Nandutu v The University of Sydney

HIS HONOUR: The plaintiff, who is self-represented, seeks the leave of the Court by way of a Notice of Motion filed 4 January 2017, to file an Amended Statement of Claim (ASOC) in the form annexed to the plaintiff’s affidavit of 23 March 2017.

The defendant opposes that application. The defendant submits that the proposed Amended Statement of Claim is pleaded in terms which are unintelligible, ambiguous, vague or too general so as to embarrass it. The defendant submits that it does not know the case which is alleged against it.

In August 2010 the plaintiff, who is a resident of Uganda, was enrolled in a Doctor of Philosophy course in the Faculty of Medicine of the defendant for semester 2 (the PhD Program). In 2012 the plaintiff submitted an application to the Faculty of Medicine to suspend her PhD candidature for semester 2 in that year. The reason was that she was the primary carer of her mother in Uganda and that her mother was critically ill. The Faculty of Medicine refused the plaintiff’s application and terminated her participation in the PhD Program.

On 5 November 2012 the plaintiff appealed to the Student Appeals Body (SAB). The plaintiff was successful in her appeal and was reinstated to the PhD Program.

On 10 November 2014 the Faculty of Medicine gave the plaintiff written notice requiring her to show cause why she should be permitted to continue her candidature in the PhD Program. The plaintiff responded to that notice on 8 December 2014. On 16 December 2014 the Faculty of Medicine terminated the plaintiff’s candidature in the PhD Program.

On 29 January 2015 the plaintiff again appealed to the SAB against the termination of her candidature in the PhD Program. On 10 March 2015 the SAB heard the appeal and on 25 June 2015 dismissed the appeal. On 30 June 2015 the defendant sent the plaintiff a letter informing her of the SAB decision and the reasons for the decision.

On 1 October 2015 the plaintiff commenced proceedings in this Court by way of Summons, seeking unspecified orders in relation to the decision of the SAB to uphold the Faculty of Medicine’s decision to terminate her candidature in the PhD Program. That Summons was stood over to 26 February 2016 to enable the plaintiff to seek legal assistance and to review Legal Aid’s decision to refuse her application for assistance.

On 4 March 2016 Fagan J made orders that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the Registrar’s Pro Bono Panel for legal assistance with respect to these proceedings. As a result of that order, Dr Richard Scheelings of counsel appeared for the plaintiff at the directions hearing on 15 April 2016.

On 17 August 2016 a Statement of Claim (SOC) was filed by Ms Kneebone from NSW Waterlaw on behalf of the plaintiff. That Statement of Claim was conventional in form and raised administrative law issues. Specifically, it sought to set aside the second SAB decision on the basis of apprehended bias, failure to identify the correct question, failure to follow the relevant PhD rules and failure to have regard to relevant material. The SOC also sought an order that the decision of the SAB was tainted by irrationality and unreasonableness.

By letter dated 16 December 2016 Messrs Minter Ellison, the solicitors for the defendant, requested further and better particulars of the SOC. On 26 October 2016 a Defence to the SOC was filed.

The proceedings came before the Common Law Registrar for directions on 4 November 2016. The plaintiff was ordered to provide further and better particulars in respect of paragraphs 24 and 25 of the SOC identifying the specific considerations which the SAB should have taken into account but failed to do so. At that hearing, the plaintiff foreshadowed an intention to rely on contractual claims, as well as those pleaded. The Registrar ordered that the plaintiff serve a draft Amended Statement of Claim (ASOC) by 18 November 2016. The defendant was to advise whether it consented to the filing of the ASOC by 2 December 2016.

On 21 November 2016 Messrs Minter Ellison was served with a Notice of Ceasing to Act by Ms Kneebone. Later that month, Dr Scheelings also withdrew from the matter. The plaintiff was not prepared to sign a Fees Agreement, prepared by Ms Kneebone. This was apparently because the Fees Agreement did not contain a “no win no pay” provision, which the plaintiff understood was the agreement which she had with Ms Kneebone. From that time, the plaintiff has represented herself in the proceedings.

On 8 December 2016 Ms Nandutu served a draft ASOC on Messrs Minter Ellison.

When the matter came before the Common Law Registrar on 9 December 2016 Ms Nandutu advised that she did not have legal representation. If the defendant did not consent to the Amended Statement of Claim being filed, the plaintiff was ordered to file and serve a Notice of Motion and supporting Affidavit, seeking leave to file the draft ASOC by 30 December 2016.

On 20 December 2016 Messrs Minter Ellison sent a letter advising that it did not consent to the filing of the draft ASOC. In that letter, Messrs Minter Ellison identified a number of shortcomings in the draft ASOC. On 2 January 2017 the plaintiff sent an email to Messrs Minter Ellison, a Notice of Motion and supporting Affidavit, seeking leave to file the ASOC.

On 5 January 2017 the plaintiff sent to Messrs Minter Ellison an Amended Notice of Motion and Affidavit, which annexed a further draft ASOC. This was in a form different, although not substantially so, to the document which had been previously provided to Messrs Minter Ellison.

On 7 February 2017 Messrs Minter Ellison sent a letter to the plaintiff outlining the defendant’s objections to the draft ASOC. On 15 March 2017 the plaintiff sent a letter to Messrs Minter Ellison in response to their letter of 7 February 2017 and provided another ASOC. That document was different, although not substantially so, to those which had been previously served.

On 16 March 2017 the plaintiff sent Messrs Minter Ellison a fourth draft ASOC. That is the document which was before the Court and which was annexed to the Affidavit of Ms Nandutu, sworn 23 March 2017.

It was accepted by the defendant that even though the plaintiff was making the application to file the ASOC it was the defendant which bore the onus of establishing that the ASOC was defective because the pleadings were embarrassing and that leave ought not be granted on that basis.

The defendant relied upon the following extract from McGuirk v The University of New South Wales [2009] NSWSC 1424 (Johnson J) where his Honour said:

The defendant also relied upon the observations of Ipp JA (Giles and Hodgson JJA agreeing) in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206; 73 NSWLR 653 at [412]–[443]. There is no need to replicate the observations of Ipp JA. They were of similar effect to those of Johnson J.

The plaintiff submitted that her case had always involved issues of breach of contract and breach of duty of care but that the advice she received was to commence proceedings initially seeking administrative law relief, after which the SOC could be expanded. She said that the reason why the proposed ASOC was so lengthy was that every time she served a document on the defendant’s solicitors, they sought further information and further particulars. All she was doing with the further ASOCs was to provide the information which the defendant was seeking.

The draft ASOC comprises 25 pages of tightly printed material. It is not necessary to comment on each of the many matters raised in the document. A sufficient flavour can be obtained by setting out some aspects of the “relief claimed” at p 2 of the draft. The first three orders are under the heading “Contract Law”. They are:

Not only do these assertions set out conclusions, but they deal with concepts at a high level of generality, such as “promised education services” and “work opportunities” which require substantial elaboration via particulars which should have been set out in the ASOC but which were not.

Further relief is claimed under the heading “Failure in Duty of Care Misrepresentation, Fraud” as follows:

No proper particulars are provided anywhere in the ASOC in relation to those particular claims. Where there are what purport to be particulars, the word “including” is used strongly suggesting in that context that the plaintiff relied on other unstated matters as part of her claim.

Rather than setting out with clarity the particular case which the defendant has to meet, these claims are expressed in very general terms and comprise vague allegations of important matters which are nowhere properly particularised in the ASOC. Far from assisting in the just quick and cheap resolution of the real issues in the proceedings, to allow pleadings in this form to remain as part of the ASOC would make it difficult, if not impossible, for the defendant to properly plead to and answer such a case. It would also make interlocutory processes, such as discovery, and the administration of interrogatories (if appropriate), virtually impossible.

The above examples are sufficient to provide the flavour of the pleading generally. Much of the other material in the ASOC comprises disconnected factual assertions placed under quasi legal headings but having little relationship to that heading. Where policy documents or University rules are referred to, there is no particularisation, simply an identification of the rule without further elaboration. For example, paragraph 21(4) of the ASOC reads:

When one looks at the actual sections and subsections to which reference has been made, it is impossible to identify the breach of rule or particular which is being relied upon. It is not clear in what way, if at all, any of the rules or sub-rules are said to have been breached by the defendant. In any event, significant particulars would be required of every breach of rule if the particular paragraph is to have any meaning.

When one applies the principles in McGuirk v The University of New South Wales and Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd to the ASOC, it is apparent that it is embarrassing in form and content and that the defendant has been successful in establishing that leave to file it should not be given.

The governing principle is that a court will not allow an amendment if it is so obviously futile that it would be liable to be struck out if it had appeared in the original pleading (McGuirk at [18] referring to Horton v Jones (No 2) (1939) 39 SR(NSW) 305 at 309-310).

The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. Pleadings thus serve to define the issues for decision and to ensure the basic requirement of procedural fairness that the opposing party should have the opportunity of meeting the case brought against it. It is the issues identified in the pleadings which provide the basis upon which evidence may be ruled admissible or inadmissible at trial.

Far from setting out the basis for the plaintiff’s claim so as to allow the trial to be conducted fairly, the allegations in the ASOC are vague and expressed as generalisations, the relevance of which it is difficult to determine. The nature of the claims being brought against the defendant is simply not clear.

Proper pleadings are of fundamental importance in enabling the court to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings (s 56 of the Civil Procedure Act 2005 (NSW)). It has been made clear, by reference to the highest authority, that an application to amend pleadings must take into account “considerations of case management, cost and delay” (Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [111]-[112]).

The confusing and somewhat rambling and repetitive content of the proposed ASOC is the very antithesis of that objective.

It has been held that a pleading may be embarrassing even if material facts are alleged. That occurs if those material facts are expressed in terms which leave difficulties or doubts about recognising or piecing together what is referred to (Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep). The same difficulty arises if allegations are made at such a level of generality that the defendant does not know the case it has to meet (Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413 at 417-418). In those situations the appropriate remedy is to strike out the pleading rather than order the provision of particulars, it not being the function of particulars to take the place of averments which are necessary for a pleading to be effective and clear.

The ASOC in this case is replete with examples of those kinds of generalisations and ambiguities. It is simply not possible to identify the specific causes of action relied upon and the averments which are said to establish that cause of action. Even where it is possible to identify a possible cause of action, the relevance of the factual assertions accompanying it is problematic in the extreme. In many cases the factual assertions are plainly irrelevant to any cause of action which could be said to arise from even a generous reading of the document.

Another problem with the proposed ASOC is that general allegations of fraud are made without any particularisation. Moreover, those allegations of fraud are made in parts of the ASOC where they appear to have no relevance to other assertions there set out. These defects are very similar to the pleadings considered by Johnson J in National Australia Bank Ltd v Skoczek and Ors [2016] NSWSC 1765. In that case, his Honour observed:

The above observations are sufficient to deal with the application. It is clearly quite inappropriate for leave to be given for the filing of the ASOC relied upon by the plaintiff.

That does not end the matter. The legal concepts which the plaintiff appears to be trying to articulate are complex and require the expertise of somebody who is legally qualified. In fairness to the plaintiff, some time should be allowed to her to enable her to seek such legal advice, if such is available, and to be in a position to file an Amended SOC if the advice she receives is to that effect. Accordingly, the orders which I make are as follows: