted on behalf of the University that, in an appropriate case, an order for indemnity costs will be made against a litigant in person; (See Ogawa v The University of Melbourne (No 2) [2004] FCA 1275 (1 October 2004), at [42] and following). 50 In support of its claim, the University pointed out that, by letter dated 17 December 2004, it had; (a) advised the applicant that it considered the proceeding to be vexatious and an abuse of the process of the Court; (b) offered, if the proceeding were discontinued by 14 January 2005, to bear its own costs of the proceeding; (c) put the applicant on notice that, if the proceeding were not discontinued, the respondent would apply for it to be struck out or dismissed and seek an order that the applicant pay costs on an indemnity basis. 51 The University further contended that the applicant's decision to persist with the present application is yet another indication of her misconceived approach to the resolution of the dispute and her refusal to accept decisions of the courts which are unfavourable to her. In support of this submission, the respondent referred to this observation of Kenny J in Ogawa v The University of Melbourne (No 2) at [48]; 'It is important, however, that Ms Ogawa should be given to understand that unreasonable persistence in applications that are devoid of merit prolongs the proceeding and unnecessarily increases costs. Further, such conduct might place her in the position where an order for indemnity costs is made against her.' 52 In the University's submission, the time has now arrived when such an order is justified.

[47]

(b) Public interest/test case 69 The applicant submitted also that there is a broader social background against which the Court has to consider this matter because there have been public allegations that the University has recruited overseas students without the capacity to appoint a supervisor for them. Reference was made to a publication entitled Off Course by John Cain and John Hewitt (Scribe Publications, Melbourne, 2004) at 116. As well, the present proceedings were said to concern essentially a matter arising under the TPA so that "the obligations placed upon the respondents by the Trade Practices Act are in the nature of public standards of conduct which are considered desirable and in the public interest"; per Northrop J in Jet Corporation of Australia Pty v Petres Pty (1983) 8 ACLR 334 at 336. 70 The applicant therefore proceeded to contend that the present proceedings effectively raise a test case for the resolution of issues including, amongst others, whether the University is a trading corporation, whether the University's recruitment of overseas students amounts to engagement in trade and commerce and what are the boundaries of unconscionable conduct under s 51AB of the TPA. 71 The applicant also submitted that it is more appropriate for the proceedings to be heard in this Court as the scope for a Federal Magistrate to accord a fair and just hearing to an unrepresented litigant is, in her submission, far more restricted than that for a Judge of the Federal Court. Proceedings in the Federal Magistrates Court, according to the applicant, are attended by a greater degree of legal technicality than this Court. 72 In support of her submission that the matter should proceed in the Federal Court the applicant relied on a passage by Heydon J in A Nominal Defendant v Manning [2000] NSWCA 80 at [73] to the effect that, when considering whether a second proceeding should be allowed, "the risk of the evils must be balanced against all the circumstances of the case relevant to whether it is fair and just …, in particular whether a trial which is fair and just for all parties can be held." The applicant submitted that a trial which is fair and just for both parties can only be held in this Court. (c) Transfer of proceedings 73 The applicant further submitted that I should consider making an order assigning the matter to the Queensland Registry of this Court, at least for the purposes of interlocutory proceedings and directions up to the commencement of the trial. That was said to be particularly desirable if the present proceedings were to be listed for trial before a Judge other than myself.

[52]

Racial discrimination claim 81 Counsel for the University noted that the applicant's claim for relief pursuant to the provisions of the RDA introduced by the recent amendments, forms no part of the FMC proceeding. That claim, it was submitted, is, however, substantially identical, to a complaint made by the applicant to the Human Rights and Equal Opportunity Commission ("HREOC") that the University (whether by itself or through its officers) had discriminated against her in the ways outlined in her amended statement of claim and referred to in the affidavit of Emma Louise Murphy sworn 19 April 2005 from which an extract has been reproduced at [32] above. 82 The discrimination complained of was the failure to provide a supervisor who had the intention or ability to supervise the completion of her PhD study, and who told her repeatedly to "go back to Japan", failing to provide a supervisor for particular periods where one was required by University rules to have been provided, directing staff members not to converse with her in the absence of a third party and insisting that Professor Malcolm Smith was an appropriate supervisor for her notwithstanding that his area of special interest was not intellectual property law; (pars 15A-15A3 and 35 of the applicant's amended statement of claim dated 16 March 2005). 83 Ms Ogawa has agitated a similar complaint concerning racial discrimination against the University in proceedings G1509, G1635 and G1636 of 2003 and G328 of 2004 in the Victorian Civil and Administrative Tribunal ('VCAT'). She also complained, on 15 October 2002 to the Human Rights and Equal Opportunity Commission ('HREOC') concerning her candidature as a PhD student at the University on 15 October 2002. Following further correspondence between Ms Ogawa and HREOC and the University and HREOC concerning the claim, Ms Rocky Clifford, a delegate of the President of HREOC, advised the University by letter dater 7 May 2003 that she had decided to terminate Ms Ogawa's complaint on the basis that it lacked substance under the RDA. Ms Clifford also indicated that Ms Ogawa had been issued that day with a Termination Notice in relation to her claim and had been notified that she might make an application within 28 days of the issue of the notice to this Court or the Federal Magistrates Court for a hearing of the original allegations. 84 For the University it was submitted thatMs Ogawa had not make an application within 28 days of the issue of the Notice of Termination to either the Federal Court or the Federal Magistrate's Court to hear the original allegations and, accordingly, the inclusion of a claim in the present proceedings in respect of the same conduct is vexatious and an abuse of the process of the Court. The applicant does not dispute that she has not applied within 28 days of the Notice of Termination to this Court or to the Federal Magistrates Court. Rather, she claimed that she had received a communication from Professor Alice Tay, the then President of the Human Rights and Equal Opportunity Commission to the effect that HREOC had erred and that Ms Ogawa ought to make an application to this Court or the Federal Magistrates Court. The relevant letter is exhibited to the applicant's affidavit of 26 April 2005 as "MO-37" and, omitting formal parts, is in the following terms; 'I refer to your complaint lodged against the University Of Melbourne and others under the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOCA") alleging racial discrimination under the Racial Discrimination Act 1975 ("the RDA"). Thank you for your correspondence received 30 May, 2003 in which you raise several concerns regarding "misstatements of facts" in the Delegate's letter of termination, dated 7 May, 2003 to which the Commission responded in correspondence dated 13 May, 2003 and 23 May, 2003. I note you have once more requested "correction" of the letter of termination on the basis that you believe this correspondence will prejudice your complaint in the Federal Court of Australia or Federal Magistrates Court. As previously advised in the above mentioned correspondence from the Commission, your application to the court requires an Affidavit from you, this will outline your complaint with any documents you chose to attach including the Commission's correspondence of 23 May, 2003 which acknowledges the "misstatements" you refer to. The Court will examine your complaint afresh before making a formal determination. The Commission therefore notes your concerns and no further action will be taken in relation to this matter. If, after contacting the Court you require any additional information, you may contact Ms Kelleigh Vance on (02) 9284 9821.' 85 In my opinion, the applicant has misapprehended the effect of that letter which does not concede that HREOC has made any misstatements of fact which require correction. All that the letter does is point out to the applicant that her affidavit in support of an application for review by either the Federal Court or the Federal Magistrates Court can outline afresh her complaints and exhibit the correspondence from HREOC which she says contains the "misstatements of fact." The applicant appears to have misunderstood the review process and to have sought, instead, to have the decision to terminate her complaint "corrected" by writing to Professor Tay and subsequently to her successor as President, von Doussa J. The concluding paragraphs of the applicant's letter to von Doussa J dated 10 June 2003 which is exhibit MO-38 to her affidavit of 26 April 2005 recited; 'HREOC sent an enquiry to the University of Melbourne and received a response. HREOC made a number of mistakes in reading and summarising the response from the University and, based on its mistakes, made a decision to terminate its enquiry. I sent a letter of my request to correct errors that HREOC had made to the then President, Professor Alice Tay. Professor Tay checked my file and admitted that HREOC had made a number of mistakes. The problem is that Professor Tay left HREOC before she corrected HREOC's original letter that contains numerous misstatements. The letter is required to be attached to my application to the court of law. Hence, it is very important. Professor Tay wrote to me that 'the Court will see full particulars' and discover the misstatements made by HREOC. Therefore, Professor Tay thought that it was not necessary to alter the misstatements at that stage. This appears to me to expect too much of the Court. It took 5 months for HREOC to enquire into and write up this complaint. However, HREOC still made misstatements. The Court cannot spend as much time hearing my case. HREOC's misstatements will surely give the wrong impression to the Court. This will still be the case even if I include Professor Tay's letter, which admitted HREOC's misstatements, in my affidavit to the Court because the Court will follow its normal procedure and read the allegations before evidence is given. The original letter, which contains a number of misstatements by HREOC, will be detrimental to me in court proceedings. Accordingly, I must urge you to correct the original letter of termination by HREOC to me in order to avoid my being unfairly disadvantaged in the court proceedings, I should add that the letter was dated 7 May 2003, so that I need a corrected letter very urgently.'

[54]

(a) Parallel proceedings 87 Although, as I have already noted, the amended statement of claim in the present proceedings raises some additional issues and pleads some fresh causes of action which have not been relied on in the FMC proceeding, the two proceedings overlap to a considerable extent. It is, I consider, vexatious to require a respondent in the position of the University to fight simultaneously on two different fronts, each in a different court. It is no answer for an applicant who seeks to create that situation to point out that the battle lines have been drawn somewhat differently in each court. There are several outstanding procedural questions to be resolved in the FMC proceeding in which, despite the length of time for which that proceeding has been on foot, there has been no resolution of any substantive issue. As well, there are unsatisfied orders for costs in favour of the University which have been made in the FMC proceeding or in proceedings arising therefrom. I shall discuss in more detail below the impact of those costs orders on the exercise of discretion on the University's present motion. 88 As things stand in the FMC proceeding which was initially transferred to the Federal Magistrates Court with the consent of the applicant, the applicant has applied unsuccessfully to Phipps FM to transfer that proceeding back to this Court. His Honour's order refusing that application was the subject of an application to this Court for leave to appeal which was refused by Kenny J on 1 October 2004. An application to the High Court for special leave to appeal from that refusal is still pending as is a similar application for special leave to appeal from another order of Kenny J refusing leave to appeal from orders of Phipps FM in relation to the pleadings in those proceedings. Until those outstanding applications in the High Court have been discontinued or otherwise determined, I consider it highly undesirable, if not prohibited by s 32AA of the Federal Court of Australia Act 1976,for this Court to entertain the present proceedings, which, as I have already observed, overlap to a considerable extent the FMC proceeding. 89 Moreover, because, as noted at [87] above, there has been no resolution of any substantive issue in the FMC proceeding, no question of res judicata or issue estoppel can present itself as a barrier to the applicant's obtaining, in one forum or the other, a determination on the merits of those claims which properly remain open to her. That is not to say that, if the applicant were to discontinue the FMC proceeding or they were summarily dismissed, she would be allowed, as of right, to have lifted the stay of the present proceedings which I propose to order. In the event of such discontinuance or summary dismissal, this Court would then have to exercise, in the light of the considerations canvassed in these reasons and any other matters regarded as relevant, the discretion, recognised by O 82 rr 5, 6 and 7 of the Rules of this Court, whether or not to transfer the present proceedings to the Federal Magistrates Court.

[59]

(d) Pro bono assistance 93 The extent to which the applicant can obtain pro bono assistance for litigation in this Court compared with the availability of similar assistance in the Federal Magistrates Court will be a further consideration to be taken into account if the stay which I propose to grant is lifted and it becomes necessary to consider whether to transfer the present proceedings to the Federal Magistrates Court. As presently advised, I do not perceive any significant difference between the scheme for pro bono assistance erected by O 80 of the Rules of this Court and that available under Pt 12 of the Federal Magistrates Court Rules 2001. Even if there were a relevant difference, the needs of the applicant could be accommodated by making a referral under O 80 before any consideration was given to transferring the present proceedings to the Federal Magistrates Court. I respectfully agree with the observation by Hayne J reproduced at [40] above to the effect that a referral for pro bono assistance will not be deprived of operation upon a transfer to the Federal Magistrates Court of the proceedings in relation to which the referral has been made. I should also record my perception that, although, in the course of her litigation against the University, the applicant has received pro bono assistance from at least two practitioners (Mr Bickford and Mr O'Brien), her proliferation of interlocutory process discussed below has not been the result of any advice or encouragement from a practitioner on the Pro Bono Panel. As Kenny J observed in Ogawa v The University of Melbourne (No 2) (supra) at [46], the applicant has sufficient facility in English to be capable of fully understanding statements made to her in the Federal Magistrates Court and this Court. I consider, as well, that the resourcefulness and ingenuity which the applicant has shown in formulating and conducting a multiplicity of interlocutory processes make it appropriate for her to assume full responsibility for the exercise of judicial discretion as to costs and otherwise to which those processes have given rise.

[60]

(e) Previous orders for costs 94 As I understand it, there are at least six orders for costs which have been made against the applicant in favour of the University, all of which remain unsatisfied. Of those orders, that noted at [5] above has been stayed. However, the costs orders of Phipps FM of 27 July 2004, North J of 10 August 2004, Kenny J of 1 October 2004, Hayne J of 13 October 2004 and Heydon J of 9 December 2004 are all extant and unsatisfied. Each of those costs orders, except that by Heydon J, is capable of being set aside if the applicant obtains special leave to appeal to the High Court and the relevant appeal is ultimately upheld. As noted at [22] above, the applicant has foreshadowed a further application for special leave to appeal from the order of Heydon J. 95 Nevertheless, a respondent in the position of the University, which has numerous unsatisfied orders for costs against an impecunious applicant is entitled to look for protection against incurring further costs which may never be recouped. That protection should subsist, I consider, until the extant orders for costs have been set aside or satisfied. I am mindful of the need to ensure that an impecunious applicant is not shut out by a potential liability for costs from pursuing an apparently meritorious claim against a large and wealthy corporation like the University; see eg, James v ANZ Banking Group Ltd (No 1) (1985) 9 FCR 442 at 445-6. 96 However, it has to be borne in mind that the orders for costs to which I have referred have been made in the course of a flurry of procedural motions and applications initiated by the applicant with manifestly no prospect of obtaining, by any of them, a resolution of even part of the merits of her claim. Moreover, the orders were all made in circumstances where the Judge or Magistrate exercising the discretion as to costs can be taken to have been well aware of the applicant's impecuniosity and the great financial resources of the University. As well, the applicant was clearly warned that persistence in proliferating technical or unmeritorious applications would expose her to the risk of an order to pay the University's costs to be taxed on an indemnity basis; see Ogawa v The University of Melbourne (No 2) (supra) per Kenny J at [48]. 97 In these circumstances, the existence of several unsatisfied costs orders against the applicant has been a potent factor influencing me to exercise my discretion in the way indicated at [86] above.

[69]

100 It will be seen that the Federal Magistrates Court has as full and ample a jurisdiction as this Court to entertain an application under s 46PO. The fact that the applicant now wishes to pursue relief for a contravention of the RDA for which she alleges the University is vicariously liable does not, of itself, mean that the FMC proceeding is no longer an appropriate vehicle for the resolution of all matters in dispute between the applicant and the University. 101 More importantly, the making of an application under s 46PO within the time specified in subs (2) is, I consider, a condition precedent to the exercise by the court concerned of any of the powers enumerated in s 46PO(4). As the applicant accepts that the "application" embodied in the amended statement of claim has been made well outside the 28 days after the issue by HREOC of the Notice of Termination stipulated by s 46PO(2), the allowance of further time by the court concerned is a necessary prerequisite to her pursuit of relief under s 46PO(4). If the applicant seeks the allowance of further time, the court concerned will decide in accordance with the guidance afforded by cases like Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 whether to allow the further time for the application to be made which will now exceed by more than two years the 28 days specified in s 46(2) for an application as of right. The selection by the applicant of this Court as "the court concerned" for the purposes of s 46PO of the HREOC Act will not preclude the making of an order transferring any resultant proceedings under that Act to the Federal Magistrates Court pursuant to s 32AB of the Federal Court of Australia Act and O 82 of the Rules of this Court. 102 For these reasons the applicant's desire to pursue a claim for relief in respect of the University's alleged liability for contravention of the RDA has not weighed with me in deciding to exercise the discretion to grant a stay of the present proceedings.

[82]

109 Clause 45 of the National Code established pursuant to Pt 4 of the ESOS Act provides; 'The registered provider must have in place appropriate support services and be able to demonstrate the advice provided to intending overseas students on these services. These must include appropriate arrangements for independent grievance handling/dispute resolution, which are inexpensive and include a nominee of the student if the student so chooses. The procedures must allow for prompt resolution having regard to the duration of the overseas student's stay in Australia on a student visa.' A footnote to that clause recites; 'Dispute resolution services may be provided by the Authority, or by industry associations, or through other dispute resolution services including mediation or conciliation services.' 110 The applicant herself has contributed an article 'University grievance handling for overseas students: ESOS Act and the National Code' to the Australian Journal of Administrative Law: (2003) 10 AJ Admin L 1632. In the course of that article, she recounts the difficulties which were experienced in endeavouring to have the University make appropriate arrangements for resolving her complaints. The result of those endeavours seems to have been an acceptance by the University that the Victorian Ombudsman to whom the applicant had earlier complained was the service provider in respect of the dispute resolution which the University was required by cl 45 of the National Code to arrange. For reasons explained in the article, the applicant regarded as unsatisfactory that adoption by the University of the Ombudsman as the means of resolving her dispute. 111 As I understand it, the applicant relies on the University's failure to implement cl 45 as a ground for allowing the present proceedings to remain on foot and as warranting an order that the University pay forthwith her costs, including future costs as they are incurred, of the present proceedings. Those costs, she contends, should be taxed on an indemnity basis. 112 I have not been persuaded that the applicant should be allowed to call in aid in either of those ways the National Code made under the ESOS Act. The University has not conceded that it has been in breach of any duty imposed on it by cl 45. Nor has the applicant sought in the present proceedings, or otherwise, as far as I am aware, to enforce any duty said to be created by cl 45. Moreover, the evidence does not reveal the outcome (if any) of the inquiries undertaken by the Victorian Ombudsman, or any other efforts by that officer, to resolve the dispute. In these circumstances, I have accorded the alleged breach of cl 45 no weight in the exercise of my discretion to stay the present proceedings until further order. As presently advised, I consider that it should similarly have no bearing on a future decision whether or not to lift the stay. Whether it should be taken into account on the making of any final order as to the costs of the present proceedings, should properly await the exercise of that discretion.

Ogawa v The University of Melbourne

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Judgment (85 paragraphs)

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Legislation Cited (5)

Cases Cited (15)

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