Moore v Bond University Ltd [2023] NSWSC 1129

Supreme Court New South Wales

Medium Neutral Citation: Moore v Bond University Ltd [2023] NSWSC 1129 Hearing dates: 7 September 2023 Date of orders: 7 September 2023 Decision date: 07 September 2023 Jurisdiction: Equity Before: Meek J Decision: Notice of motion seeking freezing orders dismissed. Notice of motion seeking suppression order dismissed. Catchwords: EDUCATION — Relationship as between student and university — Plaintiff in 2007-2009 attended as a student at the University operated by the defendant — Plaintiff submitted coursework for assessment and grading — Plaintiff accepted or did not dispute that his submitted works could be reviewed by staff of the University for the purpose of assessing or grading his works for the legitimate purpose of determining whether he had satisfied necessary course requirements to enable the conferring of a degree — The plaintiff argued that: (a) he owned property in submitted works which property he described not in terms of rights in expression (as might be the subject of copyright) but in terms of rights in the reasoning, strategies, line of argument and systems noted in the works and research therein; (b) the University owed a specific fiduciary duty not to use such "property" for other than assessing and grading purposes; (c) the staff and University breached the fiduciary duty by mixing the plaintiff's works and or otherwise applying the works to (i) in the case of the staff – publications of their own and (ii) in the case of the University – to publications, syllabuses and otherwise to the strategic direction and business of the University; and (d) thereby the University derived a benefit, proceeds and/or profit from such unauthorised use – which the plaintiff claimed is held on a constructive trust for him — Plaintiff brought applications to seek preservation of the "property" and to suppress details of the sum of his claim EQUITY — Fiduciary obligations — Relationship of university and student is not per se amongst the established categories of fiduciary relationships — Consideration of whether a fiduciary duty arose in the particular circumstances of the facts of the case in the context as between student and University — Consideration of the necessity to identify the scope and content of fiduciary duties — Consideration of the question of breaches of fiduciary duty — Weak prima facie case of duty, scope and breach — Application dismissed PROPERTY — Consideration of the nature of proprietary rights — "Property" is a comprehensive term that can be used to describe all or any of very many different kinds of relationship between a person and a subject matter — In all cases, the term "property" takes its meaning from its context CONFIDENTIAL INFORMATION — Consideration of the requirements to establish a case of breach of confidence — Requirements for alleged breach not established AFFIDAVITS — Failure of affidavit to identify whether affidavit is sworn or affirmed CIVIL PROCEDURE — Interim preservation — Distinction between a freezing order (also known as an asset preservation order) and an injunction to preserve an asset CIVIL PROCEDURE — Interim preservation — Freezing orders — Application misconceived — No evidence before the Court that there is any risk that the defendant intends to dissipate its assets CIVIL PROCEDURE — Application for injunctive relief misconceived as a freezing order but treated by the Court as in substance a form of application in nature of a mandatory injunction to preserve property — Orders sought that Registrar of the Court and the defendant preserve in such form and substance as they existed as at the "dates of publication" 263 publications, syllabuses and other documents said to be created and published in breach of an alleged fiduciary duty — No indication of control that the Registrar or defendant might have over the publications to enable preservation — No elucidation by the plaintiff as to how or why the publications might be in some form of danger of being not preserved such as to necessitate an order that they be preserved — Application dismissed INJUNCTIONS — Interlocutory injunctions — Discussion of principles in relation to the approach of the Court regarding the requirements in respect of finding a prima facie case for relief — Discussion of risk of non-preservation and practical aspects of balance of convenience — Failure to establish — Application dismissed INJUNCTIONS — Interlocutory injunctions — Undertaking as to damages — Nature of undertaking — Failure of plaintiff to proffer undertaking as to damages CIVIL PROCEDURE — Suppression and non-publication orders — Application to suppress the sum sought by the plaintiff as relief sought in a statement of claim allegedly being the amount of a benefit, proceeds and/or profit from such unauthorised use of the plaintiff's property — Pleadings are not subject to any Hearne v Street obligation — Failure by the plaintiff to identify the sum sought to be suppressed other than by reference to property allegedly held on constructive trust which the plaintiff contended to be worth a significant amount of money — Application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2010 (Cth) Copyright Act 1968 (Cth) Court Suppression and Non-publication Orders Act 2010 (NSW) Fauna Conservation Act 1974 (Qld) Limitation of Actions Act 1974 (Qld) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75 Alamin v Islam [2023] NSWSC 701 Breedon v Oosthuizen [2023] NSWSC 859 Breen v Williams (1996) 186 CLR 71; [1996] HCA 57 Cahn v Antioch University 482 A2d 120 (DC app 1984) Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419 El Sayed v El Hawach (2015) 88 NSWLR 214; [2015] NSWCA 26 Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; (2008) 217 FLR 366 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 Firmtech Aluminium Pty Ltd v Xie [2022] NSWSC 1031 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 In Re Antioch University 418 A 2d 105 (DC 1980) In re Celtic Extraction Ltd [2001] Ch 475 In the matter of Carbon Copies Composites Pty Ltd [2022] NSWSC 1762 Ip v Chiang [2019] NSWSC 1549 John Alexander's Clubs v White City Tennis Club (2010) 241 CLR 1; [2010] HCA 19 Jones v Treasury Wine Estates Ltd (No 4) [2020] FCA 1131; (2020) 146 ACSR 302 Kerridge v Foley [1968] 1 NSWR 628 Kirby v Thorn EMI plc [1988] 1 WLR 445 McGee v Australian Auctioneers Pty Ltd [2002] NSWSC 839 Murdoch v Mudgee Dolomite & Lime Pty Ltd (in liq) [2022] NSWCA 12; (2022) 398 ALR 658 National Australia Bank Ltd v Bond Brewing Holdings Limited (1990) 169 CLR 271; [1990] HCA 10 Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Patterson v BTR Engineering (Aust) Limited (1989) 18 NSWLR 319 Re Rosie (No 2) [2022] NSWSC 1750 Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 Texts Cited: Halsbury's Laws of Australia (online) Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis) Jackson, Jim and Jill Cowley, "Blinking Dons or Donning Blinkers: Fiduciary and Common Law Obligations of Members of Governing Boards of Australian Universities" (2002) 6 Southern Cross University Law Review 8 Category: Procedural rulings Parties: Sim (aka Simeon Peter Moore) Moore (Plaintiff) Bond University Ltd (Defendant) Representation: Counsel: E Doyle-Markwick (Defendant)