FEDERAL COURT OF AUSTRALIA

Mbuzi v Griffith University [2015] FCA 862

THE COURT ORDERS THAT:

1.    The applicant file and serve a draft notice of appeal by 4 pm on 26 August 2015.

2.    The draft notice of appeal is to be confined to:

(a)    grounds reflecting grounds b, c, d, e, f, g, i, m and o appearing after the words “Error of fact and law as follows” in the draft notice of appeal annexed to the affidavit of the applicant filed on 24 December 2014; and

(b)    a further ground to the effect that the respondent did not have a sufficient interest in the matter to warrant an order of the width of the vexatious proceeding order made by the primary judge.

3.    The draft notice of appeal is to comply with r 36.01 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

1    The applicant has applied for leave to institute an appeal. In some of the material, he has also described his application as an application for leave to appeal.

2    The applicant wishes to appeal against the whole of a judgment given by Collier J on 5 December 2014: Mbuzi v Griffith University [2014] FCA 1323. Her Honour ordered 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.

3    It may be seen that the second order is a vexatious proceedings order. Section 37AQ(1) of the Federal Court of Australia Act provides that if the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings of a particular type in the Court, the person must not institute a proceeding of that type in the Court without the leave of the Court under s 37AT.

The proceeding before the primary judge

4    The proceeding before the primary judge concerned the termination of the applicant’s PhD candidature in the respondent’s School of Humanities. The respondent’s Higher Degree Research Policy required the applicant to have two university supervisors (a principal and an associate supervisor). The applicant requested that the two supervisors appointed to him be removed. His associate supervisor was removed and replaced by Prof Chu. His principal supervisor remained until a replacement could be found, but eventually she was unwilling to continue any longer. Prof Chu then withdrew after an incident in which the applicant allegedly engaged in aggressive behaviour towards her colleague. The respondent’s position was that it could not identify any qualified supervisors who were willing to take on the role, and it terminated the applicant’s candidature.

5    The applicant sought orders to the effect that the respondent’s decision to terminate his candidature be overturned, that his candidature be reinstated and that he receive compensation. The applicant’s grounds for seeking these orders were in three categories:

(a)    the respondent’s breach of the applicant’s implied constitutional rights of freedom of communication and due process;

(b)    the respondent’s alleged breach of an alleged contract with the applicant;

(c)    the respondent’s breach of the Australian Consumer Law by engaging in unconscionable conduct and misleading or deceptive conduct.

6    The respondent cross-claimed, seeking a vexatious proceedings order against the applicant. The applicant had engaged in litigation prolifically in the Queensland courts, including against the respondent and its staff, and he is the subject of a vexatious proceedings order in the Supreme Court of Queensland.

7    The primary judge concluded that the applicant’s application had “no merit” and should be dismissed: [144]. Her Honour was not prepared to find that the applicant’s proceeding was vexatious, in the sense of being instituted or pursued without reasonable ground: [178]. However, her Honour found that the requirements of s 37AO(1) were satisfied: [183]. Her Honour decided that the Court’s discretion under s 37AO(2) should be exercised in favour of making the vexatious proceedings order, primarily because of threats of litigation made by the applicant against various members of the respondent’s staff: [194].

Whether leave to institute an appeal or leave to appeal is required

8    Although the applicant seeks leave to institute an appeal or leave to appeal, his primary submission is that such leave is not required in order to appeal against the vexatious proceedings order itself. The respondent submits that leave to institute the appeal is required.

9    Since I reserved my judgment, the issue has been decided by the Full Court in Fuller v Toms [2015] FCAFC 91. The effect of that judgment is that the applicant does not require leave to appeal, but does require leave to file a notice of appeal.

Whether the applicant should be granted leave to file a notice of appeal

10    I will turn to the question of whether the applicant should be granted leave to file a notice of appeal.

11    Sections 37AR to 37AT of the Federal Court of Australia Act provide, relevantly:

37AR    Application for leave to institute proceedings

(1)    This section applies to a person (the applicant) who is:

(a)    subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or

…

(2)    The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.

(3)    The applicant must file an affidavit with the application that:

(a)    lists all the occasions on which the applicant has applied for leave under this section; and

(b)    lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c)    discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4)    The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

37AS    Dismissing application for leave

(1)    The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3).

(2)    The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding.

(3)    The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).

37AT    Granting application for leave

…

(3)    The Court may make an order granting the application. The order may be made subject to the conditions the Court considers appropriate.

(4)    The Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.

12    The respondent submits that the Court is required by ss 37AS(2) and 37AT(4) to refuse the applicant leave because the proposed appeal is a vexatious proceeding. It also submits that the Court should exercise its discretion under s 37AS(1) to dismiss the application because the applicant’s affidavit does not list all of the other proceedings the applicant has instituted in Australian courts or tribunals. It further submits that the Court should refuse leave in the exercise of its discretion because the applicant contravened s 37AR(4) by serving a copy of his application and affidavit on the respondent.

13    The vexatious proceedings order represents a serious restriction of the applicant’s access to the Court. In the absence of the vexatious proceedings order, the appellant would have the right to appeal against the dismissal of his amended originating application. In these circumstances, I do not regard the appellant’s non-compliance with s 37AR(3) and (4) as being of such significance that leave to institute the appeal ought not be granted if the applicant is able to demonstrate that the proposed appeal is not a vexatious proceeding.

14    The expression “vexatious proceeding” is defined in s 37AM to include:

(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.

15    These categories are not discrete, since each category could properly be described as an abuse of process: Attorney-General (NSW) v Chan [2011] NSWSC 1315 at [33] per Adamson J.

16    It is not my role to decide upon the merits of the applicant’s proposed appeal beyond considering whether the proposed appeal is so lacking in merit that it is a vexatious proceeding. In the context of this case it is particularly relevant to note that a proceeding can be regarded as an abuse of process if it is “foredoomed to fail”: Walton v Gardiner (1993) 177 CLR 378; HCA 77 at 393.

The vexatious proceedings order

17    The draft notice of appeal commences with 15 grounds numbered 1 a to o which challenge the vexatious proceedings order and the primary judge’s rejection of the applicant’s Constitutional grounds and his allegations of breach of contract and the Australian Consumer Law.

18    The proposed grounds of appeal which challenge the vexatious proceedings order are:

1.    Error of fact and law as follows:

…

h.     In finding that Respondent “at the very least” falls within s37AO 3d as an “interested party”. Such a finding is so erroneous that it ·is difficult to understand how it could have been made as the “interested party” referred to is about an entity not originally a party to the proceedings, but applies in the course of the proceedings to make itself a party upon establishing its interest. The principal and original parties could not be said to fall under that category. The respondent should have been found to lack standing in bringing the so-called counterclaim.

i.    In accepting the validity of the counter-claim as it was filed in a way that did not meet the threshold.

…

m.     In making an order under s37AO 2 b in circumstances where the Appellant’s proceeding was specifically not found by herself to be vexatious.

19    Ground h challenges the primary judge’s finding that the respondent had standing to apply for the vexatious proceedings order. Section 37AO(3) provides, relevantly:

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

…

(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.

20    The primary judge held at [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).

21    Collier J apparently considered that the respondent did not come within s 37AO(3)(c) because her Honour did not regard the applicant’s proceeding as being a vexatious proceeding.

22    Ground h seems to dispute the respondent’s standing to bring the application on the basis that a party that is a respondent to a proceeding cannot apply for a vexatious proceedings order. The applicant submits that an applicant for a vexatious proceedings order must make an application in the course of the proceeding to become a party upon establishing its interest. Section 37AO(3) merely requires that an “application” be made by a party who has a sufficient interest in the matter. The applicant for a vexatious proceedings order is required to prove that it has a sufficient interest at the trial. There is nothing to support the applicant’s construction that a respondent to a proceeding cannot make such an application by way of cross-claim. I consider that the argument is foredoomed to fail and is an abuse of process.

23    However, in oral argument the applicant seemed to also rely on Ground h to allege more generally that the respondent did not have a sufficient interest in the matter to obtain an order of the width of the vexatious proceedings order that was made. He also seemed to rely on Ground m for that proposition. I consider that an appeal on that basis would not be an abuse of process, but Ground h will have to be redrafted to make that allegation clear.

24    In oral submissions the applicant explained that Ground i relies on r 11.06 of the Federal Court Rules 2011 (Cth) which requires a respondent to file a notice of address for service before filing any other document in the proceeding. In the proceeding at first instance, the respondent filed its cross-claim before filing its notice of address for service. It does not appear that any order was sought or made dispensing with compliance with r 11.06. While the Court hearing the appeal has the power to make orders regularising the procedure adopted, I cannot conclude that the proposed appeal on this ground will be an abuse of process.

25    Accordingly, I consider that the applicant should have leave to appeal based on Grounds i and m.

Constitutional grounds

26    The grounds of the proposed appeal relevant to the Constitutional arguments raised by the applicant before the primary judge are:

a.     In not accepting that the implied right to communication on political and governmental matters; and due process apply to this case. This should have been accepted because Griffith University is a statutory authority established by statute – Griffith University Act and formed and operated by public funding. Only matters “NOT RELEVANT TO AUSTRALIA” should not be accepted.

…

j.     In finding that there is no evidence supporting the fact that the Appellant's candidature was terminated because of allegations he used “aggressive, impolite and insulting language” (Page 71 of judgment). Her Honour's finding fails to take into account what Prof. Chu wrote as basis for not wanting to continue being supervisor.

k.     In being unable to see the relevance of the point of breach of due process (at Page 75). The purported lack of availability of supervisors resulted from allegations which were never subject of the due process of being reported, investigated and established.

27    Before the primary judge, the applicant argued that his implied right of communication under the Constitution had been infringed because the decision to terminate his PhD candidature arose from allegations of him being “aggressive”, “impolite”, “loudly speaking” and using “offensive language”. He also alleged that the respondent 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 that he was disseminating information, opinions and arguments about federal government policies relating to indigenous affairs.

28    The primary judge rejected the applicant’s argument, holding that the implied freedom of political communication operates as a constraint upon legislative power and does not confer personal rights on individuals, relying on Hogan v Hinch (2011) 243 CLR 506; HCA 4 at [92], Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; HCA 25 at 560 and Tajjour v New South Wales (2014) 88 ALJR 860; HCA 35 at [32], [60], [104], [140] and [195]. Her Honour held that a decision of the respondent in respect of the applicant’s PhD candidature pursuant to the respondent’s internal policies was not one that attracted the implied right of freedom of political communication: [67].

29    Her Honour also rejected the factual premises underlying the applicant’s argument, holding, amongst other things, that there was no evidence that his candidature was terminated because he used aggressive, impolite and insulting language: [71]. It is that finding that the applicant wishes to challenge in Ground j. However, even if the applicant’s argument contained in that ground is right, her Honour’s conclusion that the circumstances would not attract the implied freedom of political communication was clearly correct.

30    The applicant also claimed that the Constitution protects due process rights. His argument seems to have been that he should have been provided with a hearing in respect of complaints made about him by Prof Chu.

31    Even assuming that the Constitution does give some implied right to due process, her Honour was unable to see how it was relevant in this case: [75]. The applicant’s candidature was not terminated because of complaints made against him by Prof Chu, but because Prof Chu was unwilling to continue as his supervisor and because the University asserted that there were no suitable supervisors available. Her Honour’s conclusion must have been that a hearing concerning Prof Chu’s complaints would have had no bearing on the termination of his candidature. The proposed Ground k does not deal with or address her Honour’s findings.

32    Her Honour described these Constitutional grounds as having no reasonable prospect of success. I respectfully agree. The appeal is a vexatious proceeding insofar as it is based on Grounds a, j and k.

Contract grounds

33    The following grounds of the proposed appeal allege errors in the primary judge’s findings concerning the alleged respondent’s breaches of an alleged contract with the applicant:

b.    In finding that the Appellant’s case was similar to that of Tang v. Griffith University, as the two cases are very distinguishable: …

c.     In not accepting the contractual relationship between the parties. This should have been accepted especially that Her Honour agreed with the Appellant that the provision of supervisory services to him by the respondent was as a result of dealing in “trade and commerce” (Judgment pages 35-36 and points 113; 114; 115; and 116).

d.     In stating that I relied on a signed document by Professor Chu to be my supervisor as evidence of my contract with the university. What I stated as bases for the contract were the OFFER; ACCEPTANCE and CONSIDERATION. Agreement by Professor Chu signing to be my supervisor was only given as evidence of performance by the respondent under the terms of the contractual agreement.

e.     In finding at page 29 and paragraph 86 that the University's policy and clause 4.13.3 and paragraphs c and d are alternatives in respect of PhD students. If that were the case, then “and” would have been used instead of “or”. Not even the respondent's lawyers attempted to make such an interpretation. Termination provided for in the clause only relates to masters' degree students. The judge should have found that under that policy, termination of a PhD student like the appellant is not what that clause empowers.

…

l.     In refusing to accept evidence which is unchallenged and uncontradicted in terms of the availability of supervisors identified by the appellant and also the threat by Prof. Chu to withdraw being a supervisor upon the appellant reporting the crime of assault against him by an employee of the respondent.

…

n.     In stating that I previously had my candidature terminated on 14 March 2003 when in fact I withdrew at the end of my part-time work tenure as a research assistant to take up another part-time tenure as a research assistant at the University of Queensland (UQ) where my PhD candidature on a part-time basis was confirmed.

o.     In ignoring evidence of the availability of other staff members at Griffith University, apart from Prof. Chu and Dr Chamberlain, who are willing and able to supervise me. Even respondent's own witness, Associate Professor Jock Macleod said from the witness box that it would not be correct to say that there were no staff member available to supervise the appellant.

34    The primary judge was not satisfied that there was a contract between the respondent and the applicant for the provision of supervisory services to him as part of his PhD candidature: [82]. Her Honour was also not satisfied that the respondent no longer wished to provide supervisory services to the applicant, contrary to the applicant’s contention.

35    The question of whether the primary judge erred in finding that there was no contract between the applicant and the respondent depends upon an assessment of the whole of the relevant evidence. The primary judge’s reasons for finding that there was no such contract are relatively brief and not all of the evidence has been placed before me. I cannot conclude that the applicant’s contentions in Grounds b, c and d, which are to the effect that the primary judge erred in finding that there was no contract between the respondent and the applicant, have no reasonable prospect of success or are foredoomed to fail.

36    However, Ground b, in particular, will have to be substantially recast so that it states only the ground and not the argument relied on by the applicant. I understand the ground to be that her Honour was not entitled to rely upon the judgment of Griffith University v Tang (2005) 221 CLR 99; HCA 7 to reach or assist her in reaching the conclusion that there was no contract.

37    Ground e involves construction of the respondent’s Higher Degree Research Policy. I consider that it is not so unarguable as to amount to an abuse of process.

38    Grounds l and o concern the applicant’s allegation that the respondent breached the alleged contract by refusing to appoint supervisors for him. Those grounds depend upon an examination of all the relevant evidence. Ground l also alleges in part that her Honour ought to have accepted evidence that Prof Chu threatened to withdraw as the applicant’s supervisor for a particular reason. Her Honour accepted that Prof Chu did withdraw. The precise characterisation of why she withdrew did not matter. The remainder of Ground l overlaps with Ground o. For these reasons, the applicant should be permitted to rely on Ground o, but not Ground l.

39    Ground n would not affect the outcome of the proceeding even if the applicant’s claim that he withdrew his earlier candidature, rather than it being terminated, is correct. None of her Honour’s critical findings turned on that alleged error. That ground does not give the proposed appeal any reasonable prospect of succeeding and is an abuse of process.

Contraventions of Australian Consumer Law

40    The proposed grounds dealing with the primary judge’s finding that the respondent had not contravened the Australian Consumer Law are:

f.     In not finding that the respondent's conduct contravened the ACL, especially after agreeing with the Appellant that the parties were dealing in trade and commerce.

g.     In claiming that there is no evidence that Griffith University directed Mr Mbuzi to accept Dr Chamberlain as principal supervisor. …

41    Ground f depends, at least in part, upon the question of whether there were any of the respondent’s staff who were willing to supervise the applicant. This is a factual question which depends upon an examination of the whole of the relevant parts of the evidence. I consider that this ground is not foredoomed to fail

42    Ground g alleges that the primary judge erred in finding that there was no evidence that the respondent directed the applicant to accept Dr Chamberlain as a principal supervisor. If the primary judge did make the error alleged, it is not apparent that this would have affected the outcome of the proceeding. However, the applicant’s case that her Honour erred in making such a finding cannot be regarded as foredoomed to fail. I cannot conclude that the ground amounts to an abuse of process.

Apprehended bias

43    The applicant’s draft notice of appeal contains the following grounds under the heading “Apprehended bias”:

a.     In the case of Webb V. The Queen (105), it is held that apprehension of bias includes where the judge has engaged in conduct, in the course of, or outside, the proceedings, giving rise to such an apprehension of bias. Therefore, the conduct outline in the above grounds of appeal fits such conduct.

b.    The Judge below did not take into account the fact that the appellant successfully resisted Griffith University's application to have his application summarily dismissed.

44    The allegations made and the passages and material relied on by the applicant in oral argument are not capable of supporting the allegation that the primary judge engaged in conduct that could give rise to an apprehension of bias. The applicant’s argument seems to be no more than that an apprehension of bias arises because her Honour rejected his arguments and found against him. The allegation that the primary judge did not take into account the applicant’s successful resistance of an application for summary judgment is irrelevant. These grounds are simply unsustainable. They are an abuse of process.

45    The applicant will not be permitted to file a notice of appeal which contains his grounds of apprehended bias.

Miscarriage of justice

46    The draft notice of appeal contains the following grounds under the heading “Miscarriage of Justice”:

a.    The errors of fact and law, coupled with apprehension of bias, amounts to miscarriage of justice.

b.     The lengthy delay (about 9 months) in delivery of judgment as it is generally said that justice delayed is justice denied.

47    I have already dealt with the applicant’s allegation of apprehension of bias. To the extent that Ground a alleges other errors of fact or law in the judgment, it lacks particularity and appears to add nothing to the other grounds. The applicant should not be permitted to rely on this ground.

48    As to Ground b, the length of time it took her Honour to produce the judgment is readily understandable and was not inordinate. Her Honour was required to sift through and try to comprehend the diffuse arguments of the applicant and the significant volume of material that had been placed before the Court. Her Honour was also required to understand the lengthy history of proceedings that the applicant had instituted in other Courts. I have had similar difficulties in understanding and dealing with the applicant’s material in the present application. Ground b has no reasonable prospect of succeeding and is an abuse of process.

Summary

49    In summary, I am satisfied that an appeal based on Grounds b, c, d, e, f, g, i, m and o appearing after the words “Error of fact and law as follows” in the draft notice of appeal will not be a vexatious proceeding. The applicant should be granted leave to file a notice of appeal based on those grounds.

50    I consider that the remaining grounds, namely Grounds a, h (in its present form), j, k, l and n and the grounds under the headings “Apprehended bias” and “Miscarriage of Justice”, have no reasonable prospect of success and are an abuse of process. The applicant will not be permitted to file a notice of appeal containing those grounds.

51    If the applicant is able to draft a ground properly reflecting his argument that the respondent did not have a sufficient interest in the matter to obtain an order of the width of the vexatious proceedings order that was made, such a ground should be allowed to proceed.

52    Rule 36.01(2)(c) of the Federal Court Rules requires that the notice of appeal must state briefly, but specifically, the grounds relied on in support of the appeal. In my opinion, at least the proposed Grounds b, e and g do not comply with this rule. Those grounds should be redrafted by the applicant so that they do comply. The other grounds are capable of being redrafted so they are more precise. Although the applicant does not have legal qualifications, he is a former PhD candidate, so he should be able to express his grounds of appeal more clearly, precisely and succinctly. It is unnecessary for the grounds to contain references to the parts of the primary judge’s reasons referred to, but if the applicant wishes to include these references, they should be accurate. The draft grounds mistakenly refer to “page” numbers in the judgment when they should refer to paragraph numbers. The notice of appeal should be in accordance with Form 122. The parts of the standard form that do not apply should be deleted. The address of the Court should be inserted.

53    I propose to direct the applicant to file a draft notice of appeal confined to the grounds which I have indicated are not an abuse of process. The notice of appeal should also be redrafted so that it complies with r 36.01. I will consider the draft notice of appeal and, provided that it complies with these requirements, I will give the applicant leave to file a notice of appeal in terms of the draft.

Associate:

Dated:    19 August 2015