FEDERAL COURT OF AUSTRALIA

Dudzinski v Kellow [1999] FCA 390

PRACTICE AND PROCEDURE - pleading - striking out statement of claim - Federal Court Rules O 20 r 2 - requirements for pleading negligence of academic staff in connection with application of University policy for subject exemption and in failing a student, fraudulent misstatement, defamation, assault, injurious falsehood - ss 52, 53, 51AA the Trade Practices Act 1974 (Cth).

Trade Practices Act 1974 (Cth), ss 51AA, 52, 53

Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth)

Federal Court Rules, O 20 r 2

Griffith University Act 1971 (Qld)

Defamation Act 1889 (Qld)

General Steel Industries Inc v Commissioner for Railways (New South Wales) (1964) 112 CLR 125 cited

Hill v Van Erp (1997) 188 CLR 159 cited

Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 cited

Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 cited

The Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 cited

Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 cited

Abbott v National Coursing Association of South Australia [1941] SASR 140 cited

Mann v Board of Health of the Australian Capital Territory (1996) 67 FCR 383 cited

Little v Law Institute of Victoria (No 3) [1990] VR 257 cited

Korn v Paisley Robertson Pty Ltd (1995) 59 FCR 251 considered

WALDEMAR DUDZINSKI v AYNSLEY KELLOW, ROY DICKSON, ERROL STOCK, WILLIAM HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT & GRIFFITH UNIVERSITY

QG 168 OF 1997

DRUMMOND J

8 APRIL 1999

BRISBANE

THE COURT ORDERS THAT:

1.                  Parts I to VII and IX to XI of the applicant’s amended statement of claim, save only for that section of Part I as comprises the claim in negligence against the respondents Stock and Hogarth, be struck out.

2.                  The further prosecution of this action be permanently stayed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The respondents apply to strike out the proceedings pursuant to O 20 r 2 the Federal Court Rules.  They contend that the pleading discloses no reasonable causes of action and, given that it represents the applicant’s fourth attempt to plead his case, the entire action should be struck out.

2                     A respondent who seeks to terminate an action summarily has a heavy burden:  see General Steel Industries Inc v Commissioner for Railways (New South Wales) (1964) 112 CLR 125 at 129 - 130.

3                     The amended statement of claim is divided into eleven parts in which many causes of action are sought to be pleaded against Griffith University and a number of its academic and administrative staff.  Some of the applicant’s complaints concern harm he alleges he suffered as a result of the misapplication to him by University staff of various of the internal rules of the University.  At common law, the courts do not have jurisdiction to entertain such matters:  the power to inquire into and rectify such wrongs, if necessary by the award of full compensatory damages, is vested exclusively in the Visitor of the University, subject only to the supervisory jurisdiction of the appropriate superior court.  See Thorne v University of London [1966] 2 QB 237 and as to the width and jurisdiction of the powers of the Visitor, see Bayley-Jones v University of Newcastle (1990) 22 NSWLR 424.  However, there is no provision under the Griffith University Act 1971 (Qld) for a Visitor of that University.  Whilst the statutes made under that Act provide for processes to resolve internal disputes, neither the Act nor any of the statutes expressly exclude the jurisdiction of the ordinary courts to deal with those disputes.  The respondents do not wish to contend now that the existence of these internal procedures for rectifying wrongs done in applying the internal rules to students, among others, impliedly excludes the ordinary jurisdiction of the courts.  However, they purport to reserve the right to make such a submission later on in this action.  It is not possible to make such an election “without prejudice”.  This Court cannot proceed unless satisfied it has jurisdiction.  The point must be resolved now.  I think that I have jurisdiction to determine this class of matter raised by the applicant:  there is no ground for holding that this Court’s jurisdiction under the Trade Practices Act 1974 (Cth), which is invoked by the applicant in respect of some of his causes of action and with which some of his complaints concerning the misapplication of the University’s internal rules are associated, is impliedly excluded by the circumstance I have referred to.  In any event, it would be rare for an implication to be so clear as to exclude the general jurisdiction of a court of plenary jurisdiction.

4                     It appears from the pleading that the applicant, who acquired tertiary qualifications in Poland, also graduated Bachelor of Applied Science in Geology from the Queensland University of Technology in 1991.  In 1993, he commenced the Master of Engineering Science in Waste Management course offered by the respondent as a post-graduate student; he has completed four subjects of this post-graduate program.  In 1997, while still enrolled in that course, he also enrolled in a combined law and environmental science course which was then offered for the first time.

Part I

5                     In Part I of his amended pleading, under the heading of “Professional Negligence”, the applicant claims damages on various bases against the University and three of the other respondents, Mr Stock and Mr Hogarth, who are members of the University’s academic staff, and Ms Holman, who is the University’s Academic Registrar.

6                     According to his pleading, his claim in negligence arises out of Stock’s determination that he was not entitled, by reason of certain subjects he had passed in obtaining his Bachelor of Applied Science degree and in progressing part way through the Master of Engineering Science degree, to exemption from certain of the course requirements of the Bachelor of Laws/Bachelor of Science and Environmental Sciences combined degree.  Stock’s determination is said to be to the effect that the various subjects which the applicant had passed in his earlier studies did not sufficiently cover the requirements of those subjects in the combined Law/Environmental Science degree, in which he has most recently enrolled, to justify the exemptions he sought.

7                     The applicant complains that Stock’s determination was negligently made, that a proper comparison of the content of the relevant course subjects, which it is said Stock failed to make, would have shown that the applicant was entitled by the University’s exemption policy to the exemptions he sought.  He complains that Hogarth, the Dean of the Faculty of Environmental Sciences, in effect, rubber-stamped Stock’s decision by making his own determination to the same effect adverse to him “negligently and with indifference to the truth or falsity of” Stock’s decision.  He makes a similar complaint against Holman, who it is said, dealt with the applicant’s appeal under the University’s internal review procedures from the decisions of Stock and Hogarth.  As against Hogarth and Holman, the applicant also alleges that they negligently failed “to make any … adequate inquiries regarding the expertise of Errol Stock”.  Although it is not clearly spelled out, it appears from the pleading that the point the applicant wishes to make here is that Stock did not have sufficient expertise to enable him to make a proper comparison of the relevant subjects when he came to apply the University’s exemption policy and that by endorsing Stock’s refusal of the exemptions sought by the applicant without checking on whether Stock was qualified to make that decision, Hogarth and Holman were themselves negligent.

8                     It is important to note exactly how the applicant frames his case in negligence.  Although the applicant, in terms, bases his claim upon statements made to him by each of Stock, Hogarth and Holman, it is apparent from a reading of the pleading that his complaint is not in respect of negligently provided information or advice, but rather for economic loss resulting from negligently made decisions, as well as damages for what he describes as “mental distress”.

9                     The general principles governing whether a claim for economic loss negligently caused can be maintained are now well-established.  Although as a general rule damages for pure economic loss, even where loss is foreseeable, are not recoverable, damages for foreseeable loss are recoverable where, in addition, the defendant has the knowledge or means of knowledge that a particular person, not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of the defendant’s negligence.  Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529; Hill v Van Erp (1997) 188 CLR 159 at 175.

10                  The respondents’ central submission is that the applicant here complains that the relevant respondents failed to act with reasonable care in exercising the power to grant the exemption sought by the applicant, but the law does not “ordinarily recognise” a duty of care in the exercise of a power which the repository of the power has no obligation to exercise.  However, as Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424, the authority relied on by the respondents, shows, at 459 - 461, the repository of a discretionary power may, by its own conduct, place itself in such a position that it comes under a duty to take reasonable care, if it chooses to exercise that power.  The respondents also contend that no duty of care with respect to the exercise of a power can arise where the power is to confer or withhold a benefit upon the claimant to its exercise.  But provided a plaintiff who complains of negligently caused economic loss is in a sufficient relationship of proximity to the defendant, an action can lie even though the claim is in respect of a gratuitous benefit that would have been received but for the defendant’s negligence:  Hill v Van Erp at 170.

11                  I am not prepared to conclude that the applicant may not have a reasonable cause of action against Stock to recover damages in negligence having regard to the following matters:  the existence of the University’s published policy governing the grant of exemptions from course requirements, the applicant’s invocation of it and the case sought to be made out by the applicant to the effect that it was Stock who was charged with or who assumed the duty of determining in the first instance whether to apply the policy in the applicant’s favour.  It is clear enough from the applicant’s pleading that he does not merely allege that Stock made a wrong decision:  he alleges that Stock did that because he failed to properly assess the content of the courses the applicant had passed and the content of the two subjects in respect of which he sought exemption.  Economic loss is an arguably foreseeable result of a negligent misapplication of the University’s exemption policy in so far as it is likely to lead to delay in completing studies and associated costs, such as are claimed by the applicant by way of special damages.

12                  As to the claim in negligence against Hogarth, it is based on his endorsement of Stock’s decision as communicated to the applicant by Hogarth in his letter of 4 June 1997.  It appears from Holman’s letter of 24 July 1997 to the applicant that Hogarth’s role was to review Stock’s decision.  If Stock acted negligently in refusing exemption and Hogarth confined his review to simply repeating what Stock had to say, as is arguable, having regard to Hogarth’s letter of 4 June 1997, then the applicant may also have an arguable case in negligence against Hogarth.

13                  The claim against Holman, however, is different.  Although he does not spell it out expressly, the implication, eg, in para 4.0 of his pleading, is that Holman, like Stock and Hogarth, had responsibility for evaluating whether the subjects the applicant had passed and on the basis of which he claimed the exemption, were sufficient to justify the exemption.  He bases his case on what Holman had to say in her letter of 24 July 1997.  However, it is apparent from this letter that Holman’s role did not involve making the same sort of comparison which it appears Stock and Hogarth may have had to make.  Her role was limited to offering the applicant an avenue, in the form of a special examination, for obtaining credit in the two subjects in respect of which he claimed the exemption from  Stock and Hogarth.  The basis upon which he frames his case in negligence against Holman is revealed by the material upon which he himself relies as without any substance.  He makes no attempt to formulate a case in negligence against Holman on any basis that might have a prospect of success.  The claim in negligence against Holman will therefore be struck out.

14                  The applicant makes no attempt to plead any facts supporting his claim for damages against the University itself that is made in Part I.  I am not prepared to assume that the applicant wishes to claim against the University on the simple basis that it is vicariously liable for the negligence of Stock and Hogarth:  he claims $30,000 against the University and, in addition, $40,000 against Stock and a further $30,000 against Hogarth.  Nor is it so self-evident that the University must be vicariously liable for the negligently caused losses claimed from Stock and Hogarth as to entitle the applicant to yet another opportunity to try to plead a case here against the University.  The claim against the University here made will be struck out.

15                  The applicant claims general damages of $130,000 on two bases:  firstly, for the mental distress that has caused him “humiliation, embarrassment, anger, annoyance, vexation, disappointment and frustration” which he says these decisions have inflicted on him.  Secondly, these general damages are claimed as compensation for the delay and associated extra costs imposed on him in completing the Bachelor of Laws/Bachelor of Science course and in respect of the burden the decisions have imposed on him by compelling him to devote time and energy to challenging the decisions in this Court.  He claims $40,000 from Stock and $30,000 from each of Hogarth, Holman and the University; these claims are made cumulatively.

16                  There is, I think, a real question about whether, even if the applicant has in other respects pleaded a good cause of action in negligence causing economic loss, he can include in his general damages something for mental distress, ie, something it is not suggested has amounted to a recognisable psychiatric illness.  Cf Baltic Shipping Company v Dillon (1993) 176 CLR 344 at 359 - 360, McGregor on Damages, 16^th ed, para 90 and Law of Torts, 2^nd ed, Balkin & Davis at 243 - 244.  In the absence, however, of any submissions on this aspect of the case by the respondents and in view of what appears in Balkin & Davis at 776 - 777, I am not prepared to consider whether this part of the damages pleading should be struck out.

17                  The applicant also seeks special damages of $14,000 in respect of the substantial additional costs he says he will incur as a result of having to extend his combined Law/Environmental Science degree course by a year in order to complete the two subjects in respect of which he has been wrongly refused exemption.  Compensation is arguably recoverable here as economic loss, if the applicant can make out his cause of action in Part I of the pleading.

18                  There is material in Part I of the applicant’s pleading that is embarrassing.  For example, he invokes what he describes as “the fiduciary nature of business relationship between the student and the lecturer, between the student and the University” as well as the alleged “contractual obligations in student/University relationship” in support of his allegation that these respondents owed a duty of care to him in dealing with his request for exemption.  But he alleges nothing in the way of facts which might be capable of sustaining either allegation.  However, the respondents did not make any complaint about particular paragraphs of the pleading being embarrassing; rather was the respondents’ attack on the pleading based on it containing deficiencies of substance not able to be remedied by amendment.  I am not prepared to terminate summarily the applicant’s negligence case in Part I against Stock or Hogarth.  Nor do I think it so badly formulated that the applicant should be required to replead it.

19                  It should be recorded that, in reaching this conclusion, I have only held that the respondents have failed to meet the stringent standard required to justify striking out the applicant’s claims in negligence against Stock and Hogarth.  This decision does not carry with it any indication that the applicant’s claims against these two respondents are or might be well-founded.  In this regard, I note from Hogarth’s letter of 4 June 1997 that the applicant sought the exemption from the subject “Scientific Inquiry and Communication” on the basis of the low-level pass grade he obtained in the Queensland University of Technology subject “Professional Communication”.

20                  The applicant also alleges against Stock only that the latter’s negligent statements to which I have referred were also fraudulent misrepresentations.  The applicant does not develop this particular allegation any further.  His case appears to be that it is because each of these respondents made a wrong statement on the matter in issue that he has suffered the loss of which he complained.  But he nowhere asserts that he was misled by anything that Stock said into thinking that his course passes were insufficient to justify the exemption he wanted and so suffered loss by relying on what he was told.  In the absence of allegations to that effect, he has no case in fraud.  Even though legally unrepresented, I would have expected the applicant to have given by now some indication in his current pleading that this is what he says was the factual situation.  I read his current pleading as alleging only that he has suffered delay and associated loss in pursuing his studies because each of these three respondents made negligently wrong decisions on the basis of which he was refused the exemptions, not that they gave him negligent or fraudulent misinformation upon which he relied to his detriment.  The claim in fraud will be struck out.  There will be no leave to replead.

Part II

21                  In Part II of the amended pleading, under the heading “Defamation and Trade Practices Act 1974 Cth”, Mr Dudzinski claims against the same four respondents general damages of $150,000, differently quantified from those in Part I and the same $14,000 special damages claimed in Part I.  The defamation claim here made focuses on Stock’s allegedly erroneous determination the subject of the claims in Part I, its communication to Hogarth, and Hogarth’s endorsement of it to Holman.  He alleges that:

“The statements of Bill Hogarth and Errol Stock are disparaging the Applicant’s reputation in his occupation as a student who already holds two tertiary awards.”

22                  In Queensland, actionable defamation involves the unjustifiable publication of defamatory matter:  s 6 the Defamation Act 1889 (Qld).  Section 4(1) defines “defamatory matter” as “any imputation concerning any person … by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person’s profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person”.  Publication involves the communication of the defamatory matter to someone other than the person defamed:  s 5(2).

23                  There can be no imputation capable of founding an action for defamation by a person unless the matter published and said to be defamatory is a statement about that person.  Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 21 and McDonald v The North Queensland Newspaper Co Ltd [1997] 1 Qd R 62 at 64.  As Mason J pointed out in Sungravure at 23, not every statement (even a statement likely to injure a person in his possession or trade) is necessarily a statement about him:  “Thus, for a newspaper to observe in the course of a published report on the performance of a particular model of a car that it was unsafe would be to make a statement likely to injure the distributors of that car in their business; yet it would not be a statement about the distributors and would therefore not defame them”, even though it might well be a statement about the manufacturer of the car and thus actionable by the latter.

24                  The applicant’s case is that Stock, Hogarth and Holman defamed him by communicating what is said to be Stock’s erroneous assessment that the content of the applied science and master’s courses prescribed by Queensland University of Technology and the respondent University itself in respect of which he sought exemption at Griffith University was not sufficient to justify the grant of the exemption.  In my opinion, to publish such a statement is not to say anything about the applicant in any sense that might be here relevant.  It may be a statement about the quality of the relevant courses and also a statement about those who devised them.  But by itself it is incapable of conveying any imputation about the applicant.  For this reason the defamation action against these respondents cannot succeed.

25                  The publication of a defamatory statement by one employee to another employee of the same organisation is a sufficient publication for the purposes of the tort of defamation:  s 5(2) the Defamation Act and Pullman v Walter Hill & Co [1891] 1 QB 524.  But so far as Holman is concerned, the applicant does not allege she made any communication of the matter complained of to anyone other than to the applicant himself.  That is an additional reason why the defamation case sought to be made out against her cannot hope to succeed.

26                  So far as the Trade Practices Act 1974 (Cth) claim here made is concerned, all the applicant alleges is in a brief paragraph to the effect that “[t]he defamatory communication supra of Respondents is caught by operation of Section 52(1) dealing with deceptive and misleading conduct”.  The impression I have of the applicant’s position as revealed by his pleading is that these communications did not mislead or deceive him, since he has never accepted the correctness of Stock’s views.  But, in any event, his bald assertion of a conclusion without any explanation, eg, for how the communication by any of Stock, Hogarth or Holman constituted conduct in trade or commerce or how it was relevantly misleading or deceptive or how it caused the loss complained of, is plainly embarrassing.  This pleading shows he has made no serious attempt to think about whether he has a case based on s 52.

27                  The whole of Part II should be struck out.  The applicant is not entitled to a fifth opportunity to try to formulate a claim in defamation in respect of the conduct in question or one based upon s 52.

Part III

28                  In Part III of the pleading, headed “Injurious Falsehood”, communication by Stock, Hogarth and Holman of the same matter the subject of the applicant’s complaint in defamation in Part II is the foundation upon which the claim in injurious falsehood is made, although general damages of $125,000 differently quantified, as well as the same $14,000 of special damages are here claimed.

29                  This particular tort only lies in respect of false statements made of or concerning the plaintiff’s goods or business, as opposed to statements of or concerning the plaintiff’s character, reputation or conduct, which are the concern of the defamation laws.  The Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 93 and 102 and The Law of Torts, 2^nd ed, Balkin & Davis, p 677.  Statements said by the applicant to be “disparaging [to] the Applicant’s reputation in his occupation as a student” cannot therefore found an action for damages for injurious falsehood.

30                  Part III of the pleading does not set up a sustainable cause of action and should therefore be struck out.  There be no leave to replead.

Part IV

31                  Part IV of the pleading, headed “Defamation and Injurious Falsehood, Professional Negligence, Conspiracy, Trade Practices Act 1974 (Cth), Section 52(1)”, contains complaints against the respondents Ms Chu and Mr Hulsman, two lecturers in the Faculty of Environmental Sciences, and Hogarth.

32                  Substantially more is claimed here by way of general damages - $220,000 - than is claimed in any of the earlier parts.  Special damages of $7,800 are also claimed, but on a different basis from the claims in earlier parts of the pleading.

33                  The complaint here is centred on Chu’s action in failing him in the subject “Research, Design and Planning”, which he undertook in the second semester in 1996, as part of his Master of Engineering Science in Waste Management Program.  She gave him fail grades in the two of four of his assignments which she was responsible for marking.  The applicant complains she was negligent because, in effect, she lacked competence to properly assess his work in respect of which she failed him.  Particulars of the deficiencies in her approach to marking his assignments are given.

34                  Having regard to the legal principles governing recovery of economic loss caused by negligently made decisions, to which I have referred in dealing with Part I of the applicant’s pleading, I am not prepared, as presently advised, to hold that an action might not lie at the suit of a student for damages for economic loss caused by the decision of a lecturer to fail the student in a University degree examination where that decision can be shown to have been made negligently.  It may be no easy matter to prove such a case:  whether a lecturer has breached any duty of care she may owe to a student in assessing the student’s work may be a matter difficult of proof, given that a wide range of opinions about the quality of the student’s work may each nevertheless be consistent with the exercise of the requisite level of care.  But that is no ground for denying the availability of such an action on proper proofs.

35                  However, I am not satisfied that the applicant has here pleaded a sufficient factual foundation for such a claim.  In particular, I am not satisfied that the applicant has sufficiently pleaded facts to show that, even if Chu was subject to a duty of care in assessing the assignments in question, she was in breach of that duty.  For example, the applicant here focuses on a comment made by Chu in marking what appears to be one only of his assignments (viz, that set out in para 7.1.6) and alleges (in paras 9.2 and 9.3) that the comment is wrong for the reasons there given.  The applicant (in para 9.4) also offers an argument why Chu may have been in error.  But to say that the lecturer has made one or two errors in reaching a decision to fail the student falls a long way short of pleading a case that the lecturer has even arguably been guilty of negligence in reaching that decision.  The applicant also makes no attempt to suggest why Chu’s errors in these respects (if they can be shown to be such) brought about her decision to fail him in both assignments and thus to bring about his failure in the particular subject.

36                  A reading of the current pleading shows that the applicant has a considerable capacity for sifting information to identify that which might be relevant to complaints he wishes to make against the various respondents.  He has had ample opportunity to try to make out an arguable case against Chu in negligence.  He is not entitled to a further opportunity.

37                  So far as Hogarth is concerned, the negligence allegation against him here is that, as Chairperson of the appeal committee which appears to have been convened to consider the applicant’s dissatisfaction with his fail result from Chu, he “failed to draw appropriate conclusions with other members of appeal committee and fail result was upheld”.  For similar reasons to those which I have given for concluding that the applicant has failed to make out a case in negligence against Chu, I think he has failed to plead a sustainable cause of action here against Hogarth.

38                  So far as the defamation claim is concerned, the applicant alleges Chu defamed him by making written comments on his assignment work available to members of the Faculty of Environmental Sciences that are defamatory of him as a post-graduate student of the University.  However, the allegation is that these comments “were communicated and read by other members of the Faculty of Environmental Sciences when the matter went to appeal, which upheld the decision of Claudia Chu”.  That is, the applicant says that Chu, by giving her reasons for failing him to the appeal body which was constituted at his request to review her decision, committed actionable defamation of him.  The only other publication by Chu of her reasons for failing the applicant which he relies on is her publication of those reasons to Hulsman, in his capacity as subject convenor, which she appears to have made in consequence of the applicant challenging her determination with Hulsman.

39                  It would not be possible for the applicant to obtain the appeal hearing he sought or the review of Chu’s actions by Hulsman which he also sought unless Chu published the comments of which he claims to the members of the appeal committee and to Hulsman.

40                  It is a defence at common law to the publication of defamatory matter that the plaintiff, in an unequivocal way, expressly or impliedly consented to the particular publication.  Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 369 and Abbott v National Coursing Association of South Australia [1941] SASR 140 at 144.  In my opinion, even if consent is not an excuse for the publication of defamatory matter for the purposes of s 6 the Defamation Act, it will constitute a good defence in circumstances like the present under s 16(1)(f) of that Act, unless the publication was not made in good faith.

41                  The applicant has the burden of proving absence of good faith:  s 17 the Defamation Act.  He alleges that Chu’s comments were malicious.  He has pleaded absence of good faith prematurely.  See Bates v Queensland Newspapers Pty Ltd [1996] 1 Qd R 13.  But since he has pleaded it, it is open to the Court, in the context of an application under O 20 r 2(1)(a), to see what is the case he intends to make out on absence of good faith for Chu’s publication.

42                  He has pleaded no facts sufficient to show that he may be able to make out his allegation of malice.  He is obliged to do that:  Mann v Board of Health of the Australian Capital Territory (1996) 67 FCR 383 at 392.  There is no suggestion by the applicant that Chu’s comments, of which he complains, were more extensive or were published more widely than the applicant himself required by invoking the University appeal procedures and by complaining about her determination to Hulsman as the relevant subject convenor.  As I have mentioned, the applicant has had more than ample opportunity to say everything he wishes to say in support of his various complaints, including the complaints made in this part of the pleading that Chu defamed him on two occasions.

43                  The defamation complaints against Chu are so unlikely to succeed that they should be struck out now.

44                  The conspiracy claim made against Chu and Hulsman is so confused as to be embarrassing within O 20 r 2.  Hulsman, the convenor of the teaching team for this particular subject, who had initially given the applicant pass grades in two of the four assignments, is alleged to have changed his mind in discussions with Chu and agreed with her about the quality of the applicant’s work.  This forms the basis of the conspiracy claim against Chu and Hulsman.  In the earlier part of the pleading which deals with the claim in defamation and negligence against Chu, it is clearly alleged that it was Hulsman alone who marked the first two assignments and that he arranged for Chu to mark the last two because the applicant was dissatisfied with various comments Hulsman made in his evaluation of the first two assignments.  Yet in the part of the pleading dealing with the conspiracy involving Hulsman and Chu, it is alleged, without any explanation, that Chu somehow assessed the applicant’s first two assignments, as well as the last two, as not of a pass grade.

45                  Further, injury resulting from implementation of the conspiratorial agreement is an essential element of the tort of conspiracy.  Little v Law Institute of Victoria (No 3) [1990] VR 257 at 271.  Even though the applicant here alleges that Hulsman, after passing the first two assignments, later changed his mind and agreed with Chu’s assessment of these first two assignments, there is nothing in the pleading to suggest that Hulsman’s change of mind, even if it could be regarded as evidencing a conspiracy with Chu to harm the applicant, caused him any loss:  the applicant says he apparently resisted Hulsman’s demands to return assignments 1 and 2, which Hulsman had marked with pass grades and in the earlier part of the pleading dealing with his complaints against Chu alone (para 6.7), the applicant unequivocally ascribes the reason for his failure in the “Research, Design And Planning” subject as Chu’s conduct in failing him in the third and fourth assignments.

46                  Hogarth is also alleged to have been party to a conspiracy with other unidentified “members of Graduate Assessment Board”, who are not sued.  Just what is the basis for this particular complaint is a matter of speculation.  That the Board upheld Chu’s decision may be what has attracted this allegation.  But that, without more, is wholly insufficient to support the claim in conspiracy here made.  A critical element of the tort of conspiracy is an agreement or combination between the alleged conspirators to injure or harm the plaintiff.  The mere fact that the review committee, of which Hogarth was a member, reached the same conclusion as Chu as to the quality of the applicant’s work in the third and fourth assignments is insufficient to justify a finding that there was a tortious agreement between Chu, Hogarth and presumably the other members of the review committee.  It is no more than a piece of circumstantial evidence incapable by itself of justifying the inference that all were parties to an actionable agreement.

47                  The only reference to s 52 the Trade Practices Act in this Part of the pleading is in the heading.

48                  Part IV will be struck out.  There will be no leave to replead.

Part V

49                  In Part V of the pleading, under the heading “Negligent Misstatement in Relation to Provision of Services, Deceit”, claims are made against Scott, the convenor of the Special Assistance to Students Scheme run by the University.

50                  The applicant’s complaints in this part of the pleading are not clearly framed.  There is no explanation in the pleading for how Mr Scott might have come under any a duty of care for the applicant or how any breach by Scott of that duty may have caused any of the losses of which the applicant here complains.  What he does allege, apparently in relation to all the loan refusals about which he is complaining, is that Scott and the University owe him a duty of care to provide loans “when such financial assistance was needed”.  No basis for this optimistic claim is pleaded.  The inference, given the long history of the applicant’s attempts to plead his case properly, is that there is none.  That deficiency is sufficient to justify striking out the applicant’s most recent attempt to make a case in negligence against Scott.

51                  But the foundation for his claims can, I think, be understood, if they are read with Mr Scott’s letter to him of 19 February 1997 to which he refers in the pleading.  His loans history is also summarised in Scott’s letter to Mr Dudzinski of 31 March 1994.

52                  The applicant’s first claim is that Scott was negligent by failing to draw his attention to the provision of the Scheme requiring a current loan to be repaid in full prior to the commencement of any period of leave of absence, subject only to the student borrower being granted a thirty day period of grace for repayment.  He refers to his having taken leave of absence over a year later, ie, from 11 March 1994 for one semester, and goes on to assert that Scott’s negligence, coupled with the latter’s failure to inform the applicant that Scott intended to institute collection action and with his putting the matter in the hands of the University’s collection agents shortly after the applicant commenced his leave of absence caused him “mental distress (anger, disappointment, embarrassment)”; $10,000 general damages are claimed.  A further $10,000 is claimed by way of special damages on the basis that Scott’s negligence and deceit contributed “to cause withdrawal from Master studies by the applicant in second semester of 1994 and in first semester of 1995”.

53                  However, it is apparent from Scott’s letter to the applicant of 19 February 1997, which records the applicant’s lengthy loan history commencing with the January 1993 loans, that those loans had become due, many months before he took the leave of absence he refers to in his pleading, that demands for repayment had been made and extensions sought and ultimately granted until 30 July 1994, on terms that the applicant make regular fortnightly repayments of $10.  The letter records that the applicant made only one such payment before taking the leave of absence, soon after which collection agents were retained to recover the outstanding balance, with interest, on the ground that he had not adhered to the $10 per fortnight repayment schedule earlier agreed to.  The letter also records that after service of a summons on him by the University’s debt collectors, there were a series of contacts with the applicant and that ultimately he repaid the total outstanding in respect of the January 1993 loans.

54                  A reading of Scott’s letters to the applicant, not contradicted by him, exposes his claim here as one lacking any merit.

55                  The applicant also complains of a refusal by Scott and by the University to grant him two further loans he sought in July 1994 and March 1995.  Mr Scott’s letter of 19 February 1997 states that the July 1994 loan application was rejected on the ground that the applicant was on leave of absence at the time.  He focuses on this statement and pleads that the real reason for the refusal was not that he was “still on leave of absence”.  He does not identify what that reason, in truth, may have been, but merely asserts that Scott “adopted negligent views with indifference as to the truth or falsity of these views” and, in effect, wrongly concluded that the student did not comply with loan conditions.  However, the applicant annexes to his affidavit an earlier letter from Scott dated 14 July 1994 in which Scott advised him of the reason for rejection of the loan application he had made a few days earlier the subject of one of his claims in Part V of the pleading.  Scott advised that the Special Assistance to Students Panel had decided not to approve his loan application after having “considered the problems the University has experienced over a lengthy period of time in obtaining repayments for previous loans taken out by yourself and the outstanding amount of the liabilities ($8,000 personal loan) as stated in your application”.  The applicant does not dispute that, notwithstanding the inconsistency between this letter and Scott’s later one of February 1997, the earlier letter accurately records the reason for rejection of his loan application.  In my opinion, the applicant should not be permitted to prosecute a claim so manifestly lacking in merit.

56                  The deceit claim against Scott is framed in the most general of words alleging that Scott, in the period 1994 to 1997, wrote to the applicant on a number of occasions, including on 19 February 1997, deceitfully informing and suggesting to him that he did not fulfil the conditions of prior loans and was not eligible for financial assistance due to this.  The applicant then claims he suffered loss because he was in effect induced by Scott’s statements not to apply for student loans for which he asserts he was eligible.

57                  The undisputed facts, ie, the facts emerging from the material the applicant himself has put before the Court without any attempt to contradict it, indicate that he was indeed refused a number of loans in this period, but that the reason was his poor loan history.  There is nothing in the material before the Court which provides the slightest support for an assertion that Scott or the University behaved improperly in the way they dealt with his various unsuccessful loan applications.

58                  Part V of the pleading will be struck out.  There will be no leave to replead.

Part VI

59                  In Part VI, headed “Defamation and Injurious Falsehood in Relation to Provision of Services”, the applicant claims that Scott has defamed him by writing letters to him on 10 February and 19 February 1997 which record, among other things, his poor repayment record in relation to Special Assistance to Student Scheme loans given to him.  The allegation is that these letters (ie, presumably copies of them) are on his loan file and available to others involved in the administration of the scheme should they care to read them, hence the defamation.

60                  He asserts, in the face of the correspondence from the University which he exhibits, without comment, to his affidavit in which his poor repayment history is set out at length, that he has not breached any such loan conditions.  In the face of this uncontroverted material, once again his claims are shown to lack any merit.

61                  In any event, no facts are alleged that would support an inference that any of the student loan panel members might have read either of these two letters.  In my opinion, the pleading also fails to make out a reasonable cause of action in so far as it gives no ground for thinking that the applicant will be able to prove publication of what Scott had to say to anyone (other than to the applicant himself).  Cf Gatley on Libel and Slander, 8^th ed, para 227 and Gaskin v Retail Credit Co (1965) 49 DLR (2d) 542, per Ritchie J at 545.

62                  Apart from his speculation that unidentified members of the student loan panel may have read or may in the future read copies of these letters on the applicant’s students loan file, the only publication by Scott of the matter contained in these letters that is alleged is to the applicant himself.  That, for the reasons given, cannot sustain a defamation claim against Scott.

63                  This Part of the pleading will be struck out.  There will be no leave to re-plead.

Part VII

64                  In Part VII of the pleading, under the heading “Trade Practices Act Parts:  IVA, Section 51AA, V, Sections 51, 52, 53, 79, 80, 82, 87(2)(d)”, the applicant makes a claim against the respondents Messrs Kellow, Rickson, McAndrew, (all University employees) and Hogarth, Holman and the University itself.  Although general damages of only $120,000 and special damages of $28,000 are here sought, they are claimed against the respondents here sued on much the same basis as the $130,000 general damages and the $14,000 special damages are claimed against a different group of respondents in Part I.

65                  This claim arises out of an application he made to transfer from the Master of Engineering Science in Waste Management degree course he was then undertaking to the new course advertised by the University, of Bachelor of Laws/Master of Science in Environmental Management.  He says it was a condition of his entering this new course that he transfer from the Master of Engineering Science in Waste Management program to the Master in Environmental Management program.

66                  The complaint he makes is that Kellow, Rickson and Hogarth, all members of the Faculty of Environmental Sciences academic staff, made a number of false and misleading statements to him to the effect that the two Masters programs were substantially different and that his application to transfer from the one Masters course to the other and hence into the combined Bachelor of Laws/Master of Science in Environmental Management degree course was refused.  He alleges that the true position is that a careful analysis of the requirements of the two Masters courses shows that they “are the same programs”.  A perusal of the course structure for each, which he sets out in his pleading and which he has taken from the University calendar, shows that this is manifestly not so.  But what he means here appears in para 17 of this part of the pleading:  he says it is possible for a student, by a judicious selection of subjects, to satisfy the requirements of both courses.  He says he pointed this out to Kellow.

67                  But Kellow, then head of the Graduate School and Environmental Engineering, refused his request to transfer from the one Masters course to the other and was supported by Rickson, Hogarth, Holman and McAndrew, Pro-Vice Chancellor, in  his decision.

68                  There is a fatal defect in his damages claim, in so far as it is based on s 52.  He does not suggest he suffered any loss “by” conduct of the respondents, within the meaning of that expression in s 82, as explained in cases such as Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, which he says contravened s 52.  He says in his pleading he knew all along that the reason given to him for refusing his transfer request was unsustainable:  he says he “proved by presenting an evidence that Master of Science and Environmental Management and Master of Engineering Science in Waste Management offered by this University … can be chosen by students in terms of studied subjects in such a way that both programs are composed of the same subjects …” and that, “[r]egardless of this evidence”, Kellow refused the transfer application and was supported in that refusal by the other respondents.  His case is that, far from being mislead by the wrong information he was given about the two courses being different, he knew all along what was the true position, but was unable to persuade the University officers to his view.  Even if it be assumed that his allegation about being given misleading information as to the nature of the courses is correct, it plainly, on his own case, did not cause him any loss.  For the same reason, his claim for damages, in so far as it is based on s 53, is without any substance.

69                  The only reference in this Part of the pleading to s 51AA the Trade Practices Act is in the heading to this Part.

70                  This Part will also be struck out.  There will be no leave to replead.

Part VIII

71                  In Part VIII, under the heading “Assault”, he makes a claim for $20,000 general damages on the basis of Stock’s alleged conduct for which the University is said to be responsible.  He complains that, in the course of a conversation he had with Stock about his claim that he was entitled to credit for certain subjects he had already passed toward his Bachelor of Laws/Bachelor of Science in Environmental Sciences course which he was then studying, Stock, in effect, lost his temper.  What Mr Dudzinski alleges is this:

“Then Errol Stock stand up nearly touching face of the Applicant and in very hostile way, without any [witnesses] (the doors were closed) said to the Applicant ‘get out, now!’ showing to the applicant exit door by his finger very close to Applicant’s face.  Errol Stock’s eyes did narrow and show hatred.  In Applicant’s view is that if He would not leave quickly (in seconds) a battery would result.”

72                  The common law tort of assault is actionable in Queensland:  Battiato v Lagana [1992] 2 Qd R 234 at 235.  The allegations in para 4.2 of this Part of the pleading are ample to plead a cause of action in assault:  the applicant alleges that Stocks’ demeanour towards him was hostile and that he brought his finger very close to the applicant’s face when he ordered the applicant to leave the room by the exit door he indicated, ie, in such circumstances as to cause the applicant to fear that non-consensual physical contact might occur if he did not leave.  See Law of Torts, 2^nd ed, Balkin & Davis at 45.  I reject the respondents’ contention that this particular cause of action is inadequately pleaded.

73                  In expressing this conclusion, I am not, of course, to be taken to be suggesting that Mr Stock did, in fact, assault the applicant.  All I have held is that the untested allegations which the applicant has made against Mr Stock, if proven at a trial, are capable of justifying a finding in his favour that he was indeed assaulted.

Part IX

74                  In Part IX of the pleading, headed “Racial and Sex Discrimination”, $200,000 general damages, including exemplary damages, are claimed in respect of what the applicant alleges are some racially motivated comments made to him by the respondent Hulsman, and in respect of Stock’s conduct in granting an exemption of the kind the applicant sought for the Bachelor of Laws/Bachelor of Environmental Science degree requirements on the basis of certain of his passes in his Bachelor of Applied Science degree at Queensland University of Technology and his partly completed Masters course to a female student undertaking that combined Bachelor of Laws/Bachelor of Environmental Science degree.  This is said to involve racial discrimination on Stock’s part, in so far as he refused to give the same exemption to the applicant (who is a migrant from Poland) and also sex discrimination on Stock’s part.  The applicant relies upon the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth) in bringing these claims.

75                  However, the only jurisdiction the Federal Court has under this legislation is jurisdiction, on application by the Human Rights and Equal Opportunity Commission, the complainant or a trade union acting on behalf of the complainant, to hear proceedings brought for an order to enforce a determination of that Commission.  See s 25ZC the Racial Discrimination Act and s 83A the Sex Discrimination Act.

76                  Part IX must be struck out.

Part X

77                  In Part X of the pleading, headed “Contract; Trade Practices Act Section Part IV 51AA”, the applicant’s complaint is that he was, in effect, forced into withdrawing from his partly completed Master of Engineering Science in Waste Management once he had enrolled in early 1997 in the combined Bachelor of Laws/Bachelor of Environmental Science degree by the “undue influence exercised by the respondents”, viz, Hogarth and Holman.  The applicant does not make any suggestion as to how Hogarth may have been involved in any conduct that affected him.  He refers to a letter of 21 February 1997 from Holman, the respondent’s Registrar, and to what he says was his subsequent telephone conversation with her in which she said the Faculty of Environmental Sciences would put such demands on him that he would fail.  He also alleges that the Faculty of Environmental Sciences, through the letters of John Erkhart of 10 March 1997 put such demands on him that he had to withdraw from the Masters program.

78                  It appears from Mr Erkhart’s letters to the applicant of 10 January, 10 February and 10 March 1997 that the latter had failed to comply with the Master’s course requirements to accumulate a minimum of certain credit points in consecutive semesters, that he was called on to show cause why, in consequence, he should not be excluded from the course and that he did take advantage of this opportunity; the result was that the Faculty of Environmental Sciences agreed to permit his continued enrolment in the Master’s course on certain conditions with a view to ensuring his completion of that course within a reasonable period of time.

79                  In his letter of 10 February 1997, Erkhart, in explaining the reasons for the Faculty decision, said:

“For this reason, you are required to enrol full time in both semesters.  While you have only failed one subject since 1993, the Faculty notes with concern that on seven occasions over the last four years (including twice for the subject EE72062) you have enrolled in a subject and withdrawn after week 3 of the semester but before the last date where an academic penalty of a fail grade would apply.”

80                  In her subsequent letter of 21 February 1997 to which the applicant refers, Holman wrote concerning this decision of the Faculty of Environmental Sciences, notified to the applicant by Erkhart in his letter of 10 February 1997 saying:

“At the time of writing that letter, the Faculty was not aware that you had accepted the offer of a place in the LLB/BSc Law and Environmental Science degree as you applied for admission to that course through QTAC.

As you are currently enrolled in the LLB/BSc Law and Environmental Science degree, your enrolment in the Master of Engineering Science in Waste Management will be terminated.”

81                  It was a condition of the applicant’s continued enrolment in the Master’s course, notified by the letter of 10 February 1997, that, because of the limited time available to him to complete this degree in the five years’ maximum allowed by the University, he would have to enrol in the Master’s course full time in both semesters for 1997.

82                  It appears from Erkhart’s subsequent letter of 10 March 1997, to which the applicant refers in his pleading, that he did seek to pursue both the combined Bachelors degree course and the Masters course, that, so far as his Masters enrolment was concerned, he did not enrol in subjects which would enable him to comply with the conditions imposed by the Faculty and referred to in its letter of 10 February 1997 and that, in consequence, he was called on by Erkhart to rectify that particular situation by 14 March 1997 and told that failure to do so could lead to his exclusion.

83                  It was against this background that the applicant withdrew from the Master’s course and now claims that he was the victim of unconscionable conduct on the part of the University in being put into this situation.

84                  There is a complete absence of any factual basis in the pleading for the claim for $50,000 general damages under ss 51AA and 82 the Trade Practices Act, some of the elements of which are discussed in cases such as The Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447.  Further, the material from the University’s staff, put before the Court by the applicant without comment, demonstrates the manifest want of merit in this claim.

85                  There is no reference in this Part to any claim in contract save the use of the word “Contract” in the heading to this Part.

86                  Part X will be struck out.

Part XI

87                  Finally, in Part XI, (wrongly numbered X) headed “Defamation and Intimidation”, he alleges McAndrew, the Pro-Vice Chancellor (Administration), defamed him by writing to him on 7 May 1996.  McAndrew, in this letter, expressed concern at the way the applicant had spoken to administrative staff in the Faculty of Environmental Sciences in the recent past in the course of which conversations he told him, among other things, that he intended to initiate legal action against them.  The purpose of McAndrew’s letter appears from the second paragraph, in which he said:  “Until further notice, would you please conduct all contact with the Faculty through the Faculty Manager, Mr John Erkhart …”  McAndrew went on to warn the applicant that if he persisted in contacting other administrative staff within the Faculty, he would take action to bar the applicant from the campus.

88                  The claim in defamation is manifestly hopeless:  the only communication of the matter complained of is to the applicant himself.

89                  The applicant also makes a very general complaint in this part of the pleading that:  “The respondents exercised over the applicant in February-May 1996 period intimidation practices in order to break the applicant’s desire to study combined degree LLB/MSc offered by Griffith University.”.  McAndrew’s letter of 7 May 1996 is referred to as particulars of the intimidation complained of.

90                  The elements of this cause of action are:  (1) that the defendant has made a demand, coupled with a threat, to the plaintiff; (2) that the threat is to commit an unlawful act; and (3) that the plaintiff complied with the demand, thereby suffering loss or damage.  See Law of Torts, 2^nd ed, Balkin & Davis at p 618.  As the authors point out at p 619, the gravamen of this tort lies in the defendant exercising coercive power over the plaintiff to compel the latter to do something he did not wish to do or to refrain from doing something that he wished to do.

91                  The pleading comes nowhere near alleging a cause of action in intimidation.  Even if McAndrew’s letter of 17 May 1996 is regarded as incorporated in the pleading, it is difficult how it can be said to contain a demand.  Nor is there any explanation in the pleading for how the warning given by McAndrew of exclusion action, assuming it is capable of amounting to a threat for present purposes, might amount to a threat by McAndrew or the respondent to commit an unlawful act.

92                  Part XI will be struck out.

Conclusions

93                  I have held that the applicant has pleaded sufficiently a cause of action in negligence against Stock and Hogarth in Part I and a cause of action in assault against Stock in Part VIII of his pleading.  I have referred to the extensive opportunities the applicant has had to formulate a proper pleading.  However, I have concluded that the material before me shows, in relation to a number of the causes of action relied on by the applicant, that he will be unable to make out the case if the matter goes to trial while, in relation to a number of the other causes of action, his pleadings are so deficient as to require them to be struck out.

94                  If his claim in Part I is accepted at face value, he claims general damages of $40,000 and $30,000 respectively, against Stock and Hogarth and a further $14,000 special damages from them.  It is apparent that the applicant’s claim to $20,000 general damages in respect of the assault is extremely optimistic.  The probabilities, on the material before me, are that, if he can prove this claim, he will recover very much less than that.  If he has any entitlement to damages, the amount will also be influenced by any conduct of his own that contributed to such assault as he may be able to prove.

95                  In Korn v Paisley Robertson Pty Ltd (1995) 59 FCR 251, Beaumont J said at 252, in comments of general application:

“It is now accepted that, as a matter of proper judicial administration, relatively small claims should not be dealt with by this Court unless there is a federal or other special element to warrant the use of this Court’s jurisdiction.  There are a number of reasons underlining this policy.  The primary reason is that, as the Woolf Inquiry in England has recently found, care must be taken to ensure that in the case of relatively small claims, the amount of the claim, or a substantial part of it, is not consumed in costs …  In this connection, it must be borne in mind that in the higher courts the expense of litigating tends to be greater than in other courts.”

96                  The justification for this approach is not confined to the importance of ensuring that a successful claimant does not find that his or her award is eaten up in legal costs.  A respondent is also entitled to consideration and should not be exposed to the burden of having to incur costs of litigating claims in a superior court that, even if well-founded, can be much more economically litigated in the lower courts.  On any view, the District Court is the proper court in which the applicant’s negligent and assault claims should be determined.

97                  There is no reason why Mr Dudzinski cannot bring these claims in that Court:  it would appear that the relevant limitation periods will not expire for some time yet.  I have no power to transfer these claims to the District Court.  But I can stay permanently the further prosecution by Mr Dudzinski of the proceedings in Parts I and VIII of his amended statement of claim in the exercise of the discretion I have under O 20 r 2 to give effect to the policy reflected in Korn.  That I propose to do.

Associate:

Dated:              8 April 1999