Xu v Royal Melbourne Institute of Technology (RMIT) [2010] FCA 729 (8 June 2010)

Last Updated: 13 July 2010

FEDERAL COURT OF AUSTRALIA

Xu v Royal Melbourne Institute of Technology (RMIT) [2010] FCA 729

Citation:		Xu v Royal Melbourne Institute of Technology (RMIT) [2010] FCA 729
Parties:		JOHN XU v ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY (RMIT)
File number:		VID 439 of 2010
Judge:		GOLDBERG J
Date of judgment:		8 June 2010
Legislation:		Federal Court Rules: O 54 Administrative Decisions (Judicial Review) Act 1977 (Cth): ss 3(1), 3(2)
Date of hearing:	8 June 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	13
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Counsel for the Respondent:	P G Liondas
Solicitor for the Respondent:	Royal Melbourne Institute of Technology

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 439 of 2010

BETWEEN:	JOHN XU Applicant
AND:	ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY (RMIT) Respondent

JUDGE:	GOLDBERG J
DATE OF ORDER:	8 JUNE 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application filed on 7 June 2010 be dismissed.

2. The applicant pay the respondent’s cost of and incidental to the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 439 of 2010

BETWEEN:	JOHN XU Applicant
AND:	ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY (RMIT) Respondent

JUDGE:	GOLDBERG J
DATE:	8 JUNE 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 7 June 2010, Mr John Xu filed an application in this court against the Royal Melbourne Institute of Technology (RMIT) entitled “An Application for Review of Conduct Related to the Making of Decision”. In his application, Mr Xu said that the application is to review conduct in which Ms Aileen Alexander proposes to engage by the RMIT Disciplinary Board at a hearing tomorrow, that is Wednesday, 9 June 2010. The application was headed at the top of the page, “Application for an Order of Review (Order 54)”.
2. Order 54 of the Federal Court Rules relates to the procedure for making an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). In the application, Mr Xu sets out the grounds of the application. As I understand the application, the form of relief or court order which Mr Xu seeks is an order stopping RMIT from conducting the disciplinary board hearing on 9 June 2010. Mr Xu also seeks an order that allows him entry into properties under the control of RMIT to enable him to study during, what he calls in the application, “the procedure of the appeal period time.”
3. Mr Xu’s application to the Court is supported by an affidavit sworn by Mr Xu on 7 June 2010. In that affidavit he exhibits documents and a chain of correspondence passing between him, a student union representative acting on his behalf, and RMIT. I have read that affidavit, and I have very carefully read all the documents exhibited to that affidavit. After I had read all the papers filed by Mr Xu, I was concerned whether the Court had jurisdiction and power to hear his application which, in essence and substance, is an application for an order of review within the provisions of the ADJR Act.
4. This morning, 8 June 2010, the solicitor for RMIT filed a Notice of Objection to Competency within the provisions of O 54 r 4 of the Federal Court Rules. That notice stated that this Court had no jurisdiction to hear Mr Xu’s application on the basis that, firstly, there has been no decision to which the ADJR Act applies and, secondly, RMIT has not engaged, or proposed to engage, in conduct for the purpose of making a decision to which the ADJR Act applies.
5. When the matter came on for hearing before me this morning, and after appearances by the parties were announced, I asked Mr Xu to explain the basis upon which he contended that this court had jurisdiction to hear and determine his application. As I understood Mr Xu’s submission to me, he put the jurisdictional basis in terms that RMIT was an incorporated body, that it was the recipient of Commonwealth funds for the purpose of providing educational facilities to students, that Mr Xu was a local student, not an overseas student and that the funding for his educational activities came from the Department of Employment, Education and Workplace Relations.
6. Mr Xu complained that he had only received RMIT’s Notice of Objection to Competency this morning, and that he had not had time to consider it. As the proceeding was only filed yesterday and the disciplinary hearing which Mr Xu wishes to restrain is scheduled for tomorrow, it is not surprising that the notice was only received this morning by the Court and by Mr Xu. However, I do not need to rely upon a notice of objection to competency to determine the jurisdictional question which arises as a threshold or preliminary question on this application.
7. I had formed a view, after reading all the papers, that there was a question raised as to whether I had jurisdiction to hear this application. I have heard Mr Xu’s submissions and I have read his material in support of his application. I have also read a document which he handed to me and counsel for RMIT in the course of the hearing consisting of one page, which sets out 16 numbered points. Mr Xu, in the course of submissions and in response to a question from me, said that paragraph 2 of that document set out the basis of jurisdiction upon which he relied to invoke the jurisdiction of this court to deal with his application.
8. That paragraph states:

“I am local student studying at RMIT, and RMIT as Limited company registered at the State of Victoria. As RMITs funding from the Commonwealth. Therefore, RMIT is responsible to the Commonwealth Minister for Education of the program.”

9. Having heard Mr Xu’s submissions, I am satisfied that this Court has no jurisdiction to entertain his application. This Court has jurisdiction under the ADJR Act to grant an order of review and make orders in respect of a decision to which this Act applies. That expression, “decision to which this Act applies,” is defined in s 3(1) of the ADJR Act. Further, s 3(2) expands the definition of “the making of a decision.”
10. The matters which Mr Xu has raised do not identify a decision to which the ADJR Act applies because that definition sets out what is a decision to which this Act applies. The fact that RMIT is a limited company incorporated under Victorian law does not come within the scope of a decision to which the ADJR Act applies and the fact that it may get its funding for Mr Xu’s education from the Commonwealth does not, of itself, create or support any such jurisdiction in relation to a decision to which the ADJR Act applies. In these circumstances, as the Federal Court has no jurisdiction to entertain the application by Mr Xu, the application should be dismissed.
11. RMIT has sought an order that Mr Xu pay RMIT the costs of the application on the basis that the usual rule is that costs follow the result of the case. Counsel also submitted that the Notice of Objection of Competency was filed as soon as it reasonably could have been. The usual rule as to costs is that costs follow the event. The losing party pays the winning party’s costs. However, I have a discretion as to costs which is only restricted by the fact that I should act judicially. Mr Xu has said that he had asked RMIT to stop the disciplinary hearing some days ago and that when it refused to do so, he only had a short time in which to make his application.
12. He also submitted in relation to the question of costs, that he had little time to consider the Notice of Objection to Competency. As I observed in the course of submissions, independently of the filing of the Notice of Objection to Competency, I was obliged to consider whether the Court had jurisdiction to deal with the application and I had proposed to raise that matter with Mr Xu before I appreciated that a Notice of Objection of Competency had been filed. In relation to this application, RMIT has opposed it and it has not acted unreasonably. In the circumstances, it was appropriate that it retain legal advisers to appear this morning because of the nature of the issues raised by Mr Xu.
13. In all those circumstances, I consider that the appropriate order that should be made as to costs is that the applicant pay the respondent’s costs of and incidental to the application filed on 7 June 2010. The formal orders of the Court will be as follows:

(1) The application filed on 7 June 2010 be dismissed.
(2) The applicant pay the respondent’s costs of and incidental to the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated: 8 June 2010