FEDERAL COURT OF AUSTRALIA

Mathews v University of Queensland [2002] FCA 414

TRADE PRACTICES – motion to strike out the Amended Statement of Claim and/or dismiss the proceedings on the basis that no reasonable cause of action is disclosed and the proceedings are frivolous and vexatious – applicant without legal representation creates a need for special care – purpose of pleadings include the definition of issues so the parties know in advance the case they have to meet – jurisdiction of the Court in questions of academic assessment – whether applicant altered his position in reliance on the alleged misrepresentations – causation of loss or damage – expectation loss – whether representations were made in trade and commerce – allegations of deceit and defamation – nature of loss or damage pleaded in Amended Statement of Claim – no reason to allow applicant to re-plead to remedy the defects - no reasonable cause of action is disclosed and the proceedings are frivolous and vexatious - pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings

Trade Practices Act 1974 (Cth), s 52

Federal Court Rules, O 11 r 16(b), O 20 r 2(1)

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, approved

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, applied

Dare v Pulham (1982) 148 CLR 658, applied

National Mutual Property Services (Australia) Pty Ltd and Ors v Citibank Savings Ltd and Ors (1995) 132 ALR 514, cited

Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (13 September 1994, Fed C, unreported at 24), cited

Wardley Australia Ltd and Anor v The State of Western Australia (1992) 175 CLR 514, cited

Marks and Ors v GIO Australia Holdings Ltd and Ors (1998) 158 ALR 333, applied

Norrie v Auckland University Senate (1984) 1 NZLR 129, cited

Clark v University of Lincolnshire and Humberside (2000) 1 WLR 1988, cited

RUSSELL GORDON HAIG MATHEWS v UNIVERSITY OF QUEENSLAND

No Q 162 of 2001

SPENDER J

BRISBANE

8 APRIL 2002

THE COURT ORDERS THAT:

(1)                    The Amended Statement of Claim filed 14 February 2002 be struck out pursuant to O 11 r 16(b) of the Federal Court Rules.

(2)                    The proceedings be dismissed pursuant to O 20 r 2(1) of the Federal Court Rules.

(3)                    The respondent on the motion pay the applicant’s costs of and incidental to the motion and the proceedings, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     The University of Queensland (the University) by notice of motion filed 20 February 2002 seeks orders striking out the Amended Statement of Claim of Russell Gordon Haig Mathews (Mr Mathews) filed 14 February 2002, pursuant to O 11 r 16(a) and/or (b) and/or orders staying or dismissing the proceedings pursuant to O 20 r 2(1)(a) and/or (b).  In the alternative, other orders are sought by the University.

2                     In determining this application I have had regard to, amongst other things, the Amended Statement of Claim of Mr Mathews filed 14 February 2002 and the Amended Application, Particulars of Loss or Damage and Particulars of Fraud, Malice, Fraudulent Intention, Misrepresentation and Wilful Default which documents were presented to the registry on 5 April 2002 and filed in Court today by leave.  While I have had regard to the affidavit material that has been read on this application,  the focus, as the authorities make plain, must be on the contents of the Amended Statement of Claim and documents of particulars to which I have made reference.

3                     In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Sir Garfield Barwick CJ said at 128-129:

“... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.

…

[The] cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated.”

The Chief Justice later said (at 130):

“... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.  On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim.  Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

4                     There is a further matter which ought to be noted at the outset, and that is that Mr Mathews is appearing for himself and has drafted his claims without the benefit of legal assistance.  In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Kirby P (as he then was) said (at 536):

“... the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law.  Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage.  Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form.  If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out ...”

5                     Mindful of the need for special care in a case of this sort, it is, however, necessary to have regard to the purposes of pleadings, including the definition of issues in a proceeding so that parties may know in advance the case that they have to meet.  In Dare v Pulham (1982) 148 CLR 658 at 664, the High Court (Murphy, Wilson, Brennan, Deane and Dawson JJ) said:

“Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v Mount Oxide Mines Ltd. (In liq) (1916) 22 CLR 490 at p 517); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v Cameron (1936) 54 CLR 572 at pp 576-577); and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court.  Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR at pp 517, 518; Sri Mahant Govind Rao v Sita Ram Kesho (1898) LR 25 Ind App 195 at p 207).”

6                     Further, the pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought.  A “reasonable cause of action” for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant.  I refer to the adoption by Lindgren J in National Mutual Property Services (Australia) Pty Ltd and Ors v Citibank Savings Ltd and Ors (1995) 132 ALR 514 of the observations by Beaumont J in Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (13 September 1994, Fed C, unreported at 24), who quoted with approval the general principles governing strike-out applications (from the editorial note at (1992) 66 ALJ 47 on Lonrho plc v Tebbitt, The Times, 24 September 1991):

“(1)   A ‘reasonable cause of action’ means one with some chance of success if regard be had only to the allegations in the pleadings relied upon by the claimant; in such a case, the claim cannot be struck out: Davey v Bentinck [1893] 1 QB 185.

(2)         The mere fact that the case appears to be a weak one is not of itself sufficient to justify the striking out of the action: cf Wenlock v Moloney [1965] 1 WLR 1238.

(3)         Normally, the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect: cf Hodson v Pare [1899] 1 QB 455.

(4)         It goes without saying that if a substantial case is involved in the claim, the power to strike out cannot be exercised.

(5)         Where a point of law has to be decided, and the judge is satisfied that this can be done by him appropriately, thereby avoiding the necessity of, and expense in going to trial, he is entitled to determine the point: cf Williams & Humbert v W & H Trade Marks [1986] AC 368.

For recent House of Lords authority for proposition (3) above see Lonrho plc v Fayed [1992] AC 448 (HL) at 469 Lord Bridge, with whom all other members of the House agreed).

            I accept that this statement summarises some of the general principles applicable.”

7                     The primary concern of Mr Mathews relates to conduct by officers and employees of the University of Queensland in relation to various academic subjects which he undertook.  In oral submissions this morning Mr Mathews said that his primary focus was on the University’s conduct in respect of the mathematics subject MN475.  In respect of that subject, the primary allegation underlying the claim of misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth)(the Act)is referred to in pars 6 to 12 of the Amended Statement of Claim.

8                     There Mr Mathews alleges that in early 1999 Mr Douglas Porter, the Registrar and Secretary of the University, represented to him that the Senate Student Appeals Committee (SSAC) could and would fairly and expeditiously address all of his concerns regarding alleged improper actions by the University and its staff, for whom the University was vicariously liable with respect to MN475, and recommended that he follow that procedure.   Mr Mathews pleaded that in reliance upon that representation he appealed his concerns regarding MN475 to the SSAC.

9                     The representation by Mr Porter was said to be false and in breach of s 52 of the Act.  The Amended Statement of Claim then claims:

“9.  The SSAC held that they did not have jurisdiction to consider all matters, and failed to consider them.  The SSAC unfairly considered the other matters appealed and delayed its consideration. 

10.  The applicant has suffered damages in consequence of the applicant's reliance upon such representation.  The resolution of this matter has been further delayed by the SSAC. 

11.  The applicant claims ordinary and aggravated damages pursuant to s 82 of the Trade Practices Act for Breach of s 52 of The Trade Practices Act.”

Mr Mathews also claims exemplary damages for that breach. 

10                  Accepting for the purposes of the strike-out application that the University is a corporation, the representation alleged in par 6 of the Amended Statement of Claim, assuming as one does on such an application as the present that it was in fact made, cannot in my opinion be said to have been made “in trade or commerce.”  Further and more importantly, Mr Mathews has not identified any loss or damage suffered by him “by the alleged contravening conduct”. This is an essential element of the cause of action he seeks to propound.

11                  The delay in the resolution of the matter does not constitute compensable loss under the Act.  Further, the Amended Statement of Claim and other material shows that the appeal to the SSAC was a procedure which Mr Mathews availed himself of, with the consequence that he was awarded a grade of six in that subject.  He complains today that he really should have been given a seven, particularly having regard to the way other students in that subject were dealt with.

12                  It is plain to me that, while Mr Mathews complains about how his academic results were dealt with internally by the University, he has not pleaded any damages flowing from the misrepresentation said to have been made by Mr Porter.  Assuming that Mr Porter was incorrect in asserting that the SSAC could and would fairly and expeditiously address the applicant's concerns, Mr Mathews is unable to demonstrate any loss of damage caused by the making of that representation.

13                  The absence of any pleading that Mr Mathews’ position was altered as a result of the alleged misrepresentation touches upon many of the other causes of action referred to in the Amended Statement of Claim.  In this regard, attention should be had to a number of observations as to the damages that may legitimately be claimed under s 82 of the Act.  In Wardley Australia Ltd and Anor v The State of Western Australia (1992) 175 CLR 514, the question of the loss or damage for contraventions of s 52(1) in the form of misleading conduct constituted by misrepresentations was discussed by Mason CJ, Dawson, Gaudron and McHugh JJ commencing at page 525 of the judgment.  Their Honours said (at 526):

“... it may safely be assumed that the plaintiff is entitled to recover ‘a sum representing the prejudice or disadvantage [the plaintiff] has suffered in consequence of his altering his position under the inducement’ (Toteff v Antonas (1952) 87 CLR 647 at p 650; see also Potts v Miller (1940) 64 CLR 282 at p 297; Gould v Vaggelas (1984) 157 CLR 215 at p 220; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at p 12 (where that measure of damages was applied in an action for damages for contraventions of ss 52 and 53(g) of the Trade Practices Act 1974 (Cth)) of the misleading conduct or ‘the actual damage directly flowing from’ (Clark v Urquhart [1930] AC 28 at p 68; South Australia v Johnson (1982) 42 ALR 161 at p 170) that conduct, to take up and adapt well-known statements of the measure of damage applicable in an action of deceit …”

14                  In Marks and Ors v GIO Australia Holdings Ltd and Ors (1998) 158 ALR 333 at 347, the majority (McHugh, Hayne and Callinan JJ) made plain that the loss or damage spoken of in s 82 and s 87 is the loss that was, or will probably be, caused by misleading or deceptive conduct in that the plaintiff has sustained, or is likely to sustain, a prejudice or disadvantage as a result of altering his or her position in reliance upon the misleading conduct. The question presented by s 82 is:  what loss or damage has been caused by the conduct contravening the Act?  Their Honours indicated (at 346) that a comparison is to be made between the position in which the party that allegedly suffered loss or damage is, and the position in which that party would have been, but for the contravening conduct.

15                  The past tense of that observation, “would have been”, is important.  The relevant position here is not the position that Mr Mathews would have been in in twenty-eight years time after serving as a Professor of Mathematics for twenty-eight years, and after having exploited a computer system or program and earning royalties and other intellectual property benefits of $400,000,000, which is catalogued by Mr Mathews as the Particulars of Loss or Damage claimed.   While it is lengthy, I set out that document here in full.

“1.     The claims for Economic loss are predicated upon the loss of career for the applicant consisting of the applicant’s studying honours in 1998 and 1999 and studying for a PhD in 2000, 2001 and 2002 with Financial Support from an Australian Postgraduate Award (APA), awarded on merit of results gained in Honours, and working as a professor to age 80; 2003 to 2030 inclusive; 28 years, at any one of many Universities in the world.

2.             MN475, MN480, MP386, MP316 and MN391 are Honours Maths subjects whose results form part of those upon which an APA would have been awarded.

3.             The actions of UQ including their delay tactics, are responsible for the applicant’s loss of that career path.

4.             The claim for lost wages as a Tutor in Maths for the Maths Department of UQ, is calculated upon the basis of tutoring for 1999, 2000, 2001, and 2002; four years, eight semesters, each of 13 weeks, with a wage for tutoring each week of $150 (one hundred and fifty dollars).

          Total = 8 x 13 x $150 = $15,600.

5.             Salary for the Period 2003 to 2030 inclusive:

          Present professor’s salary:        $98,881.63 pa.

          total = 28 x $98,881.63 = $2,768,685.64.

6.             This salary is incrementally increased annually at present and such can be expected to occur in the future.  The incremental increase for 1 july, 2002 has already been gazetted.  The annual incremental increase counteracts the discounting to determine Net Present Value using Discounted Cash Flow techniques.

7.             The denial by Eccelston of tutoring by the applicant of Maths at UQ has diminished the applicant’s prospects of an Academic Career.

8.             Consulting fees, collaboration fees, computer program royalties, intellectual property rights value and capitalisation:  $400 million, (four hundred million dollars).

9.             The topic of my intended PhD thesis was the concept of the Logical Equivalence of Legal Decisions (LELD).  LELD can be readily computerised.  Such would be necessary to recognise its full impact.  It would greatly improve management of cases going through the courts and would significantly reduce the number of cases going to court, in all jurisdictions globally.  Hence, it would be embraced by all Attorneys-General.  It would enable one to pinpoint the divergence in split decisions.  In Common Law jurisdictions, all precedents would be entered into the programs database.  They would be related to relative jurisdictions.

The computer program would incorporate as periphery modules, Rules of Court for all jurisdictions.  Ironically, it would enable complete and optimum pleadings to be produced, automatically.  (It would probably also produce, if desired, a logical diagram of the case for quick and efficient assessment of the case.)  Additionally, within time, LELD should lead to a convergence of Civil Law and Common Law.  The skill would be to precisely determine all logical premises, and to correctly link them logically.  Hence, skill and training in both Law and mathematical logic, and the ability to interrelate them, is essential.  The program would become the essence of the practice of law.  It would highlight precisely the questions which would need to be decided by courts of law.  It would greatly reduce the demands upon the courts’ time.

Every Law Firm, School of Law, Court and barrister in the world would want ready access to this program.  It would revolutionise the way law is practiced and taught.

The computer program would be similar to the InfoModeller program related to DataBase design.  That program checks the structure of an intended Data base, entered as a diagram, and then writes all the computer code required to implement the DataBase design.

10.    Exemplary damages:   $400 million (four hundred million dollars).”

16                  That document makes plain that what Mr Mathews is seeking to recover is what is referred to as expectation loss in the context of contract damages.   The claims for loss and damage are not, in my opinion, claims open to Mr Mathews on an application alleging a contravention of s 52 of the Act and, at least insofar as the Trade Practices claims are concerned, an essential part of the cause of action is missing.  

17                  The second matter of general application to the Amended Statement of Claim concerns the gravamen of Mr Mathews’ complaints.   Those complaints are directed at questions of academic assessment, and allege defaults and other conduct by the University in respect of its said duty to properly assess academic achievement and properly deal with complaints about that assessment.

18                  Before turning to, in particular, the claims concerning the mathematics subject MN475, I should say something concerning the causes of action pleaded against the University of Queensland Union (the Union) and against the University in respect of plagiarism.   So far as the first matter is concerned, pars 16 to 23 of the Amended Statement of Claim allege that the Union refused to represent the applicant in his appeals to the SSAC and that “[s]uch has prolonged this process”.

19                  In respect of that complaint, the applicant claims damages pursuant to s 82 of the Act.   It is not possible, in my opinion, to discern what misleading and deceptive conduct it is alleged the University engaged in in this respect.   There is no basis shown in pars 16 to 23 for an allegation that the University, or the Union for that matter, contravened s 52 of the Act.   The mere allegation that the Union is an agent of the University is not sufficient to provide the necessary factual basis in a pleading so as to give rise to liability on the part of the University for the Union's actions.

20                  There is no loss or damage claimed by the applicant to have been suffered by that misleading conduct  In those respects, pars 16 to 23 disclose no cause of action and are embarrassing, frivolous and vexatious.

21                  So far as plagiarism is concerned, Mr Mathews alleges that the University represented that it would not countenance plagiarism yet did in fact do so. To the extent that the University may be assumed to have made that representation to Mr Mathews, it is contended by the University that it is not a representation made in trade or commerce.  That is likely to be the case.   However, the true problem with this allegation is that if, in fact, other students had been guilty of plagiarism and that plagiarism had been tolerated by the University, that is a matter between those students and the University and does not give rise, in my opinion, to any proper basis for complaint by the applicant.  No loss was identified by Mr Mathews as having been suffered as a result of any conduct of the University in respect of plagiarism.   This finding has similar consequences in relation to the complaints alleged against the Union.

22                  I turn now to the question of academic performance, particularly in relation to MN475.   It is alleged in pars 110 to 115 of the Amended Statement of Claim that the University represented that the lecturer responsible for the subject would provide a written statement of the goals or purposes of the subject and the nature of the assessment, that the lecturers would be available to discuss assessments with students and that the lecturer for both MN475 and MN480,  Dr Gates, failed to do this and Mr Mathews suffered damage as a result.

23                  Assuming that the representations were made, it is likely that the representations were not in trade or commerce.  That view, of course, is not a sufficient basis for a strike out; however, no damage has been alleged by Mr Mathews in respect of any such contravention and certainly not by that contravening conduct, and he has not been misled or deceived by any such representations.   He does not say that he altered his position in reliance on the alleged representations.   He does not say that he enrolled in the subjects on the basis of those representations and would, one infers, have enrolled in those subjects in any event.   In my opinion, no loss or damage as a result of any contravening conduct has been pleaded, nor is available to be pleaded.

24                  It is unnecessary to deal with other allegations in respect of academic assessment.  Suffice to note that, except in the case of MN475, Mr Mathews did not avail himself of avenues of internal review. 

25                  There is a question as to the jurisdiction of the Court in questions of academic assessment.  In Norrie v Auckland University Senate (1984) 1 NZLR 129 at 134 Woodhouse P observed:

… It is easy enough to understand why it has been held that non-justiciable  ‘in-house’ issues ought to be left as a matter of course to the domestic tribunal either because they could not sensibly be turned into suitable problems for adjudication by the Courts or simply as a matter of discretion.  The picture conjured up by Diplock LJ in Thorne’s case of Judges invited to re-assess the actual marking of examination papers may seem a good enough example of that – at least in the absence of fraud or malice on the part of the examiner or something of the sort.  But even so, and particularly in relation to issues of any significance, I have great difficulty in understanding why it should be thought that wherever the Visitor is able to act the actual jurisdiction of the Courts has been ousted.  Nor can I think that in 1874 the New Zealand Parliament ever intended that the University it was about to bring to life in this country should have a Visitor whose powers were to be exercisable only ‘with the approval of the Senate’ yet to the exclusion of the conventional authority of the Courts.  Nor is it any more likely that enactment of the Auckland University College Act of 1882 reflected a legislative purpose to grant even wider visitatorial powers to a member of the executive Government, in the person of the Minister of Education, on the basis that so long as he acted within those powers he could feel that his decisions could not be the subject of any kind of judicial oversight.”

26                  In Clark v University of Lincolnshire and Humberside (2000) 1 WLR 1988 Sedley LJ said at 1992:

“The arrangement between a fee-paying student and ULH is such a contract:  see Herring v Templeman [1973] 3 All ER 569, 584-585.  Like many other contracts, it contains its own binding procedures for dispute resolution, principally in the form of the student regulations.  Unlike other contracts, however, disputes suitable for adjudication under its procedures may be unsuitable for adjudication in the courts.  This is because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and depth, but on which any judgment of the courts would be jejune and inappropriate.  This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class.  It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified.  It has been clear, at least since Hines v Birkbeck College [1986] Ch 524 (approved in Thomas’s case [1987] AC 795), that this distinction has no bearing on the availability of recourse to the courts in an institution which has a visitor.  But where, as with U.L.H., there is none, the decision of the New Zealand Court of Appeal in Norrie v University of Auckland Senate [1984] 1 NZLR 129 and the remarks of Hoffmann J in Hines’s case [1986] Ch 524, 542-543 open the way to the distinction as a sensible allocation of issues capable and not capable of being decided by the courts.  It would follow, I think, that the issues which the courts remitted with obvious relief to visitors in such cases as Thomson v University of London (1864) 33 LJ Ch 625 (which concerned the award of a gold medal), Thorne v University of London [1966] 2 QB 237 and Patel v University of Bradford Senate [1978] 1 WLR 1488 (both of which concerned the plaintiff’s academic competence) would still not be susceptible of adjudication as contractual issues in cases involving higher education corporations.”

Lord Wolfe, Master of the Rolls, said in that case at 1996:

“… Where a claim is brought against a University by one of its students, if because the university is a ‘new university’ created by statute, it does not have a visitor, the role of the court will frequently amount to performing the reviewing role which would otherwise be performed by the visitor.  The court, for reasons which have been explained, will not involve itself with issues that involve making academic judgments.  Summary judgment dismissing a claim which, if it were to be entertained, would require the court to make academic judgments should be capable of being obtained in the majority of situations …

 ...

While the courts will intervene where there is no visitor normally this should happen after the student has made use of the domestic procedures for resolving the dispute.  If it is not possible to resolve the dispute internally, and there is no visitor, then the courts may have no alternative but to become involved.  If they do so, the preferable procedure would usually be by way of judicial review.  If, on the other hand, the proceedings are based on the contract between the student and the university then they do not have to be brought by way of judicial review.”

27                  I have not approached these proceedings on the basis of an absence of jurisdiction for the Court to review matters of academic assessment in respect of which avenues of internal review are available to a student of the University.  I have addressed the matter more broadly and on the acceptance of what is pleaded in the Amended Statement of Claim.  In respect of many of the claims, the difficulty, which is fatal in my assessment, is that there is no basis pleaded on which it can be argued that the loss or damage claimed is a consequence of the breach of contract or other causes of action pleaded in the Amended Statement of Claim.

28                  I should deal specifically with the allegation of deceit which is made in connection with the subject MN204.  An allegation of deceit is a serious one, as it claims that the person making the relevant statement lacked an honest belief in the truth of his/her statement.  In respect of the claim against Dr Chandler, one of Mr Mathews’ lecturers, the deceit is not particularised.  However, damage is the gist of an action for deceit, and the fatal deficiency in regard to this claim is that there is no allegation of reliance on anything said by Dr Chandler to Mr Mathews’ detriment.  Moreover, Mr Mathews passed the subject which related to these representations by Dr Chandler, and there is no allegation of any loss or damage suffered as a result of the alleged conduct of Dr Chandler.

29                  In respect of the allegation of defamation in par 143 that was made in relation to  comments said to have been made by the Dean of Law, the Amended Statement of Claim does not identify the words said to constitute defamatory matter of which Mr Mathews complains.  As a consequence, the complaint is embarrassing and vexatious and should be struck out for that reason.

30                  More importantly, however, there is an allegation pleaded in pars 150 to 155 of defamation arising from a statement made by one Denise Stevens.  Pars 150 to 152 of the Amended Statement of Claim plead as follows:

“150.  In or about 1999/2000, when the applicant was passing Denise Stevens on the steps outside the Physiology Refectory, she shouted at the applicant, ‘wanker’.   Stevens is the manager of the maths administrative office and employee of UQ.  She had with her many of the women staff from that office.  That office has a reputation as being a difficult environment in which to work and Stevens has a reputation as being unfair, bitchy and callous.

(ii)          The matter referred to in paragraph (i) immediately above bore and was understood as bearing the following meanings which are the natural and ordinary meanings thereof:

I.               that the applicant was a waster of time;

II.            that the applicant was incompetent;

III.          that the applicant was a fool.

IV.          that the applicant was filthy and unhygienic;

V.            that the applicant was a deviate;

VI.          that the applicant was a pervert.

VII.       that the applicant was a fool and a person of defective intelligence and unworthy and a risk for a person to engage as an accountant;

VIII.     that the applicant was untrustworthy;

IX.          that the applicant was a predator;

X.            that the applicant was violent;

XI.          that the applicant was a criminal.

151.         Each of the above imputations is false and actuated by malice.

152.         In response to the applicant’s complaint, Porter asked Stevens if she had said ‘wanker’.  He willingly accepted her refusal to answer.”

31                  In my judgment, no basis upon which the University could be held liable for the words spoken by Ms Stevens was pleaded.  The mere fact that Ms Stevens was an employee of the University is not a sufficient basis.  It is at least seriously arguable that the word in issue does not have, nor is capable in its natural or ordinary meaning of having, any of the meanings which Mr Mathews claimed it conveyed, but I do not accept this as a basis on which one could properly strike out an allegation of defamation.  Also, even assuming that the word was said in the circumstances in which Mr Mathews alleges, it is highly likely that he would  be held not to have been injured by the making of that statement.  However, that is not the relevant test for this application.

32                  Accepting for the purpose of argument that the word was said and contains some defamatory meaning, it has not been shown that any of the loss or damage particularised has any connection with this conduct, and there is no basis for holding that a cause of action exists against the University in respect of this matter. 

33                  In my opinion, there is no causative link pleaded between any of the matters alleged in the Amended Statement of Claim and the loss and damage claimed by the applicant.  In particular, there is no basis for alleging that any of the matters pleaded in the Amended Statement of Claim have stopped Mr Mathews from obtaining an honours degree in mathematics or an Australian Post-graduate Award.   Furthermore, there is nothing pleaded which permits the allegation that the matters pleaded in the Amended Statement of Claim have prevented Mr Mathews from undertaking a Doctor of Philosophy degree in mathematics, caused him to lose the right to receive Austudy for an honours degree at any other university or prevented him from embarking on a career in mathematics, working as a professor to age eighty at any one of the many universities in the world, realising the lucrative consulting fees, collaboration fees, computer programme royalties, intellectual property rights value and capitalisation at $400,000,000 referred to in the Particulars of Loss or Damage, or have prevented him from obtaining employment or forced him into poverty.

34                  The lack of a causative link is fatal, as is the nature of the loss or damage, at least insofar as it relates to the Trade Practices causes of action.  While the Amended Statement of Claim is such as to make it impossible for the University to plead to it in its present form,  it is not simply a case of defective pleading. There is no point in permitting Mr Mathews to re-plead to remedy the defects having regard to their nature.  In my judgment, this is a case where the applicant has not shown a reasonable cause of action against the University and his proceedings in that respect are frivolous and vexatious. 

35                  Having regard to the particular history of the attempts given to Mr Mathews to plead his case and to the egregious difficulties or deficiencies in the Amended Statement of Claim, this is a case in which it is appropriate, pursuant to O 11 r 16, to strike out the whole of the Amended Statement of Claim on the grounds that it discloses no reasonable cause of action and has a tendency to cause prejudice, embarrassment or delay in the proceedings. 

36                  This is also a case which, mindful of the matters to which I earlier referred, should nonetheless be dismissed on the basis that no reasonable cause of action is disclosed and the proceedings is frivolous and vexatious.  Consequently I order that:

(1)                    The Amended Statement of Claim filed 14 February 2002 be struck out pursuant to O 11 r 16(b) of the Federal Court Rules.

(2)                    The proceedings be dismissed pursuant to O 20 r 2(1) of the Federal Court Rules.

(3)                    The respondent on the motion pay the applicant’s costs of and incidental to the motion and proceedings, to be taxed if not agreed.

Associate:

Dated:              18 April 2002