FEDERAL COURT OF AUSTRALIA

Ejueyitsi v Victorian Legal Admissions Board [2020] FCA 165

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), the Applicant’s originating application be dismissed.

2.    The Applicant pay the Respondent’s costs of the proceedings.

3.    Those costs be assessed on a lump sum basis in the amount of $17,166.00.

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

REASONS FOR JUDGMENT

PERRAM J:

introduction

1    This is an application for summary judgment under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’). That section relevantly permits the Court to give judgment for a party defending a proceeding where it is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. Although the power to dismiss a proceeding must not be exercised lightly (Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at 141 [60]), a proceeding need not be ‘hopeless’ or ‘bound to fail’ for it to have no reasonable prospects of success: s 31A(3); cf Federal Court Rules 2011 (Cth) r 26.01.

2    The Applicant commenced the proceeding by way of an originating process, supported by an affidavit filed by him on 7 November 2019. The originating process claims the following two prayers for relief:

1.    Breach of the Competition and Consumer Act 2010

2.    Wrongful application of law: Retrospective principle.

3    The Respondent, the Victorian Legal Admissions Board (‘the Board’), submits that such a case is bound to fail, having regard to its identity and on the basis that the Court otherwise has no jurisdiction to entertain the Applicant’s suit.

4    The underlying dispute concerns the Applicant’s application for admission as a legal practitioner in South Australia, based on a ‘Bachelor of Science in Law’ degree awarded to him by an institution called Suffield University in the United States of America. The Wikipedia page for that institution notes that it is occasionally referred to as ‘Suffield College and University’ and specialises in what it calls ‘Life Experience Degrees, issued upon payment, with life experience assessment based on the word of the applicant’. In 2011, on the advice of the predecessor body of the Board, the Victorian Council of Legal Education (‘COLE’), the South Australian Board of Examiners (‘the SA Board’) partially accredited the Applicant and required him to complete further study and practical legal training before it would admit him to practice.

5    However, in 2015, an Australian University notified COLE that it had refused the Applicant’s application for further study prescribed by the SA Board due to concerns about the provenance of his academic transcript. After further inquiries, COLE advised the SA Board that the Applicant’s degree had been conferred by a ‘degree mill’ university and was, in fact, bogus. This led to the SA Board revoking his partial accreditation in 2016.

6    As is clear, the SA Board is not a party to these proceedings. Instead, the Applicant appears to challenge COLE’s conduct in making recommendations to the SA Board in 2011 and 2015 and seeks reinstatement of the partial accreditation granted by the SA Board in 2011. He does not appear to challenge the conduct of the Board in 2019 which included, inter alia, consideration of his application for skills assessment afresh and a conclusion that he had not proven that the Suffield University degree satisfied the admission requirement that it would lead to legal practice in a foreign jurisdiction.

7    The Board is established by s 19 of the Legal Profession Uniform Law Application Act 2014 (Vic) (‘Uniform Law’) and consists of the Chief Justice of Victoria or their nominee, a retired judge, and three persons nominated respectively by the Law Institute of Victoria, the Victorian Bar and the Attorney-General of Victoria: s 21(1). Its members are appointed by the Governor of Victoria, acting on the advice of the Executive Council of that State: s 21(2). The Uniform Law does not explain the relationship between the Board and the Crown in right of Victoria, but it is apparent from the constitutive provisions that it lacks any separate legal personality and is most likely, as the Board submits, simply part of the State of Victoria.

the first prayer for relief

8    I deal first with prayer 1 and the Applicant’s claim under the Competition and Consumer Act 2010 (Cth) (‘CCA’). During the course of argument, the Applicant’s solicitor clarified that the claim under the CCA was a claim under cl 18 of the Australian Consumer Law (‘ACL’), which is contained in Sch 2 to the CCA. Clause 18(1) of the ACL provides as follows:

Misleading or deceptive conduct

(1)    A person must not, in trade or commerce, engage in conduct that is misleading or is likely to mislead or deceive.

9    Although cl 18 is expressed as applying to ‘persons’, that reference, at least as a matter of Federal law, must be read having regard to s 131(1) of the CCA. It provides as follows:

Application of the Australian Consumer Law in relation to corporations etc.

(1)    Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 of Schedule 2 by corporations.

10    It will be apparent from s 131(1), therefore, that although the ACL appears to apply to persons, its actual application is limited by the provision which gives it effect to corporations. The expression ‘corporations’ is defined in s 4 of the CCA as follows:

“corporation” means a body corporate that:

  (a)    is a foreign corporation;

(b)    is a trading corporation formed within the limits of Australia or is a financial corporation so formed;

  (c)    is incorporated in a Territory; or

(d)    is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c).

11    It was submitted on behalf of the Applicant that the Board met this definition because it was a trading corporation within the meaning of para (b). That was said to be so because, variously, ‘our society … has always been contractual’ such that the Board should not be able to ‘get away’ from its ‘contractual obligation’, which appeared to be a variation on Lockean social contract theory (on which point, see Locke J, Two Treatises of Government (1689)); it was important in the name of ‘good governance’; and this interpretation was consistent with the French origins of the term ‘corporation’ (putting to one side whether or not its etymology is, in fact, French).

12    I do not accept this submission. The expression ‘trading corporation’ is itself defined in s 4 of the CCA as having the same meaning as the expression ‘trading corporation’ in s 51(xx) of the Constitution. A trading corporation for the purposes of s 51(xx) may be a statutory authority, but it must have a separate legal personality from its incorporators or members: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11; 256 CLR 171 (‘Queensland Rail’). Having regard to the provisions of the Uniform Law explained above at [7], the Board does not have separate legal personality. There are a number of additional factors which distinguish the Board from the statutory authority found to be a trading corporation in Queensland Rail: the Board is not specified under the Uniform Law to be able to sue or be sued; it is not a body corporate; it does not carry out a commercial function; and it cannot own property. This is made all the more stark by a comparison with the other body established under the Uniform Law, the Victorian Legal Services Board, which explicitly does not represent the Crown (s 29), is a body corporate with perpetual succession, may sue and be sued, and may own property (s 28(2)). It must follow from these factors that the Board is not a corporation. Since it is not a corporation, the effect of s 131(1) of the CCA is that the ACL does not apply to the Board.

13    I have also considered the effect of s 6 of the CCA, which extends the application of parts of that Act (including cl 18 of the ACL) to persons who are not corporations where the person is, relevantly, engaging in trade or commerce among the States or within a Territory: s 6(2)(a). However, even if the Board could be characterised as operating among the States or within a Territory, the Applicant would then need to demonstrate that the Board’s conduct was ‘in trade or commerce’. Clause 2 of the ACL defines ‘trade or commerce’ to include ‘any business or professional activity (whether or not carried on for profit)’. In Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; 229 FCR 153, the Full Court considered the High Court’s observations in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; 169 CLR 594 and said this (at [31]):

It has been observed that the High Court made a deliberate choice in Concrete Constructions between a wide and narrow view of the expression “in trade or commerce” … and chose the narrow view: see Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 per Gyles J (at [44]). As such “in trade or commerce” would have a restrictive operation and confine the effect of the provision to conduct which “is itself an aspect or element of activities or transactions which, of their nature, bear a trading or a commercial character”: Concrete Constructions (at 603). In Concrete Constructions, focus was placed upon “the central conception” of trade or commerce and not the “immense field of activities” in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business. As Yates J noted in Toben v Jones (2012) 298 ALR 203 (at [40]) and the authorities there cited, conduct “in relation to” or “in connection with” trade or commerce is not sufficient to engage the provision.

14    It is therefore insufficient that the Board’s conduct related to an application for admission to the legal profession; it must have itself been ‘in trade or commerce’. That is not assisted by the payment of an application fee: Street v Luna Park Sydney Pty Ltd [2009] NSWSC 1; 223 FLR 245 at 301 [218]. The Board’s conduct was (and is) regulatory in nature and its functions are purely governmental, which cannot be characterised as having been in trade or commerce: see, eg, Markan v Bar Association of Queensland [2013] QSC 146 at [58]; Bride v The Shire of Katanning [2016] FCA 65 (‘Bride’) at [27]-[32].

15    This has the necessary consequence that the Applicant’s proposed cause of action under cl 18 of the ACL, at least as a Federal law, has no prospects of success.

the second prayer for relief

16    I then turn to prayer 2 of the originating application, which was said to be in respect of a ‘wrongful application of law: retrospective principle’. It was clarified during the course of argument that the Applicant was intended to allege by this that the Board had misapplied the Uniform Law. That misapplication related to the fact that the Applicant’s original application for admission was made in 2011, whereas the Uniform Law only came into force in 2014.

17    It is not necessary to form any view about that. A claim that the Uniform Law has been misapplied is, whatever else one might say about it, not a claim under a Federal law and, therefore, not within the jurisdiction of this Court under subs 39B(1) and (1A) of the Judiciary Act 1903 (Cth). Those subsections relevantly provide as follows:

Original jurisdiction of Federal Court of Australia

(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

   (b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

18    Because this is not a claim arising under a Federal statute or a claim for Constitutional writs under s 39B, it must follow that, as it has been articulated, at least initially, the claim now made by the Applicant is not capable of succeeding in this Court for jurisdictional reasons.

19    When that was pointed out during the course of the argument, a submission was then made on behalf of the Applicant that prayer 2 could also be conceptualised as a claim under the ACL. I sought to explore with the Applicant’s solicitor which particular provision of the ACL it was that gave rise to this claim, but one was not identified. Even if one had been identified, it would run into the same problem that prayer 1 ran into, which is that the effect of ss 6 and 131(1) of the CCA is that the ACL does not apply to persons who are not corporations or otherwise not engaged in trade or commerce among the States or within a Territory.

20    I then inquired where this Court’s jurisdiction to entertain an allegation that the Victorian statute had been misapplied was to be found. It was submitted on the Applicant’s behalf that jurisdiction could be found in ss 19 and 20A of the FCA Act. Those provisions are as follows:

19    Original jurisdiction

(1)    The Court has such original jurisdiction as is vested in it by laws made by the Parliament.

(2)    The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.

20A    Power of the Court to deal with civil matters without an oral hearing

(1)    This section applies in relation to any civil matter coming before the Court in the original jurisdiction of the Court.

(2)    The Court or a Judge may deal with the matter without an oral hearing (either with or without the consent of the parties) if satisfied that:

   (a)    the matter is frivolous or vexatious; or

(b)    the issue or issues on which determination of the matter depends have been decided authoritatively in the case law; or

(c)    determination of the matter would not be significantly aided by an oral hearing because:

(i)    there is no real issue of fact relevant to determination of the matter; and

(ii)    the legal arguments in relation to the matter can be dealt with adequately by written submissions.

(3)    This section does not limit subsections 20(4) and (6).

21    It seems to be that s 20A cannot help as it is concerned with the procedural matter of dispensing with an oral hearing in a matter otherwise within the Court’s jurisdiction and is not, on any view, a grant of jurisdiction. Section 19 is a grant of jurisdiction, but it only operates to the extent that jurisdiction has already been granted under some other Federal law.

22    I inquired of the Applicant’s solicitor what the other Federal law could be, and it became apparent that it could only be the ACL. There is no doubt that this Court has jurisdiction conferred on it in relation to claims made under the ACL by s 138 of the CCA. It provides:

Conferring jurisdiction on the Federal Court

(1)    Jurisdiction is conferred on the Federal Court in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding has been instituted under this Part or the Australian Consumer Law.

(2)    The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:

   (a)    the jurisdiction of the Federal Circuit Court under section 138A; and

(b)    the jurisdiction of the several courts of the States and Territories under section 138B; and

   (c)    the jurisdiction of the High Court under section 75 of the Constitution.

23    However, in order for that grant of jurisdiction to be effective in this case, it would be necessary to identify what the Applicant’s claim under prayer 2 of his originating application was under the ACL.

24    As I have said, none was identified and there would, in any event, remain the problem that the Board is not a corporation or a person engaged in trade or commerce among the States or within a Territory, and hence the ACL does not apply to it by reason of the express terms of ss 6 and 131(1) of the CCA. It follows that prayer 2 does not disclose a viable cause of action within the jurisdiction of this Court.

25    The nature of the present dispute, whatever it is, has no place in this Court as it involves no Federal element: Walsh v University of Technology, Sydney [2007] FCA 1288. I have, nevertheless, considered whether the claim might be articulated as a claim under the ACL applying not by force of s 131(1) of the CCA, but instead as a Victorian law, given effect by the force of s 8 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (‘the ACLFTA’). Here, the ‘corporation’ problem would disappear because s 8 of that Act is not circumscribed as s 131(1) of the CCA is circumscribed by the requirement that the Respondent be a corporation.

26    However, in that guise, any such claim would be a claim made entirely under that State law. Section 224 of the ACLFTA does confer jurisdiction in relation to such a claim, but it confers it on the Victorian Consumer and Administrative Tribunal or any Court of competent jurisdiction. A ‘Court of competent jurisdiction’ has been held not to include the Federal Court in this context (Bride at [21]), and this Court does not have jurisdiction to hear a claim under a State law which is not part of some other Federal matter: Re Wakim; ex parte McNally [1999] HCA 27; 198 CLR 511. Consequently, even if I were minded to reconceptualise the Applicant’s claims under either prayer of his originating application as possibly disclosing claims under the ACL, as it is applied as a matter of Victorian law, it would, nevertheless, not be within this Court’s jurisdiction.

conclusion

27    It follows, inevitably, that the claim against the Board is incapable of succeeding under any circumstances. Accordingly, I order that the Applicant’s proceeding be dismissed under s 31A of the FCA Act.

28    The Board provided written submissions and an affidavit in support for costs prior to the hearing. The Applicant submitted in the course of oral argument that I should not make an order for costs on the basis that the Applicant’s dire financial circumstances ‘cannot be denied’ and given the ‘inflammatory’, ‘false’ and ‘scandalous’ nature of the evidence relied upon by the Board. However, those arguments disclosed no bases on which costs would not follow the event. I order that the Applicant pay the Board’s costs on a lump sum basis in the amount of $17,166.00.

Associate:

Dated:    20 February 2020