FEDERAL COURT OF AUSTRALIA
Mbuzi v Griffith University [2014] FCA 1323
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant GRIFFITH UNIVERSITY Cross-Claimant | |
AND: | Respondent JOSIYAS MBUZI Cross-Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The amended originating application filed 25 November 2013 of Josiyas Mbuzi is dismissed with costs, to be taxed if not otherwise agreed.
2. Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) Josiyas Mbuzi is hereby prohibited from instituting any proceedings in any Registry of the Federal Court of Australia against Griffith University or any employee, officer, Council member or student of Griffith University without the leave of the Court.
3. Josiyas Mbuzi pay Griffith University the costs of the cross-claim filed 15 August 2013, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 479 of 2013 |
BETWEEN: | JOSIYAS MBUZI Applicant GRIFFITH UNIVERSITY Cross-Claimant
|
AND: | GRIFFITH UNIVERSITY Respondent JOSIYAS MBUZI Cross-Respondent
|
JUDGE: | COLLIER J |
DATE: | 5 DECEMBER 2014 |
PLACE: | BRISBANE |
REASONS FOR JUDGMENT
1 Before the Court are a claim and a cross-claim involving the same parties. Mr Mbuzi has been self-represented throughout the proceedings. The respondent/cross-claimant, Griffith University, has been represented by solicitors and Counsel.
2 In his amended originating application filed 25 November 2013 Mr Mbuzi applied for the following relief pursuant to s 39(1A)(b) of the Judiciary Act 1903 (Cth) (“Judiciary Act”), ss 20, 21, 22, 232 and 236 of the Australian Consumer Law (“ACL”) (being Sch 2 of the Competition and Consumer Act 2010 (Cth)), and the common law:
1. An injunction restraining the respondent by itself, its agents or otherwise however, from terminating the applicant’s Doctoral candidature
2. Preservation of Applicant’s PhD candidature at Griffith University
3. $90,000.00 for lost opportunity compensatory damages due to unconscionability and breach of contract
4. $2,550.00 being conferences’ costs in Perth, Western Australia
5. $200,000.00 non-economic compensatory damages for inconvenience, annoyance, and emotional distress
6. $10,000.00 exemplary damages
7. To strike out Respondent’s counter-claim on grounds of being scandalous, irrelevant, inappropriate, vexatious, filed in breach of court rules, embarrassing and does not amount to a cause of action and is bound to fail.
3 On 15 August 2013 Griffith University filed a notice of cross-claim in which it sought the following orders:
1. An order under section 37AO (2)(a) of the Federal Court of Australia Act 1976 (Cth) staying or dismissing all of the proceeding instituted by Mr Mbuzi
2. An order under section 37AO (2)(b) of the Federal Court of Australia Act 1976 (Cth) prohibiting Mr Mbuzi from instituting proceedings against Griffith University or any employee, officer, Council member or student of Griffith University in the Court
3. An order that Mr Mbuzi pay Griffith University the costs of its cross-claim.
4 It was clearly this cross-claim to which paragraph 7 of Mr Mbuzi’s application was directed.
5 The matter was heard over two days. As it transpired, Mr Mbuzi presented his claims, and I then heard both parties in respect of Griffith University’s cross-claim.
6 It is convenient to deal with Mr Mbuzi’s claims first.
MR MBUZI’S CLAIMS
Background
7 There is a great deal of correspondence before the Court, generated by interactions between Mr Mbuzi and staff of Griffith University in relation to this matter. Much of the evidence relating to these facts can be drawn from affidavits of Mr Mbuzi, and from affidavits affirmed on 6 December 2013 by Associate Professor Norman James Macleod (at material times the Acting Dean, Learning and Teaching, Arts, Education and Law) and Professor Susan Berners-Price (at material times the Dean (Griffith Graduate Research School) and Chair of the Board of Graduate Research).
Commencement of candidature
8 Mr Mbuzi commenced candidature for the degree of Doctor of Philosophy (“PhD”) on 7 March 2011 in the School of Humanities at Griffith University. Mr Mbuzi initially expressed an interest in the topic “community perceptions and attitudes towards development programmes delivered by non-governmental organisations (NGOs) and governments for poverty alleviation and empowerment”. The topic of his doctoral thesis was formally “Community perceptions of development programmes by Government & NGO – Indigenous Australian Experience”.
9 This was the second time Mr Mbuzi had been a PhD candidate at Griffith (his first candidature was terminated on 14 March 2003).
10 On 13 January 2011 Ms Joanne Umemoto, the Higher Degree Research Officer (Arts, Education and Law) sent Mr Mbuzi an email with a letter of offer attached, informing him that the Dean (Griffith Graduate Research School) had approved his application for admission as a higher degree research candidate at Griffith University. The letter of offer listed Mr Mbuzi’s supervisors as Dr Susanna Chamberlain (principal supervisor) and Dr Kerrie Foxwell (associate supervisor). Both Dr Chamberlain and Dr Foxwell were members of the School of Humanities. The letter stated that Mr Mbuzi’s candidature would be subject to “Candidature Milestones” as follows:
All students are admitted to candidature subject to completing an early and mid candidature milestone as well as completing your candidature confirmation. Your milestone and confirmation of candidature due dates will be provided to you on enrolment.
11 The letter also informed Mr Mbuzi that the School of Humanities would support his research within Australia but extra funds for research in Africa would need to be sought elsewhere.
12 On or about 14 February 2011 Mr Mbuzi accepted the offer of candidature by submitting a signed copy of the “Acceptance of Offer” form. On that form, immediately before the signature panel, was the following statement:
I acknowledge that while I am enrolled as a student of Griffith University I am subject to the Statutes, Rules and Policies of the university and to the lawful instructions of the authorities of the university.
Doctoral supervisors
13 It is not in dispute that the university’s Higher Degree Research Policy (“HDR Policy”) requires a doctoral candidate at all times to have two university supervisors – namely a principal supervisor and an associate supervisor. Further, on 18 November 2010 the Higher Degree Research Supervisor Accreditation Policy (“Accreditation Policy”) was approved. Paragraph 3.1 of the Accreditation Policy required, among other things, that in order to be a principal supervisor a staff member must have supervised at least one higher degree research candidate to successful completion and have demonstrated professional engagement in higher degree research education.
14 Associate Professor Macleod deposed that in or around June 2011 he became aware that Mr Mbuzi did not want Dr Foxwell to continue as associate supervisor, and that Dr Foxwell was content to be removed from that position. Mr Mbuzi at that time identified Professor Cordia Chu to replace Dr Foxwell.
15 In or around July 2011 both Associate Professor Macleod and Mr Mbuzi were hopeful that Professor Chu could be appointed Mr Mbuzi’s principal supervisor. On 1 September 2011 however Professor Chu advised Associate Professor Macleod that, because of changed circumstances, she could only commit to be Mr Mbuzi’s associate supervisor. Relevant correspondence was also copied to Mr Mbuzi, and on 2 September 2011 Mr Mbuzi lodged a “Higher Degree Research: Appoint/Change Supervisor Form”, signed by Professor Chu as Mr Mbuzi’s prospective associate supervisor.
Candidature milestone and progress report
16 In September 2011 Mr Mbuzi was required to complete his early candidature milestone. Clause 4.13.2 of the university’s HDR Policy states that the purpose of the early candidature milestone is to assess if the candidate has a viable research project, and to define the education/training requirements and resources needed by the candidate to ensure timely completion. The milestone is assessed as “satisfactory” or “unsatisfactory”. Mr Mbuzi was also required to complete his 2011 Annual Progress Report. There was correspondence between Mr Mbuzi, Dr Chamberlain and Associate Professor Macleod in which Mr Mbuzi complained about Dr Chamberlain’s failure to give priority to the Progress Report (which Mr Mbuzi said was overdue) and her insistence that Mr Mbuzi address the early candidature milestone. At this time Mr Mbuzi informed Associate Professor Macleod that he wished Dr Chamberlain to cease acting as his principal supervisor. Dr Chamberlain conveyed similar sentiments to Associate Professor Macleod in respect of her position as principal supervisor to Mr Mbuzi, however Associate Professor Macleod requested her not to withdraw from that role until a replacement principal supervisor could be found.
17 It appears that Mr Mbuzi completed his 2011 Annual Progress Report, however the Panel assessing the report (namely Professor Richard Bagnall (Dean of Research (Arts, Education and Law), Associate Professor Macleod, Dr Chamberlain, Professor Chu and Dr Margaret Gibson (Deputy Head of School (Research) and Acting HDR Convenor) decided on 9 November 2011:
1. That Mr Mbuzi be considered to have completed the early candidature milestone process.
2. That the panel, in its academic judgment, considers that his work to date, nevertheless, is not of doctoral standard, in that it fails to engage with scholarship in the field of his proposed research in a scholarly manner, it being neither adequately descriptive nor critically informed.
3. That, in preparation for the confirmation of his candidature and the preparation of his confirmation document and seminar presentation, he must:
a. Undertake appropriately focused critical reviews of informing literature in the contextual fields of (1) poverty alleviation (2) community development (3) empowerment and clients’ needs, and (4) program evaluation, drawing from these reviews arguments to articulate a clear line of questioning to guide his doctoral research.
b. Develop a contextual review of the Cape York communities in which he intends to locate his research: a review that serves to argue for their use in the research and explain them as research sites.
c. Develop his approach to the research task, explaining and justifying that approach using appropriate methodological literature.
d. Detail his research methodology, grounded appropriately in the literature.
e. Obtain written authorisation to conduct the research in the selected communities and obtain the required research ethics clearances.
That the timeline for the completion of these tasks to doctoral standard be that which is articulated in the Higher Degree Research guidelines.
Contemporaneous litigation with Griffith University
18 Around this time Mr Mbuzi was engaged in litigation in the Supreme Court of Queensland against Associate Professor Malcolm Alexander and Dr Cathy Jenkins of Griffith University. Mr Mbuzi and Associate Professor Macleod engaged in email correspondence in November 2011 in which Mr Mbuzi stated that there was a potential for him to subpoena Associate Professor Macleod to also appear in those court proceedings. I do not understand this to have eventuated.
Replacement principal supervisor
19 From at least September 2011 Dr Chamberlain had requested that she be replaced as Mr Mbuzi’s principal doctoral supervisor. On 30 November 2011 Dr Gibson emailed Associate Professor Macleod informing him that she had met Dr Chamberlain and it was no longer tenable for Dr Chamberlain to continue as Mr Mbuzi’s principal supervisor because of the stress Dr Chamberlain was experiencing. In his affidavit Associate Professor Macleod deposed however:
76. Before Mr Mbuzi could be transferred out of the School of Humanities, it was necessary to find a new principal supervisor in another element of the university who had the relevant expertise and was willing to take on the role of principal supervisor. I had not identified anyone outside the school who was willing to take on the role.
20 On 24 February 2012 Mr Mbuzi sent an email to the university, copied to Associate Professor Macleod, stating that in his view it was not feasible for his confirmation of candidature process to be overseen by Dr Chamberlain as she had not been involved in his academic work for approximately eight months. On the other hand, Mr Mbuzi was prepared to continue with the timeline for confirmation because Professor Chu was adequately providing and meeting his supervision requirements.
21 It appears from his evidence that Associate Professor Macleod made extensive endeavours to obtain a new principal supervisor for Mr Mbuzi. At [90]-[93] of his affidavit Associate Professor Macleod deposes:
90. On 24 August 2012 at or about 4.25pm Dr McKay [the HDR convenor] sent an email to me, forwarding the email referred to at paragraphs 88 and 89 above. In that email Dr McKay advised me that the School of Humanities could not provide appropriate supervision for Mr Mbuzi and that a replacement supervisor needed to be found for Dr Chamberlain …
91. I was still considering all options to find Mr Mbuzi a suitable replacement principal supervisor within the School of Humanities. However, as indicated in my emails above, I believe that I had exhausted all options for finding a supervisor within the School of Humanities and it remained my view that efforts would need to be made to find someone outside the academic element.
92. At this point in time I do not recall consulting with Mr Mbuzi about potential alternative supervisors. Rather I was looking for someone who might be willing to take on the role and who had the necessary expertise. If such a supervisor could be found, it was my intention to ask Mr Mbuzi whether he was willing to take that person on as the new principal supervisor.
93. I was aware that Mr Mbuzi was also making efforts himself to find an alternative supervisor to replace Dr Chamberlain as principal supervisor at or about this time. I recall that Mr Mbuzi from time to time suggested names to me. I do not recall Mr Mbuzi ever identifying anyone who I thought would have the appropriate expertise to take on the role of principal supervisor. I do recall however encouraging Mr Mbuzi to follow up with any suggested principal supervisors to determine whether they might be able to take on the role and if so whether they had the relevant expertise.
22 It appears that Associate Professor Macleod met with Mr Mbuzi on or about 30 January 2013 to discuss his supervisory arrangements. It does not appear to be in dispute that, at that time, Dr Chamberlain did not wish to continue in the role of principal supervisor for Mr Mbuzi, and Mr Mbuzi also refused to work with the other two Humanities academics most closely related to his research topic (Dr Foxwell and Associate Professor Alexander). On 1 February 2013 Mr Mbuzi reiterated in an email to Associate Professor Macleod that Dr Chamberlain be immediately removed as his principal supervisor. Associate Professor Macleod deposed that in or about March 2013 he had face to face meetings with the Heads of the School of Criminology and Criminal Justice, the School of Law and the School of Education and Professional Studies at the university seeking assistance to identify a new principal supervisor for Mr Mbuzi, but was unsuccessful.
23 On 20 May 2013 in an email to Professor Berners-Price, Dr Chamberlain stated that she was no longer willing to be recorded as Mr Mbuzi’s principal supervisor.
Need for ethics approval
24 At the same time there was some difficulty in relation to obtaining appropriate ethics approval in respect of Mr Mbuzi’s research. Because Mr Mbuzi’s research involved indigenous persons the National Statement on Ethical Conduct in Human Research (published by the National Health and Medical Research Council) and the Guidelines for Ethical Research in Indigenous Studies (published by the Australian Institute of Aboriginal and Torres Strait Islander Studies) certain obligations were imposed, including:
the researcher is required to address relevant issues of research design, ethics, culture and language;
research must be reviewed and approved by a Human Research Ethics Committee;
regard must be had to the Guidelines for Ethical Research.
25 Some time before 9 May 2012 Mr Mbuzi applied to the Office for Research at the university for ethical review of his project. On 9 May 2012 Dr Gary Allen, the Senior Policy Officer, Office for Research of Griffith University, sent Mr Mbuzi an email in which he said (materially):
Further to your discussion with Ms Rhiannon Campbell I feel we need to discuss informed consent materials, prior to this being sent for review. There is certainly precedent, and indeed value, in focussing on the discussion to ensure individuals are able to exercise a truly informed and voluntary decision about their participation in a research project. We do however (as discussed in Booklet 22 of the Griffith University Research Ethics Manual (see attached) recommend that an information sheet is produced and left with participants at the end of the verbal consent discussion – for their later reference and discussion with others. The language and format of these materials should be appropriate and respectful. I would be doing you a disservice if I sent your application onto review without these materials.
I recommend you discuss this issue with a member of your supervisory team and the Research Ethics Advisor for Environment.
26 On 12 April 2013 Mr Mbuzi emailed Dr Kristie Westerlaken, Policy Officer Research Ethics and Integrity at the university and informed her that:
… Based on my lengthy consultations with the community representatives/elders on phone email and in person during meetings, it was put to me that the community members realised their right to provide consent, except that they wished such ‘consent’ to be ‘verbal’ and ‘non-written’. Your response incorrectly (through misapprehension) states that the communities/community members ‘may not wish to provide verbal and not written consent’. They put to me that the community members would not like to be “handed forms to keep”. Given the initial response from Dr Gary Allen which was insisting on “participants still need to be given forms to keep”, similarly to your expressed view, I had sought a meeting with the element Dean (Research), Professor Richard Bagnall, to seek his advice on the situation where Dr Allen was essentially telling me to ignore the community wishes in order to respect the committee’s requirements. As a community development practitioner of over 12 years myself, I was concerned with taking a position which was essentially not respecting the wishes of the communities concerned. Professor Bagnall’s advice was for me to explain what I explained to you in my email that “written consent” and “forms for the participants to keep” were anathema due to historical experiences of the communities. It should also be noted that the thrust of my research project relates to the importance or respecting community wishes.
Given that “written consent” and “forms for the participants to keep” are still being insisted upon by you or your committee, I will prepare the forms and I have copied Professor Bagnall into this email so that he is aware of the situation. If your committee receives feedback from the university community, I would like an opportunity at an appropriate time to do so.
27 In relation to Mr Mbuzi’s email however a contrary opinion was expressed by Professor Paul Tacon in an email to Associate Professor Macleod of 26 April 2013. Professor Tacon is Chair in Rock Art Research in the School of Humanities. Materially Professor Tacon wrote:
There are national policies about ethics in research with Aboriginal and Torres Strait Islander communities and the Griffith policy is based on them. It is now a requirement that consent be obtained in writing. … I discussed this with Joe some time ago and suggested that he obtain written consent whenever possible but he said he could not because the community members did not want to. I don’t know of any community members I’ve or colleagues have worked with ever refusing unless they did not want to participate.
When I undertake ethnographic research, I am required to get community consent and I am required to get individuals to sign forms giving their consent even though I have been working in Aboriginal Australian communities for over 30 years. I and my students have followed this procedure the eight years I’ve been at Griffith …
…
If we do not have proof of consent the researcher, the community members and the university are all at risk should something go wrong. The whole purpose of University ethics is to protect all key stakeholders and to establish an agreed easy to follow protocol. Joe’s assessment of the university’s ethics policy and its ethics officers is totally unreasonable, aggressive and down right wrong.
Another reason for written consent is to add a certain level of reliability to ethnographic evidence collected orally.
Finally, in order to undertake ethnographic research anywhere in Australia researchers need to have a permit from the relevant local land council, community or other type of governing body. These are signed written documents, not oral agreements, that the Aboriginal communities produce …
28 Associate Professor Macleod deposed at [111] of his affidavit that he accepted Professor Tacon’s advice, because he was aware that Professor Tacon is a very experienced researcher in areas involving indigenous communities.
Confirmation seminar
29 Before enrolling as a doctoral candidate at Griffith University, Mr Mbuzi had been enrolled in the doctoral programme at the University of Queensland. On 20 June 2012 Professor Berners-Price informed Mr Mbuzi that, although he had received confirmation of candidature at the University of Queensland, he was nonetheless required by Griffith University’s HDR Policy to be reviewed for confirmation of candidature, including supervision arrangements, unless:
he could demonstrate satisfactory completion of a candidature confirmation at another institution; and
the Dean (Research) recommended exemption.
30 In an email of 29 August 2012 the Dean (Research), Professor Bagnall, recommended to Professor Berners-Price that Mr Mbuzi not be exempted from the requirement to complete confirmation of candidature. Professor Berners-Price invited submissions from Mr Mbuzi in relation to this issue and Mr Mbuzi responded accordingly. On 22 October 2012 however Professor Berners-Price emailed a letter to Mr Mbuzi in which she said:
I have determined that you should complete the university’s candidature confirmation procedure for the reasons given in Professor Bagnall’s recommendation of 29 August 2012, including that the confirmation document for which confirmation was granted at The University of Queensland does not address methodological issues crucial to the study towards which you are now working, including the Australian indigeneity of the intended participants.
31 Professor Berners-Price indicated however that she was prepared to give Mr Mbuzi a reasonable extension of time in which to complete his confirmation of candidature. In later correspondence she indicated that this process should formally involve Dr Chamberlain, who at that time was Mr Mbuzi’s principal supervisor. Professor Bagnall signed off on an application for an extension of the date of Mr Mbuzi’s confirmation of candidature seminar to 15 March 2013.
32 In late January 2013 Mr Mbuzi submitted an application at the university to have Dr Chamberlain’s name removed as his principal supervisor. This application was refused because no suitable alternative principal supervisor had either been identified or agreed to perform that role.
33 The confirmation seminar was rescheduled to May 2013 because Professor Chu was unavailable until then.
34 Because, however, Dr Chamberlain took no active part in supervising Mr Mbuzi’s doctoral studies, at Professor Bagnall’s request Associate Professor Macleod organised Mr Mbuzi’s confirmation seminar. Associate Professor Fiona Kumari Campbell was identified as an appropriate independent assessor, with Professor Chu also nominated as an assessor. The confirmation seminar was held on 15 May 2013 at the Nathan campus of the university. Associate Professor Macleod deposed that after the seminar he conferred with the assessors, and it became clear to him that there was some doubt whether Mr Mbuzi’s candidature would be confirmed following the seminar, based on the assessors’ initial views (affidavit of Norman James Macleod dated 6 December 2013 at [122]). On or about 22 May 2013 Associate Professor Campbell and Professor Chu completed their assessments of Mr Mbuzi following the confirmation seminar. Both assessors advised, inter alia, that the work presented by him was not of the standard expected for the doctoral degree.
Withdrawal of Professor Chu
35 On 27 May 2013 Professor Chu informed Associate Professor Macleod and Professor Berners-Price that she wanted to withdraw from the position of associate supervisor to Mr Mbuzi. In an email of that date, Professor Chu said the following:
Dear Jock and Sue:
As you can see from the emails trail, Joe has finally burnt the bridges with me and our Centre with unacceptable behaviour.
One week before Joe’s confirmation seminar, the CEPH PhD students have made a special effort to attend a pre-confirmation seminar to help him. By answering questions aggressively and being overly defensive, Joe had managed to offend nearly everybody there. One student commented “we are not your enemy, why are you acting this way.”
Three days before Joe’s confirmation seminar, I asked my post-doctoral fellow Dr Phung to stay behind two hours for two nights in a roll [sic] to accompany me to advise Joe to help him to improve his oral presentation for the confirmation seminar. After the second meeting I asked Dr Phung to show Joe a couple techniques about ppt back to his office as I had to attend to other matters. Instead of learning how to do it, Joe asked Dr Phung to do it for him in a commanding manner. So Dr Dung [Phung] said that he was not his research assistant and his job was only to show him how to do it. Joe became very aggressive and impolite and using insulting language such as “rubbish” to Dr Phung. They then got into heated argument and came back to my office. I told Joe that I was really busy and had no time to deal with this kind of matter. Dr Phung then asked him politely to leave to go home as he had a lot to do for the seminar and leaving me to do my work. Right in front of me, Joe suddenly turned very loud, shouting out to Phung, “Don’t touch me and you have no right to ask me to leave.” I then asked him to leave. After he left he called me back and told me that by asking him to leave and touch him at the same time, Dr Phung had committed a criminal offence. I could not believe he could make such an untrue accusation to a kind person as Dr Phung who had to delay going home for dinner in order to help him, not to mention I had witnessed the whole process and wasting a lot of time to endure such unacceptable behaviour.
He returned today to my office saying that because he was going to the field next week and had a one hour discussion with you Jock after the confirmation and you advised him to come to talk to me about it. I told him that I know nothing about the indigenous culture and people and that I do not know about his research settings and he had to talk to his principle [sic] supervisor instead. He then changed the subject and told me that if Phung does not apologize to him, he would report to the police that Phung had committed a criminal offence against him.
I was terribly offended and upset by this untrue accusation. Not only he had insulted someone I asked to help him, but by doing so he had also being [sic] very dis-respectful to me with an intention of causing trouble.
This is the last straw. I like to withdraw from his supervision team. He will attempt to see me again to discuss other ways of dealing with this matter. I want to put this in record to you beforehand. I am not willing to spend more time to deal with such upsetting and offensive matter anymore.
Complaints by Dr Phung and Mr Mbuzi
36 In an email of 31 May 2013, Professor Chu informed Professor Berners-Price that Dr Phung had filed a formal report and complaint with her concerning the events involving Dr Phung and Mr Mbuzi. Professor Chu said:
… I witnessed the event and would add that it was Joe who acted aggressively, loudly, in a threatening way towards Dr Phung. Phung merely put his hand up to defend himself and to stop Joe from approaching further but did not apply any force. I was extremely angry witnessing such bullying behaviour from Joe …
37 On 3 June 2013 Mr Mbuzi emailed an incident report of the same event to Professor Berners-Price, stating as follows:
Please find attached my incident report of assault by Dr Dung Phung against me on 14th May 2013 and Professor Cordia Chu’s blackmail in her efforts to suppress a criminal liability complaint.
38 In his report Mr Mbuzi wrote:
Dr Dung Phung thrashed one of his hands on my under right shoulder and successfully made contact with that part of my body. He did so without my permission and while shouting at me saying “leave now”. I had to stop him the continuation of his assault on me by saying words to the effect, “don’t touch me and you have no right to be telling me to leave”. Eventually both Dr Phung and I were requested to leave the office concerned by its owner, Professor Cordia Chu who had witnessed the assault against me. Later that night (14th May) and also on 27th May Professor Chu demanded that I should not make a complaint of assault against Dr Phung and that if I did, she would withdraw her stop her role as my supervisor. She further added that she was the one to decide whether or not an assault had been committed by Dr Phung and that it was not the duty of the Queensland Police. I told her that I would proceed to make a complaint and I understand she has implemented her blackmail.
Termination of Mr Mbuzi’s candidature
39 Clause 4.13.3 of the university’s HDR Policy (approved 18 July 2013) (which for present purposes is not materially different from the HDR Policy approved 18 November 2010) provides as follows:
Confirmation of Candidature and Supervision Arrangements
All candidates will be reviewed for confirmation of candidature, including supervision arrangements, excepting candidates who have changed candidature from MPhil to PhD under section 4.8.3 of this Policy.
The review of PhD candidates will occur around the first twelve months of enrolment in the case of full-time candidates, and the first eighteen months of enrolment in the case of part-time candidates …
Where a major change in the direction of the research has occurred or in exceptional circumstances, the Dean (Research) may approve an extension to the confirmation of candidature due date of up to six months FTE for a PhD …
As part of the confirmation procedure the candidate must present a research seminar together with a written submission. The seminar and written submission will be assessed by the principal supervisor/s; associate supervisor/s (if available); and an independent assessor, approved by the Dean (Research).
On receipt of a recommendation for confirmation of candidature from the Head of Element, the Dean (Research), will determine that:
a) candidature and supervision arrangements are confirmed; or
b) the confirmation date is postponed for no more than six months;
On receipt of an unsatisfactory recommendation for confirmation of candidature from the Head of element to the Dean (Research), the Dean, Griffith Graduate Research School will determine that:
c) candidature is terminated; or
d) in the case of PhD candidates, the candidate is offered the opportunity to be admitted as a candidate to one of the university’s masters degrees.
40 On 30 May 2013 Professor Berners-Price wrote to Mr Mbuzi advising him that both Dr Chamberlain and Professor Chu had indicated that they were no longer willing to be his supervisors, and that pursuant to clause 4.13.3 of the HDR Policy his supervision arrangements were subject to review as part of the confirmation of candidature process. Professor Berners-Price invited Mr Mbuzi to provide any response that he wished to make to the comments of Dr Chamberlain and Professor Chu, and said that the university was currently investigating alternative arrangements for the supervision of his candidature.
41 In an email to Professor Berners-Price dated 6 June 2013 Mr Mbuzi said that it appeared Professor Berners-Price was using complaints against him in the decision-making process concerning his confirmation of candidature, and requested her to remove herself from any role she had in his confirmation process.
42 Following email correspondence between Professor Berners-Price and Associate Professor Macleod, on 7 June 2013 in an email to Professor Berners-Price, Associate Professor Macleod said the following in relation to identification of suitable doctoral supervisors for Mr Mbuzi:
• Mr Mbuzi’s formal supervisor (Dr Susanna Chamberlain) and Associate Supervisor (Prof Cordia Chu) have both asked to be withdrawn as his supervisors. In Dr Chamberlain’s case, Mr Mbuzi has refused to work with her for over 12 months, and has repeatedly made it clear he does not consider her his supervisor.
• The School has only three suitably qualified staff who could act as Mr Mbuzi’s principal supervisor. Assoc Prof Malcolm Alexander (recently retired but still an adjunct with the School), Dr Chamberlain, and Dr Kerrie Foxwell (his original associate supervisor). Mr Mbuzi has progressively excluded them as his supervisors, and none of them is willing to supervise him.
• I can confirm there is no other academic in the School who meets your criteria for principal supervisor.
• Over this period I have sought other colleagues who might have been able to supervise Mr Mbuzi, provided Prof Chu (who has expertise in the area) remained as associate supervisor. These are colleagues who have some loose connection to his topic, but do not have expertise in it. None of these colleagues is willing to supervise Mr Mbuzi.
• I can confirm that I have identified Dr Rane as the most recent of these colleagues. Mr Mbuzi’s topic lies outside Dr Rane’s area of expertise, and Dr Rane was only prepared to take on the role of principal supervisor as an interim measure until Mr Mbuzi resubmits for confirmation. Given these circumstances, I accept your decision to refuse to appoint Dr Rane as Mr Mbuzi’s principal supervisor.
• I have also sought to identify appropriate supervisors outside the School. I believe Mr Mbuzi has also done this. I have been unsuccessful in finding anyone who could supervise Mr Mbuzi according to the criteria you have laid out.
43 On 24 June 2013 Associate Professor Macleod as Head of School recommended to Professor Gerard Docherty, then Dean Research (Arts, Education and Law) that Mr Mbuzi’s candidature not be confirmed, because in summary:
Mr Mbuzi had not made suitable progress during the initial stage of candidature.
For Mr Mbuzi to reach a standard where he would be able to re-present and pass his confirmation, he would need extensive and detailed supervision which he would need to apply.
Suitable supervision was a fundamental problem in relation to Mr Mbuzi’s candidature as:
o this would not appear to be possible because Mr Mbuzi had rejected both Humanities supervisors assigned to him;
o Professor Chu was not willing to supervise him;
o extensive efforts had been made to find a supervisor with the expertise to supervise Mr Mbuzi’s studies but these efforts had been unsuccessful;
o in the circumstances Associate Professor Macleod could not see how Mr Mbuzi could advance to a point where he could fulfil the conditions for confirmation of his candidature at the university.
44 Mr Mbuzi met with Associate Professor Macleod on or about 18 July 2013 at Mr Mbuzi’s request. At that meeting Associate Professor Macleod told Mr Mbuzi in person the reasons for his recommendation that Mr Mbuzi’s candidature not be confirmed.
45 On 19 July 2013 Professor Berners-Price caused a letter to be sent to Mr Mbuzi informing him that pursuant to clause 4.13.3 of the HDR policy and following receipt of a recommendation that his candidature not be confirmed from the Head of School to the Dean (Research), she had, in her role as the Dean, Griffith Graduate Research School, determined that his candidature be terminated.
46 Mr Mbuzi’s doctoral candidature was terminated on 26 July 2013.
47 In his affidavit sworn 26 July 2013 Mr Mbuzi deposed that the true basis for the termination of his candidature was because he reported a crime of assault against him by Dr Phung. He also states that he has made significant progress in his candidature, and that only about one more year remains until he completes the doctoral degree.
48 Mr Mbuzi sought to appeal the termination decision to the university Appeals Committee. On 23 October 2013 Professor Peter Healy, the Chair of the university Appeals Committee, wrote to Mr Mbuzi advising him that the Committee had determined that the decision to terminate his candidature on the ground that he did not have adequate supervision was properly taken and in accordance with the academic standards and policies of the university.
49 In his affidavit sworn 18 December 2013 Mr Mbuzi gave evidence that, inter alia:
There is reason to infer that in her affidavit Professor Berners-Price has demonstrated apprehended bias against him in respect of the termination of his candidature.
He denies absolutely the allegation that he had abused anyone at Griffith University, or did anything wrong for someone to be “in tears”.
His working life has mostly been in multi-national and multi-cultural settings in a number of African countries, Australia, New Zealand, Britain, Canada and the United States of America.
In 1990 he was a spokesperson for a group drawn from all Commonwealth countries, including Australia, India, Britain, Canada, New Zealand and African, Asian and Pacific nations, on a cultural exchange programme involving eight major towns of New Zealand.
He has been involved in personal negotiations with government officials of Australia, Britain, Ireland, Canada, USA, Germany and Hong Kong for the funding of community development programmes in the course of his work as a development practitioner for over 12 years.
Dr Chamberlain remained his principal supervisor for some time despite his complaint about the lack of supervision from her and her lack of accreditation to be a principal supervisor.
Dr Chamberlain sent Associate Professor Macleod an email suggesting Professor Cordia Chu be responsible for the selection of an assessor for the confirmation process.
Submissions of Mr Mbuzi
50 The primary claim before me is that of Mr Mbuzi. Mr Mbuzi’s submissions were oral, as well as set out in three sets of submissions. It is convenient to summarise them as follows.
51 Mr Mbuzi submits that his application has three components, namely:
1. To challenge the respondent’s decision to terminate his candidature.
2. Compensatory damages for loss.
3. To strike out in whole the respondent’s counterclaim.
52 He relies on:
the Constitution relating to protection of rights;
the ACL;
the common law;
section 37AO of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”);
rule 16.21 of the Federal Court Rules 2011 (Cth).
53 In relation to these points he submits further (in summary):
The Constitution protects rights in terms of implied rights, freedom of political communication and the right to due process.
The implied right to freedom of communication on political matters also has a broad notion of freedom of expression.
Relevant cases in respect of the implied freedom of communication, and the fact that this right goes beyond legislative or executive power to include individuals like the applicant, include Coleman v Power (2004) 240 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (“ACTV”); Attorney-General v Times Newspapers Ltd [1974] AC 273 at 315 and in particular Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
In his doctoral thesis he proposed to defend the position that the arrival of Europeans in Australia ought to be a relevant consideration in the analysis of poverty and disadvantage among indigenous communities. Mr Mbuzi, as a member of the Australian community, was disseminating information, opinions and arguments contained in his academic document about Federal government policies which contributed, and continue to contribute, to the state of poverty, powerlessness and other disadvantages among indigenous Australians. It is as a result of Mr Mbuzi exercising that freedom that the university began its steps leading to the termination of his doctoral candidature.
The complaint against him which resulted in the termination of his candidature was an infringement of the broader notion of implied right of communication because that complaint related to allegations of being “aggressive”, “impolite”, “loudly speaking” and using “offensive language”.
The Constitution also protects due process rights. If there had been substance to the complaint of Professor Chu, Mr Mbuzi would have been charged by the student’s misconduct committee, and this did not happen.
There is no power under clause 4.13.3 of the HDR Policy to terminate his candidature. This is because clause 4.13.3 states that:
On receipt of an unsatisfactory recommendation for confirmation of candidature from the Head of element to the Dean (Research), the dean, Griffith Graduate Research School will determine that:
…
…
(c) Candidature is terminated; or
(d) In the case of PhD candidates, the candidate is offered the opportunity to be admitted as a candidate to one of the university’s masters degrees.
The Australian Consumer Law is relevant so far as concerns breach of contract and unconscionable conduct because:
o the university requires to be funded for all PhD students;
o if a candidate is not an Australian citizen or Australian permanent resident the funds must come from outside the Commonwealth Government;
o the Australian government “pays” on Mr Mbuzi’s behalf;
o he is rightfully a consumer, with Griffith University a provider of educational services.
There is a contract between Mr Mbuzi and Griffith University in that:
o on 13 January 2011 the university made an offer to Mr Mbuzi (“offer”);
o Mr Mbuzi accepted the offer in writing (“acceptance”);
o Mr Mbuzi’s payments were to be via the Commonwealth Government’s Research Training Scheme and under that scheme the university advised Mr Mbuzi that he was not required to make any out of pocket payments (“consideration”);
o in return, the university’s obligation under contract related to providing PhD education services, which includes as a matter of necessity, supervision as described in the policy;
o the documents in the bundle illustrate an intention by the parties to be bound. So much cannot be denied by the university because it seeks to rely on the policy which is part of the terms of the contract.
Provision of supervisory services by the university is evidenced by the signed agreement of Professor Chu. It is clear that the university no longer wishes to provide these supervisory services. Failure to provide supervisory services is a breach of a condition of the contract.
The respondent has engaged in misleading and deceptive conduct, and also unconscionable conduct, because:
o it is perpetuating a myth that there is nobody able and willing to supervise him when there is evidence that Dr Halim Rane, Dr Dale Kerwin and Professor Richard Bagnall are all willing and able to do so;
o both Dr Chamberlain and Professor Chu must continue to remain Mr Mbuzi’s supervisors until changes are made to his supervisory arrangements.
No weight should be given to the evidence of complaints against Mr Mbuzi at the university, because no witnesses of the alleged complainants were produced for cross-examination.
As is clear from cases including Quickenden v O’Connor (2001) 109 FCR 243 universities engage in trade or commerce. That the university has engaged in trade and commerce to enliven the operation of the ACL in this case is clear from the provisions of s 5 of the Griffith University Act 1998 (Qld) (“Griffith University Act”) s 5(g) and (h) which provide:
The university’s functions are—
…
(g) to provide facilities and resources for the wellbeing of the university’s staff, students and other persons undertaking courses at the university; and
(h) to exploit commercially, for the university’s benefit, a facility or resource of the university, including, for example, study, research or knowledge, or the practical application of study, research or knowledge, belonging to the university, whether alone or with someone else; …
The university should be held accountable for wanting to supply services – that is, supervision – to induce, or attempt to induce the applicant not to report a crime to the police.
The Court should determine whether it is factually accurate to say that “there is nobody able and willing to supervise Mr Mbuzi at Griffith University”.
Mr Mbuzi was ordinarily exempt from having to undertake the confirmation process on account of having submitted documentation demonstrating satisfactory completion of a candidature confirmation procedure at the University of Queensland.
Mr Mbuzi’s thesis has been judged by every academic who has looked at it as a very significant and original research topic not just nationally, but also globally.
There is no evidence that the university supports the decision of Professor Chu to withdraw her wish to supervise Mr Mbuzi. In any event, both Professor Chu and Dr Phung are under police investigations as well as investigation by the university because of the events involving them and Mr Mbuzi.
The fact that the university failed to call either Professor Chu or Dr Phung as witnesses should cause the Court to draw an adverse inference against the respondent, to the effect that there is no evidence they could lead to contradict Mr Mbuzi’s evidence.
Mr Mbuzi is entitled to one year’s worth of lost opportunity in respect of his candidature.
Mr Mbuzi rejects the proposition that he rejected Dr Chamberlain and Dr Foxwell as supervisors – rather they were rejected by the respondent’s own policies on account of being ineligible.
Submissions of the university
54 The legal representatives for the university have provided the Court with lengthy and detailed submissions. They are neatly summarised at [171] of the submissions filed on 25 February 2014, as follows:
The documents relied upon by the Applicant to set out his case have a tendency to state conclusions without identifying, in any logical or coherent way, the factual and legal basis said to give rise to those conclusions. This approach proves problematic when an attempt is made to provide a reasoned response to the causes of action. The task is not however impossible and is greatly assisted by the simple fact that the majority of the facts relied upon by the Applicant as giving rise to his causes of action are simply wrong.
55 In summary the university contends:
Mr Mbuzi is wrong in his articulation of implied rights of freedom of political communication and the right to due process allegedly granted by the Constitution. Lange does not stand for the proposition alleged by Mr Mbuzi.
There is no contract between Mr Mbuzi and the university because:
o the agreement of Professor Chu to supervise Mr Mbuzi was not a contract;
o there is no consideration moving from Mr Mbuzi to the university;
o if there is a contract it is open-ended and either party can terminate it on giving a reasonable period of notice;
o it cannot have been the intention of the parties that the university had an unqualified obligation to provide services to Mr Mbuzi.
The conduct concerning Mr Mbuzi’s candidature and the provision by the university of supervision for research was not conduct “in trade or commerce”, but was conduct engaged in by the university as part of its educational functions under governing legislation, and internal administrative matters for the university.
Insofar as Mr Mbuzi claims that the university acted unconscionably, he misrepresents facts upon which this claim is based.
The university has not engaged in misleading or deceptive conduct in that:
o there was never any requirement by the university that Mr Mbuzi had to undertake research within Australia as a condition of approving candidature – the university simply made it clear that it could not support his research financially it he chose to undertake research in Africa;
o notwithstanding Mr Mbuzi’s insistence that the university falsely said that there was no-one willing or able to supervise him, there is no evidence that there was any suitable person willing or able to supervise him.
Consideration – Constitutional issues
56 Section 39B(1A)(b) of the Judiciary Act provides that the original jurisdiction of the Federal Court of Australia includes jurisdiction arising under the Constitution, or involving its interpretation.
Implied freedom of political communication
57 Before Rangiah J at an interlocutory level and before me Mr Mbuzi claimed that his implied right of communication under the Constitution had been infringed because complaints about him and (more particularly) the decision to terminate his candidature arose from allegations of him being “aggressive”, “impolite”, “loudly speaking” and using “offensive language”. Further Mr Mbuzi alleged, in summary, that the university took steps to terminate his candidature because his doctoral thesis was critical of the impact of Europeans and their arrival in Australia on indigenous Australians, and in particular that he was disseminating information, opinions and arguments about Federal government policies relating to indigenous affairs. The respondent rejects these contentions.
58 Mr Mbuzi relies on a number of cases for this proposition including Coleman v Power; ACTV; Attorney-General v Times Newspapers Ltd at 315 and in particular Lange.
59 I note that Mr Mbuzi also claimed that his Constitutional rights of due process had been infringed because he was not given a hearing in respect of Professor Chu’s complaints.
60 Sections 7, 24, 64 and 128 of the Constitution imply a right of freedom of political communication, including dissemination and receipt of information concerning government and political matters in Australia. There have been numerous cases both in the High Court and the Full Court of the Federal Court analysing this right. The majority in Hogan v Hinch (2011) 243 CLR 506 explained at [92]:
It is made clear in Lange and Coleman v Power that the implied freedom of political communication operates as a constraint upon legislative power in a particular sense.
(Emphasis added, footnotes omitted.)
61 In other words, the implied right of freedom of communication is a “shield”, not a “sword”, and can be invoked in circumstances where an existing law allegedly impacts on the freedom of the citizen. As the High Court explained in Lange at 560:
That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanou, they are “a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ‘right’ in the strict sense”. In Cunliffe v The Commonwealth, Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said:
The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.
62 French CJ in Hogan v Hinch further explained at [47]:
The test adopted by this Court in Lange v Australian Broadcasting Corporation, as modified in Coleman v Power, to determine whether a law offends against the implied freedom of communication involves the application of two questions
1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?
2. If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people?
(Footnotes omitted.)
(cf Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in Hogan v Hinch at [94]-[97]; Kerrison v Melbourne City Council [2014] FCAFC 130 at [119]); Unions NSW v New South Wales (2013) 304 ALR 226 at [35], [44]).
63 The Chief Justice reiterated these comments in Tajjour v New South Wales [2014] HCA 35 at [32] where his Honour observed:
The implied freedom of communication on governmental or political matters defines a limit on the legislative power of the Commonwealth, State and Territory Parliaments and informs the common law of Australia.
(cf Hayne J at [60], Crennan, Kiefel and Bell JJ at [104], Gageler J at [140], Keane J at [195]).
64 The implied right is relevant both during and outside election periods (Lange at 561) and includes publication in the press (Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Lord Simon of Glaisdale in Attorney-General v Times Newspapers Ltd at 315; ACTV at 139, 211-212, 231). It includes the freedom to discuss public and political affairs and to criticise federal institutions (ACTV at 129). It extends to all political matters in Australia, including matters relating to other levels of government within the national system which exist under the Constitution (ACTV at 169, 216; cf French CJ in Hogan v Hinch at [48]-[49]), but may not extend to political matters which are not relevant to Australia (Monis v The Queen (2013) 249 CLR 92 at [249]). Relevant subjects of political and governmental communication include the activities of the executive arm of government, including Ministers, public servants, statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature (McHugh J in Coleman v Power at 45).
65 However the freedom of communication which the Constitution protects does not allow an absolute and uncontrolled licence, and is limited to what is necessary for the effective operation of the system of representative and responsible government. So, for example, in Lange the High Court held that laws relating to defamation were not inconsistent with the implied right of freedom of communication.
66 Examining the principles upon which Mr Mbuzi seeks to rely in the context of the authorities, it is clear that there is no substance to his claim that rights conferred on him by the Constitution have been infringed.
67 The dispute between Mr Mbuzi and Griffith University is a private matter. There is no exercise of either executive or legislative power preventing Mr Mbuzi producing a body of work of his choosing, or any such law being challenged. A decision by Griffith University in respect of Mr Mbuzi’s candidature at that university pursuant to the internal policies of the university is not one which attracts the implied right of freedom of communication relied on by Mr Mbuzi.
68 Second, and in any event, Mr Mbuzi draws a very long bow in alleging that because his doctoral thesis apparently includes criticism of Federal Government policies concerning indigenous people, his right of freedom of communication is breached by Griffith University terminating his candidature. Placing to one side the distinct dearth of evidence before me as to the nature of this criticism, and more broadly the nature of the discussion of political and governmental matters proposed by Mr Mbuzi in his doctoral paper:
There is nothing before me to support a finding that Mr Mbuzi is being prevented by Griffith University disseminating information concerning the topics of government policy and indigenous poverty. It is simply that as a result of the decision to terminate his candidature he will be unable to produce a thesis pursuant to a degree at Griffith University.
Although the effect of the termination of Mr Mbuzi’s candidature is that he will not be able to produce the thesis he had sought to undertake, it is perfectly legitimate for the university to have rules permitting termination of candidature in the event that adequate supervision cannot be arranged for a doctoral student, both in the interests of the university and the student.
Mr Mbuzi’s submission, taken to extremes, would necessarily entail a finding that any decision of the examiners of his thesis to fail it for being of insufficient standard to warrant the award of the doctoral degree (or, for that matter, a refusal of a publisher to publish his thesis for any reason) would similarly fall foul of the implied right of freedom of communication, because it would similarly deny him the publication of his views. This proposition is equally without foundation.
69 Third, there is no evidence before me that any decision of Griffith University concerning Mr Mbuzi’s candidature could be attributed in any way to his thesis topic or the proposed content of the thesis. I make no comment on the originality of Mr Mbuzi’s thesis topic however it is reasonable to take judicial notice of the fact that published criticism of government policies concerning indigenous peoples in Australia, and the impact of such policies on indigenous poverty, is not new. I am not satisfied that any steps taken by Griffith University were caused by Mr Mbuzi exercising the freedom to write a thesis of his choosing raising such topics or including such criticism.
70 Fourth, Mr Mbuzi claims that the decision to terminate his candidature was based upon “aggressive, impolite and insulting language.” Other than by reference to a tone of communication, I am unable to see the relevance of this contention to the implied Constitutional right of freedom of discussion of political or government matters alleged by Mr Mbuzi. There was discussion of the use of insulting language in Coleman v Power but that was solely within the context of the legislation the subject of challenge before the High Court in that case.
71 Finally in respect of this issue, there is no evidence before me to support a finding that Mr Mbuzi’s candidature was terminated because he allegedly used “aggressive, impolite and insulting language”. There is evidence before me to suggest that his conduct (possibly including the use of such language) has alienated his supervisors such that they withdrew from their respective roles. This, however, does not invoke any Constitutional protection for Mr Mbuzi.
72 This ground has no merit.
Due process
73 Mr Mbuzi also claims that the Constitution protects due process rights, and if there had been any substance to Professor Chu’s complaint Mr Mbuzi would have been charged by the student’s misconduct committee.
74 Although Kirby J suggested in Al-Kateb v Godwin (2004) 219 CLR 562 at [154] that there would be a gradual acceptance that Chapter III of the Constitution protects due process rights (cf M McHugh, “Does Chapter III of the Constitution protect substantive as well as procedural rights?” (2001) 21 Australian Bar Review 235 at 238), there is no specific recognition of rights of due process in the Constitution.
75 Even if such an implied right does exist by virtue of the Constitution I am unable to see how it is relevant in this case. Griffith University informed Mr Mbuzi that his candidature was terminated because of a lack of availability of supervisor, not because of any complaints of Professor Chu. Professor Chu withdrew from her role as associate supervisor of Mr Mbuzi for the reasons she gave in her email to Professor Berners-Price and Associate Professor Macleod.
76 At this point it is convenient to address a contention of Mr Mbuzi in relation to his supervision – namely his claim that there is no scope for the university to say that it was unable to provide adequate supervision for Mr Mbuzi, because there were clearly qualified staff (for example, Professor Chu) and the university should simply have given such staff a direction to supervise Mr Mbuzi. Relevant questions by Mr Mbuzi and evidence given by Associate Professor Macleod during the hearing were as follows:
HER HONOUR: So can I just clarify. So she was doing a favour?---She was doing a favour. She was being a collegial member of staff.
Okay?---Yes. In the case of Professor Chu, Professor Chu made it very – Professor Chu is outside my school. Professor Chu made it very clear that she was not going to supervise you after the incident that she referred to in her email. I had absolutely – I mean, let’s put it this way, Mr Mbuzi. In a collegial institution, there is no way that Professor Chu would have been forced to continue your supervision unless she had been prepared to do it, just as Dr Chamberlain was not forced to continue her supervision but agreed to do it – under duress, I grant, but agreed to do it for the sake of getting you through to confirmation. It is not quite the picture that you’re painting.
MR MBUZI: Let me tell you this. Can I tell you, in society, in Australia, anywhere else, people who are employed do what their employers want. Is that an unreasonable statement to make?---I don’t think it’s quite as simple as that.
Let me ask you this question. Is it true that if I’m employed by somebody, whether at court or anywhere else, the tasks I’m going to do will depend on my employer. Is that an unreasonable thing to say?---In broad terms, yes.
Okay. Are you telling me that at this university staff are such that they do what they want? Is that what you want me to - - -?---I am not saying that.
Good. Let me ask you, if what you’re saying is true, that it is not ..... why hasn’t the approval to withdraw by Professor Chu been granted? And you are saying you don’t ..... why hasn’t it been granted if, indeed, things worked as you claim to be?---I do not know the – I do not know what the consequence from the dean, graduate studies, was to Professor Chu’s resignation as a supervisor.
Okay. Do you know the term “resignation”? Do you know the term “intention to withdraw”? Do you know the term “unwillingness”? Do you know that “resignation” means that it’s not definitive; it’s subject acceptance. You know that, don’t you?---Yes, that’s true.
Okay. And you know that – that you knew from what you are saying that what the so called resignation you are referring to was subject to approval. Unless you are saying, “No, it doesn’t .....” you just said it’s subject to approval. Why did you not wait until that definitive approval was given? Why did you not do that?---Because at that stage I was already three weeks, as you will recall, past when I had hoped to do it and there was a need to get the recommendation through. It was very clear from the tone of Professor Chu’s email that she was not prepared to continue supervising you.
(Transcript 5 March 2014 pp 221-222.)
77 In my view however the evidence of Associate Professor Macleod supports a finding that Griffith University could not compel any member of its staff to supervise Mr Mbuzi’s PhD candidature against their will. Professor Berners-Price in her affidavit gave similar evidence, in particular at [46] where she deposed:
The opening words of clause 10 of the Supervision Policy provide that quality supervision arises from the positive interaction between supervisors and students. Without that positive interaction between a supervisor and a student, it is my view that a student would be unable to complete his or her PhD candidature. For this reason I would not compel a supervisor to continue to supervise a student if it was clear to me that the relationship between the student and the supervisor was no longer workable.
78 The evidence also supports a finding that a PhD candidate cannot be forced to accept a supervisor against their will. Indeed Mr Mbuzi himself recognised this throughout his candidature in that he requested the removal of Dr Chamberlain as principal supervisor and Dr Foxwell as associate supervisor.
79 Further Mr Mbuzi gave oral evidence during the hearing that, because of the need for mutuality, the supervision relationship can only work if both parties are willing to work together for it to continue (transcript 4 March 2014 p 44 ll 33-35).
80 While a refusal of a staff member to perform his or her duties can be an issue for performance management in the university setting, the necessity of an effective relationship subsisting between supervisor and student in the PhD setting means that there must be mutual respect, trust, and a willingness for the relationship to continue from, both supervisor and student. In the absence of such a relationship between Professor Chu and Mr Mbuzi I am satisfied that it would not have been practical for Griffith University to have given Professor Chu a direction to supervise Mr Mbuzi against her will.
81 In this respect questions of “due process” concerning the reception of Professor Chu’s email by Professor Berners-Price and Associate Professor Macleod are irrelevant.
Consideration – contractual issues
82 I am not satisfied that there was a contract between Griffith University and Mr Mbuzi for the provision of supervisory services to him as part of his PhD candidature. I am also not satisfied that the university no longer wishes to provide supervisory services to Mr Mbuzi as contended by him.
Consensual relationship
83 There is little evidence before me as to the exact nature of the relationship between Griffith University and Mr Mbuzi. However in Griffith University v Tang (2005) 221 CLR 99 the High Court considered, among other things, a decision to exclude the respondent from the PhD candidature programme conducted by the university, and – importantly in the present context – the nature of the relationship between the university and the respondent in that case. After examining relevant constituent legislation, at [20] Gleeson CJ observed:
So far as appears from the evidence, the relationship between the appellant and the respondent was voluntary. Neither party was bound to continue in the relationship, although the respondent would have had a legitimate expectation that certain procedures would be followed before the appellant terminated the relationship. The Griffith University Act provided the legal context in which the relationship existed. The Higher Education (General Provisions) Act also provided part of the wider context. On the other hand, the decision of the appellant, which was to terminate that relationship, was not a decision which took legal force or effect, in whole or in part, from the terms of either statute.
(Emphasis added.)
84 Similarly Gummow, Callinan and Heydon JJ in the same case said:
91. Counsel for the university correctly submitted that, given the manner in which the respondent had framed her application for judicial review, there had subsisted between the parties no legal rights and obligations under private law which were susceptible of affection by the decisions in question. There was at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality. That mutual consensus had been brought to an end, but there had been no decision made by the university under the university Act. Nor, indeed, would there have been such a decision had the respondent been allowed to continue in the PhD programme.
92. It may, for the purposes of argument, be accepted that the circumstances had created an expectation in the respondent that any withdrawal from the PhD candidature programme would only follow upon the fair treatment of complaints against her. But such an expectation would create in the respondent no substantive rights under the general law, the affecting of which rendered the decisions she challenged decisions made under the university Act. What was said by Kiefel J and Lehane J on the point in Lewins, and subsequently by this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, supports that conclusion.
(Emphasis added, footnotes omitted.)
85 On the material before me it appears that similar principles apply in this case. The university accepted Mr Mbuzi as a doctoral student, with his candidature subject to compliance with university policies. Mr Mbuzi himself was at liberty to withdraw as a doctoral candidate at any time without giving any reason. It is difficult to see the relationship between them as other than consensual. I do not accept that the provision of funding by the Commonwealth government to the university for doctoral candidates was “consideration” within the contractual meaning of that term, so far as concerns the relationship between Mr Mbuzi and Griffith University.
University policies
86 Further, while the university is itself a creature of statute, it is not in dispute that there are no internal statutes governing procedures, but rather delegations of power to particular university officers and publication of broad policies which are intended to guide those officers in the exercise of their powers. In respect of doctoral candidates, for example, the Higher Degree Research Policy (Doctor of Philosophy, Master of Philosophy) and the Code of Practice for the Supervision of Higher Degree Research Students provide relevant policy guidelines. As I have already noted in this judgment, clause 4.13.3 of the HDR Policy deals with Confirmation of Candidature and Supervision Arrangements and provides, inter alia:
On receipt of a recommendation for confirmation of candidature from the Head of Element, the Dean (Research), will determine that:
a) Candidature and supervision arrangements are confirmed; or
b) The confirmation date is postponed for no more than six months.
On receipt of an unsatisfactory recommendation for confirmation of candidature from the Head of Element to the Dean (Research), the Dean, Griffith Graduate Research School will determine that:
c) Candidature is terminated; or
d) In the case of PhD candidates, the candidate is offered the opportunity to be admitted as a candidate to one of the university’s masters degrees.
87 In relation to clause 4.13.3 it is useful to make the following two points.
88 First, paragraphs (c) and (d) of clause 4.13.3 are clearly alternatives in respect of PhD students. In relation to a PhD student who has been the subject of an unsatisfactory recommendation, the only discretion that the Dean, Griffith Graduate Research School, has is to determine whether candidature is terminated or whether the student is offered the opportunity to move to the Masters programme. There is no discretion for the Dean to permit the student to otherwise continue as a doctoral candidate. Mr Mbuzi is incorrect in submitting that there is no power in the Dean to terminate his candidature pursuant to clause 4.13.3.
89 Second, it is plain on the facts of this case that, at material times, Associate Professor Macleod was the Head of the relevant Element (being the School of Humanities) and Professor Berners-Price was the Dean, Griffith Graduate Research School. Both were witnesses in the trial, and both gave extensive evidence in relation to the recommendation made by Associate Professor Macleod and the decision by Professor Berners-Price to terminate Mr Mbuzi’s candidature. I cannot identify any irregularity in compliance with the relevant University policy concerning the termination of Mr Mbuzi’s doctoral candidature.
Supervision form
90 In his “Outline of Essential Facts Relied Upon” filed 27 November 2013 Mr Mbuzi alleges that:
5. By a signed agreement exhibited and marked “JM 14” to the affidavit of Josiyas Mbuzi sworn on 21 November 2013, the respondent agreed to provide PhD supervisory services to the applicant.
91 In that Mr Mbuzi claims that this document, being the form “HIGHER DEGREE RESEARCH: Appoint/Change Supervisor” signed by Professor Chu on 30 August 2011 constituted a contract between himself and Griffith University, this claim cannot stand. The form appears, as submitted by the university, to be an administrative form for internal University purposes. Perusal of the form indicates that it can more particularly be described as a request by the student to change the supervisor, and – if signed by the staff member – a consent by that staff member to act. In my view Professor Chu’s “agreement” to act as Mr Mbuzi’s associate supervisor as expressed on the form can be read no higher than a willingness on her part to act.
92 There are no other terms of that “agreement” apparent on the form, such that it should be construed as having contractual effect.
93 Mr Mbuzi subsequently claimed that the signed agreement of Professor Chu was evidence of the university’s performance under contract, namely the provision of supervisory services. In my view this submission takes Mr Mbuzi’s argument no further, and has no merit.
The university “chose not to offer supervisory services”
94 Mr Mbuzi submitted that it was clear that the university no longer wished to provide supervisory services for his doctoral candidature, and that this failure was a breach of a condition of the contract between them.
95 I have already found that there is no contract between Mr Mbuzi and Griffith University in relation to his doctoral candidature and the provision of supervisory services. In any event, however, I am satisfied that Mr Mbuzi’s claim that the university chose not to provide him with supervisory services cannot be substantiated. I have formed this view for the following reasons.
96 First, there is ample and detailed evidence before the Court, in particular from Associate Professor Macleod, that:
Mr Mbuzi had rejected the initial supervisors of his candidature (Dr Chamberlain and Dr Foxwell), necessitating the appointment of new supervisors; and
Associate Professor Macleod took reasonable steps over a period of twelve months to identify permanent new supervisors for him, in particular a principal supervisor, with no success.
97 The steps taken by Associate Professor Macleod are set out at length in his affidavit, including identification of suitably qualified staff in the School of Humanities (whom Mr Mbuzi had excluded and who were not willing in any event to supervise him) and inquiries made of other Schools at the university.
98 Second, in his submissions Mr Mbuzi claimed that there was evidence that Dr Halim Rane, Dr Dale Kerwin and Professor Richard Bagnall, all academics at Griffith University, were all willing and able to supervise his doctoral candidature. However there is limited evidence before me supporting this submission so far as concerns Dr Kerwin, and only a bare assertion of Mr Mbuzi in relation to the willingness of Dr Rane and Professor Bagnall to supervise him.
99 I note that none of these prospective supervisors gave evidence in these proceedings. There is what appears to be an email chain between Mr Mbuzi and Dr Kerwin, with the last email from Dr Kerwin to Professor Bagnall and copied to Mr Mbuzi dated 28 October 2013 at 12.11 pm (exhibit 16(R)) reading as follows:
Morning Richard
I hope your well Richard I meet with Joe this morning and went over his study from the discussion I have agreed to supervise him for his PhD is there anything else I need to do to confirm this supervisory commitment. Stay well and I look forward to your response and catching up cheers Dale.
(Errors in original.)
100 In relation to this evidence however:
I note that this email postdated the termination of Mr Mbuzi’s doctoral candidature.
The message I have set out is somewhat disjointed. The first sentence of the message gives the appearance of being selectively edited, with key words missing.
Dr Kerwin was not called as a witness, and accordingly it is not possible to identify the veracity of that evidence.
Both Associate Professor Macleod and Professor Berners-Price gave evidence at the hearing that they had not previously been aware that Dr Kerwin was interested in supervising Mr Mbuzi, and in fact did not know who Dr Kerwin was (transcript 5 March 2014 p 217 ll 9-14, p 267 ll 19-23). Critically, Associate Professor Macleod and Professor Berners-Price were the decision-makers in respect of the termination of Mr Mbuzi’s candidature. In my view both Associate Professor Macleod and Professor Berners-Price were credible witnesses, whose evidence I accept.
101 In my view this evidence should be ascribed no weight in these proceedings.
102 Further, in relation to Dr Rane, Associate Professor Macleod deposed that Mr Mbuzi’s topic was outside Dr Rane’s area of expertise, and Dr Rane was only prepared to take on the role of principal supervisor as an interim measure until Mr Mbuzi resubmitted for confirmation. There is no evidence before me contradicting this.
103 Finally Mr Mbuzi submitted that until new supervisors could be identified both Dr Chamberlain and Professor Chu must continue to remain in their previous roles as principal supervisor and associate supervisor.
104 I do not accept this. I have already explained that, in light of the need for mutual trust and respect between supervisor and student, it was neither feasible nor workable for either Dr Chamberlain or Professor Chu to continue to supervise Mr Mbuzi after events had soured their respective relationships with him. Further, in circumstances where Mr Mbuzi’s confirmation of candidature process had been assessed as “unsatisfactory” and no suitably qualified candidates had been identified as supervisors for his candidature, to require Dr Chamberlain or Professor Chu to nominally remain as supervisors would have been a waste of time.
105 Mr Mbuzi submitted that it would be reasonable to “compel” someone to be his supervisor, on the basis that he had himself been “compelled” for 20 months. There is nothing before me to support a finding that Mr Mbuzi had been compelled to do anything. The evidence before me is that the university had endeavoured to identify new supervisors for him, and had asked Dr Chamberlain to remain in the role of principal supervisor when she was reluctant to do so for the sole purpose of allowing Mr Mbuzi’s doctoral candidature to continue until another principal supervisor could be identified. This situation was not sustainable, and Dr Chamberlain was entitled to withdraw (particularly in circumstances where the evidence demonstrates that Mr Mbuzi had not wanted Dr Chamberlain as a supervisor in any event).
Consideration – is Griffith University engaged in trade or commerce insofar as concerns Mr Mbuzi?
106 Mr Mbuzi relies specifically on ss 20, 21 and 22 of the ACL in respect of his claim that Griffith University has acted unconscionably. In his “Outline of Essential Facts relied upon” Mr Mbuzi set out facts including that he is a consumer, that the respondent is a supplier of goods and services including educational services. He also makes a further claim in that document that Griffith University has engaged in false, deceptive and misleading conduct, in terms referable to s 18 of the ACL.
107 These allegations are dependent upon Griffith University acting “in trade or commerce”.
108 Mr Mbuzi claims that the basis of his submission that Griffith University is engaged in trade or commerce so as to enliven the ACL is the Griffith University Act s 5 which relevantly provides:
The university’s functions are—
…
(g) to provide facilities and resources for the wellbeing of the university’s staff, students and other persons undertaking courses at the university; and
(h) to exploit commercially, for the university’s benefit, a facility or resource of the university, including, for example, study, research or knowledge, or the practical application of study, research or knowledge, belonging to the university, whether alone or with someone else; and
109 In his submissions in reply Mr Mbuzi continues:
If the above is not being engaged in trade and commerce, then what is? The university specifically and explicitly promotes itself as a corporate body capable of suing and being sued. It must thereby comply with the ACL provisions relating to consumer protection which covers matters such as misleading and deceptive conduct, unconscionable conduct and unfair contract terms. The respondent requested the applicant to provide it with the essential facts the applicant relies upon and these were provided. Further, the respondent’s barrister sought an explanation from the court on the meaning of “unconscionable conduct” and Justice Rangiah assisted it with an explanation that unconscionable conduct includes unfair and unjust conduct. The respondents customers are predominantly students like the applicant to whom it supplies or offers educational services under certain terms just like in the case with the applicant. The respondent should be held accountable for wanting to supply services (supervision) to induce, or attempt to induce the applicant not to make a reportable crime to the police. The court is urged to determine whether the respondent’s dealings with the applicant have been fair and just. Determination of what is unfair or unjust should be based on the respondent’s actions capable of causing detriment to the applicant (whether financial or otherwise).
110 I am not persuaded that s 5(g) and (h) of the Griffith University Act are referable to conduct in trade or commerce by the university. Section 5(g) deals with the provision of facilities for staff and students (which prima facie includes buildings and library facilities), and s 5(h) deals with the commercialisation of research conducted at the university. Neither of these activities are specifically referable to the provision of supervisory services by members of the academic staff for doctoral candidates.
111 There is some authority supporting a finding that the provision of educational services by a University is not “trade or commerce”. In Mathews v University of Queensland [2002] FCA 414 the applicant complained to the University of Queensland in relation to various academic subjects which he undertook at that institution. He claimed that 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, and recommended that he follow that procedure. Mr Mathews claimed that this representation was false and misleading because the SSAC did not have jurisdiction to consider all matters of which Mr Mathews complained, and failed to consider them. In the course of a strike out application by the university, Spender J at [23] observed:
Assuming that the representations were made, it is likely that the representations were not in trade or commerce.
112 In Quickenden the Full Court of the Federal Court considered that the activities of the University of Western Australia other than the provision of educational services within the statutory framework for the Higher Education Funding Act 1988 (Cth) were trading activities. I note however that the funding arrangements for tertiary institutions are now pursuant to the Higher Education Support Act 2003 (Cth) (“Higher Education Support Act”).
113 Certainly educational activities can be “in trade or commerce”. An example was Shahid v Australasian College of Dermatologists (2008) 168 FCR 46, where the Full Court found that the College:
had a commercial relationship with practitioners who intended to apply for positions as trainee registrars;
charged them significant examination fees; and
generated revenue from the for the sale of prescribed texts and conduct of seminars and courses relevant to their activities and training.
114 In more recent times however academic writers have posited that the provision of educational services by universities, including supervisory services, is engagement in trade or commerce. In his article “Consumer Guarantees and the Supply of Educational Services by Higher Education Providers” (2012) 35(1) UNSW Law Journal 1, Professor Stephen Corones at 6-7 opined that:
Research supervision services in relation to research degrees which are provided on a one-to-one basis are “services” within the meaning of s 2 of the ACL.
On 1 January 2005 when universities began operating under the Higher Education Support Act, educational institutions became subject to the Commonwealth Grants Scheme under which they enter into a funding agreement with the Commonwealth specifying the number of places and the discipline mix that the Commonwealth will support. (I note that cases such as Quickenden are, in this respect, distinguishable).
Universities now compete for students on the basis of price (tuition fees and other costs of attendance) and service (courses offered, teaching quality, the standard of facilities and research opportunities).
Educational services supplied to full fee and part fee students are supplied in trade or commerce.
115 Professor Jim Jackson has also suggested that a university should assume it is engaging in trade or commerce when it advertises a course and charges a fee for the delivery of educational services (“Regulation of International Education: Australia and New Zealand” (2005-2006) 10(2) & 11(1) Australia & New Zealand Journal of Law & Education 67 at 76).
116 The university submits that candidatures such as Mr Mbuzi’s are funded through the Research Training Scheme, granted under the Higher Education Support Act, and to that extent constitute conduct engaged in as part of its educational functions under its governing legislation. However in my view, and taking into consideration the academic views to which I have adverted, there is substance to Mr Mbuzi’s contention that Griffith University is engaging in trade or commerce in respect of the provision of supervisory services to him. For the reasons which follow, it is not necessary to decide this issue, because I am not persuaded that Griffith University’s conduct contravenes the ACL.
Consideration – did Griffith University act unconscionably?
117 “Unconscionable conduct” or “unconscionability” are not defined in the ACL. The meaning of these terms as they appear in s 20 and s 21 of the ACL is, however, relatively clear. As the Full Court of this Court recently observed in Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 at [41]:
The word “unconscionability” means something not done in good conscience: for example, Hurley v McDonald’s Australia Ltd [1999] FCA 1728 at [22]; ACCC v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324 at [113]; Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 at [291], [293], and the cases discussed therein. No argument was put that required any consideration of the authorities. Notions of moral tainting have been said to be relevant, as often they no doubt are, as long as one recognises that it is conduct against conscience by reference to the norms of society that is in question. The statutory norm is one which must be understood and applied in the context in which the circumstances arise. The context here is consumer protection directed at the requirements of honest and fair conduct free of deception. Notions of justice and fairness are central, as are vulnerability, advantage and honesty.
118 It is also frequently said that for conduct to be “unconscionable” there must be conduct deserving of reproach to which the term “moral obloquy” may be aptly applied (recent examples are Elliot Daniel Sgargetta v National Australia Bank Ltd [2014] VSCA 159 at [102]; Razdan v Westpac Banking Corporation [2014] NSWCA 126 at [148]; Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 at 583; Rana v Australian Human Rights Commission [2014] FCA 1092 at [61]).
119 In his Outline of Essential Facts Mr Mbuzi submitted that the unconscionable conduct of Griffith University was demonstrable by reference to six points:
i. That although the applicant did not seek to undertake research in Australia, the respondent through one of its agents, A/Prof. Jock Macleod required the applicant to accept to undertake research within Australia as a condition of approving applicant’s candidature. Implied in that directive was that the respondent had resources to provide supervision for research within its own chosen setting (Australian Indigenous communities).
ii. That after almost two years, the respondent has then made a claim that “there is nobody to provide you with supervision.”
iii. That the respondent provided Dr Susanna Chamberlain as “principal supervisor” and directed the applicant to accept her as such, while at the same time, telling the applicant that Dr Chamberlain was ineligible to be principal supervisor on account of “lacking accreditation”
iv. That while on the one hand the respondent required the applicant to be compelled to accept ineligible staff (Dr Chamberlain) as supervisor, it determined on the other, no such requirement for its agents in relation to the supervisory agreement.
v. That the respondent required the applicant not to report a crime of assault committed against him.
vi. That the supervision services have been withdrawn from the applicant despite not having been charged with any offence. In fact, it is the respondent’s own agents (Prof. Chu and Dr Dung [Phung]) who have been subjected not only to police criminal investigations, but also to respondent’s own internal investigations relating to serious misconduct.
120 It is appropriate to consider each of these points.
(i) “Requirement” to undertake research in Australia
121 Griffith University submits that it never imposed a requirement on Mr Mbuzi that he should undertake research only in Australia.
122 The only evidence before me which is relevant to this point is the email of 10 February 2011 from Ms Joanne Umemoto of the Griffith Graduate Research School to Mr Mbuzi, attaching the offer letter in relation to his doctoral candidature of 7 January 2011. The Conditions of Offer are listed in that letter as:
• Academic Referee’s Report 1
• Academic Referee’s Report 2
• Receipt by the university of positive reports from your referees. You cannot enrol before this documentation is provided.
• The school of Humanities can support your research within Australia but extra funds for research in Africa will need to be sought elsewhere.
• You will be required to provide a copy of your passport and visa for sighting upon your enrolment.
(Emphasis added.)
123 This condition of offer was not a requirement – it was an explanation to Mr Mbuzi that should he choose to engage in research in Africa he would need to fund it himself or from a source other than Griffith University.
124 This issue involves no unconscionable conduct by the university.
(ii) After almost two years, the respondent stated there were no suitable supervisors
125 It is clear on the facts of this case that, despite reasonable efforts by the university over a considerable period, by July 2013 there were no suitably qualified members of staff at the university available to supervise Mr Mbuzi whom he had not either rejected, or alienated by his conduct towards them.
126 So:
In relation to Dr Foxwell, who was originally his associate supervisor, there is evidence that Mr Mbuzi:
o told Dr Foxwell in Dr Chamberlain’s presence that he would no longer be available for Dr Foxwell’s supervision;
o wrote to Dr Chamberlain, Dr Foxwell and Associate Professor Macleod stating that he would no longer be available for Dr Foxwell’s supervision;
o did not want supervision by Dr Foxwell because he did not want to be travelling to the Gold Coast as he was enrolled at Nathan, and because “for three months, she could not identify even one specific indigenous contact for me.”
(email from Mr Mbuzi to Dr Chamberlain dated 24 November 2011, being exhibit NJM 41).
In relation to Dr Chamberlain, who was originally his principal supervisor, there is evidence that as early as July 2011 Mr Mbuzi asked Associate Professor Macleod to replace Dr Chamberlain as his principal supervisor. That request was reiterated in September 2011 in light of Mr Mbuzi’s view that Dr Chamberlain was having difficulties relating to him in her supervision role, because he was at that time suing Associate Professor Malcolm Alexander with whom Mr Mbuzi considered Dr Chamberlain had a “very close working relationship” (email from Mr Mbuzi to Associate Professor Macleod dated 20 September 2011, being exhibit NJM 33).
It appears that Mr Mbuzi asked Dr Anthony van Fossen at Griffith University on 2 October 2012 to be his principal supervisor, however Dr van Fossen replied that Mr Mbuzi’s thesis topic was too far from Dr van Fossen’s area of expertise to provide supervision (exhibit SBP 11).
Mr Mbuzi submitted that Dr Halim Rane, Dr Dale Kerwin and Professor Richard Bagnall were all able and willing to supervise him, however there is no evidence to this effect. The only evidence before the Court in relation to Dr Rane is that he was prepared to be named as a supervisor as an interim measure. There is evidence that Dr Kerwin agreed to be a supervisor of Mr Mbuzi’s candidature in October 2013 however little else is known of either him or his consent, and I have already found that this evidence should be given no weight.
Professor Chu withdrew her consent to be Mr Mbuzi’s associate supervisor following events involving Dr Phung prior to Mr Mbuzi’s confirmation of candidature.
There is detailed correspondence between, in particular, Associate Professor Macleod and Mr Mbuzi detailing further efforts to identify suitable supervisors for Mr Mbuzi. An example is the email of 4 February 2013 from Associate Professor Macleod to Mr Mbuzi (exhibit NJM 57) which reads as follows:
Dear Joe
Thanks for your email. As you are aware from our conversation, I did not respond to your statements about Susanna’s unsuitability to be your supervisor on academic grounds. I did discuss the fact that Susanna did not wish to supervise you, and had requested to be relieved of this duty some time ago. I explained that from the time of the ECM, I considered you would be better served being based in another element, and having your principal supervisor from that element. Because you also refused to work with the other two Humanities academics most closely related to your topic (Kerrie Foxwell and Malcolm Alexander), it was my judgment at the time that you would be best served by Susanna remaining as principal supervisor until something better could be arranged. I have consistently held the view and have made several (unsuccessful) representations seeking support for a principal supervisor for you from outside the School. As you know, I also identified two Humanities colleagues (Anthony Van Fossen and Paul Tacon) who, while having expertise well outside your project area, might have had enough in common to act as a principal supervisor. I understood from our conversation that neither Anthony nor Paul agreed to supervise you, but that there still might be some possibility with Paul.
At our meeting I agreed to write you an email saying that you currently were in a state of transition between principal supervisors and were seeking a principal supervisor, even though the university database still had Susanna listed as your principal supervisor. I am about to do that.
I also said that your request for a change of supervisor was a good thing because it might trigger some action on finding you a new principal supervisor. I still think it’s the case that such a supervisor should come from outside Humanities because of the nature of your research project. I am aware from our conversation that you’d prefer to stay in the School at this stage; it may be that is the best course of action, but my main concern is to ensure you have a principal supervisor who will not only maintain the formal running of your candidacy, but who will also have enough expertise to augment Cordia’s expertise and ensure you achieve a PhD of appropriate quality. You mentioned both Paul Tacon and Fiona Paisley as possible supervisors from within the School. I undertook to discuss this with Fiona, and to follow up with Paul, whom you have already spoken to. I have discussed this with Fiona, and she is very clear that your project falls well outside her area of expertise and interest. I have yet to follow up with Paul, but will do so shortly. I will continue to talk with other Humanities colleagues to see if any might have enough expertise/interest in your project to make them a viable proposition.
127 In my view these facts demonstrate that the lack of suitably qualified members of staff at the university available to supervise Mr Mbuzi was due largely to his own conduct over the period of his candidature. As I have already stated, it was not feasible in the circumstances for the university to endeavour to compel staff such as Professor Chu to supervise Mr Mbuzi. I am satisfied that, at the time of the termination of Mr Mbuzi’s candidature, there were no suitably qualified staff at Griffith University prepared to supervise him despite efforts which had been made to identify such a person.
128 This issue involves no unconscionable conduct by the university.
(iii) and (iv) Dr Chamberlain
129 There is no evidence that Griffith University directed Mr Mbuzi to accept Dr Chamberlain as a principal supervisor. Rather, the evidence supports a finding that although Mr Mbuzi did not want Dr Chamberlain in that role, and indeed Dr Chamberlain sought to withdraw from that role in or around September 2011, Associate Professor Macleod requested Dr Chamberlain not to withdraw at that stage until a replacement supervisor could be found (affidavit of Norman James Macleod at [58]). There is also evidence before the Court that Mr Mbuzi knew that Dr Chamberlain was only remaining in the role of principal supervisor nominally while both he and the university sought to identify a new principal supervisor (affidavit of Norman James Macleod at [98], email of 4 February 2013 from Associate Professor Macleod to Mr Mbuzi, being exhibit NJM 57). In my view this evidence is satisfactory to establish that Mr Mbuzi was aware of the situation concerning Dr Chamberlain.
130 Mr Mbuzi also complains that Dr Chamberlain was not accredited to be a principal supervisor at the time of the commencement of his candidature. I accept Associate Professor Macleod’s evidence that Dr Chamberlain became accredited early in Mr Mbuzi’s candidature. In any event, in light of the difficulty that both Mr Mbuzi and the university experienced in identifying any supervisor for Mr Mbuzi and the fact that Mr Mbuzi looked to Professor Chu for supervision, I consider that any lack of accreditation of Dr Chamberlain at the time of Mr Mbuzi’s candidature made no difference to the reason for the eventual termination of the candidature.
131 These issues involve no unconscionable conduct by the university.
(v) and (vi) “Assault” of Mr Mbuzi
132 There is material before this Court concerning Mr Mbuzi’s allegations against Professor Chu and Dr Phung. The only direct evidence of a witness in the proceeding is that of Mr Mbuzi – the version of events of Professor Chu concerning Mr Mbuzi and Dr Phung is found in correspondence from Professor Chu to Associate Professor Macleod and Professor Berners-Price.
133 The respondent has sought a finding of fact by me that there was never any threat made by Professor Chu (or anyone) to withdraw supervision in the event that Mr Mbuzi reported Dr Phung for assault. It is not possible for me to make such a conclusive finding in circumstances where Professor Chu did not give evidence which could be tested. However on the material before me I consider such a threat highly unlikely. Such material suggests that Professor Chu had spoken disbelievingly to Mr Mbuzi about his proposal to inform the police of an event which, in Professor Chu’s view, clearly did not entail an “assault” of Mr Mbuzi by Dr Phung, and where Mr Mbuzi had scandalously embellished the facts for reasons of his own. The evidence of Professor Chu as to her motivation in withdrawing supervision is plain from her email in which she not only outlined previous difficulties Mr Mbuzi had had with other students, but by reference to Mr Mbuzi’s accusation of assault against Dr Phung said:
I was terribly offended and upset by this untrue accusation. Not only he had insulted someone I asked to help him, but by doing so he had also being [sic] very dis-respectful to me with an intention of causing trouble.
134 It is not unreasonable that Professor Chu should have sought to dissuade Mr Mbuzi from making a report to the police which, in her view, completely misrepresented conduct of Dr Phung, who had endeavoured to assist Mr Mbuzi at Professor Chu’s request. Professor Chu was entitled to withdraw as a supervisor in circumstances where she felt unable to continue to work with Mr Mbuzi.
135 In written supplementary submissions the respondent states that:
Considerable insight as to how the Applicant may have behaved during the disturbance may be gained from assessing his demeanour during this case, particularly while being cross-examined about the disturbance. The Applicant’s demeanour in Court was telling of how Professor Chu might have perceived his behaviour during the disturbance and immediately following it.
136 The respondent in particular relied on the following exchange between Mr McKenna SC for Griffith University and Mr Mbuzi during cross-examination of Mr Mbuzi:
And having a disagreement, you both went into Dr Choo’s room, and the disagreement continued in front of her?---No. That’s not correct. We had a disagreement and I said because I didn’t ask you to do this work. The person who asks you is the person who pays you to be a research assistant. I’m taking you to her so that I tell her. So I insisted. I wanted to tell. I said, look, you said someone should help me. He feels I’m not his boss and rightly so. I’m not his boss. But I didn’t need him anyway. So you go and tell – don’t tell me that I’m not your ..... So I wanted to tell Professor Choo what the staff she pays said.
So you told her that just in the same tone of voice as you presently have in telling her Honour?---No. It wasn’t the same. It wasn’t the same.
And the consequence was that Dr Phung asked you to leave?---Yes, and he no right – we were in the office of our supervisor.
He asked you to leave?---Yes. He had no - - -
Because you were raising your voice just the same way as you’re with me now?---No, let me tell you. Let me tell you.
And when you advanced towards him, he - - -?---Can you listen.
- - - raised one hand?---Look, if you want me to answer you questions, you should listen ..... You should know, I’m not to be intimidated by the way you’re asking. What happened was – and don’t mistake my ability to read situations and understand my rights. We were in an office of our supervisor. Dr Phung like me is – that is not the office of Dr Phung. That is not my office. If we are in there, the only person who had legitimates to tell me to get out was our supervisor.
So you were mad when Dr Phung told you to leave?---He had no right. Yes.
You were mad?---No, I was not mad.
And you advanced towards him just the way you’re looking at me now? Let me tell you, Mr McKenna. Make no mistake. I didn’t advance towards him. He advanced towards me and assaulted me.
And he put one hand up?---He didn’t put one - - -
And made contact with you?---He did put one hand up. You are – what you are saying is – how can a person who puts one hand up touch another person? What you are saying is illogical. He thrust his hand towards me and made contact with my hand and my shoulder. That’s what he did.
And that’s all that happened?---What do you mean that’s all that happened.
He just touched you?---He didn’t touch me. He thrust his arm – do you know the difference between touching and thrusting?
And to anybody standing in the room, some people might have said it was your fault and some people might have said it was Dr Phung’s fault that there had been that contact?---How can ..... say more people in the ..... Let me tell you, what interpreted is irrelevant. What some people you are referring to and saying is irrelevant. The people that interpret this is the court and the court does that through the police.
So I’m going to ask you this. From Professor Choo’s point of view, she thought it was your fault?---How do you know that?
I’m asking you? That’s what your understanding at the time, she thought it was your fault?---No, she didn’t. She felt that Dr Phung was not at fault. She didn’t say at fault. She say I don’t believe – let me tell you – what she say is in writing. She said one, the person to decide whether what he did is assault or not is not the Queensland Police, is not the court system in Australia, it is her.
Because she was there watching?---No. Because she said she is the supervisor. Why – where do you get – she said I’m your supervisor. .....
She witnessed the whole thing and she didn’t think there was an assault, did she?---No – yes. She thought so and the reason why she thought so because she said she is the supervisor. It is not the police who determine what assault is. It is not the ..... it’s not the court. It is me as your supervisor. Therefore forget it. Now, I told her, please, you should know I’m a mature person and I don’t accept what you are saying because it’s wrong.
Whatever happened, she was upset and asked you both to leave?---Yes. Both – she was right. You see – let me tell you what she did. In fact, you are mistaken. She say – and she was right – and this is – you see, when people are saying the right things to me, I respect it. When I told her – and in fact she heard it, I told Dr Phung, you have no right to ask me to leave. One, this is not your office. So Professor Choo ..... so she said look, what I’m going to do is to ask both of you to go back because despite what is saying, I still want him to help you. So in fact, what Professor Choo said, she said look ..... you work under me. I asked you to do it. Go and do it.
And in fact that’s what you did, you both went back to the room where you had been doing the PowerPoint to get on with it?---No, we didn’t. We went back to the room, but we didn’t do that. You know what happened? I need all the facts, please, Mr McKenna. If you are wasting court – as I believe you are by referring – we went there and I thanked him. I said, “Look, it is very clear that you tell me that I’m not your boss, and you’re right, despite ..... Please go home. I’m going to the library.” I went to the library and they did exactly what Professor Choo wanted. So I complained, but I didn’t get it through him. I did it through the library.
137 Mr Mbuzi conducted himself respectfully and courteously towards the Court as a self-represented litigant in this matter. However having observed him during the course of the hearing in his interactions with Counsel and witnesses for the university I consider that he is a man who is quick to anger, who can take offence promptly if he believes he is put under pressure inappropriately or considers that he is being affronted, and whose response can be forceful and bellicose. In my view the excerpt from the transcript, and in particular Mr Mbuzi’s response to cross-examination by Mr McKenna, illustrates these traits. There are many other examples which could be identified in the transcript. To that limited extent I accept the submission of the university that Mr Mbuzi’s demeanour in Court was telling of how Professor Chu might have perceived his behaviour during the disturbance involving Dr Phung and immediately following it.
138 Further, there is absolutely no evidence before me that Griffith University “required” Mr Mbuzi not to report a crime of assault committed against him.
139 These issues involve no unconscionable conduct by the university.
Consideration – did Griffith University engage in misleading or deceptive conduct?
140 Mr Mbuzi has not pleaded misleading or deceptive conduct pursuant to s 18 of the ACL. However in his Outline of Essential Facts Mr Mbuzi makes the following claims:
13. Further, the conduct of the respondent to require the applicant to undertake a research project in Australia for which it now claims to lack supervisory services amounts to false, deceptive and misleading conduct. The applicant would not have spent almost two years on a research based in Australia had not been for the directive and representations made to him by the respondent. Thus, the respondent through its representations altered applicant’s position.
14. That the respondent makes claims of ‘there is nobody to supervise you’, when in fact, the applicant has provided it with names of staff who have expressed willingness to supervise the applicant upon normalisation or reinstatement of his candidature.
15. The respondent has provided sworn statements through its solicitor to the effect that the applicant has not been doing “anything”, when in fact, evidence on record reviews a number of activities undertaken by the applicant, including meetings with potential supervisors upon reinstatement.
141 Griffith University rejected these claims.
142 I have already substantially dealt with issues raised in this material. Earlier in this judgment I noted that Griffith University did not require Mr Mbuzi to undertake research within Australia as a condition of approving his candidature – the university simply made it clear that it could not financially support research outside Australia. Further, I am satisfied that despite reasonable efforts by the university to assist Mr Mbuzi, at the time of termination there was no suitably qualified member of staff available to supervise Mr Mbuzi. I have already found that any suitably qualified member of staff had either been rejected by Mr Mbuzi or was not willing to supervise him. I am not prepared to accord any weight in the circumstances to the evidence produced by Mr Mbuzi concerning Dr Kerwin.
143 In summary, I am not satisfied that Griffith University has engaged in misleading or deceptive conduct as claimed by Mr Mbuzi.
Mr Mbuzi’s claims – conclusion
144 In light of these findings, I am satisfied that Mr Mbuzi’s application has no merit and should be dismissed.
GRIFFITH UNIVERSITY’S CROSS-CLAIM
145 Griffith University has sought orders under s 37AO(2)(a) and (b) of the Federal Court Act:
staying or dismissing all of the proceeding instituted by Mr Mbuzi; and
prohibiting him from instituting proceedings against Griffith University or any employee, officer, Council member or student of the university in the Court.
146 The university has also sought costs.
147 Section 37AO provides as follows:
Making vexatious proceedings orders
(1) This section applies if the Court is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
(2) The Court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;
(c) any other order the Court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the Registrar of the Court;
(c) a person against whom another person has instituted or conducted a vexatious proceeding;
(d) a person who has a sufficient interest in the matter.
(4) The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the Court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
148 “Vexatious proceedings” are defined in s 37AM of the Federal Court Act as including:
(a) a proceeding that is an abuse of the process of a court or tribunal; and
(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and
(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
149 “Frequently” is not defined in the Federal Court Act however a number of authorities have noted that it is a relative term and must be looked at in the context of the litigation being considered: Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 at [7]; Fuller v Toms [2013] FCA 1422 at [76].
150 Before further considering the section it is useful to examine the material to which the university took me in their submissions, and then submissions of both the university and Mr Mbuzi.
Proceedings “instituted by” Mr Mbuzi
151 In respect of their cross-claim the university referred me to the following litigation instituted by Mr Mbuzi in Queensland State Courts and Tribunals.
Mbuzi v Favell
152 First, Mr Mbuzi instituted several proceedings against Queensland barrister Mr Favell, following the decision of the District Court of Queensland in Favell v Mbuzi [2005] QDC 356. That decision concerned a successful application brought by Mr Favell against Mr Mbuzi for defamation of Mr Favell. The defamation suit followed unrelated proceedings involving Mr Mbuzi in which Mr Favell had acted for other parties to those unrelated proceedings, and Mr Mbuzi wrote numerous letters to, among others, officials of the Supreme Court of Queensland, claiming that Mr Favell had perjured himself. Tutt DCJ found in favour of Mr Favell and ordered Mr Mbuzi to pay Mr Favell $15,000 in damages. Although initially Mr Mbuzi did not seek to appeal this judgment he did institute the following related proceedings:
An application to the Supreme Court of Queensland seeking judicial review of the directions of the District Court. This application was summarily dismissed. Mr Mbuzi’s appeal against that decision was itself dismissed: Mbuzi v Attorney-General of Queensland and Favell [2006] QCA 381. An application for special leave to the High Court of Australia was dismissed: Mbuzi v Attorney-General of Queensland [2008] HCASL 1.
An application to the Supreme Court of Queensland to set aside the judgment under rule 668 of the Uniform Civil Procedure Rules 1999 was dismissed and the appeal against that decision itself was dismissed by the Court of Appeal: Mbuzi v Favell [2007] QCA 393. An application for special leave to the High Court was dismissed: Mbuzi v Favell [2008] HCASL 243.
153 In 2012 Mr Mbuzi instituted an application for leave to appeal the decision of Tutt DCJ, however leave was refused: Mbuzi v Favell [2012] QCA 17. The Court of Appeal also ordered indemnity costs against Mr Mbuzi for the following reasons explained by Fraser JA:
I accept the respondent’s submissions that indemnity costs should be ordered for a number of reasons. They are: the applicant’s extraordinary delay in applying; his unsustainable attempt to justify the delay by a misreading of the evidence given by the respondent at trial; the fact that he had brought two separate proceedings in relation to the judgment against him before this one, namely, the decision in 2007 which I mentioned when giving my initial reasons, and a case called Mbuzi v The Attorney-General of Queensland and Favell [2006] QCA 381; the fact that there was no merit in the application; and, finally, the fact that the applicant used the application as a vehicle to make irrelevant, defamatory allegations against the respondent, including but not limited to those which had resulted in the judgment which should have put the defamatory allegations to rest.
Mbuzi v Hall
154 Queensland State Magistrate Hall heard an application by Mr Mbuzi against insurance company AAMI and four of its directors in respect of a claim for $3,276 in respect of a stove cook-top under an insurance policy. During the proceedings Magistrate Hall disclosed that she knew two of the directors of AAMI but declined to recuse herself. Magistrate Hall ultimately dismissed the application.
155 Mr Mbuzi filed an application for judicial review of the decision of Magistrate Hall in the Supreme Court of Queensland. The application was dismissed. Mr Mbuzi then sought leave to appeal the decision of the Supreme Court. The Court of Appeal refused leave: Mbuzi v Hall [2009] QCA 405. Fryberg J described Mr Mbuzi as an “experienced” litigant and observed:
23. Mr Mbuzi’s reply comprised mainly an offensive and rambling personal attack on the directors, White J and counsel for his opponents.
156 In Mbuzi v Hall [2010] QCA 5 Mr Mbuzi brought a further application in the Court of Appeal pursuant to Rule 668 on the basis that the Court of Appeal in Mbuzi v Hall [2009] QCA 405, in giving judgment, had acted upon the affidavit and the submissions filed by the respondents after the hearing had concluded. The Court of Appeal dismissed this application.
157 In Mbuzi v Hall [2010] QCA 23 Chesterman JA ordered that the costs of the respondents in Mbuzi v Hall [2009] QCA 405 should be paid by Mr Mbuzi on an indemnity basis on that the grounds that:
the precondition for the power conferred by r 668 had not been satisfied; and
Mr Mbuzi’s application was based upon a serious misstatement of the relevant facts and a misrepresentation of what occurred during the hearing of the appeal and during the subsequent exchange of written submissions delivered pursuant to the direction of the court.
158 The respondents subsequently sought an order under r 389A of the Uniform Civil Procedure Rules 1999 (Qld) that Mr Mbuzi not file any application in relation to the judicial review proceeding without the leave of the Court. Rule 389A relevantly applied if the court was satisfied that a party to a proceeding had made more than one application in relation to an existing proceeding that was frivolous, vexatious or an abuse of process. In Mbuzi v Hall [2010] QSC 359 the Supreme Court made such an order. Relevantly the Court observed:
[85] I conclude that the applicant has adopted a vexatious mode of conducting the litigation. This conclusion does not rest on his general lack of success in bringing or resisting interlocutory applications and associated applications for leave to appeal: his only success seemingly being not having the application for judicial review summarily dismissed against AAMI. It rests on the vexatious nature of the applications that he has brought, his advancing arguments that lack a proper foundation, his persistence in unfounded arguments that have been determined against him, his lodging of applications for leave to appeal that have no reasonable prospect of success and the inclusion in affidavits and submissions of scandalous allegations. This course of conduct has delayed the resolution of the judicial review proceeding, and generated substantial costs. It has been harassing and vexatious to the other parties to applications, not to mention their lawyers who have been the subject of many ill-founded accusations of having misled the court.
159 In Mbuzi v Hall [2010] QCA 253 the Court of Appeal held that Mr Mbuzi had filed an application in contravention of the orders made by the Supreme Court in Mbuzi v Hall [2010] QSC 359. In Mbuzi v Hall [2010] QCA 356 the Court of Appeal dismissed an application for leave to appeal against the decision of the Supreme Court in Mbuzi v Hall [2010] QSC 359.
University of Queensland
160 Mr Mbuzi has brought a number of unsuccessful applications against the University of Queensland and its staff.
161 In Mbuzi v University of Queensland [2010] QSC 153 Mr Mbuzi sought judicial review of various decisions made by the University of Queensland where he had been enrolled as a PhD student in the School of Social Work and Applied Human Sciences. In summary: the university had received complaints from fellow students, alleging that Mr Mbuzi had been guilty of sexual harassment. A Disciplinary Board found Mr Mbuzi guilty of misconduct, and suspended him for twelve months. In dismissing Mr Mbuzi’s application for judicial review de Jersey CJ said:
[49] There is nothing in the conduct of the university authorities in this case which could give rise to even suspicion that they were not committed to the proper discharge of their responsibilities in the matter. I have read all of the correspondence and carefully considered the applicant’s complaints. They are without foundation. The university officers were apparently scrupulous in determining to process the matter with fairness, and they did so. The applicant was afforded every reasonable opportunity to answer the complaints, and to cooperate in the process which led to suspension.
[50] None of the grounds advanced by the applicant was established. There was no evidence of breach of natural justice, failure to follow applicable procedures, excess of authority, improper exercise of power, error of law, absence of evidentiary foundation for decisions made, bad faith or improper motive or of one officer acting as the cipher or at the behest of others.
[51] The applicant’s application is properly characterized as vexatious.
162 Mr Mbuzi’s appeal against this decision was dismissed in Mbuzi v University of Queensland [2010] QCA 336.
Proceedings against persons associated with Griffith University
163 On 14 June 2011 while a doctoral candidate at Griffith University, Mr Mbuzi commenced proceedings in the Supreme Court of Queensland against eight employees of the university (BS5009 of 2011) following a decision to refer him to the university’s Student Misconduct Committee. In that application Mr Mbuzi sought damages for, inter alia, defamation. On 15 June 2011 Mr Mbuzi sought an urgent injunction to prevent the Student Misconduct Committee meeting from taking place. The application was dismissed by Byrne SJA.
164 On 11 August 2011 Mr Mbuzi sought default judgment against two of the employees (namely Associate Professor Malcolm Alexander and Dr Cathy Jenkins). The Judge was unable to find the claim and the statement of claim on the Court file, and raised a question whether the Court had issued the relevant originating process. Mr Mbuzi withdrew the application.
165 On 12 August 2011 Mr Mbuzi filed fresh proceedings in the Supreme Court of Queensland against Associate Professor Alexander and Dr Jenkins (BS7052 of 2011).
166 On 23 August 2011 Mr Mbuzi sought default judgment in respect of both actions. Boddice J dismissed this application by consent, and ordered Mr Mbuzi to file and serve a statement of claim in BS5009 of 2011 by 6 September 2011.
167 Following a decision of the Griffith University Student Misconduct Appeals committee in respect of Mr Mbuzi, Mr Mbuzi filed an originating application in the Supreme Court of Queensland against the Chairman of the committee seeking judicial review of the committee’s decision (BS9129 of 2011).
168 On 13 October 2011 the Crown Solicitor filed an application seeking orders that Mr Mbuzi be declared a vexatious litigant under the Vexatious Proceedings Act 2005 (Qld) (“Vexatious Proceedings Act”). This application was listed for 17 November 2011.
169 On 11 November 2011 Mr Mbuzi filed an application for default judgment in respect of proceedings BS5009. This application was dismissed by Mullins J on 15 November 2011 by consent.
170 On 17 November 2011 the application filed by the Crown Solicitor against Mr Mbuzi was heard by Mullins J. Her Honour’s judgment in that matter appears as Cooper v Mbuzi [2012] QSC 105. In that case her Honour considered the meaning of “vexatious” and noted:
[67] In Re Cameron [1996] 2 Qd R 218, 220, Fitzgerald P considered what makes legal proceedings vexatious:
It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis ... .
171 After examining proceedings commenced by Mr Mbuzi in the State Courts her Honour observed:
[71] Mr Mbuzi is not legally qualified, but in recent years has appeared for himself in many court proceedings and it is apparent from many of the documents he has filed and the submissions he has made that he has therefore gained experience from his own litigation and familiarity with court procedures and some aspects of the law. Despite the fact that on occasion judicial officers have made positive comments about Mr Mbuzi’s familiarity with the UCPR, what is also apparent from his documents and submissions that I have considered in connection with this proceeding is that his knowledge of court procedure and law is superficial. He is focused on the process relating to his claims, rather than the substance of his claims and generally shows no understanding of the consequences for the other parties of the proceedings he brings which are unmeritorious and the oppressive manner in which he conducts them, such as by bringing unnecessary interlocutory applications.
(Emphasis added.)
172 In respect of the litigation arising from Mr Mbuzi’s insurance claim, Mullins J said:
[74] It is incomprehensible that Mr Mbuzi’s claim under his contents insurance for $2,099 which was the cost of the damaged cooktop resulted in so many applications and proceedings. The fact that Mr Mbuzi was appearing for himself and therefore not incurring the legal costs associated with retaining a lawyer to act in the various applications on his behalf facilitated his bringing so many proceedings. As I read one transcript and decision after another arising out of the small claim made before Magistrate Hall, I concluded that this series of proceedings amounted to a travesty of justice. This set of proceedings (more than any other) shows Mr Mbuzi’s complete fixation with court processes out of all proportion to the original claim and lack of judgment. Mr Mbuzi emphasises his success in the course of the judicial review application which was the subject of the Hall appeal of obtaining an adjournment of the application for summary dismissal by AAMI and the four directors before me on 29 June 2009 for short service and the refusal of White J on 9 July 2009 to give AAMI the benefit of summary dismissal as matters that have to be weighed against the other aspects of the judicial review proceeding. This typifies Mr Mbuzi’s pre-occupation with the procedure, rather than looking at the objective merits of his course of action. Mr Mbuzi claims to be empowered by his capacity to apply to the courts for vindication of his rights. He has shown no regard, whatsoever, for the rights of other persons whom he brings into his proceedings unnecessarily where he has no legitimate right to protect. He should not use his belief that he is vindicating his rights to infringe the rights of others. It is of concern that in the course of this application under the Act, Mr Mbuzi was still endeavouring to re-argue the propriety of having joined the four directors to the judicial review proceeding that was the subject of the Hall appeal.
…
[79] Proceeding BS5009 of 2011 is vexatious, as it has been used by Mr Mbuzi for his own purposes, has been an abuse of the process of the court, and caused unnecessary court appearances on behalf of the respondents. Even allowing for the fact that Mr Mbuzi did not continue against the second to the sixth respondents from 15 November 2011, his misuse of the UCPR in this proceeding had been extreme.
[80] My conclusions as to which of the numerous proceedings brought by Mr Mbuzi are vexatious satisfy the requirement under the Act that such proceedings must have been brought frequently.
173 After further discussion her Honour considered that it was appropriate that she should exercise her discretion under the Vexatious Proceedings Act and make the orders sought against Mr Mbuzi.
Submissions of Griffith University
174 In support of its application Griffith University submits, in summary, as follows:
When Mr Mbuzi received notification from the university of the decision to terminate his candidature his first option was not to lodge an internal appeal but rather to commence proceedings in the Federal Court.
Mr Mbuzi notified various members of the university’s staff that he had commenced these proceedings, including threatening to issue subpoena’s to compel attendance of university staff. Mr Mbuzi also purported to boast of his experience and success in litigation.
On 31 July 2013 the solicitors for Griffith University sent correspondence to Mr Mbuzi informing him (inter alia) that they were acting for the university, and requesting that all future correspondence concerning the proceedings be sent to them. On 16 September 2013 Mr Mbuzi sent the following email to fourteen staff of Griffith University in the following terms:
I write to put on notice Professor Ian O’Connor, Professor Gerry Docherty, Professor Sue Berners-Price, A/Professor Jock Macleod, Professor Cordia Chu and Ms Alyson McGrath, that you would be sued in your individual capacities and added as parties to my Federal Court suit against Griffith University as an institution (QUD 479/13).
I intend to add you as parties following my success on 16 August 2013 defeating three lawyers representing Griffith University and led by barrister Thomas Bradley in their nonsensical, ill-informed and dumb submissions….The fact that the court set the matter for a two-day full hearing speaks volumes of the competence (or more appropriately in this case, incompetence) of Griffith University’s three lawyers. Further, questions should be raised about the value for money of university’s-appointed lawyers…
Please note that the grounds for the inclusion of Professor O’Connor would be for negligence as a result of paying a blind eye to administrative bullying and illegitimate authority by Mr Colin McAndrew and Professor Berners-Price, blackmail by Professor Chu in which she intimidated me in order to cover up a crime; lies and misrepresentations by Professor Docherty and A/Prof. Macleod to my detriment.
In relation to Professor Chu, it would be for defamation and administrative bullying. Professor Docherty, A/Prof. Macleod and Ms Mcgrath would be sued for negligence and defamation for republication of Prof. Chu’s defamatory publication.
…
You would all be aware that my suit against Mr Colin McAndrew in his personal capacity is already on foot.
Upon amendment of my Federal Court suit, it would be filed and served accordingly.
Mr Mbuzi has repeated his course of conduct by continuing to copy members of the university’s staff into correspondence relevant to these proceedings.
On 25 October 2013 Mr Mbuzi emailed Professor Healey, the Chairman of the Appeals Committee, requesting various statements relating to the decision to terminate Mr Mbuzi’s doctoral candidature and threatening to sue Professor Healy in the Supreme Court of Queensland if Professor Healy did not comply. This email was followed up on 26 November 2013 with a copy of an application to the Supreme Court seeking leave to file and serve an application commencing proceedings against Professor Healey.
On 13 August 2013 Mr Mbuzi filed an application in the Supreme Court seeking leave to commence proceedings in the Queensland Civil and Administrative Tribunal. This application was dismissed on 15 August 2013.
In previous proceedings Mr Mbuzi has pursued remedies without reasonable grounds.
This litigation is not different in substance to litigation in which Mr Mbuzi has previously been involved.
Mr Mbuzi has an appetite and propensity for conducting vexatious litigation.
Mr Mbuzi’s submissions
175 Mr Mbuzi submits that the university’s cross-claim should be struck out because, in summary:
The university lacks standing to commence this cross-claim.
The university in its submissions mis-states findings of the Supreme Court of Queensland in respect of Mr Mbuzi’s litigation in that Court.
The lawyers of the university have disregarded requirements of this Court, including the Court’s requirement not to take any step in the proceeding before filing a Notice of Address for Service, and failing to comply with timeframes set by the Court.
The university and its lawyers have had no regard to the disruptive nature to the proceedings of their decision to cut Mr Mbuzi off from internet and email access.
The university has not accepted positions settled by the Court, such as the Court’s decision that Mr Mbuzi’s application was rightly brought under the Constitution.
The university had engaged in misleading claims to the Court, such as the assertion that the Vice-Chancellor received emails from Mr Mbuzi on occasions when this could not have happened as the Vice-Chancellor was away from his office.
The university has presented demonstrably incorrect information, such as nobody was able and willing to supervise Mr Mbuzi at Griffith University.
The communication of Mr Mbuzi with Griffith University staff is not a legitimate concern of the Court.
Mr Mbuzi has had a 100% success rate in matters in this Court.
The respondent has respect for Justice Mullins – indeed as at April 2014 Mr Mbuzi had four matters pending before Justice Mullins.
Consideration
176 The first issue for consideration is whether the university has standing to bring this cross-claim under s 37AO(3).
177 Clearly Griffith University does not fall into the categories described in s 37AO(3)(a) and (b). However I am satisfied that, at the very least, Griffith University has standing to commence this cross-claim because it is currently being sued by Mr Mbuzi, and Mr Mbuzi has already forecast future litigation against the university and persons associated with it. As a result Griffith University has sufficient interest in the matter within the meaning of s 37AO(3)(d).
178 Although I have found that Mr Mbuzi’s claims in his amended originating application lacked merit, I am not prepared to find that the proceeding was vexatious because it was instituted or pursued “without reasonable ground” within the meaning of s 37AO(3)(c). While Mr Mbuzi’s Constitutional arguments were, in my view, doomed to fail from the outset, his contentions concerning contract and ACL proceedings required some consideration before they were dismissed. In this respect I consider this proceeding distinguishable from, for example, that recently considered by Mortimer J in Garrett v Make Wine Pty Ltd [2014] FCA 1258, where the applicant continued to relitigate issues addressed in previous litigation.
179 The second question is whether Mr Mbuzi has frequently instituted or conducted vexatious proceedings in Australian Courts or Tribunals. Section 37AO(6) permits the Court to consider not only proceedings in other Courts or Tribunal and orders made, but also the person’s overall conduct in those proceedings. To that extent, it is appropriate for me to have regard to the proceedings previously instituted by Mr Mbuzi in the Queensland Courts (namely the Queensland Civil and Administrative Tribunal, the Small Claims Tribunal, the Magistrates Court, the District Court of Queensland, the Supreme Court of Queensland and the Court of Appeal of Queensland) as well as the High Court of Australia.
180 In Cooper v Mbuzi, Mullins J made orders pursuant to the Vexatious Proceedings Act declaring Mr Mbuzi to be a vexatious litigant in light of the myriad of proceedings commenced by Mr Mbuzi in the Queensland Courts. I have already examined her Honour’s judgment in that matter.
181 In response to the university’s cross-claim Mr Mbuzi submitted, inter alia, that Mullins J – presumably in her Honour’s judgment in Cooper v Mbuzi – “rejected all but one of the cases said to be ‘vexatious proceedings’”. This is not correct. Mullins J found that Mr Mbuzi’s proceedings in the Supreme Court and the special leave application to the High Court arising from the small claim before Magistrate Hall were vexatious and oppressive (at [75]). Similarly her Honour found that Mr Mbuzi’s judicial review proceedings and associated litigation against the University of Queensland were vexatious (at [76]) and proceeding BS5009 of 2011 against Griffith University was vexatious. Indeed at [80] her Honour observed:
My conclusions as to which of the numerous proceedings brought by Mr Mbuzi are vexatious satisfy the requirement under the Act that such proceedings must have been brought frequently.
182 The only proceedings instituted by Mr Mbuzi in the Queensland courts examined by her Honour which her Honour did not find oppressive related to notices of intention to suspend Mr Mbuzi’s driver’s licence for unpaid fines: Cooper v Mbuzi at [77].
183 Earlier in this judgment I summarised the proceedings brought by Mr Mbuzi in the Queensland State Courts and relevant findings of Judges in those Courts. In relation to four tranches of litigation in the Queensland Courts including appeals for special leave to the High Court (namely the Favell litigation, the Hall litigation, the University of Queensland litigation and the Griffith University litigation), it appears that Mr Mbuzi has commenced approximately 20 separate proceedings in the space of eight years. As I have also observed, in many of those decisions the Judge hearing the matter commented adversely on Mr Mbuzi and the vexatious nature of his claim, culminating in the decision of Mullins J in Cooper v Mbuzi. I am satisfied that Mr Mbuzi has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals within the meaning of s 37AO(1)(a).
184 Finally, section 37AO(2) grants the Court a discretion to make orders of the type sought by Griffith University in their cross-claim. Griffith University has sought orders pursuant to s 37AO(2)(b).
185 Proscribing a person from commencing litigation is a very serious matter. An order to this effect should be approached by the Court with the utmost caution. However so far as concerns potential actions by Mr Mbuzi against Griffith University and persons associated with the university I consider it is appropriate to make orders pursuant to s 37AO(2)(b). I have formed this view for the following reasons.
186 First, as the university contends, Mr Mbuzi clearly has an appetite for litigation. He appears to take a very broad – and, it may be said, frequently unreasonable – view of what constitute “his rights”, which he is prepared to defend to the ultimate extent. He is prepared to commence Court proceedings with very little provocation, and, as is clear from perusal of correspondence before the Court, appears to relish doing so. That this is so is further demonstrated by:
the frequency of litigation initiated by him over the last few years;
the fact that Mr Mbuzi in correspondence with the university has compared his “wins” in litigation with those “wins” of the university, almost like balancing a ledger;
the relatively minor matters which Mr Mbuzi has insisted proceed to the highest appellate Courts in the land (including a dispute over an insurance claim for $3,276 which Mr Mbuzi attempted to press as far as the Queensland Court of Appeal); and
the regularity in his correspondence in which Mr Mbuzi either adverts to or threatens litigation as a means of enforcing “his rights”.
187 To illustrate this last point I note, appended to the supplementary submissions of the university, a table summarising correspondence received by university staff from Mr Mbuzi during the course of these proceedings from 22 July 2013 until 3 March 2014. There are 37 separate items of correspondence to a wide variety of persons in which Mr Mbuzi either references Court action or threatens Court action to enforce compliance with his demands.
188 That many of the problems Mr Mbuzi has experienced, inspiring his litigation, appear self-inflicted (and in this respect I particularly note the current proceedings, and apparently the Favell litigation and the University of Queensland litigation) do not deter him in the slightest. Rather, Mr Mbuzi seems to consider that he is vindicated in respect of his rights by commencing litigation.
189 Mr Mbuzi has no hesitation in bringing multiple applications in respect of the same litigation, and in particular applications against multiple personal respondents associated with decisions of institutions. A very real question arises whether Mr Mbuzi does so to attempt to intimidate those individuals in respect of decisions of the institution with which they are associated. In any event, those individuals are subjected to the trauma and potential expense of litigation which, as history has demonstrated, in the case of proceedings instituted by Mr Mbuzi is frequently unmeritorious.
190 Significantly, Mr Mbuzi already has a history of commencing unmeritorious claims against Griffith University, both in this Court – that is, this proceeding – and in the Supreme Court of Queensland. I consider it very likely, now that he has been unsuccessful in this proceeding, that unless the Court grants the orders sought by Griffith University, Mr Mbuzi will commence fresh proceedings closely related to the events I have documented in this judgment against either the university or staff personally. I note that Mr Mbuzi has already made threats of personal litigation in emails to Griffith University staff. I infer from this correspondence that Mr Mbuzi is “warming up” in respect of litigation against Griffith University and its staff, and because he is precluded from commencing litigation in the Supreme Court he will return to this Court with more litigation, similarly to what was seen by the State Courts in the tranches of litigation commenced there. Those tranches of litigation demonstrate that Mr Mbuzi will continue to litigate his grievances – however unmeritorious – until all avenues of appeal are exhausted.
191 I am concerned about the impact, not only on the resources of Griffith University and its staff, but on resources of this Court should Mr Mbuzi embark upon an operation of commencing further unmeritorious actions. I note that Mr Mbuzi complained in this hearing about the volume of material filed by Griffith University and the length of their submissions. The reality of litigation is that claims of the wide variety and potential complexity of those pressed by Mr Mbuzi require a considerable amount of work by respondents to meet, even if that work is to discredit those claims. Where respondents choose to engage legal representatives, as they are entitled to do and as Griffith University has done here, that considerable amount of work can entail extensive financial and staff resources.
192 So far as the resources of the Court is concerned, this claim has already required a two day hearing, and a significant amount of judicial time to examine what emerge, on proper investigation, to be completely baseless claims by Mr Mbuzi.
193 Mr Mbuzi has been given ample opportunity to ventilate, both in this Court and the State Courts, his grievances against Griffith University. His emailed threats to commence fresh proceedings against Professor O’Connor, Professor Chu, Professor Docherty, Associate Professor Macleod and Ms Mcgrath relate to proceedings already instituted by him, and which were dismissed. While in correspondence Mr Mbuzi appears to be contemplating the prospect of defamation proceedings against a number of staff I note that:
Such proceedings would be clearly related to, and would involve issues raised, in this proceeding which has been dismissed.
Mr Mbuzi did not press any defamation claims in this proceeding, which would have enabled the Court to deal with those matters and save future Court time and resources, as well as that of the respondents.
To my knowledge, Mr Mbuzi has not yet filed defamation proceedings against any individuals associated with Griffith University in any Registry of this Court.
In any event, there is no evidence before me of anything but the possibility of Mr Mbuzi commencing litigation in the terms he appears to have threatened.
194 Mr Mbuzi’s conduct satisfies the requirements of s 37AO(1)(a) of the Federal Court Act. In the circumstances I consider it appropriate to make the orders sought by Griffith University pursuant to s 37AO(2)(b) in respect of future litigation by Mr Mbuzi against the university and persons associated with the university. It is usual that such orders be made preventing future litigation “without the leave of the Court”, and I consider such a qualification appropriate in this case. As I have dismissed Mr Mbuzi’s claim on its merits, it is unnecessary for me to make an order dismissing this particular claim pursuant to s 37AO(2)(a).
CONCLUSION
195 Mr Mbuzi’s amended originating application filed 25 November 2013 has no merit. The usual rule in such cases is that costs follow the event. No reason has been advanced which supports any finding other than that Mr Mbuzi pay the university’s costs.
196 Griffith University has been successful in its cross-claim. Similarly, the university is entitled to the costs of this cross-claim from Mr Mbuzi, to be taxed if not otherwise agreed.
I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
