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[2014] FCA 1092
Federal Court of Australia
2014-10-10
Gummow JJ, White J
Original judgment source is linked above.
Date of hearing: 23 June 2014
Division: GENERAL DIVISION
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: The First Respondent did not appear
Solicitors for the Second Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 87 of 2014
JUDGE: WHITE J DATE OF ORDER: 10 OCTOBER 2014 WHERE MADE: ADELAIDE
JUDGE: WHITE J DATE OF ORDER: 10 OCTOBER 2014 WHERE MADE: ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 87 of 2014 SAD 95 of 2014
JUDGE: WHITE J DATE: 10 OCTOBER 2014 PLACE: ADELAIDE
REASONS FOR JUDGMENT 1 The applicant commenced two proceedings against each of the Australian Human Rights Commission (AHRC) and Deakin University (Deakin) on 28 April 2014. In each action, he seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), as well as other relief. 2 The AHRC filed a notice in each action indicating that it submitted to any order which the Court may make, but ultimately it consented to orders against it in Action SAD 87 of 2014. 3 This judgment concerns an application by the applicant to amend the originating application in Action SAD 87 of 2014 and an application by Deakin for dismissal of the proceedings against it on the basis that this Court does not have jurisdiction to hear and determine the claims brought against it or, in the alternative, on the basis that, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), the claims have no reasonable prospect of success. The applicant and Deakin made their submissions on both these issues at the one hearing. 4 The applicant is self-represented and English is not his first language. In addition, there is evidence that he suffers from a psychiatric illness. The applicant has filed a plethora of material which, with all respect to him, reflects the limitations resulting from these circumstances. It has not been altogether easy to identify the underlying basis for his claims against Deakin. 5 As I understand it, following a course of study the applicant was awarded the degrees of Master of International Business and Master of Arts (International Relations) by Deakin in October 2011. Some documents suggest that it may have been October 2012, but the earlier date appears to be correct. The applicant now wishes to be accepted by a university as a candidate for a higher degree in international marketing or for a doctorate of philosophy in international marketing. To assist in his applications to universities, he sought from Deakin a document containing the weighted average marks (WAM) which he obtained for 16 subjects which he had studied at Deakin. In addition, he sought to have Deakin correct the mark he was awarded in 2009 for the subject Marketing Management, from 50/100 to 56/100. He contends that he was awarded the lower mark by reason of an arithmetical error. 6 There is apparently some history to the applicant's requests to Deakin, but that history was not disclosed in a coherent fashion. It does not seem to be necessary for resolution of Deakin's application to have an understanding of that history. 7 Deakin has refused both of the applicant's requests. Although at one stage it was prepared to put in place a process by which the WAM could be obtained, it has not done so. Mr Rana's e-mail communications with Deakin include the following: Saturday, 1 March 2014 7:03am To: DSA enquiries … Subject: I seek grade points averages to my 16 subjects that I did with you for Master of International Business and Master of Arts (International Relations) … Dear Vice Chancellor, I have been seeking grade points averages since 2011, and am willing to pay any amount for the necessary documents. This document I seek from you is that for my needs to apply to do Doctor of Philosophy in Marketing in Flinders University as soon as possible. I have been told by your stupid lawyer not to apply as it will not be granted. I seek my necessary document as I have diabetes and paranoid schizophrenia. Tuesday, 4 March 2014 1:28pm To: DSA enquiries … Subject: Seeking grade points averages from Deakin University and Adelaide University in 15 topics from Deakin and 1 topic from Adelaide Unis … I have provided you Flinders [University's] link below, which says I need to submit to them Grade Point Averages to do Doctor of Philosophy in Marketing, which is in 15 topics that I did at Deakin and one topic at Adelaide University for the double degrees I did at Deakin University from 2006 to 2011 for my Master of International Business, and Master of Arts (International Relations). So far Deakin has failed to provide me such document and I am willing to pay any price. Legally they should [have] provided me within reasonable time after I graduated in 2011. 8 Ms Rooney, the university solicitor at Deakin, responded to the applicant on 5 March 2014 at 12:14pm as follows: Thank you for your e-mails of 1 and 4 March 2014 … I understand that you seek "grade points averages to my 16 subjects that I did with you for Master of International Business and Master of Arts (International Relations)". As you were enrolled in a combined degree and a Deakin University transcript of results does not have [a] (WAM) weighted average mark on it, the WAM would need to be worked out manually by each faculty. I can ask each of the faculties to do this for you and put it in a letter addressed to you. Please confirm that this is what you are requesting. Mr Rana responded the same day saying: Dear Shirley, I confirm that you should send me GPA or WAM on my 16 topics as soon as possible, and then I can apply to do Doctor of Philosophy in Marketing in Flinders University of South Australia or any university in this planet. Please adjust 56 out [of] 100 marks in my Marketing Management. As it stands you made an arithmetic error that in this topic I have only 50 out of 100 marks, which is falsely shown in my official transcript. This is a condition I impose on you. The next exhibited e-mail is from Ms Rooney to the applicant on 6 March 2014: Dear Mr Rana, Your e-mail of 5 March is rude, threatening and most certainly defamatory, having been published to Mrs Gregurev via dardagregurev@gmail.com. Deakin University does not consider your conduct to be acceptable behaviour in the workplace and directs you to cease this conduct immediately. You are directed to cease contacting Deakin University staff. You may direct any inquiries, requests or legal proceedings to uni-solicitor@deakin.edu.au. In this instance I suggest that you take your request to the Court of your choice. 9 The applicant's e-mail of 5 March did not seem to warrant the characterisation of being "rude, threatening and most certainly defamatory", and it is not shown as having been copied to Ms Gregurev. It seems that Ms Rooney was referring to another e-mail from Mr Rana on 5 March but this has not been exhibited. However, Mr Rana acknowledged on more than one occasion during the course of the present proceedings that he had told Ms Rooney "You moo cow. You can get fucked." (See the applicant's affidavit of 5 June 2014 at [7(2)], the applicant's Rebuttal of Deakin's Genuine Steps Statement at [6], the applicant's Outline of Submission filed on 16 June 2014 at [11], the transcript of the submissions on 23 June 2014 at page 35 lines 9 and 38, the applicant's Statement of Claim in relation to his claims against the AHRC at [4(iii)] and the indirect reference on page 2 of the applicant's letter of 27 March 2014 to the AHRC). The applicant also acknowledged expressly that these statements were the reason why communications between Deakin and him had broken down and, implicitly, that this was the reason why he had not been provided with the WAM document which he sought. 10 In an e-mail of 25 March 2014 to the applicant, Ms Rooney informed him that, as he had undertaken the subject of Marketing Management in 2009 and had since been awarded his degree, he was outside the time fixed by Deakin's assessment procedures in which to seek a review of his marks. The e-mail went on to deny that there was, in any event, an error in the mark awarded to the applicant. 11 Even before 25 March 2014, the applicant had complained to the AHRC about Deakin's conduct. It is not necessary presently to outline the basis of the complaint. It is sufficient to note that on 28 March 2014, Mr Dunkel from the AHRC informed the applicant that the AHRC would not be taking any action in relation to his complaint. 12 The two proceedings were commenced in this Court on 28 April 2014. In Action SAD 87 of 2014, the originating application (described as an application for judicial review) indicated the relief which the applicant sought against Deakin as follows: Review the decision of [Deakin] that the Applicant did not deserve to get document as other student received namely WAM or weighted averages mark in the Applicant's 16 topics, which the Applicant did with [Deakin] for Master of International Business, and Master of Arts (International Relations) on the grounds the Federal Courts had dealt with the issue in the past, and that cause of action estoppels operated, and the Applicant's proceeding being vexatious, and has been declared a vexatious litigant in the past by the Federal Magistrate Court. Further, the Applicant never sought within time to have his marks remarked, and to review the Applicant's marks now would cause hardship to [Deakin] under Victoria's parliament law involving Deakin University. The grounds stated in the application indicated that the applicant relied on s 5(1)(a) of the ADJR Act for his claim against Deakin. 13 In Action SAD 95 of 2014, which was described as "originating application for relief under s 39 of the Judiciary Act" but which also indicated that the applicant relied on s 5(1)(a) of the ADJR Act, the applicant sought the following order concerning Deakin: An order according to law that the decision of the First and Second Respondents to be quashed, and they be ordered to reconsider providing the applicant with WAM (weighted averages mark) document with 56 out of 100 marks in Marketing Management fresh by new decision makers, and according to proper law. 14 It was not necessary for the applicant to commence two proceedings. As noted, they were commenced on the same day and, although not identical in form, seemed to raise the same issues. At the first directions hearing, the applicant explained that he had commenced the second action "just in case" he had difficulty obtaining judicial review of the decision of Mr Dunkel of the AHRC and "just to be on the safe side". Initially, he had wished to have Mr Dunkel joined as a party to the second action, but he later changed his mind. This indicated that the second action is directed to the claim against the AHRC rather than to the claim against Deakin. As will be seen, in his Rebuttal Submission, the applicant said that he did not pursue Deakin in the second action and asked the Court to dismiss it insofar as it concerned Deakin. 15 At the same directions hearing, Deakin foreshadowed applications to have the proceedings against it dismissed on the basis that its decisions were not amenable to review under the ADJR Act. The applicant then said that he would rely upon s 79 and 80 of the Judiciary Act 1903 (Cth), the Frustrated Contracts Act 1988 (SA), and the Supreme Court Civil Rules 2006 (SA) (apparently the particular rules concerning judicial review). When it was pointed out to him that this Court did not have a freestanding jurisdiction with respect to claims brought under legislation of the South Australian Parliament and that the Civil Rules of the Supreme Court of South Australia were inapplicable to proceedings in this Court, the applicant said that he would also rely on the Trade Practices Act 1974 (Cth). 16 As Deakin's foreshadowed application went to the jurisdiction of this Court, I considered that it should be determined at an early stage of the proceedings. This Court has jurisdiction to determine that it has no jurisdiction with respect to a particular matter and to dismiss a proceeding accordingly: Residual Assco Group Ltd v Spalvins [2000] HCA 33 at [14]; (2000) 202 CLR 629 at 639-40. I fixed 23 June 2014 as the date for hearing of Deakin's foreshadowed applications. 17 Subsequently, Deakin filed an interlocutory application in each proceeding seeking the setting aside of the respective originating applications on the basis that this Court does not have jurisdiction to grant relief sought by the applicant or, in the alternative, dismissal of the proceedings under s 31A of the FCA Act. 18 The applicant has filed eight affidavits in Action SAD 87 of 2014. His affidavit of 16 June 2014 annexes his proposed statement of claim (the PSC) which sets out details of the claim he makes against Deakin. I will refer to this shortly. 19 At the commencement of the hearing on 23 June 2014, the applicant applied to amend his originating application in Action SAD 87 of 2014 in the form annexed to one of his affidavits. Insofar as it concerned Deakin, the proposed amendment indicated that, in addition to seeking relief pursuant to s 5 of the ADJR Act, the applicant relied on ss 2, 4, 18, 21, 22, 23, 29, 34, 50, 52, 61, 64, 232, 236, 237, 238 and 250 of the Australian Consumer Law, wished to allege breaches of contract, and wished to raise causes of action relying upon ss 4 to 8 of the Frustrated Contracts Act 1988 (SA) and ss 4 to 8 of the Misrepresentation Act 1972 (SA). 20 There was no corresponding application in Action SAD 95 of 2014. 21 As already indicated, I heard submissions on the amendment and dismissal applications at the one hearing. It is convenient to address the issues by reference to the proposed amended originating application (the POA). If the Court does not have jurisdiction to hear the claims raised in the POA against Deakin, or if those claims have no reasonable prospect of success, leave to amend should not be granted. If the converse is the case, the focus will shift to the adequacy of the applicant's articulation of those claims. If the Court does not have jurisdiction to hear and determine the claims in the POA, then it also will lack jurisdiction to hear the claims raised against Deakin in the originating application in its present form.
The claim under the ADJR Act 22 It is not clear that the applicant now seeks any relief against Deakin under the ADJR Act. The POA asserts, in the terminology of s 5(1) of the ADJR Act, that the applicant is "aggrieved by the decision" of Deakin "not to provide the WAM and with 56/100 marks in Marketing Management". It also indicates that part of the relief which the applicant seeks is: (e) Judicial review based on common law against [Deakin] about his marks in Marketing Management, and the applicant getting such WAM documents with or without 56/100 marks in the topic for his future necessary in education (ie s.5 of the AD(JR) Act to "pick up" s 28 of the Deakin University Act 2009 (Vic) via ss 79 and 80 of the Judiciary Act 1903 (Cth)). 23 However, the PSC makes no reference to the ADJR Act. Further, in paragraph 5 of his "Rebuttal Submission" the applicant said that he "is not pursuing [Deakin] in judicial review under s 5 of the AD(JR) Act". This is a clear statement that the applicant no longer seeks relief under the ADJR Act. Nevertheless, as the claim under the ADJR Act remains part of the originating application in its present form which Deakin seeks to have dismissed, it is appropriate to consider its contention that the decision impugned by the applicant is not reviewable by this Court under the ADJR Act. 24 By s 19(1) of the FCA Act, this Court has "such original jurisdiction as is vested in it by laws made by the Parliament". Sections 5 and 8 of the ADJR Act are laws vesting jurisdiction in this Court. Section 5(1) of the ADJR Act permits a person who is aggrieved by "a decision to which this Act applies" to apply to this Court or the Federal Circuit Court (the FCC) for an order of review. Section 8(1) of the ADJR Act provides that this Court has jurisdiction to hear and determine applications made to it under the ADJR Act. 25 This Court's jurisdiction under the ADJR Act depends on there being a decision to which the ADJR Act applies. The term "decision to which this Act applies" is defined in s 3(1) of the ADJR Act as follows: "decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition): Relevantly, a requisite decision must be made under an "enactment" as defined. That expression is also defined in s 3(1) of the ADJR Act to mean (relevantly): (a) an Act, other than … … (ca) an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; … 26 Section 38(1) of the Acts Interpretation Act 1901 (Cth) provides that an Act passed by the Parliament of the Commonwealth may be referred to by the word "Act" alone. Accordingly, the word "Act" in the definition of "enactment" is to be understood as a reference to an Act of the Commonwealth Parliament, and not to an Act of a State Parliament. The only Acts of a State which are an "enactment" as defined, are those to which subpar (ca) of the definition on "enactment" refers. 27 Deakin University was originally established by the Deakin University Act 1974 (Vic). It is now established and continues in existence as a body politic and corporate by the Deakin University Act 2009 (Vic). By s 28 of the Deakin University Act 2009, the University Council may make statutes and regulations concerning, amongst other things, the organisation, management and good governance of the university, examinations, and courses of study. It is to be expected that the courses of study undertaken by the applicant at Deakin which led to the award of the two degrees in 2011 were governed by the Deakin University Act 1974 or the Deakin University Act 2009, and by the statutes and regulations made pursuant to those Acts. Neither of the two Deakin University Acts, nor any of the statutes or regulations made by the University Council pursuant to those Acts, is a statute specified in sch 3 to the ADJR Act, and therefore within the definition of "enactment". 28 The applicant made a submission that s 5 of the ADJR Act "picked up" s 28 of the Deakin University Act 2009 (Vic) by virtue of ss 79 and 80 of the Judiciary Act 1903 (Cth). That submission cannot be upheld. Section 79 operates only when a Court is exercising federal jurisdiction: Solomons v District Court of New South Wales [2002] HCA 47 at [23]; (2002) 211 CLR 119 at 134. Section 80 is expressed to govern courts "exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters" and accordingly is not a source of freestanding jurisdiction for this Court. 29 Otherwise, the applicant did not identify any enactment as defined in s 3(1) of the ADJR Act as supporting the decision of Deakin which he impugns and, as indicated earlier, it seems that he now abandons such a claim. 30 Accordingly, I am satisfied that this Court does not have jurisdiction under the ADJR Act to grant the applicant relief in respect of the impugned decision of Deakin.
Section 39B of the Judiciary Act 1903 31 By s 39B of the Judiciary Act 1903, the original jurisdiction of this Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. 32 By reason of the establishment and continuance of Deakin University under enactments of the Parliament of the State of Victoria, the decision-maker in relation to the decision of Deakin impugned by Mr Rana cannot be regarded as an officer of the Commonwealth. Section 39B is not a source of this Court's jurisdiction in the present case.
The Supreme Court Civil Rules 2006 (SA) 33 As previously indicated, the applicant at one stage sought to invoke the rules concerning judicial review in the Supreme Court Civil Rules 2006 (SA), namely, rr 199 to 201. It is not clear whether ultimately the applicant sought to maintain reliance upon those rules. 34 Any such attempt would be misconceived. Rules 199 to 201 of the Supreme Court Civil Rules provide the procedure by which the inherent jurisdiction of the Supreme Court of South Australia with respect to judicial review is exercised. They cannot be a source of jurisdiction for this Court.
The Misrepresentation Act 1972 (SA) 35 The applicant seeks relief under the Frustrated Contracts Act 1988 (SA) and the Misrepresentation Act 1972 (SA). However, neither of these enactments of the South Australian Parliament vests jurisdiction in this Court. This Court's power to grant relief under those enactments depends upon there being a matter properly within its jurisdiction within which the claim under the South Australian legislation may be associated. Accordingly, beyond noting that these enactments may not be a freestanding source of this Court's jurisdiction, it is appropriate to defer further consideration of them until Deakin's alternative claim under s 31A of the FCA Act is considered.
Claims under the Australian Consumer Law 36 The Competition and Consumer Act 2010 (Cth) (the CCA) and the Australian Consumer Law (the ACL) contained in Sch 2 to the CCA came into operation on 1 January 2011. As indicated, the applicant relies upon multiple provisions in the ACL, being ss 2, 4, 18, 21, 22, 23, 29, 34, 50, 52, 61, 64, 232, 236, 237, 238 and 250. This Court undoubtedly has jurisdiction in respect of civil proceedings under the CCA Act: s 86. Accordingly, Deakin's claim with respect to the applicant's claims under the ACL rested on s 31A of the FCA Act, namely, its contention that the claims had no reasonable prospect of success. 37 Section 31A of the FCA Act was considered in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 and has been addressed in numerous decisions of this Court. In Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6], Gilmour J summarised many of the principles relevant to an application under s 31A. After noting that a proceeding need not be hopeless or bound to fail in order to have no reasonable prospect of success, Gilmour J continued: (a) The Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) The Court ought not dismiss a claim based on a predictive assessment of prospects, when it is possible that, if the claim goes to trial, it may succeed; (c) In a case in which the evidence may give colour and content to allegations, and in which questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) It is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) If there is a real issue of fact or law to be decided, and the rights of the parties depend on it, it is obviously appropriate that the matter go to trial. It cannot be said that when there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is "no reasonable prospect of success"; (f) Section 31A should not be used to shut out proceedings if, on a proposition of law, there may be room for doubt. On questions of law, an enquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial. (g) Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (h) In determining whether there are real issues of fact in issue which preclude summary judgment courts must draw all reasonable inferences in favour of the non-moving party. 38 These principles were applied by Mansfield J in Rana v Google Australia Pty Ltd [2013] FCA 60 on which the applicant placed some emphasis. The applicant also emphasised the caution with which the Court acts before striking out proceedings pursuant to s 31A. 39 As previously indicated, Deakin's application under s 31A provides a convenient means by which the issues arising on the application to amend the originating application may also be addressed. 40 Although the applicant has indicated that he relies on some 17 provisions in the ACL, it is only ss 18 (Misleading or deceptive conduct in trade or commerce), 21 (Unconscionable conduct in trade or commerce in connection with the supply of goods or services), 23 (Unfair terms of consumer contracts), 29 (False or misleading representations in trade or commerce in connection with the supply of goods or services), 34 (Conduct in trade or commerce which is liable to mislead the public as to the nature, characteristics or suitability of services), 50 (Harassment or coercion in connection with the supply or possible supply of goods or services), 52 (Guarantee as to undisturbed possession) and 61 (Guarantees as to fitness for a particular purpose), which establish norms of conduct which may give rise to a cause of action. The remaining provisions in the ACL to which the applicant referred are either definitional, elaborative of one or more of the provisions just identified, or relate to the relief which may be awarded in respect of a contravention of the identified provisions. 41 In considering these claims, it is appropriate to have regard to the PSC, on which the applicant indicated that he relied for present purposes (affidavit of 16 June 2014 at [15(3)]).
Consumer Contract? 42 The PSC alleges first that the applicant's e-mailed requests to Deakin on 1 and 4 March 2014, in which he had sought the WAM document and the correction of his mark, together with Mr Rooney's response of 5 March 2014 at 12:14pm, gave rise to a consumer contract as defined in the ACL. It alleges that his willingness to pay the costs of Deakin in providing the requested documents (which he had confirmed in his e-mail of 4 March 2014) provided the consideration for this contract (PSC [1(a)]). The applicant said that this contract had been "effectively revoked and/or rescinded by [Deakin] for not treating Shirley Rooney as a Queen of England on the grounds of [his] Rodney Rude conduct" (PSC [1(a)(iv)]). The applicant relies upon Ms Rooney's e-mail of 6 March 2014 and 25 March 2014 as evidence of Deakin's breach of the contract he asserted. He claims damages of $1 million in respect of this breach "for the benefit of charities" (PSC [1(i)]). 43 It is this alleged contract which provides the basis for many of the applicant's asserted claims, including his claim under s 23 of the ACL. 44 The effect of the communications between the applicant and Ms Rooney is to be considered objectively. Whether those communications can be said to have given rise to binding legal relations is to be determined by reference to the understanding of a reasonable purpose, having regard not only to the text but also to the surrounding circumstances and the purpose of their exchanges: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40]-[41]. 45 In my opinion, it can be said now that the applicant's claim concerning a contract with Deakin does not have reasonable prospects of success. Ms Rooney's e-mail of 5 March 2014 cannot reasonably be regarded as a communication having contractual effect. All that Ms Rooney said was that it was possible for Deakin to provide a WAM document, that this would require additional action by the two faculties involved, and that she was willing to request them to take that action. She sought confirmation of the applicant's request before asking the faculties to engage in that action. Those statements cannot be regarded as intended to bind Deakin to provide the WAM document. It did not address the questions of costs, or timing and was not expressed in contractual terms. At its highest, Ms Rooney's e-mail was a statement of her willingness to make a request to the two faculties involved. Further, neither of the applicant's e-mails of 1 March 2014 had referred to his wish to have his mark for Marketing Management corrected. In that circumstance, Ms Rooney's e-mail of 5 March 2014 at 12:14pm cannot be reasonably understood as addressing that topic at all. 46 Contrary to the allegation in PSC [1(a)], Ms Rooney did not inform the applicant that she would "order" two faculties to provide WAM documents. 47 Accordingly, I am satisfied that the applicant has no reasonable prospect of establishing this part of his claim.
Misleading or Deceptive Conduct? 48 In [2] of the PSC, the applicant alleges that Deakin, by Ms Rooney, engaged in conduct in trade or commerce which was misleading or deceptive in contravention of s 18 of the ACL. It contends that Deakin's provision of educational services to the public constitutes engagement by it in trade or commerce. 49 The misleading or deceptive conduct alleged relates to Ms Rooney's statement in her e-mail of 5 March 2014 that she would instruct the two faculties to prepare the WAM documents. The applicant's complaint is that he was "okayed to get [a] WAM document with proper marks" but this had been revoked by Ms Rooney on dubious grounds. 50 There may well be a question of whether the conduct of Deakin of which the applicant claims is conduct "in trade or commerce", especially as it occurred after the applicant had completed his course and, despite the applicant's willingness to pay, seemed to involve an act of grace by Deakin: see Mathews v University of Queensland [2002] FCA 414 at [7]-[10]. However, these issues were not explored in the submissions and it is undesirable to rest a conclusion on them. The applicant should not be refused permission to amend nor the proceedings struck out on that basis. 51 However, the claim that Deakin engaged in conduct which was misleading or deceptive is in a different category. The mere circumstance that, in the light of further communications from the applicant, Deakin took a different attitude to his request cannot have the effect that Ms Rooney's statements in her e-mail of 5 March 2014 were misleading or deceptive. The applicant does not allege that the statements in the e-mail of 5 March 2014 were false or incomplete. On the contrary, he seeks to rely upon those statements as having promissory effect. The applicant does not identify any representation of fact or any representation or future intention in the e-mail of 5 March 2014 which would satisfy the description of being misleading or deceptive. It is evident that these pleas in the PSC are an endeavour by the applicant to present a claim in contract (albeit misconceived) as a claim of misleading or deceptive conduct. 52 I also consider the prospect that the applicant may establish loss or show an entitlement to any other relief as a result of the alleged misleading or deceptive conduct to be fanciful. Ms Rooney communicated Deakin's changed attitude to the request for a WAM document within about 24 hours. It is improbable that the applicant could have sustained any loss by reason of the misleading or deceptive conduct he alleges and the PSC does not identify such a loss. 53 For these reasons, I consider that the proposed claim under s 18 of the ACL does not have reasonable prospects of success.
Unconscionable Conduct 54 Sections 20 and 21 of the ACL proscribe unconscionable conduct in trade or commerce. In each case, it is the form which was in place in 2014 which is applicable to this case. Section 20, which applies to conduct which is unconscionable within the meaning of the unwritten law, provides: 20 Unconscionable conduct within the meaning of the unwritten law (1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time. (2) This section does not apply to conduct that is prohibited by section 21. 55 Section 21, which is not limited to conduct which is unconscionable within the meaning of written law, provides: 21 Unconscionable conduct in connection with goods or services (1) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person (other than a listed public company); or (b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company); engage in conduct that is, in all the circumstances, unconscionable. (2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct: (a) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or (b) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition. (3) For the purpose of determining whether a person has contravened subsection (1): (a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section. (4) It is the intention of the Parliament that: (a) this section is not limited by the unwritten law relating to unconscionable conduct; and (b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and (c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of: (i) the terms of the contract; and (ii) the manner in which and the extent to which the contract is carried out; and is not limited to consideration of the circumstances relating to formation of the contract. 56 The matters to which a court may have regard for the purposes of s 21 are elaborated in s 22 but it is not necessary, for present purposes, to set out its terms. 57 The applicant pleads contraventions of ss 20 and 21 as follows: 5. The second respondent has made the applicant a vexatious litigant in breach of sections 20 and 21 of the Act cited above in the new Australian Consumer Law commencing from 2010. The particulars are: (i) The applicant required WAM document for Flinders University per an email from it dated 11.3.2014, which was such certified transcripts of Deakin University for assessing the applicant's eligibility for Master's Higher Research degree with proper marks and WAM index. (ii) The second respondent's Shirley Rooney has since the graduation of the applicant and specifically of 25.3.2014 email to the applicant fraudulently indicated: The particulars are: (a) The mark allocated to the applicant's marketing management in 2009 was proper as being 50 out of 100 marks, and to review it was outside timeframe, which is misrepresentation and/or deceptive. (b) The letter of Dr David Blake's 1st and 2nd paragraphs are self explanatory to Shirley Rooney dated 20.7.2012 indicating the applicant tried to have such errors corrected in 2009, which was after the result was out and within next two working days. (c) The letter of Blake also shows in the few last remaining paragraphs that the respondent has intimidated and harassed the applicant as a mad man, criminal and terrorist. (d) The spreadsheet of Julian Veicelli the marker and Unit Chair of marketing Management made many arithmetic errors, and properly corrected shows the applicant got 56 marks out of 100 in the topic in the third paragraph of the email. (e) The remaining last paragraphs suggesting moderation caused the plaintiff to get only 50 out of 100 marks in the topic is fraudulent claim, and was never raised in courts before in the time a lower court declared the applicant a vexatious litigant unfairly and unreasonably and not based on proper evidence. (f) The second respondent has not been shown how the applicant having lost six marks in Marketing Management (i.e. 56/100 marks), and fraudulently in official transcript shows only 50/100 marks. The decision has remained opaque by a process, which has been substantially unjust, and not fair to the applicant in all circumstances. (g) The applicant has tried every thing written on the second respondent's calendar from 2006 to 2014, and the Head of Student Services, and Shirley Rooney has been changing the rules of the game for the applicant (i.e. imposing unlawful and unreasonable terms and conditions to get his WAM or GPA document) by unconscionable and deceptive conduct at all material times, and it will be shown at trial that the applicant sought review of marks, and correction of arithmetic stupid errors within two days of the result of Marketing Management being finalized according to law (i.e. Hronopoulous forwarded the applicant's request to Shirley Rooney, and she filed it in her hard to handle basket, and forgot it and now is constructing her story as she goes on). 58 As can be seen, the opening line of PSC [5] indicates that the conduct of Deakin said to be unconscionable is having the applicant declared a vexatious litigant. The applicant is there referring to the decision of the Federal Circuit Court, then known as the Federal Magistrates Court, on 20 July 2012 in Rana v Deakin University [2012] FMCA 575. By that decision, the FCC declared, pursuant to r 13.11 of the Federal Magistrates Court Rules 2001, the applicant to be a vexatious litigant and ordered that any proceedings commenced by him not be continued without the leave of that Court and that the applicant not institute any further proceedings without the leave of that Court. 59 Deakin's conduct in making and pursuing the application which resulted in the orders made by the FCC cannot reasonably be regarded as unconscionable. First, the very fact that a properly constituted Court considered the applicant to be a vexatious litigant precludes such a finding against Deakin. Secondly, it seems that the applicant wishes to mount a collateral attack on the decision of the FCC. That is not permissible: Giannarelli v Wraith (1988) 165 CLR 543 at 594-5 (Dawson J); Stergiou v McGrail (Unreported, Federal Court of Australia, Burchett, Ryan and Gummow JJ, 22 April 1994) at 4-5. If the applicant wished to challenge the decision of the FCC, then the appropriate course was for him to appeal. He did not do so. 60 As can be seen, the pleaded particulars in [5] of the PSC do not relate to the substantive unconscionable conduct alleged. They raise other matters relating to the applicant's wish to have corrected the mark he was awarded for the subject Marketing Management in 2009. It is apparent that the applicant perceives some unfairness by Deakin in not making that correction. Although it is not strictly necessary to do so, I am willing to regard this as an alternative claim of unconscionable conduct. The PSC does not always distinguish between the conduct of Ms Rooney in March 2014 and the conduct of those who carried out the assessment of the subject Marketing Management in 2009. 61 The terms of s 20(2) of the ACL require that this claim be addressed first by reference to s 21. The notion of unconscionable conduct contemplated by s 21 is reasonably well understood, although not capable of precise definition. In Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 at [291] Allsop P (with whom Bathurst CJ and Campbell JA agreed) said of the concept of unconscionability in the corresponding provision in s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth): Aspects of the content of the word "unconscionable" include the following: the conduct must demonstrate a high level of moral obloquy on the part of the person said to have acted unconscionably: … the conduct must be irreconcilable with what is right or reasonable: … the concept of unconscionable in this context is wider than the general law and the provisions are intended to build on and not be constrained by cases at general law and equity: … The statutory provisions focus on the conduct of the person said to have acted unconscionably: … It is neither possible nor desirable to provide a comprehensive definition. The range of conduct is wide and can include bullying and thuggish behaviour, undue pressure and unfair tactics, taking advantage of vulnerability or lack of understanding, trickery or misleading conduct. A finding requires an examination of all the circumstances. (Citations omitted) 62 As previously noted, Ms Rooney has the position of "University Solicitor" at Deakin. There is no suggestion in the pleading that Ms Rooney was involved in the assessment of the applicant's mark for Marketing Management in 2009. On the contrary, the assessment of academic work and the awarding of marks for academic work at Deakin is, as one would expect, conducted in accordance with Deakin's statutes, regulations, policies and procedures. Section 28 of the Deakin University Act 2009 (Vic) vests power in the Council of Deakin to make such statutes, regulations, policies and procedures. 63 Statute 05.3 entitled "Assessment and Academic Progress" provides in subpar (1)(a) that the Council may, on the recommendation of the Academic Board, make regulations with respect to "the assessment of students' academic performance". 64 Regulation 05.3(1) made by the Council is entitled "Assessment and Academic Progress in Higher Education Award Courses". Regulation 2.1 requires each faculty board to appoint a "Faculty Committee" to deal with assessment and academic progress matters referred to under the University regulations. Amongst other things, Faculty Committees are required to "review the assessment of each student enrolled in a Unit offered by the faculty, and make decisions and recommendations on the assessment outcomes of students, and the award of Supplementary Assessments to students" (reg 2.2(c)) and to "review the academic progress of each student enrolled in a Course offered by the faculty" (reg 2.2(d)). Regulation 4 provides that the student may, within 5 working days from the date of official notification of the results for a Unit, apply in writing to the Unit Chair for a check of the administrative accuracy of a result in a Unit or to the Faculty Committee for an academic review of a result in a Unit, including assessment in any part of a Unit. Applications for review are to be considered in accordance with University policies and procedures (reg 4.2). 65 Deakin also put in evidence its "Assessment (Higher Education Courses) Policy" which elaborates the means by which students may apply to the Faculty Committee for a review of a result in a Unit. However, the policy in evidence was that approved on 14 May 2013. Accordingly, it was not applicable in 2009 when the applicant completed the subject of Marketing Management and it need not be considered further. 66 The above review indicates that Deakin had in place in 2009 mechanisms for the review, at the request of a student, of the mark awarded in a subject or part of a subject. The regime for which the regulations provide seems well adapted to addressing the appellant's present complaints. 67 It seemed to be common ground that the applicant invoked these procedures, although the Court was not provided with the detail. There is no suggestion that Deakin declined the implementation of the regime in response to any request of the applicant, made appropriately, for a review of his mark. The appellant does not complain of the manner by which Deakin carried out the review, only the outcome. Absent some complaint of that kind, there is no basis upon which the conduct of Deakin could be held to be unconscionable within the meaning of either s 20 or s 21 of the ACL. 68 There is a further basis upon which the applicant's claim that Deakin's refusal to amend the mark awarded to him for the subject of Marketing Management in 2009 cannot now be held as unconscionable. The conduct of Deakin of which the applicant complains has been the subject of previous litigation in the Federal Circuit Court and on appeal to this Court: Rana v Deakin University [2012] FMCA 575; Rana v Deakin University [2013] FCA 59. In the former, Burchardt FM made orders dismissing the claim of the applicant against Deakin University and, in addition, declared him to be a vexatious litigant. It is the former aspect which is pertinent presently. 69 Burchardt FM noted that the applicant sought relief under the AHRC Act for alleged contraventions of the Racial Discrimination Act 1975 (Cth) (RDA) and Disability Discrimination Act 2006 (Cth) (DDA). Part of the conduct of which the applicant complained, included Deakin's refusal to amend the mark awarded to him for Marketing Management. The applicant had complained to the Australian Human Rights Commissions (the AHRC) pursuant to s 46P of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). The decision of Burchardt FM at [53] records the letter of the President of AHRC informing the applicant that his complaint was being terminated under s 47PH(1)(c) of the AHRC Act on the basis that it lacked substance. The AHRC provided the applicant with reasons for that conclusion. At [57]-[67], Burchardt FM summarised the applicant's complaints and at [68]-[91] the evidence provided by Deakin in support of its dismissal application. That included the evidence of Mr Vieceli who had been responsible for the assessment of the applicant in the subject Marketing Management. Burchardt FM also noted the applicant's responses to Deakin's evidence. Burchardt FM concluded at [133]: In my view the application cannot succeed. I do not think that the things Mr Rana alleges were said and done to him, to the extent that they might give rise to a complaint of discrimination on the basis of race or ill health, have occurred. Furthermore, even if they had, they had no affect in the matters regarding Mr Rana's marking and therefore no loss or damage emerged as a result. 70 As previously noted, the decision of Burchardt FM was upheld on appeal. 71 It is true that there is no indication in the reasons of Burchardt FM that the applicant's then claims against Deakin included a claim of unconscionability. However, the claim of unconscionability now advanced by the applicant is so closely connected with the claim previously advanced that it should have been pursued at that time: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Litigants are expected to advance all aspects of a claim in the one proceeding. The applicant has not advanced any explanation for not doing so. On the contrary, the course of events in this Court, as outlined earlier, rather suggests that the applicant seized on causes of action arising under the ACL as a means of rebutting Deakin's foreshadowed objection to the Court's jurisdiction to hear and determine the claims contained in the Originating Application as filed. 72 For this further reason, I consider that the applicant cannot now be heard to raise a claim of unconscionability. 73 In summary, I consider that it can be said at this stage that the applicant's claim, whether under ss 20 or 21 of the ACL, has no reasonable prospect of success.
The remaining claims under the ACL 74 The applicant has not provided any particulars of his remaining claims under the ACL. After repeating in PSC [9(ii)] the provisions in the ACL on which he relies, the applicant goes on to say: The particulars are: (a) The applicant will provide more details to all the relevant sections as to being applicable in his cause of action in law and fact in his submission, and trial, and this is just an outline of evidence and law, which is not to cause the second respondent embarrassment. (b) The applicant will show in trial as to how the relevant sections are operable for consideration in this Court. (c) To plead all of these sections in this Statement of Claim will be too great and impractical in all circumstances, and the purpose for now is to give the second respondent enough notice and not get surprised at all circumstances in terms of being fair to them as part of the applicant's transparency based policy. 75 The effect is that the applicant has not particularised these claims. It is obvious that the matter cannot be allowed to proceed to trial in the absence of proper particularisation. 76 The question at this stage is whether the applicant should be given the opportunity to plead further, or whether it can be said that his claims have no reasonable prospects of success. Insofar as those claims rest on the claim of a contract arising from the exchange of e-mails in early March 2014, it can be concluded, for the reasons given above, that those claims do not have reasonable prospects of success. This means that the claims based on ss 23 and 52 of the ACL do not have reasonable prospects of success. 77 The applicant seeks to invoke s 50 of the ACL which proscribes the use of physical force or undue harassment or coercion in connection with, amongst other things, the supply or possible supply of goods or services. In my opinion, the communications from Deakin on which the applicant relies generally cannot reasonably be characterised as the use of physical force or undue harassment or coercion, whether or not those communications were in connection with the supply or possible supply of goods or services. 78 Next, the applicant seeks to invoke s 29 of the ACL which proscribes the making of false or misleading representations of specified kinds in trade or commerce in connection with the supply or possible supply of goods or services. I have concluded above that the applicant's claims of misleading or deceptive conduct in contravention of s 18 must fail. For the same reasons, the applicant's attempt to invoke s 29 of the ACL must also fail. 79 Finally, the applicant's attempt to invoke s 61 of the ACL is bound to fail. That section operates when there has been a supply of services. The applicant's claim presently arises from Deakin's omission to provide the "service" he has requested of it.
Summary of conclusion concerning the ACL claims 80 For the reasons given above, I consider that the applicant does not have reasonable prospects of establishing any of his claimed federal causes of action. I have identified earlier the causes of action in respect of which this Court does not have jurisdiction. In the absence of causes of action which are within this Court's jurisdiction, the Court is unable to grant relief to the applicant pursuant to legislation of the South Australian Parliament such as the Frustrated Contracts Act or the Misrepresentation Act.
Conclusion 81 For these reasons, the application of the applicant to amend the originating application in Action SAD 87 of 2014 is refused. The claims made by the applicant against Deakin University in each of the two sets of proceedings are dismissed. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.
Rana
Australian Human Rights Commission
[2012] FMCA 575
(1988) 165 CLR 543
(1981) 147 CLR 589
(2000) 202 CLR 629
(2002) 211 CLR 119
(2010) 241 CLR 118
(2004) 219 CLR 165