Ogawa v The University of Melbourne

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.

The Rules of the Court 23 Order 20 r 2(1) of the Rules of this Court provides; 'Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - (a) … (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the court; (d) the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.' 24 Order 11 r 16 provides; 'Where a pleading: .. (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of the process of the Court; the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.'

Respondent's submissions 25 Pursuant to an order made at the hearing on 26 April 2005, the respondent's submissions dated 22 April 2005 and its oral submissions at the hearing were supplemented by further submissions dated 14 June 2005 in reply to the applicant's oral submissions at the hearing and her written submissions filed and served on 27 May 2005.

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)

The pleading 30 In support of its claim that the present proceedings are vexatious and an abuse of process, the University submitted that the applicant's statement of claim filed on 3 December 2004 in this proceeding included claims based upon allegations of fact, which had been made in an identical form in the FMC proceeding and had been the subject of an order made by Phipps FM on 3 September 2004 striking out part of the pleading in the FMC proceeding. The applicant's submissions referred to at [55] and [56] below were said to provide no answer to the contention that the applicant has included in the amended statement of claim in the present proceedings allegations of fact which - made in identical form - had been struck out by Phipps FM in the FMC proceeding. Given that she had made no attempt to reformulate the pleading, the applicant's mechanical reproduction of the allegations found objectionable by Phipps FM, it was argued, was the clearest possible indication of her refusal to abide by court orders. 31 According to the University, the amendments to the statement of claim filed on 16 March 2005 do not materially change the character of the pleading save for the inclusion of a claim for relief pursuant to the provisions of the RDA which was said not to warrant the institution of these proceedings in the Federal Court.

Racial discrimination claim 32 Mr Caleo pointed out that the applicant's claim for relief pursuant to the provisions of the RDA which had been introduced by the recent amendments to the statement of claim in the present proceedings, forms no part of the FMC proceeding. That claim, however, was said to be substantially identical to a complaint made by the applicant to the Human Rights and Equal Opportunity Commission ("HREOC"). In support of this assertion, in pars 8 to 17 of an affidavit sworn 19 April 2005 by Emma Louise Murphy on behalf of the University, it was deposed in respect of the applicant's amended statement of claim filed on 16 March 2005 ("ASC"); 'Claim of racial discrimination 8. In her ASC, Ms Ogawa alleges, among other things, that the University (whether by itself or through its officers) discriminated against her by, in essence:

(a) providing her with a supervisor who 'did not have the intention and/or ability to supervise [her] to complete [her] PhD study' (paragraphs 35 and 15A(a) of the ASC);

(b) repeatedly telling her to 'go back to Japan' notwithstanding that she was required to stay in Australia (paragraphs 35 and 15A(b) of the ASC);

(c) failing to provide her with a supervisor for the period 12 April to 1 July 2002 in circumstances where no Australian student was without a supervisor in the Faculty of Law, and the University rules required the appointment of a supervisor for all PhD students (paragraphs 35 and 15A1 of the ASC);

(d) issuing directions to staff members of the Faculty of Law not to hold a conversation with her in the absence of an observer (paragraphs 35 and 15A2 of the ASC); and

(e) insisting that Professor Malcolm Smith was an appropriate supervisor for her notwithstanding that Professor Smith's area was not intellectual property law (paragraphs 35 and 15A3 of the ASC),

This is not the first time that Ms Ogawa has made a complaint concerning racial discrimination against the University.

In particular, in complaints numbered G1509, G1635 and G1636 of 2003 and G328 of 2004 in the Victorian Civil and Administrative Tribunal ('VCAT'), Ms Ogawa alleges, among other things, that she has suffered loss and damage as a result of racial discrimination against her by Professor Megan (sic) Richardson. The act of discrimination complained of is Associate Professor Richardson allegedly saying 'Go back to Japan!' to her. Now produced and shown to me and marked 'ELM-4' is a copy of the VCAT complaints in G1509, G1635 and G1636 of 2003 and G328 of 2004.

Further, on 15 October 2002, Ms Ogawa lodged an electronic complaint with the Human Rights and Equal Opportunity Commission ('HREOC') concerning her candidature as a PhD student at the University ('Complaint'). Now produced and shown to me and marked as confidential exhibit 'ELM-4' is a copy of Ms Ogawa's Complaint to HREOC dated 15 October 2002.

By an undated letter to Mr Dominic Vircillo of HREOC, Ms Ogawa submitted additional information to HREOC concerning her Complaint. Now produced and shown to me and marked as confidential exhibit 'ELM-6' is a copy of Ms Ogawa's undated letter to Mr Vircillo of HREOC and its attachment.

By letter dated 17 December 2002, HREOC wrote to Professor Alan D Gilbert, the then Vice Chancellor of the University, about the Complaint. Now produced and shown to me and marked as confidential exhibit 'ELM-7' is a copy of the letter from HREOC to Professor Alan D Gilbert of the University dated 17 December 2002.

The University responded to Ms Ogawa's Complaint under cover of a letter dated 17 January 2003 from the University to Professor Alice Tay, President of HREOC. Now produced and shown to me and marked as confidential exhibit 'ELM-8' is a copy of the University's response to HREOC dated 17 January 2003, excluding the attachments to that letter.

By letter dated 7 May 2003, Ms Rocky Clifford, a delegate of the President of HREOC, advised the University, among other things, that she had decided to terminate Ms Ogawa's Complaint for the reasons stated therein. Now produced and shown to me and marked as confidential exhibit 'ELM-9' is a copy of the letter dated 7 May 2003 from HREOC to Professor Kwong Lee Dow, Deputy Vice Chancellor of the University.

The Impugned Conduct is substantially identical to or the same in substance as the Complaint (as elaborated by the letter which is exhibit 'ELM-6' above), and/or arises out of the same or substantially the same acts, omissions or practices as the Complaint. This is made clear by the letter from HREOC to the University dated 17 December 2002 (exhibit 'ELM-7' above).

I am informed by Michael Dean, Director, Legal Services and Intellectual Property Officer at the University, and believe that Ms Ogawa did not make an application to either the Federal Court or the Federal Magistrate's Court to hear the original allegations within 28 days of HREOC's termination notice in relation to the Complaint or thereafter.'

33 The University contends that the inclusion of a claim in this proceeding pursuant to the RDA in respect of the same conduct which the applicant had notified to HREOC is vexatious and an abuse of the process of the Court.

Collateral attack 34 In addition, it has been argued on behalf of the University that the course adopted by the applicant amounts to a collateral attack upon: (a) the original decision of Kiefel J to transfer the proceedings commenced by the applicant in the Queensland District Registry of the Federal Court in 2003 to the Victoria District Registry; (b) the decision of Marshall J to transfer the proceedings with the consent of the applicant to the Federal Magistrates Court; (c) the decision of Phipps FM to dismiss the applicant's application for the matter be transferred back to the Federal Court in the Victoria District Registry; (d) The decision noted at [12] above of Phipps FM on 3 September 2003 to strike out paragraphs of the applicant's second further amended statement of claim. 35 In the University's submission, insofar as the institution of the present proceedings constitutes a collateral attack upon the order of Phipps FM on 3 September 2003, it is, for that further or alternative reason, vexatious and an abuse of the process of the Court.

Relief sought by applicant not available in Federal Magistrates Court

(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.

(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.)

(a) Transfer of proceedings 42 In any event, the University submitted, if there had been a proper foundation for a transfer of the FMC proceeding to the Federal Court, the appropriate course would have been for the applicant to have made an application in the FMC proceeding seeking that relief. There is no obstacle to such an application. If such relief were sought and granted, it was submitted, the obvious course would be for a transfer to the Victoria District Registry as there is no warrant for returning the dispute to Queensland for resolution. The applicant, so the argument went, was well aware of this course as she has previously pursued it and the Court can therefore more readily conclude that the institution of this proceeding is vexatious and an abuse of process. 43 The fact that the FMC proceeding was listed for hearing on 8 August 2005 was relied on by the University as supporting its submission that the applicant has deliberately sought to delay the hearing of the underlying dispute by instituting proceedings in this Court. That assertion was said to be borne out by her failure, since the trial directions made by Phipps FM on 28 October 2004, to take any steps to expand the FMC proceeding to embrace the additional issues she now says that she wishes to ventilate; (see par 55 of the applicant's affidavit discussed at [55] below). That failure, Mr Caleo noted, has occurred despite the grant of leave by Phipps FM on 3 September 2004 to the applicant to amend her statement of claim in the FMC proceeding. These considerations were said to make applicable to the applicant the warning given by Mason J to Mrs Inglis in Moore v Inglis (supra) at 515; 'She must make up her mind once and for all as to how she is going to present her case'

(b) Respondent's submissions in relation to the applicant's additional claims 44 In par 105 of her written submissions, the applicant seeks as follows; 'Order 105. In light of all the circumstances, the appropriate order should include (but not be limited to) that:

(i) the Respondents motion by notice dated 18 March 2005 be dismissed;

(ii) the Applicant have leave to apply to this Court pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth);

(iii) the Applicant have leave to amend the amended statement of claim;

(iv) the Applicant be granted pro bono assistance up to and including trial pursuant to O.80 of the Rules of this Court;

(v) the Respondent pay the Applicant's costs of and incidental to the entire proceeding up to and including trial in the matter of QUD245 of 2004 on an indemnity basis;

(vi) the Respondent pay forthwith the Applicant's costs of and incidental to the Respondent's motion dated 18 March 2005 on an indemnity basis;

(vii) the matter proceed in the Queensland District Registry of this Court up to and including trial.'

45 In the University's submission, the determination of the respondent's notice of motion dated 18 March 2005 is not the appropriate vehicle for a consideration of the relief requested by the applicant in sub-pars 105(ii), (iii), (iv) and (vii). Moreover, it was contended, the relief sought in subpar 105(v) is "nonsensical" and a further reflection of the nature of the conduct engaged in by the applicant throughout the course of her dispute with the University. 46 Secondly, the University cautioned against uncritical acceptance of what it said are the numerous unfounded assertions in the applicant's material. In some instances, it was submitted, the matters asserted by the applicant are scandalous, as for example in par 72 of the applicant's affidavit reproduced at [57] below. In other respects, the applicant's contentions, like that in par 34 of her written submissions, were said to be misconceived. As well as being scandalous, par 72 of the applicant's affidavit was said to be contradicted by exhibit MO37 which is exhibited to that paragraph. According to the University, similar caution should be exercised in considering factual assertions made in the applicant's written submissions, including, for example, those about the contents of the Magistrates Court Annual Report 2003-2004 to which I have referred at [63] below.

(c) O 20 r 2 47 Although it was accepted on behalf of the University that the power conferred by O 20 r 2 should be exercised sparingly and with care, Counsel urged that this is a plain case for dismissing the proceedings. Alternatively, it was contended, the proceedings should be stayed. (d) O 11 r 16 48 The relief sought in pars 2 and 3 of the University's notice of motion dated 21 March 2005 was said to be alternative to the relief sought pursuant to O 20 r 2; (see [1] above of these reasons). In support of that alternative relief, the University relies upon the matters outlined in [29], [34], [35], [36], [37] and [38] above.

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.

Vexatious proceedings 53 The applicant submitted that neither the commencement of the proceedings nor the contents of her statement of claim are vexatious or an abuse of process. She asserted that she does not now have, and has never had, any intention of pursuing the present proceedings and the FMC proceeding concurrently. Accordingly, she submitted, the commencement of the present proceedings is not oppressive to the University and hence does not constitute an abuse of process; see Morningstar Research Pty Ltd v Fiduciary Ltd (supra) at 242. 54 The applicant contended that she has commenced this proceeding in an appropriate forum for the genuine purpose of resolving a dispute. Reliance was placed on the proposition that, when considering whether there has been an abuse of process, the "Court has regarded the purpose of the party instituting the proceedings as of crucial importance"; Williams v Spautz (1992 ) 174 CLR 509 at [29] per Mason CJ, Dawson, Toohey and McHugh JJ. However, the applicant accepted that the commencement of a second proceeding in respect of the same subject matter in a different court may be considered an abuse of process where the relief claimed in the second proceeding is obtainable in the first court; Moore v Inglis (supra) at 514; see also Lidden v Composite Buyers Ltd (supra) at 559.

The pleading 55 At par 55 of her affidavit sworn 26 April 2005 the applicant deposed that, on 16 March 2005, she filed an amended application and an amended statement of claim in which she had added four more claims based on breach of contract, defamation, breach of natural justice and unconscionable conduct and the RDA cause of action. She also deposed, however, that she had not yet been able to raise in the amended pleadings all the issues she wishes to put before the Court. At par 59 she indicated that she had advised the University by email that she intended to seek leave at the first directions hearing to further amend the amended statement of claim. Those further amendments, she explained, would accord with the orders of Phipps FM in the FMC proceeding on 3 September 2004 striking out certain passages of the pleadings in those proceedings and granting her leave to re-plead within 28 days. The proposed amendment of the pleadings in this Court would not prejudice the University which could simply file in this Court its current defence in the FMC proceeding with appropriate amendments to accommodate the amendments which the applicant has foreshadowed. 56 By way of resisting the University's application for a stay of the present proceedings, the applicant contended that her appeal contesting the validity of the orders of Phipps FM would only determine whether it is mandatory or optional for her to recast the pleadings, but that she intends to re-plead and file a further amended statement of claim in any event.

The racial discrimination claim 57 In relation to the respondent's submission that the applicant's claim pursuant to the RDA is substantially identical to a complaint made by the applicant in the HREOC, the applicant deposed at par 72 of her affidavit of 26 April 2005; 'I also tried to resolve the dispute with the Respondent by complaining to the Human Rights and Equal Opportunity Commission. The Human Rights and Equal Opportunity Commission terminated my complaint based on the falsified statements of fact submitted by the Respondent. On 30 May 2003, Professor Alice Tay, the President of the Human Rights and Equal Opportunity Commission, conceded the findings of all facts upon which the Human Rights and Equal Opportunity Commission had terminated my complaint were errors and recommended me to bring her letter in which she conceded the errors to the Federal Court or the Federal Magistrates Court'.

Collateral attack 58 For the reasons summarised at [54] above, the applicant submitted that one of two avenues were open to permit the hearing and determination by the Federal Court of the matters in issue. If she is successful in her attempts in the High Court to have the judgments of Phipps FM and Kenny J overturned with the result that the matter currently the subject of the FMC proceeding is validly transferred back from the Federal Magistrates Court to the Federal Court, that proceeding could be consolidated or heard together with the present application to this Court. Alternatively, the present application should be heard instead of the FMC proceeding. The refusal on 12 July 2004 of Phipps FM to transfer the FMC proceeding back to the Federal Court should not affect the present proceedings as the Federal Magistrates Court does not have jurisdiction to hear the matter as it is now proposed to be constituted. The applicant's detailed submissions as to why the Federal Magistrates Court lacks jurisdiction to entertain the whole of her claim are summarised at [60] to [62] below. 59 Furthermore, according to the applicant, to allow the present proceedings to continue in this Court would not be inconsistent with the orders in the FMC proceeding. The applicant also seemed to submit that Marshall J's order to transfer the proceedings to the Federal Magistrates Court should be overlooked as it is more convenient for the matter to be heard in Queensland where she is now resident and that Kiefel J's transfer order ought also to be disregarded as it was made before this Court adopted its present policy in relation to video link fees.

Whether relief sought by applicant available in Federal Magistrates Court

(a) Jurisdictional limit 60 The applicant claimed that the Federal Magistrates Court does not have jurisdiction to grant relief to the full extent which is now sought; only the Federal Court has jurisdiction to hear her claim for damages of more than $200,000 for alleged contraventions of the TPA. 61 The applicant claims that the estimate of the damages which she is likely to recover which was made by Marshall J in Ogawa v University of Melbourne [2004] FCA 491 at [44], reproduced at [37] above, should not be taken into account because it had been based on an assumption that the trial would occur in the Federal Magistrates Court in 2004. Moreover, it was submitted, the applicant has suffered further visa complications since that time and has made various amendments and additions to her statement of claim increasing the amount of damages claimed. 62 The applicant also contended that it must be borne in mind that she has not yet pleaded all the causes of action now available and the relief, including damages, that she intends to seek will include not only compensation for living expenses and loss of opportunity but also the cost of dispute resolution including all the applicant's costs in the multiplicity of proceedings which are the result, she claims, of the University's conduct. The applicant contends that these include the costs of a migration proceeding, the costs of obtaining a new student visa which necessitates overseas travel and the expenses to be incurred in undertaking further study of developments in the applicant's area of research.

(b) Pro bono assistance 63 Another contention of the applicant was that the matter ought to be heard in the Federal Court where pro bono assistance is available to her instead of in the Federal Magistrates Court where it is not available. The applicant submitted that the Federal Magistrates Court does not provide pro bono assistance for matters arising under the TPA. The applicant referred to pp 38-9 of the Federal Magistrates Court Annual Report 2003-2004 in support of this submission. 64 The applicant also referred in the same context to an email from Ms Adele Byrne, Registrar, Federal Magistrates Court, of 13 July 2004. The email which is exhibit "MO-14" to the applicant's affidavit sworn 26 April 2005 stated; 'Dear Ms Ogawa A pro bono referral has been made under Part 12 Federal Magistrates Court Rules 2001 in relation to the hearing on 27 July. However we do not have arrangements with the profession to facilitate any referral to a barrister in Brisbane. I have spoken to a barrister in Melbourne who may be in a position to assist by providing representation on 27 July but cannot make a commitment thereafter.' 65 The applicant made further submissions to the effect that she should be accorded pro bono representation pursuant to O 80 r 4(1) of the Federal Court Rules particularly as the present application, in essence, revives the previous application (Q136 of 2003) in which Weinberg J ordered a pro bono referral up to and including trial and which Marshall J transferred to the Federal Magistrates Court with an extant pro bono referral.

(a) O 11 r 16 66 The applicant submitted that the present proceedings should not be summarily dismissed or struck out as no decision of the High Court on appeal will allow the matter to be remitted to the Federal Magistrates Court because the pecuniary limit on the jurisdiction of that Court will be exceeded in the ways instanced in her earlier submission which I have already outlined. 67 The applicant further submitted that the present proceedings ought not be stayed pending the appeals to the High Court because to prolong the extant proceedings which predated the present proceedings would be oppressive to the applicant on account of related visa issues and would be an abuse of process by the respondent. (It was submitted that her bridging visa may be cancelled at any time and that she is also impecunious as a result of the University's alleged actions). One instance of a dereliction of duty by the University was said to be its failure to comply with the requirement of Pt 4 of the Education Services for Overseas Students Act 2000 (Cth) ("the ESOS Act") and par 45 of the National Code established pursuant thereto which requires the University to arrange "independent grievance handling/dispute resolution" which "must allow for prompt resolution having regard to the duration of the overseas student's stay in Australia on a student visa". 68 The applicant also adverted to s 47(1) of the Melbourne University Act 1958 (Vic) as at 28 April 2003 which conferred jurisdiction upon the University Visitor ("the Visitor") to resolve a dispute within the University. However, she claimed that the Visitor had refused to hear her claim notwithstanding the fact that the Visitor had, in her submission, the "exclusive jurisdiction of a court of justice at that time"; Patel v University of Bradford Senate [1978] 1 WLR 1488.

(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.

Costs 74 The applicant seeks an order that the whole of her costs in the present proceedings Q245 of 2004 be taxed on an indemnity basis and paid by the University as they are incurred. A basis for such an order was said to be supplied by the University's failure to make available the processes for ventilating grievances and resolving disputes which are contemplated by the ESOS Act and the National Code. The applicant relies upon the reference in Ruddock v Vardalis (supra) at [10] for the proposition that the discretion of the Court to award costs is unfettered and the only restriction on the Court's discretion is that it be exercised judicially and not be exercised for some reason unconnected with the case.

Resolution of THE issues 75 Before deciding whether to accede to the University's motion on notice dated 21 March 2005, it is desirable to review in more detail certain questions of law raised by the parties and to make some findings of facts which bear on the discretion which the University's motion requires this Court to exercise.

Vexatious proceedings 76 Prima facie it is vexatious and an abuse of process for an applicant to commence a second proceeding against the same person in another court in respect of the same factual matters which have been raised in proceedings pending in the first court; Moore v Inglis (supra)at 514; Lidden v Composite Buyers(supra) at 559; Morningstar Research Pty Ltd v Fiduciary Ltd (supra) at 240. 77 However, the commencement of a second proceeding will not amount to an abuse of process where differences in the two actions are sufficient to displace the presumption; Moore v Inglis at 514. Similarly, proceedings will not be an abuse of process where they arecommenced in two separate courts for the purpose of having the entirety of the disputes between the two parties dealt with by one court, utilising cross-vesting legislation to seek a transfer of existing proceedings in the Federal Court that could not otherwise be transferred; Morningstar Research Pty Ltd v Fiduciary Ltd (supra) at 242. 78 In considering whether there has been an abuse of process, the High Court "has regarded the purpose of the party instituting the proceedings as of crucial importance"; Williams v Spautz (1992) 174 CLR 509 at 524 per Mason CJ, Dawson, Toohey and McHugh JJ. If that purpose is not to effect an object within the lawful scope of the process but is ulterior to the nature of the process the institution of the proceedings will be an abuse of process; Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509 at 521-522 per Isaacs J; Williams v Spautz (supra) at 524-527 per Mason CJ, Dawson, Toohey and McHugh JJ. 79 To determine whether the current application is vexatious or an abuse of process it is first necessary to consider whether the issues raised by the applicant in the present proceedings are sufficiently different from those raised in the FMC proceeding to warrant the institution of a second action to have them resolved.

The pleading 80 I accept the submission on behalf of the University that the applicant's statement of claim in this Court contains passages identical topassages in her statement of claim in the FMC proceeding which Phipps FM on 3 September 2004 ordered to be struck out. The applicant has made no attempt so far to reformulate her pleading in the Federal Magistrates Court. She has, however, filed in this Court a statement of claim which alleges the same set of facts and seeks to raise four additional issues and another cause of action (the RDA claim). The applicant has not yet sought leave to further amend that amended statement of claim although she has indicated that she intends to do so at the first directions hearing in these proceedings.

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.'

Outcome of the University's motion 86 The multiplicity of proceedings which have been initiated by the applicant and the number of interlocutory rulings and orders which those proceedings have spawned makes it difficult to fit the present case into one or other of the categories of vexatious proceedings or abuse of process which the University has invoked. However, despite that difficulty, I have reached a clear view that the proper exercise of this Court's discretion is to stay the present proceedings until all of the extant applications or other proceedings in the High Court and the Federal Magistrates Court have been determined, discontinued or otherwise resolved. In what follows, I shall endeavour to indicate my reasons for that exercise of discretion while touching on those issues agitated in the competing submissions of the parties which have influenced the discretion or which may have a bearing on the future conduct of this proceeding or the other extant proceedings.

(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.

(b) Collateral attack 90 The course which I have outlined above under the heading "Parallel proceedings" will dispose of the difficulty raised by the University that to allow the present proceedings to continue would be to countenance a collateral attack on the orders respectively made by Kiefel J, Marshall J, Phipps FM and Kenny J. Ex hypothesi, the FMC proceeding to which those orders were directed will have been brought to an end and, although the discretion to which I have adverted at [89] above will fall to be exercised in some of the circumstances in which those earlier orders were made, the relevant circumstances will not be identical. Accordingly, for this Court to exercise the discretion afresh will not amount to sanctioning a collateral attack on the earlier orders.

(c) Limit on the jurisdiction of the Federal Magistrates Court 91 Section 86AA of the TPA provides; 'If proceedings under section 82 are instituted in, or transferred to, the Federal Magistrates Court, the Federal Magistrates Court does not have jurisdiction to award an amount for loss or damage that exceeds:

(b) if another amount is specified in the regulations - that other amount.'

92 That limitation will assume an obvious relevance 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 pursuant to s 32AB of the Federal Court of Australia Act O 82 rr 5, 6 and 7 of the Rules of this Court noted at [89] above. The effect of the limitation under s 86AA of the TPA will depend on the Judge's assessment of the evidence available at the time which tends to show that the amount representing loss or damage which the applicant is likely to recover from the University under the TPA will exceed $200,000. Also relevant to the exercise of that discretion will be the extent to which the present application properly raises other claims or causes of action which are not within the original jurisdiction of the Federal Magistrates Court and the general importance of each of the justiciable issues involved in the proceedings.

(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.

(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.

(f) The claim under the Racial Discrimination Act 98 By pars 35 to 39 of the amended statement of claim, the applicant alleges that conduct by certain members of the academic staff of the University was unlawful by virtue of s 9(1) of the Racial Discrimination Act 1975. Accordingly, it is alleged, the University is vicariously liable for the conduct by reason of which the applicant has suffered loss and damage. The applicant then claims, in par 39 "orders for the breach of the Racial Discrimination Act 1975". In fact, that Act does not itself provide for the awarding of damages or other compensation or the grant of other relief in respect of an act which the RDA makes unlawful. That is left to the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOC Act"). Subsections 46PO(1) and (2) of the HREOC Act provide; '(1) If:

(a) a complaint has been terminated by the President under section 46PE or 46PH; and

(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.'

99 By subs 46PO(4) the court concerned is empowered to make such orders as it thinks fit including; '(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c) an order requiring a respondent to employ or re-employ an applicant;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;'

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.

(g) Venue 103 The fact that the present proceedings have been issued out of the Queensland District Registry of this Court has not influenced my decision to grant a stay. Both this Court and the Federal Magistrates Court are national courts with facilities to conduct proceedings by video link between most of the major cities of the Commonwealth. As well, each Court may sit at any place in Australia. The discretion to conduct hearings in those ways may be exercised to accommodate the convenience or exigencies of witnesses from time to time; see eg, ss 52 and Div 5 of Pt 6 of the Federal Magistrates Act 1999. The hearing of the present motions in the instant case is a good illustration of the flexibility of the procedures available to this Court; the Court received the applicant's oral submissions from her in person in Brisbane and at the same time heard Counsel for the University by video link with Melbourne. In addition, each party was allowed to file and serve written submissions. Although the University's connection with Melbourne is obvious and although the subject matter of the present application is more closely linked with that city, I do not regard the fact that the present proceedings have been instituted in Brisbane where the applicant now resides as bearing on the exercise of the discretion to stay them. Nor do I consider that the question of venue should be accorded much, if any, weight if it ever becomes necessary to exercise the discretion whether to transfer the present proceedings to the Federal Magistrates Court.

(h) Applicant's alleged use of present proceedings as an instrument of delay 104 The applicant appears to have been less than diligent in prosecuting the FMC proceeding and in complying with orders made in that proceeding. However, I am not prepared, on that basis, to impute to her a desire to delay the eventual determination of the merits of her various claims against the University. To the extent that the University has sustained any real detriment as a result of what I have called the proliferation of interlocutory process initiated by the applicant, it has presumably been compensated by the various orders for costs to which I have adverted at [94] above. If the remaining proceedings in the High Court and elsewhere are similarly found to be without merit, the University can expect to be the beneficiary of similar orders as to costs. Accordingly, my decision to stay the present proceedings until further order does not reflect a view that they are being, or will be, used by the applicant as an instrument of delay.

(j) Public interest in the resolution of the present proceedings as a "test case" 105 The University has not accepted that the present proceedings are an appropriate vehicle for resolving whether it is a "trading corporation" or whether its offering of courses to overseas students is participation in "trade and commerce" as respectively defined in s 4 of the TPA. The application of those concepts may well require the finding of a complex body of facts which may be unnecessary if the applicant fails to establish that the relevant officers of the University were guilty of the acts which she has alleged against them. Similar considerations apply to the use of the present proceedings to explore the boundaries of the concept of "unconscionable conduct" erected by s 51AB of the TPA. 106 I accept that there may be considerable public interest in the discharge by publicly funded tertiary institutions of duties which they have assumed in relation to the tuition and supervision of overseas students or students generally. However, adversarial litigation inter partes like the present is notoriously inapt for the investigation of wide-ranging matters of public interest like those to which I have just referred. Whatever treatment the applicant establishes she was accorded by the University may well have been attributable to factors uniquely personal to her or particular to the course and subject-area in which she enrolled. At all events, the present proceedings will afford no scope for an investigation into whether other students have received similar treatment or whether the vice identified by Messrs Cain and Hewitt in "Off Course" has been endemic within the relevant administrative organs of the University. 107 I have not allowed the considerations identified under this head any weight in the exercise of my discretion to stay the present proceedings until further order.

(k) Conduct of University allegedly in breach of its duty under the ESOS Act 108 As I understand it, the applicant's contentions in reliance on the ESOS Act are predicated on a breach by the University of a duty which it owed to her under that Act. Part 4 of the ESOS Act provides for the establishment of a national code which must be accessible to the public and which, by force of s 38, must contain some or all of the following: '(a) standards and procedures to be applied by a designated authority in determining whether to recommend that an approved provider be registered;

(b) standards and procedures required of registered providers in providing courses to overseas students;

(c) standards and procedures required of a designated authority in monitoring registered providers' compliance with, and investigating possible breaches of, the national code;

(d) standards required of registered providers in connection with their dealings with their agents;

(e) standards required of a registered provider of a course in connection with the provider's dealings with other providers of the course;

(f) rules about the kind of connection required of a provider with a course in order for the provider to be registered;

(g) standards and procedures required of registered providers in making agreements relating to refunds of course money;

(h) standards required of the content of such agreements;

(i) any other matters that are necessary or convenient to give effect to the purpose of the national code.'

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.

Conclusion 113 As I have already indicated, I consider that a proper exercise of the Court's discretion on the University's motion is to order that the present proceedings be stayed until further order. To ensure that the incurring of future costs by the University is kept to a minimum and to protect the applicant from potential liability for those costs, I shall order that the applicant first obtain the leave of a Judge before filing and serving in this Court any process against the University including any motion or application to discharge or vary the stay which I propose to grant. 114 The University itself sought by motion to have the present proceedings summarily dismissed or to have the applicant's statement of claim summarily dismissed. As it has not succeeded in obtaining in full measure the relief which it sought, it should not have here and now an order for its costs of the motion. I consider that a preferable exercise of discretion as to those costs is to order that they be the University's costs in the cause. I shall make no order as to the applicant's costs of the motion. 115 Liberty to apply shall be reserved subject to the restriction indicated above on the applicant's ability to file and serve further process against the University. I certify that the preceding one-hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Dated: 19 August 2005 Counsel for the Applicant: The applicant appeared in person

Date of Written Submissions: 27 May and 14 June 2005