Fennell v Australian National University [1999] FCA 989 (22 July 1999)

Last Updated: 23 July 1999

FEDERAL COURT OF AUSTRALIA

Fennell v Australian National University [1999] FCA 989

TRADE PRACTICES - whether applicant was induced by false representations to enrol in a post-graduate course offered by respondent - whether true position made clear in interview - calculation of damages where no loss of earning capacity suffered by applicant

Trade Practices Act 1974 (Cth), ss 52, 75B, 82, 87

Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 158 ALR 333, referred to

LUKE FENNELL v AUSTRALIAN NATIONAL UNIVERSITY & ANOR

NG 1008 OF 1997

JUDGE: SACKVILLE J

PLACE: SYDNEY

DATE: 22 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1008 OF 1997

BETWEEN:	LUKE FENNELL Applicant
AND:	AUSTRALIAN NATIONAL UNIVERSITY First Respondent BRUCE STENING Second Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	22 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

THE COURT DIRECTS THAT:

2. The respondents file written submissions as to costs within seven days of this order.

3. The applicant file written submissions in reply seven days thereafter.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1008 OF 1997

BETWEEN:	LUKE FENNELL Applicant
AND:	AUSTRALIAN NATIONAL UNIVERSITY First Respondent BRUCE STENING Second Respondent

JUDGE:	SACKVILLE J
DATE:	22 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Proceedings

1 This case might be said to be a by-product of a relatively new phenomenon in Australian tertiary education, namely competition among Universities for full fee-paying graduate students. The applicant claims, among other things, that in 1996 he was induced by false representations to enrol in the Master of Business Administration (Managing Business in Asia) Program ("the Program") offered by the Australian National University ("ANU"). The fee for the Program, which is conducted within the ANU's Research School of Pacific and Asian Studies, was at the time $25,000.

2 The applicant instituted proceedings on 28 November 1997, when he was still enrolled as a candidate in the Program. The relief he sought included an order that the ANU and the second respondent ("Professor Stening") do everything necessary to permit him to graduate with the Degree of MBA at "the next graduation ceremony to be conducted by the [ANU]". In fact, the applicant graduated with the degree of MBA at a ceremony conducted on 17 August 1998. Nonetheless, he has continued his claim for damages against the ANU and Professor Stening. The latter is the current Director of the Program, although he was not the Director in 1996, that position then being held by Professor Dodgson.

The Applicant's Case

3 The applicant's case is that the ANU represented to him in March 1996 that the fourth semester of the MBA course consisted of a twelve week supervised work placement in Asia and that the ANU would arrange a work placement in Asia for him in that semester. The latter representation is said to have been made in an advertisement published by the ANU in the "Age" newspaper in Melbourne on 16 March 1996, and was reinforced (at or at least not contradicted) in an interview between Professor Stening and the applicant on 20 March 1996, at the Sebel Hotel in Melbourne. According to the applicant, the representation was false because the ANU did not intend to provide the applicant with a work placement in Asia for the fourth semester of the course, had no reasonable grounds for representing that they could do so and, in the event, did not provide him with such a placement. Accordingly, the ANU had engaged in misleading or deceptive conduct, in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("TP Act"). It also followed that Professor Stening was liable to the applicant under s 75B of the TP Act, as a person who had been knowingly concerned in or party to the ANU's contravention.

4 The MBA Course Handbook for 1996-1997 ("the Handbook") specifically stated that "[t]he primary responsibility for finding a placement lies with the individual candidate". However, the applicant's evidence (not challenged on this point) was that he did not receive a copy of the Handbook until after he enrolled in the Program, on 4 June 1996. By this time, he had paid $12,500 on account of fees and had resigned from his full-time position as an engineer with his previous employer. He had also leased his home in Camperdown (in Sydney) and had moved to Canberra.

5 The applicant claims that, had he been told before he accepted the ANU's offer of a place in the Program that he would be responsible for arranging his own overseas placement, he would not have accepted the offer and would have continued in his employment as an engineer, earning some $50,000 per annum. The applicant also alleges that the ANU's failure to arrange an overseas placement for his fourth semester meant that, instead of graduating on 26 September 1997, as did other candidates enrolled in the Program, he did not graduate until nearly eleven months later.

6 The applicant seeks damages or compensation pursuant to s 82 or, alternatively, s 87 of the TP Act. He relies on the fact that he had been out of full-time work from April 1996 (when he resigned from his position as an engineer) until 30 October 1997 and that, during this period, he had been limited to casual part-time work as an engineer. He does not seek damages under the TP Act in respect of the period after 30 October 1997 because on or shortly after that date he accepted employment on a project in Borneo for which he received a salary equivalent to approximately A$7,500 per month, or A$90,000 per annum. This employment, which was ultimately accepted by the ANU as satisfying the work placement requirement for the fourth semester of the Program, continued until January 1999.

7 Mr Wilson, who appeared for the applicant, departed somewhat from the pleaded case in quantifying the applicant's compensable loss under the TP Act. As ultimately formulated, the applicant's claim is for the amount he would have earned in his previous employment as an engineer during the period from April 1996 (when he resigned from that employment) until 30 October 1997 (immediately before he commenced his employment in Borneo), less his actual earnings during that period. On the basis that the applicant earned $34,633 net per annum as an engineer, he claims that he would have earned $54,835 net during the relevant period. Since his actual net earnings during that period, from part-time employment and a short period on unemployment benefits, amounted to $15,485, his loss is said to have been $39,350.

8 In addition, the applicant seeks damages for "distress, anxiety and upset associated with the uncertainty of arranging an overseas placement and the delay in graduating". His counsel, Mr Wilson, accepted that the evidence of distress was thin and that, if any damages were to be awarded under that head, they would be less than $20,000.

Difficulties Facing the Applicant

9 In the course of argument, Mr Wilson acknowledged that the applicant faces difficulties in making out his claim for damages under the TP Act, even assuming that he can establish that the ANU had contravened s 52 of the TP Act. The difficulties stem from the fact that, as from 30 October 1997, the applicant was employed at a salary of at least $A90,000 per annum, very much more than his salary as an engineer prior to enrolling in the Program. Moreover, the evidence established that he is now likely to take up a new position in India, at a salary equivalent to or slightly more than $A90,000 per annum. On the applicant's own claims in support of his contractual case, his earning potential has been substantially increased by reason of his MBA qualification.

10 In these circumstances, it is far from clear why the applicant is entitled to claim damages under the TP Act in respect of what Mr Wilson described as the "closed period" from April 1996 to October 1997, without taking into account the economic benefits flowing from completion of the Program. In assessing loss or damage for the purposes of ss 82 and 87 of the TP Act, it is necessary that a comparison be made between the actual position of the party allegedly suffering loss or damage, and the position in which that party would have been but for the contravening conduct: Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 158 ALR 333, at 346, per McHugh, Hayne and Callinan JJ. Economic loss may take a variety of forms. But, as was said in Marks v GIO, at 347, central to all forms of economic loss,

"when it is said that the loss was, or will probably be, caused by misleading or deceptive conduct, is that the plaintiff has sustained (or is likely to sustain) a prejudice or disadvantage as a result of altering his or her position under the inducement of the misleading conduct.
...
A party that is misled suffers no prejudice or disadvantage unless it is shown that that party could have acted in some other way (or refrained from acting in some way) which would have been of greater benefit or less detriment to it than the course in fact adopted." (Emphasis added.)

11 These difficulties with the TP Act claim prompted Mr Wilson to resuscitate in his final submissions a contractual claim which had been pleaded, but not referred to in the applicant's opening written submissions. This claim is founded on the proposition that the ANU's implied representation in the advertisement of 16 March 1996, concerning the work placement component of the Program, was promissory in character. It is said that, in response to and in consideration of the implied representation, the applicant enrolled in the Program. There was therefore a collateral contract, for breach of which the ANU is liable to the applicant in damages.

12 Mr Wilson departed from the pleadings in formulating the quantum of the damages for breach of contract to which the applicant is said to be entitled. He contended that the applicant's damages are to be calculated by reference to his expectation that he would have completed the fourth semester of the Program in July 1997 (a precise date was not specified) and that he would have obtained a position within a relatively short period at a salary reflecting his marketability as the holder of an MBA from the ANU. Mr Wilson asked that a finding be made that there was a seventy-five per cent chance of the applicant obtaining a position at a salary of $100,000 per annum, within three months of the date on which he would have completed the fourth semester, had the ANU honoured its contractual obligations. This was said to lead to damages in the order of $20,000 to $30,000.

13 It must be said that this approach to the assessment of damages for breach of contract also encounters serious, if not overwhelming, difficulties. The fact is that the applicant did obtain full-time employment in Borneo, at a salary of at least A$90,000 per annum. He did so approximately three months after the earliest date on which he could have completed the fourth semester of the Program. Mr Wilson was unable to explain how the certainty of obtaining a salary of $90,000 per annum was worth less than a seventy-five per cent chance of obtaining employment at a salary of $100,000 per annum.

14 In any event, the evidentiary basis for the suggestion that the applicant had a greater than, say, fifty per cent chance of securing employment at a salary of $100,000 or more upon completion of the Program was, to say the least, sparse. The applicant acknowledged that he had applied for a large number of positions in Asia in the first part of 1997 and that, in many cases, he falsely asserted that he had completed the requirements for the award of the MBA. The significance of this (in addition to any bearing it has on his credit) is that the applicant presented himself to prospective employers as though he had already satisfied the requirements of the Program. It is hardly self-evident, in these circumstances, that his chances of obtaining employment at a level significantly higher than that which he did obtain were anything like seventy-five per cent. Furthermore, despite Mr Wilson's attempts to secure admissions from Professor Stening, the latter's guarded evidence as to the salaries likely to be earned by graduates of the Program in 1997 did not take the matter further.

The Liability Issue

15 The question of damages arises, of course, only if liability is established, whether under the TP Act, or in contract, or both. In this connection, Mr Wilson accepted that what was said (or not said) in the interview between Professor Stening and the applicant, on 20 March 1996, was critical. In particular, he frankly conceded that if Professor Stening's evidence as to what he said in the interview were accepted, the applicant could not succeed in his claim for damages.

16 According to Professor Stening, he spent some twenty to thirty minutes with the applicant on 20 March 1996, when interviewing him as a possible candidate for the Program. In the course of the conversation, he gave the applicant a Course Prospectus and discussed the work placement component of the Program, although not at length. Professor Stening was adamant that he had said words to the following effect:

"It is a requirement of the degree that you complete a three month overseas placement. The MBA Program will assist you in finding a suitable placement but it is your responsibility to do this. We will help you."

17 For his part, the applicant agreed that Professor Stening had referred to the fourth semester involving a work placement with a company in Asia. However, his evidence was that Professor Stening had said nothing to indicate that primary responsibility for organising the placement rested with the candidate. According to the applicant, while Professor Stening had not positively asserted that the ANU would accept responsibility for organising the work placement, he had stated that he had returned from Asia, where he had been speaking to a large number of companies promoting the Program and had established links with companies in Asia.

18 Having regard to the concession properly made by Mr Wilson, it is convenient to address at the outset the conflict of evidence between Professor Stening and the applicant. However, before assessing their respective accounts, I shall set out the course of events, bearing in mind that much of the evidence was uncontroversial.

Course of Events

19 The applicant was born in October 1968 and was therefore twenty-seven years old in March 1996. He graduated with a Bachelor of Science degree from the University of Sydney in 1990 and an Honours degree in Engineering from the same University in early 1992. Later in the same year, he commenced working full-time as an engineer in Sydney, principally on water treatment plants. During the tax year ended 30 June 1996, the applicant was employed by MBT (Australia) Pty Ltd at a gross salary of about $50,000 per annum, although it appears that the applicant had some relatively modest fringe benefits in addition to his salary. His employment was mainly in Sydney, but involved some travel to Melbourne.

20 In March 1996, while working in Melbourne, the applicant saw an advertisement in the Age newspaper. The advertisement was placed by the ANU and bore its logo. It was headed "The MBA for Managing Business in Asia". The text of the advertisement was as follows:

"Australia's success in Asian markets rests with business leaders who have the strategic skills to compete in this diverse region.

The ANU's unique MBA for Managing Business in Asia provides the knowledge and skills managers need to succeed in Asia. This intensive, 11 month course provides comprehensive management training in the changing Asian business context. A further three months are spent in an overseas placement with a leading company honing management skills and building the international networks essential for doing business in the region.

Located within Australia's most prestigious University, ANU's MBA draws upon its unmatched expertise in Asian economies, politics, social systems and languages. Many courses are taught by eminent visiting professors chosen for their Asian business expertise from the World's elite business schools.

The Program is now recruiting talented people for its June 1996 intake. Applicants should have at least three years work experience, a degree and good English language skills.

Interview for the June 1996 intake will be held at the Sebel of Melbourne, 321 Flinders Lane on Wednesday, 20 March 1996. For further details, please phone...". (Emphasis added.)

The text of this advertisement had been approved by Professor Dodgson, the then Director of the Program. Professor Stening had also seen and approved its terms.

21 The applicant, being interested in engineering projects in Asia, telephoned the number shown in the advertisement and made an appointment to see Professor Stening on 20 March 1996 at the Sebel Hotel in Melbourne. It is common ground that in the course of the meeting, Professor Stening referred to the fact that he had spoke to companies in Asia to promote the Program and to establish links with them. It is also not in dispute that Professor Stening told the applicant that his academic background and work experience suggested that he was a suitable candidate for the Program. Professor Stening confirmed to the applicant that the cost of the Program would be $25,000, with half to be paid at the beginning and the remainder six months later.

22 The applicant gave evidence that Professor Stening never told him that it was the student's responsibility to find a placement with an Asian company. The applicant said that if he had been told this, he would not have applied for the Program since he had no contacts with Asian companies. (The applicant had visited Asia on only one occasion, spending about a month in Thailand.) There was no evidence, however, that the applicant asked Professor Stening in the interview for any specific information about the work placement component of the Program, nor for details about any companies with which the ANU might organise placement of students.

23 Professor Stening handed the applicant some documents at the interview. These included a document described in evidence as a Course Prospectus, but which was entitled "Managing Business in Asia: Master of Business Administration". The Prospectus contained detailed information about the Program, the Faculty, the ANU, fees and other topics relevant to prospective students.

24 Under the heading "PROGRAM ORGANIZATION" the Prospectus said this:

"It will begin in June each year with a one-week orientation program prior to the commencement of formal teaching. Each semester runs for twelve weeks; the dates are detailed in the insert at the back of this prospectus.

Three semesters of course work on campus at the Australian National University are followed by the fourth semester twelve-week period of supervised work outside a participant's country of origin. This time will normally be spent in a company but participants have the option of choosing to follow a semester on an approved course in a university of the region with which the ANU has developed a complementary link. The fourth semester has no fixed starting dates as these will depend on individual arrangements but, except in special circumstances, all projects should be finished and written up by the end of August."

Under the heading "Overseas Work Placement" the Prospectus contained the following information:

"In most cases, students will enrol in four-week full-time intensive language courses in preparation for their placements. Some students with sufficient foreign language competence may instead choose to use this time to do further preliminary research for the project they intend to pursue.

The Program staff and the International Academic Advisory Group will assist students with the selection and organization of their work or study placements." (Emphasis added.)

25 The applicant acknowledged that he had read the whole of the Prospectus, including the portions extracted above, shortly after the interview with Professor Stening. In particular, he acknowledged having read the last sentence of the second extract. However, he said that he interpreted the statement that the staff would "assist students with the selection and organization of their work or study placements" as meaning that the staff would essentially organise the work placement. In any event, the applicant was not prompted to make any inquiry about the nature of the assistance that was in fact to be provided by the ANU.

26 The applicant subsequently applied for admission to the full-time course leading to the degree of MBA, although the application form appears not to have been tendered in evidence. On 26 April 1996, the ANU made a formal offer to the applicant of admission to the Program. He was informed that the Program would commence on 11 June 1996 and would be preceded by an orientation program commencing on 3 June 1996.

27 The applicant decided to accept the offer. He thereupon resigned from his employment as an engineer with MBT, let his home in Camperdown and made arrangements to move to Canberra so as to undertake the Program.

28 The applicant formally enrolled in the Program on 4 June 1996. He paid the first fee instalment of $12,500 and received a copy of the Handbook. The Handbook included the following passage relating to the work placement segment of the Program:

"The Work Placement/Internship:

The three-month work placement (internship) is an essential component of the ANU MBA degree. It provides an opportunity both to learn about business practices in a different country, and to consolidate the lessons of the previous three semesters by using them in a practical way. It is also a time to build valuable international networks for the future, and to seek long-term employment. Choosing your internship carefully is therefore very important.

The primary responsibility for finding a placement lies with the individual candidate. Academic staff of the MBA Program can assist and advise. Please feel free to consult us about your internship at any stage of planning and arrangements. We visit many companies, both in Australia and overseas, and are prepared to discuss internships and individual proposals with them, but we cannot do so unless candidates have a very clear idea of what they can contribute to a potential employer, and of what they personally hope to achieve from the placement.

How should you prepare for your placement? The following steps are suggested:

1. Preparation: In order to identify appropriate internship opportunities, candidates should read business papers and journals regularly from the beginning of semester one. By the end of this semester, each candidate should have produced a professional-looking curriculum vitae (CV), outlining their educational and employment background, main achievements to date, and future career plans. This should be submitted to the Program Director for comment. The CV should be written with an honest, clear and realistic self-assessment of what the individual can contribute to a potential employer.

2. Search: By the end of semester two, candidates should have decided which country and which sector they wish to work in, and the sort of job they wish to do, and have identified some possible companies. They should seek further information from companies of interest (requesting annual reports etc), and actively pursue personal contacts in identified companies.

3. Approach to companies: By the beginning of semester three, candidates should have started to approach targetted companies. MBA academic staff would be pleased to comment on candidates' letters to companies before they are sent, and a general letter of introduction from the Program will be provided to accompany these.

4. Closing the deal: By early April, candidates should have a letter of intent from their internship host company, outlining their proposed activities, responsibilities and remuneration. A copy of this letter of intent or agreement must be given to the Program Administrator, together with contact details for the duration of the placement. Candidates should at this stage also be finalising plans for accommodation, arranging required visas and work permits, and making any necessary medical arrangements." (Emphasis in original.)

29 The applicant did not dispute that this passage made it crystal clear that the ANU regarded primary responsibility for finding a placement as resting with the individual candidate. The applicant acknowledged that he had read the Handbook within a week of his enrolment and appreciated the significance of what it said about the work placement segment of the Program. Significantly, the applicant also acknowledged that, despite the obvious discrepancy between his stated understanding following the interview with Professor Stening and the terms of the Handbook, he made no complaint or even comment about it at the time to any member of the academic or administrative staff. Indeed, on the applicant's own account, it was not until May 1997 that he made any complaint to a staff member. On the evidence (bearing in mind that the staff member to whom he allegedly made the complaint, Ms Uhr, gave conflicting evidence and was not cross-examined), it is more likely that the applicant made no complaint until July 1997.

30 During the first or second semester of the Program, the applicant prepared his curriculum vitae, as suggested in the Handbook, and showed it to either Professor Stening or Professor Dodgson. In January 1997, at the conclusion of the Program's second semester, the applicant had an interview with Ms Uhr, the Business Development Manager of the Australia Asia Management Centre. According to Ms Uhr, whose evidence (as I have said) was not challenged in cross-examination, the applicant told her that his "first aim" was to obtain employment rather than a three month work placement.

31 The documentary evidence showed that between January and June 1997, the applicant submitted written applications for over thirty full-time positions. During this period, there is no documentary evidence that he applied in writing for any temporary placements, although he said in evidence that he had made many telephone inquiries. During the same period, the ANU made some twenty or so written inquiries on the applicant's behalf, unsuccessfully seeking a work placement for him.

32 Between April and July 1997, the applicant had a number of conversations with Ms Uhr in which he requested additional support from the Program staff in providing personal and business contacts. He did not, however, complain in any of these conversations that the ANU had made or failed to live up to an undertaking to secure a placement for him.

33 The applicant first made a complaint about the absence of a suitable work placement on or about 21 July 1997, when he complained to Professor Dodgson that he had received no help from the Program staff in securing a placement. Even then, the conversation as recorded by Professor Dodgson (who was not cross-examined and whose evidence I accept) did not include an allegation by the applicant that the ANU had failed to live up to its promises. The first written complaint by the applicant was made in a letter of 6 August 1997, written on his behalf by his father, a barrister.

Resolution of the Factual Question

34 The advertisement placed by the ANU in the Age on 16 March 1996 was ambiguous. It did not make clear who was to be responsible for organising the "overseas placement with a leading company". As Professor Stening frankly conceded in evidence, the language of the advertisement was capable of being interpreted by a potential applicant for admission to the Program as implying that the ANU would arrange the work placement with a "leading company". The form of the advertisement suggests that those who drafted or approved of its terms, including Professors Stening and Dodgson, were careless. It is, in my opinion, clearly plausible that a potential applicant for admission to the Program might have gained the impression from the advertisement that the ANU would be responsible for organising a placement in a leading company for every applicant admitted to the Program. It is therefore plausible that the applicant, as he claimed, might have gained precisely that impression when he read the advertisement on 16 March 1996.

35 But the question remains whether Professor Stening disabused the applicant of any misapprehension by telling him, at the interview of 20 March 1996 that, although the Program would assist him in finding a suitable work placement, it was his primary responsibility to make the necessary arrangements. While the factual question is not entirely straightforward to resolve, I have come to the firm conclusion that Professor Stening's account of the conversation should be accepted.

36 Professor Stening claimed to have a clear recollection of informing the applicant at the interview of 20 March 1996 that he (the applicant) would be primarily responsible for arranging the work placement in the fourth semester of the Program. Mr Wilson did not suggest that Professor Stening had deliberately sought to mislead the applicant at the interview. Nor, as I followed him, did Mr Wilson suggest that Professor Stening had deliberately endeavoured to mislead the Court when giving his evidence. Rather, Mr Wilson submitted that Professor Stening overestimated his capacity to recall with such precision the contents of an interview held in March 1996, of which he had no contemporaneous notes. He contended that Professor Stening could not have had a recollection as clear as the one he claimed. The appropriate inference was that Professor Stening, at the interview, had not corrected the misapprehension under which the applicant had laboured by reason of reading the advertisement in the Age.

37 Professor Stening presented as a confident witness. I formed the impression that he was trying to give truthful and accurate evidence. Even so, the criticisms made by Mr Wilson are not entirely without force. I think that there are some reasons to question whether Professor Stening's direct recollection of the interview was quite as clear as he claimed and clearly believed. As Professor Stening acknowledged, he had no occasion to reflect on the conversation with the applicant for some sixteen or seventeen months after it had occurred. Moreover, in the meantime, he had interviewed many other applicants and students. The likelihood is that his evidence involved an element of reconstruction.

38 Nonetheless, I think that the probabilities are that Professor Stening did provide the explanation he claims to have given to the applicant at the interview. His evidence showed that his recollection of events was based in part on the standard practice he followed when conducting interviews with applicants for admission to the Program. I accept that his standard practice was to explain to applicants that they bore primary responsibility for securing a work placement. No doubt this was accompanied by a reassurance that the Program had excellent contacts in Asia, but the reassurance appears to have been accurate and, in any event, was not challenged.

39 In reaching this conclusion, I have not overlooked the fact that the advertisement was framed less carefully than it should have been and that Professor Stening approved its terms. But, as I have explained, it was not suggested that Professor Stening deliberately withheld information from the applicant. In the absence of some reason for thinking that Professor Stening departed from his usual practice I would conclude that he followed it in the interview with the applicant.

40 A very good reason for finding that Professor Stening had departed from his usual practice would exist if I accepted the applicant's evidence that Professor Stening never told him in the interview that he bore primary responsibility for securing a work placement. There are, however, a number of factors which tell against the applicant's account that at the time he enrolled in the Program he believed that the ANU would be responsible for organising a candidate's work placement. If the applicant did not hold that belief, the reason must have been either that he never interpreted the advertisement in the way he claimed or, more likely, that Professor Stening had indeed informed him of the true position, at the interview.

41 The principal factors telling against the applicant's account are these:

* First, the applicant neither complained nor commented to any staff member about the "misrepresentation" when (on his own account) he became aware of the true position shortly after enrolling in the Program. I have taken into account the inhibitions that some newly enrolled students might feel about complaining, or perhaps even commenting on, an apparent misrepresentation by those in authority. But on the applicant's version of events, this was an important issue for him and instrumental in his decision to make a major career change. I do not consider him to be a person so overawed that he would have felt constrained not to draw attention, in some way, to the fact that he had made a major career change on the faith of a representation that was not accurate. It must be remembered, too, that the applicant does not suggest that Professor Stening positively misrepresented the position during the interview; the applicant's case in substance is that Professor Stening failed to correct the misapprehension created by the advertisement.

* Secondly, the applicant had many opportunities during the period from March to June 1997, in the face of rejections by prospective employers in Asia, to point out to Professor Stening, Professor Dodgson or Ms Uhr that the ANU had not fulfilled its undertaking to him. Yet again he made no complaint. It was not until he became, in his own words, "pretty desperate for a job" that he complained about being misled. This was not until July 1997, some thirteen months after he had enrolled in the course.

* Thirdly, it is rather curious that the applicant, having read the Prospectus shortly after the interview, did not take some steps to verify who was to be responsible for obtaining a work placement. It is true that the Prospectus was not framed in terms as unequivocal as the Handbook. Nonetheless, it was sufficient in my view to alert the applicant, who placed such emphasis on the work placement component of the Program, to the distinct possibility that his understanding that the ANU would be responsible for organising the placement, might not be correct.

42 I should mention that Mr Hodgekiss, who appeared on behalf of the respondents, invited me to reject the applicant's evidence as unworthy of belief. Among other things, Mr Hodgekiss pointed out that the applicant had been willing to misrepresent his qualifications to prospective employers in order to improve his chances of obtaining employment. He also pointed out that the applicant's assertion that he had given up a secure job to pursue the Program was not the entire truth. The applicant admitted in cross-examination that part of his motivation for applying to enter the Program had been a recognition that the future of his then employer was uncertain and his own position was at risk.

43 While the applicant has not always been frank, I do not think that he was deliberately attempting to mislead the Court. Having observed him giving evidence, I think the likelihood is that, faced with the barrenness of the job market in mid-1997, he reconstructed events in his own mind so as to attribute greater blame to the ANU for his predicament than was warranted by the facts. I think it is significant that he described his situation in mid-1997 as desperate. I do not think it is a coincidence that his complaints about the conduct of the ANU were first made during that period of desperation.

44 It follows from what I have said that I find on the probabilities that Professor Stening informed the applicant at the interview of 20 March 1996, that he bore responsibility for finding a suitable placement and that the MBA Program would assist him. That being the case, the applicant must fail.

Conclusion

45 The application must be dismissed. I shall give the parties the opportunity to make submissions on costs. The respondents should file written submissions as to costs within seven days and the applicant should file written submissions in reply seven days thereafter.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 22 July 1999

Counsel for the Applicant:	Mr R D Wilson
Solicitor for the Applicant:	Coleman & Greig
Counsel for the Respondent:	Mr C C Hodgekiss with Ms E K Glover
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	16 & 19 July 1999
Date of Judgment:	22 July 1999