FEDERAL COURT OF AUSTRALIA

Nandutu v University of Sydney [2018] FCA 1118

ORDERS

THE COURT ORDERS THAT:

1.    This proceeding is transferred to the Supreme Court of New South Wales pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

2.    The costs of the proceedings in this Court be costs in the proceedings as transferred.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

1    These reasons concern an application by the respondents that the proceedings be transferred to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

2    The proceedings in the Federal Court were filed on 19 June 2018 and came before me for a first case management hearing on 11 July 2018.

3    The applicant represents herself and I make due allowance for that fact.

4    Her originating application stated as the details of the claim:

On the grounds stated in the statement of claim, and accompanying affidavit, the Applicant claims: under Tort Law, Common Law Negligence

Claim: Negligence. Cause of Action: Breach of Duty of Care

5    The Statement of Claim was in the following terms, as written:

1.    The Applicant enrolled for PhD studies in Sydney Medical School (hereafter “SMS”) of University of Sydney (hereafter “USYD”) on 31 August 2010.

2.    The Applicant was a subject of repeated breaches according to statutes and legislations from February 2012 to 25 June 2015.

3.    The Applicant maintains and can establish breach of duty of care occurred from:

(i)    Negligence (Torts Law, Common law negligence);

(ii)    unconscionable and prohibited conduct with supply services for her PhD candidature during the period noted in paragraph 2; and

(iii)    the Applicant vehemently brings negligence claim under the Competition and Consumer Act 2010 (Cth) Schedule 2; and

(iv)    fraudulent and dishonest actions from the Respondents misrepresented the Applicant’s abilities, competence and intellectual capacity and denied her, her basic right in continuing her studies.

(v)    the Applicant can further justify her negligence claim under contravention of: Human Rights (Parliamentary Scrutiny) Act 2011, No. 186, 2011; International Covenant on Economic, Social and Cultural Rights (1966, 1976); International Convention on the Elimination of All Forms of Racial Discrimination (1965, 1969); Convention on the Elimination of All Forms of Discrimination against Women (1979, 1981); Racial Discrimination Act 1975; Anti-Discrimination Act 1977 (NSW).

4.    The Applicant refers to paragraph 2 in this Statement of Claims and substantiates the following breaches:

(i)    USYD (Higher Degree by Research) Rule 2011: clauses 4.09 (1); (2); 4:11; and

(ii)    the Applicant can contest before the Courts, there was multiple breaches in respect to USYD Supervision of Higher Degree by Research Students Policy 2013 (no amendments);

(iii)    USYD (Student Appeals) Rule 2006, clauses 1.3, 7.4, 8.2.1.

5.    The Applicant can demonstrate to the courts the breaches complained about occurred as identified in:

(i)    the Applicant was denied education and services from 2012 to Semester 1 2015;

(ii)    the Applicant was denied supervision for her PhD candidature by PhD supervisor in 2012, 2013, most of 2014 (except for one month in 2014), and in semester 1 2015;

(iii)    the Applicant was denied academic support for her PhD candidature by PhD supervisor, in 2012, 2013, 2014, semester 1 2015;

(iv)    the Applicant was denied fair and just review, under 2012, 2013 and 2014 USYD PhD Annual Progress Review internal system and business practices, nothwithstanding this should have been done in accordance with mandatory requirements in the applicable USYD Rules and Policies;

(v)    from the actions mentioned, the Applicant therefore holds the Respondents before this Honourable Court, vicariously liable for their actions for a specified quantum which underpins the Respondents breaches of duty of care.

6.    Damages:     $600,000-$700,000

Costs:    

Interest:     7.5%

7.    From the above actions, the Respondents showed total disregard of the Applicant’s rights.

6    Relevant to the present question is the following material from the applicant’s affidavit affirmed 19 June 2018:

6.    On foot presently, the following matters are before the courts:

-    Case number 2015/00287280 filed in the Supreme Court in 2015, under Administrative Law complaint on decision made 25 June 2015, and sent to me 30 June 2015.

-    Case number 2017/00374521 filed in the Supreme Court in 2017, complaint on publication in 2017 of false matter and false allegations with defamatory imputations against my reputation, published to third person, and identified me.

7    At the first case management hearing, the applicant explained that the 2015 proceeding was for administrative breaches and it focused on a decision that was made in relation to her PhD candidature at the Sydney Medical School on 25 June 2015. That proceeding is still on foot.

8    The applicant submitted, with reference to the case brought in the Federal Court that:

This case looks at breach of duty of care from semester 1 2012, to semester 1 2015. It doesn’t focus on the decision which the administrative case looks at …

9    The applicant at that point also referred to prohibited conduct under the Australian Consumer Law and under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

10    The applicant submitted that some of the matters could not be addressed in the Supreme Court under Administrative Law, or under defamation.

11    The respondents informed me that both the matters in the Supreme Court were running together; that there was already a strike out and dismissal application with respect to the defamation proceedings in the Supreme Court, and that was listed for hearing on 11 September 2018. Also to be heard on that date was the applicant’s application to amend her statement of claim in both proceedings.

12    The respondents submitted that the proceeding that had been commenced in the Federal Court was related to a proceeding pending in the Supreme Court and it was with respect to the same factual matrix, concerning the termination of the applicant’s PhD candidature at the Sydney Medical School.

13    The respondents submitted there was potentially a difficulty both in the Federal Court and in the Supreme Court in that discrimination issues to which the applicant referred had not been to either the Australian Human Rights Commission or to the Anti-Discrimination Board of New South Wales.

14    The respondents also told me that they proposed to file a summary dismissal application with respect to the new proceeding and that could be done in either the Federal Court or in the Supreme Court.

15    At the first case management hearing, I made the following directions, as amended on 19 July 2018:

1.    The applicant to file and serve, by email to the email address michelle.macmahon@minterellison.com, a document, limited to five pages, setting out the basis upon which the applicant contends that this Court has jurisdiction over her claims, and submissions as to why this matter should not be transferred to the Supreme Court of New South Wales, that filing and serving to be done no later than 24 July 2018.

2.    The matter be re-listed at 9:30am on 26 July 2018 for the respondents to make any submissions they wish to in response to the applicant’s document referred to in order 1, and with a view to deciding the application foreshadowed in the respondents’ letter to the applicant dated 9 July 2018 that, pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), the proceeding be transferred to the New South Wales Supreme Court common law list.

3.    Costs reserved.

16    In the document filed pursuant to order 1, the applicant referred to ss 18, 21 and 29 of the Australian Consumer Law and to ss 21 and 28A of the Sex Discrimination Act 1984 (Cth). She submitted that the proceedings in this Court and the cases filed in the Supreme Court were not identical and “cannot be combined in one Case”. The applicant also submitted that her pleadings under the Sex Discrimination Act could not be addressed in the Supreme Court.

17    I accept that the cases are not identical but there is a substantial factual commonality. For example, in her affidavit in this Court affirmed 19 June 2018, at [23], the applicant says that her PhD candidature in the Sydney Medical School was terminated on 25 June 2015 and that decision was based on false matter and false allegations.

18    I am not persuaded that the matters which the applicant submits are not addressed by her Supreme Court proceedings could not be so addressed.

19    The difficulty with the applicant’s references to the Sex Discrimination Act 1984 (Cth) is that it does not appear that the conditions in s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) have been satisfied, so that s 46PO stands in the way of an application to this Court alleging unlawful discrimination.

20    As to the Australian Consumer Law, I am prepared to assume for present purposes that the services in question were supplied or possibly supplied in trade and commerce, but those provisions do not involve a special federal matter within s 3 of the Jurisdiction of Courts (Cross-vesting) Act. I also note that the proceedings in the Supreme Court, plead breaches of ss 18, 21 and 29 of the Australian Consumer Law: see [30] of the proposed Amended Statement of Claim. Those claims may relate to different factual matters but they are, in my view, closely related to the matters raised in the proceedings in this Court. Further, the applicant’s complaints, assuming they are maintainable under the Australian Consumer Law, are also given other legal characterisations, for example by reference to the University of Sydney Rules and Policies in relation to higher degrees, such as the University of Sydney (Higher Degree by Research) Rule 2011.

21    In my view this is a clear case for the proceeding pending in this Court, the Federal Court, to be transferred to the Supreme Court of New South Wales under s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act.

22    It appears to me that the relevant proceeding, in this Court, is related at least to the proceedings in the Administrative Law Division pending since 2015 in the Supreme Court of New South Wales. The University of Sydney is a common party. Taking the Supreme Court proceedings together, three of the individuals are also common to the Federal Court proceedings. The factual matters, including in the defamation proceedings, have a substantial overlap. It is by no means determinative that the remedies sought in the two proceedings are not the same.

23    It also appears to me more appropriate that the relevant proceeding, in this Court, be determined by the Supreme Court of New South Wales.

24    Further, and in the alternative, even if the proceedings in this Court were not related to another proceeding pending in the Supreme Court of New South Wales, having regard to the matters in s 5(4)(b)(ii)(A), (B), (C) and (D) of the Jurisdiction of Courts (Cross-vesting) Act, it appears to me that it is more appropriate that the proceeding in this Court be determined by the Supreme Court of New South Wales.

25    This is because, in my opinion, a substantial part of the proceeding pending in this Court would have otherwise been incapable of being instituted in this Court given the apparently tenuous nature of the applicant’s federal claims; the proceeding or a substantial part of the proceeding in this Court would have been capable of being instituted in the Supreme Court of New South Wales; and a great part of the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application or interpretation of the law of the State of New South Wales and are not otherwise within the jurisdiction of this Court.

26    The interests of justice favour the transfer so that the respondents are not the subject of legal proceedings in this Court when there are pending proceedings arising out of similar facts in the Supreme Court. The applicant in this Court has not established any detriment to her rights if the proceedings were determined by the Supreme Court, nor any relevant forensic advantage for proceeding in this Court.

27    I did not understand the respondents to rely on s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act, that it is otherwise in the interests of justice, apart from the matters to which I have already referred, that the relevant proceeding be determined by the Supreme Court of New South Wales.

28    In relation to costs, I order that the costs of the proceeding in this Court are costs in the proceeding to be transferred.

Associate:

Dated:    26 July 2018

SCHEDULE OF PARTIES