FEDERAL COURT OF AUSTRALIA Lin v University of Melbourne [2014] FCA 315 Citation: Lin v University of Melbourne [2014] FCA 315 Parties: JIANPING LIN v UNIVERSITY OF MELBOURNE File number: VID 24 of 2014 Judge: TRACEY J Date of judgment: 31 March 2014 Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal of proceeding – jurisdiction of the Federal Court – whether originating application had reasonable prospects of success – whether proceeding frivolous or vexatious – whether application disclosed no reasonable cause of action Legislation: Constitution s 75 Federal Court of Australia Act 1976 (Cth) ss 19, 21, 31A Federal Court Rules 2011 (Cth) rr 8.05, 26.01 Judiciary Act 1903 (Cth) s 39B Date of hearing: 31 March 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms A Shannon Solicitor for the Respondent: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 24 of 2014 BETWEEN: JIANPING LIN Applicant AND: UNIVERSITY OF MELBOURNE Respondent JUDGE: TRACEY J DATE OF ORDER: 31 MARCH 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Judgment be entered for the respondent. 2. The applicant pay the respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 24 of 2014 BETWEEN: JIANPING LIN Applicant AND: UNIVERSITY OF MELBOURNE Respondent JUDGE: TRACEY J DATE: 31 MARCH 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Dr Jianping Lin was employed by the University of Melbourne ("the University") as a technical officer. On 16 May 2008 his employment was terminated on the ground of redundancy. Dr Lin was dissatisfied with this decision. He sought to challenge it in various forums including the Australian Industrial Relations Commission, the Victorian Equal Opportunity and Human Rights Commission, and the Victorian Civil and Administrative Tribunal. Each of these challenges was unsuccessful. 2 On 20 January 2014 Dr Lin commenced the present proceeding. Dr Lin continues to maintain that he was unfairly dismissed, essentially because the termination of his employment occurred in the course of a "transfer" rather than a "restructure" of the relevant section of the University. He frankly conceded that he did not fully understand the difference between the concepts and that the distinction between them had only dawned on him several months ago. 3 The originating application names the University as the respondent to a proceeding brought under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). It was accompanied by a short affidavit. The application sought various forms of relief including declarations that his dismissal was unfair and that the redundancy was "not genuine". He also sought damages, compensation and an order for reinstatement. No grounds were provided in either the application or the accompanying affidavit. 4 On 4 February 2014 the University's solicitors wrote to Dr Lin pointing out what it contended were a series of fundamental deficiencies in his application. 5 A directions hearing was held on 7 February 2014. I referred Dr Lin to a barrister under the Court's pro bono scheme for advice. Dr Lin received advice from counsel and, on his behalf, counsel negotiated an in principle agreement with the University pursuant to which he would discontinue the proceeding. The agreement was reduced to writing but Dr Lin declined to sign the necessary documents. 6 The matter was again considered at an adjourned directions hearing on 7 March 2014. Dr Lin advised the Court that he wished to proceed with his application and counsel for the University advised that the University had filed an application seeking summary dismissal of the proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) ("the Act") and Rule 26.01(1) of the Federal Court Rules 2011 (Cth) ("the Rules"). No application to amend Dr Lin's application was made. Nor has any such application since been made. 7 I adjourned the hearing of the University's application until this morning in order to provide Dr Lin with the opportunity of considering the University's application and the grounds on which it was made and, if he were so minded, to respond to it either orally or in writing. 8 The University contended that Dr Lin had no reasonable prospect of successfully prosecuting the proceeding, that it was frivolous or vexatious, and that his application disclosed no reasonable cause of action. 9 Dr Lin's application confronts a number of significant procedural and substantive problems. They include the six year delay in commencing the proceeding, the absence of identified grounds and its lack of clarity. Although Rule 8.05 of the Rules requires that, where damages are sought, the originating application must be accompanied by a statement of claim, no such statement of claim has been filed. No legislative basis for the making of an order for reinstatement was identified. The most serious difficulty, however, relates to the jurisdiction of the Court. 10 The Federal Court is a Court of limited jurisdiction. Pursuant to s 19 of the Act, the Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament. Section 39B of the Judiciary Act confers original jurisdiction on this Court "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." This provision confers on this Court jurisdiction equivalent to that conferred on the High Court by s 75(v) of the Constitution. 11 The insuperable obstacle which confronts Dr Lin is that the University of Melbourne is not an officer of the Commonwealth. It is constituted under Victorian legislation. It is the only respondent against whom Dr Lin seeks relief. It follows that the Court does not have jurisdiction under s 39B to deal with Dr Lin's application. No alternative source of jurisdiction was suggested. 12 As noted, Dr Lin has sought declaratory relief in his application. The Court does have jurisdiction to grant declarations of right: see s 21 of the Act. Such declarations may, however, only be granted in proceedings in which the Court has jurisdiction. 13 It follows, in my opinion, that Dr Lin's application has no reasonable prospect of success. Judgment should, therefore, be entered for the University pursuant to s 31A of the Act. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 31 March 2014