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"Rowe v Emmanuel College (No.2) [2013] FCCA 501 (13 June 2013)"

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Last Updated: 17 June 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) The further amended application filed on 11 April, 2013 be dismissed.

BRG 208 of 2013

Applicant

And

Respondent

REASONS FOR JUDGMENT

1. In February, 2009 Mr Rowe and his then wife, Alison Rowe, applied for the enrolment of their daughter at the secondary education facility conducted by the respondent known as Emmanuel College. The enrolment application was accepted and on 7 April, 2009 Mr Rowe and his wife entered into an enrolment agreement with the respondent for the education of their daughter at the respondent’s school. Their daughter commenced at the school at the beginning of the 2010 academic year.
2. In these proceedings, Mr Rowe, who is now separated and divorced from Alison Rowe, claims that the respondent engaged in, and continues to engage in, misleading and deceptive conduct in contravention of s.18 of the Australian Consumer Law. His claim arises out of a statement which he says was made by the respondent in its written enrolment materials made available to parents who were considering enrolling their child or children at the respondent’s school.
3. In these proceedings Mr Rowe seeks a declaration that the respondent has engaged in, and continues to engage in, misleading and deceptive conduct in breach of the Australian Consumer Law, and general damages of $750,000 pursuant to s.236 of the Competition and Consumer Act 2010 (Cth).
4. Mr Rowe’s proceedings as instituted and amended by him from time to time were of broader compass than presently exists but, by orders and for reasons that I delivered on 15 April, 2013 (Rowe v Emmanuel College [2013] FCCA 231), much of his application was summarily dismissed. The only portion that remained for determination was his claims for a breach of s.18 of the Australia Consumer Law.
5. For the reasons that follow, that part of Mr Rowe’s claim left for determination must also fail.

The Evidence

6. For the purpose of preparing this application for trial, on 15 April, 2013 I made certain directions. Each party complied with those directions. More particularly, Mr Rowe delivered an outline of submissions wherein he set out the affidavits of evidence-in-chief upon which he intended to rely. After some discussion at the commencement of the trial, his evidence comprised an affidavit sworn by him and filed on 4 April, 2013 and a second affidavit sworn by him and filed on 12 April, 2013. Mr Rowe was cross-examined.
7. Mr Rowe also sought to rely on affidavits filed by the respondent sworn by Mr Graham Leo and Mr Philip O’Connor (the former filed on 2 April, 2013 and the latter on 11 April, 2013) but, rather than permit Mr Rowe to read those affidavits in his own case (and expose himself to the possibility of having to call them to give evidence in his case) the affidavits were marked for identification. Ultimately the respondent relied upon those affidavits in its case and the deponents were cross examined by Mr Rowe.

The Claim

8. Section 18 of the Australian Consumer Law (found in Schedule 2 to the Competition and Consumer Act 2010) provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The section is, of course, a re-enactment of s.52 of the Trade Practices Act 1975.
9. In this proceeding no issue was taken by the respondent that it was bound by s.18 of the Australian Consumer Law nor that, in conducting the activities that it does, it is acting in trade or commerce.
10. Mr Rowe’s case is based upon a written representation which he claims was made to him by the respondent in a document published by it on its internet website. The offending representation is claimed by Mr Rowe to have been made to him before he or his wife applied for their daughter’s enrolment at the respondent’s school.
11. However, the only document in evidence which contains the representation relied upon by Mr Rowe is a document entitled “Term Fee Schedule 2013”. It is the respondent’s schedule of fees for the 2013 academic year. There is no dispute between the parties that the Term Fee Schedule 2013 year carries the statement about which Mr Rowe now complains. It is in these terms:
    • “When comparing fees amongst schools you need to be aware of the “extras”. There are no hidden costs to be added to this schedule.”
12. The significance of the above statement for Mr Rowe has come about in this way. At some point in early 2011 and following Mr Rowe’s daughter’s enrolment and commencement with the respondent’s school Mr and Mrs Rowe’s relationship broke down and they separated. Mr Rowe sought to have the respondent provide him with copies of his daughter’s report cards and other documents that she might receive from time to time (such as newsletters). When he asked the school administration for those documents, Mr Rowe says that he was, for the first time, made aware that the respondent had a policy entitled “Mailings to Parents of Separated Families.”
13. The Mailings policy appears in the Parent Handbook published by the respondent. The evidence of the respondent’s witnesses was that neither the Parent Handbook nor the Mailings policy is published on the school’s internet web site, but each family is sent a copy of the Parent Handbook at the commencement of each academic year. I accept the evidence from the respondent’s Business Manager, Mr Philip O’Connor, that a copy of the Parents’ Handbook was sent by the respondent to Mr Rowe and his wife at the commencement of the 2010 academic year. I also accept Mr Leo’s evidence in cross-examination that the Parent Handbook was mailed to Mr and Mrs Rowe at the commencement of the 2010 and 2011 academic years. It was sent to the address notified to the school by Mr and Mrs Rowe in the enrolment documents for their daughter. After separation, that was not the address at which Mr Rowe lived.
14. The Mailings policy seeks to impose a fee of $250 upon the parent requesting additional copies of a child’s documents. Mr Rowe argues that the imposition of this fee is the imposition of a “hidden cost” in direct contradiction of the statement that appears in the Term Fee Schedule set out above.
15. Mr Rowe argues that the attempt by the respondent to impose such a fee means that the statement in the Term Fee Schedule is misleading or deceptive, or likely to mislead or deceive, because the statement suggests that there will be no such fees or costs. On that basis, he says the school has engaged in misleading and deceptive conduct and continues to do so because that statement continues to appear in its Term Fee Schedule.

Consideration

16. To succeed in a claim for loss or damage for a breach of s.18 of the Australian Consumer Law, an applicant must prove on the balance of probabilities that:
    1. a representation was made;
    2. the applicant relied upon that representation;
    100. the representation was false or misleading, or likely to be so;
    4. the applicant suffered loss or damage because of the false or misleading representation.
17. No reliance was placed by Mr Rowe upon s.4 of the Australian Consumer Law which provides that a representation as to a future matter will be misleading or deceptive where the person making that representation does not have reasonable grounds for making the representation. I include this for completeness because it is not beyond argument that the statement about which Mr Rowe complains is a representation as to a future matter. Although Mr Rowe was representing himself, he pointed out during the trial that he is a solicitor of many years standing who is well familiar with the operation of the Trade Practices Act (now the Australian Consumer Law). His case was not based upon any presumption that arose by the operation of s.4 of the Australian Consumer Law. In those circumstances, no occasion arises to consider that section any further.
18. Before considering whether a representation was made to Mr Rowe as he alleges, it is necessary to deal with a preliminary issue that arises on the evidence put before the Court by Mr Rowe. At various times Mr Rowe has suggested that he is not, in fact a party to the enrolment contract with the respondent at all because he never signed it. His present case before me, I think, is that he is indeed a party to the enrolment contract. But his case has to be so if he is to succeed in his claim for compensation. It is clear, however, that on other occasions he has asserted that his signature on the enrolment contract was “forged”. For example:
    1. On 8 November, 2012 Mr Rowe wrote to the Principal of the respondent’s school and said:
       • It has come to my attention that my ex-wife, Alison Schultz or another person has forged my signature on the initial enrolment form and enrolment agreement contract with your school. The signature on the documents is not mine, and I did not sign it.
       • I intend to file court action within the next seven days to annul the contract, if you are not prepared to cancel the contract that was invalidly formed.
    2. On 23 November, 2012 Mr Rowe commenced proceedings in the Queensland Civil and Administrative Tribunal. One of the claims made by him in those proceedings, and persisted with in his written submissions to QCAT served on the respondent on 20 March, 2013 was that he had not signed the relevant documents. In his written submissions he said:
       • 27. The Applicant submits that I did not sign the contract, and the Respondent has no conclusive evidence to suggest that he did. The contract was not independently witnessed.
       • 28. The Applicant had threatened the Respondent with an application under the Privacy Act (Cth) before the Respondent would release to him a copy of contract, at which such time, the Applicant noted that he did not sign the documents provided to him by the school, shortly after which time this claim was lodged.
       • 29. The Applicant was not aware of any written agreement, other than the standard terms in the most school enrolment contracts.
       • 30. Even the Applicant's ex-wife, Alison Rowe, through her affidavit provided in these proceedings cannot attest to confirming that the Applicant signed the documents. She did not witness the Applicant signing the documents.
    100. On 15 April, 2013 when this application was before me on the hearing of the respondent’s application to summarily dismiss Mr Rowe’s case, the following exchange occurred:
         • HIS HONOUR: So do you still say that your signature on the initial contract was forged?
         • MR ROWE: Your Honour – well, I don’t remember signing it. That’s what I’m saying.
         • HIS HONOUR: I’m asking you a very - - -
         • MR ROWE: Yes.
         • HIS HONOUR: - - - direct question.
         • MR ROWE: Yes.
         • HIS HONOUR: Do you still say - - -
         • MR ROWE: Yes.
         • HIS HONOUR: - - - that your signature on the initial contract was forged?
         • MR ROWE: That’s the conclusion that I’ve reached, your Honour, yes.
         • HIS HONOUR: Do you - - -
         • MR ROWE: Yes, your Honour. Yes.
         • HIS HONOUR: - - - contend - - -
         • MR ROWE: Yes.
         • HIS HONOUR: - - - that your signature on the initial contract was forged?
         • MR ROWE: That’s correct, your Honour, yes.
         • HIS HONOUR: If that’s right - - -
         • MR ROWE: Yes.
         • HIS HONOUR: - - - your signature was forged - - -
         • MR ROWE: Yes.
         • HIS HONOUR: - - - there is no contract.
         • MR ROWE: Well, that’s correct. But I’m also providing an alternative argument, your Honour.
         • HIS HONOUR: If there is no contract, I have no jurisdiction.
         • MR ROWE: Yes.
         • HIS HONOUR: Is it your case that the signature is forged?
         • MR ROWE: Well, I don’t know, your Honour. Your Honour – okay. Your Honour, I will just - - -
         • HIS HONOUR: .....
         • MR ROWE: I will take you to – I will take you to, your Honour – I will take you to, your Honour, I will take - - -
         • HIS HONOUR: Sir - - -
         • MR ROWE: No – I will - - -
         • HIS HONOUR: - - - don’t take me to anything. It’s a simple question about what your case is.
         • MR ROWE: No. There’s medical factors in here, your Honour.
         • HIS HONOUR: Medical factors?
         • MR ROWE: That’s correct, your Honour.
         • HIS HONOUR: What would those medical factors be?
         • MR ROWE: Those medical factors would be, your Honour, that I’ve been assessed by two psychiatrists as currently suffering from adjustment disorder, suffering depression.
         • HIS HONOUR: Right. And how does that bear on whether you signed this document or not?
         • MR ROWE: Well, your Honour, I’m not in the right frame of mind at the moment, your Honour, to make that determination. I – I – and I haven’t been that way since late last year. My – the prolonged family report – the prolonged family proceedings have made it very difficult for me and I’ve seen two psychiatrists who have provided reports to the court that I cannot work or study full-time at the moment and I – I’m not a hundred per cent sure about what has happened, your Honour.
         • HIS HONOUR: Yes.
19. During the course of the trial, Mr Rowe was cross-examined about his allegations of forgery as follows:
    • All right. ... Now, let’s just talk about the signature for a moment. Reading the transcript from last time you appeared before his Honour and on other occasions, you’ve made allegations that your signature on that document is a forgery. You remember making those allegations?---I remember. Yes. I do.
    • All right. Now, as I understand it, you’re unemployed at the moment but you still have a practicing certificate as a solicitor. Is that right?---That’s correct. Yes.
    • And you’ve been, although not now, before, practicing for quite a while as a solicitor?---I’ve been practicing since 2003.
    • All right. And you understand, don’t you, that an allegation of forgery is a very serious allegation to make and you understand why I say that. At a professional level, we’re required, you and me, before we make allegations like that, to have some pretty solid evidence. Yes?---Yes, yes.
    • And to be fair I don’t think you’ve accused anyone in particular of forging that signature, have you?---I don’t know.
    • All right. Now, reading the transcript from last time you were here before his Honour, I noticed that you back-pedalled on that a bit and you said, “well, look, I just don’t remember signing that document.” Is that a fair way to put it?---Well, I have no recollection of signing that document.
    • Right?---So all I can do is come to a conclusion, based on that statement, that it must have been forged.
    • Okay. So – but whether or not it’s a forgery it’s fair to say that you don’t remember signing that document in April 2009. Is that correct?---I have no recollection of signing that document.
20. It is entirely unclear whether Mr Rowe now contends that the enrolment contract dated 7 April, 2009 was signed by him. Having regard to the oral evidence that he gave at the trial, it seems that his case is that he does not recall signing the contract, and so, it must have been forged. I reject Mr Rowe’s claim that he did not sign the enrolment contract. He may not recall having signed the contract, but there is no other explanation for his signature on the contract. He did not call Alison Rowe to give evidence about the signatures on the enrolment contract.
21. Moreover, I accept the evidence given by Mr Leo that when Mr Rowe’s daughter was first enrolled with the respondent, the relevant fees were paid using a written credit card authorisation that appeared to have Mr Rowe’s signature upon it.
22. The next issue is whether the representation alleged to have been relied upon by Mr Rowe to found his action was made by the respondent. The document that Mr Rowe says that he saw whereby the representation was conveyed to him is not in evidence. He gives no evidence of it in his affidavits. In his cross-examination, he said:
    • All right. Now, is it fair to say also that you don’t really remember looking at any enrolment documents around that period?---Well, no.
    • All right. So no you didn’t or no it’s not fair to say that?---It’s not fair to say that I didn’t look at any enrolment documents.
    • All right. What documents did you look at?---I looked at the material that was available on the website.
    • All right. And what material was that?---I believe it’s like a – I have to find it – it would be in the affidavit of Mr Leo. It’s basically a part to – it has policies about the school and some basic information that’s very basic about the school.
    • All right?---Yes.
    • Anything you remember in particular?---No.
    • Okay. And you would agree with me, wouldn’t you, that if you don’t remember signing that document in 2009 then you don’t remember making a conscious decision in 2009 to send your daughter to that school?---We were – yes. We were – didn’t make a decision what school to go to at that stage.
    • All right. Sorry, can you – I’m not sure I quite heard you. Can I ask you - - -?---I didn’t – we didn’t – hadn’t decided. We looked – we had been investigating schools.
    • All right. It’s your ex-wife’s old school, isn’t it?---That’s correct. Yes.
    • And she was eager for your daughter to go there?---That’s correct. Yes.
    • Sorry, I don’t know what your daughter’s name?---Emily.
    • Emily. Your ex-wife was eager for Emily to attend the school because your ex-wife is an old girl. Fair enough?---Fair enough. Yes.
    • And from what I gather, she was the one who had the carriage of the enrolment application at the time?---She was pushing that school. Yes.
    • Yes. And is it fair to say that another explanation for the reason you don’t remember signing it might be that she just put the forms in front of you and it was one more thing you had to sign in April 2009?---No. I’m pretty good with documents. I would know if I signed anything.
    • ...
    • Just – sorry, if I can just pause you there. I will allow you to finish but it’s fair to say, isn’t it, that’s when you saw this for the first time, this term fee schedule 2009 which you say carries the misleading representation?---No.
    • Okay. When did you first see that?---I first saw that on the website when we were looking at schools.
23. There is no term fee schedule 2009 as described by Mr Rowe in evidence. Apart from the last statement made by Mr Rowe set out above, he did not give any other evidence that such a representation was made to him in 2009 before he decided to enter into the enrolment contract with the respondent. He did not put to the respondent’s witnesses that a fee schedule carrying the same representation as that contained in the Term Fee Schedule 2013 was on the school’s website in 2009 when he looked at the “material that was available on the website”. Whilst he cross-examined the respondent’s witnesses about the Term Fee Schedule, it was the Term Fee Schedule 2013 about which he asked questions.
24. There are no pleadings in this case, but there are grounds of the application set out in the further amended application filed on 11 April, 2013. There is no clear claim that the offending representation was made in 2009. All that is claimed in ground 4 of the Grounds of Application is that “The Respondent makes it quite clear on their fee documents and says...”. In its response to the further amended application, the respondent says:
    • 19. The respondent has not engaged in any misleading or deceptive conduct in contravention of s 18 of the ACL:
    • (a) in the premise of the matters outlined in paragraphs 11 – 13 and 17 above;
    • (b) because the statement on the respondent’s see schedule to the effect that there are no ‘hidden fees’ is accurate. The fee payable under the Policy is not a hidden fee but an optional fee-for-service.
25. There is, by the response, an acknowledgment by the respondent that the subject statement appears on its “fee schedule”, but which fee schedule is not made clear. Notwithstanding that, the case was conducted on the basis that there was no serious issue that the representation relied upon by Mr Rowe was contained in a fee schedule that was published by the respondent in 2009 and before Mr Rowe entered into the enrolment agreement with the respondent.
26. However, I am not satisfied on the balance of probabilities that Mr Rowe saw the representation about which he now complains before he executed the enrolment contract. There is no direct evidence from him that he did..
27. Moreover, I am not prepared to infer that he saw the subject representation before he executed the enrolment contract. In cross-examination Mr Rowe was asked to explain why it was that his claim in these proceedings did not include a claim for misleading and deceptive conduct until the latest amended application that was filed on 11 April, 2013. Mr Rowe clearly explained that:
    1. although he claimed to have seen the Term Fee Schedule in 2009 before his daughter’s enrolment was accepted by the respondent; and
    2. although he knew from about May, 2011 that the respondent wished to charge him a fee to provide him with copies of his daughter’s report cards

he did not pursue the misleading and deceptive conduct claim until he saw the copies of the documents that were annexed to the affidavit of Philip O’Connor filed by the respondent on 11 April, 2013. Relevantly, those documents were copies of extracts from the respondent’s Parent Handbooks for the 2007, 2008, 2009, 2010, 2011, 2012 and 2013 years. The extracts contained the respondent’s Mailings to Separated Parents Policy.

28. However, if it truly was the case that Mr Rowe saw the representation of which he now complains in 2009 and he became aware in 2011 that the respondent was attempting to charge him an “extra” cost inconsistently with the representation, it is curious to say the least that he did not seek redress about it before 11 April, 2013. That is particularly so given the history of litigation, complaint and threats made by Mr Rowe against the respondent revealed in the evidence. On Mr Rowe’s case, the demand for a fee for a copy of his daughter’s report card would have falsified the representation irrespective of the existence of the Mailings policy, but yet no such claim was ever made until the latest iteration of his application.
29. Moreover, I do not accept Mr Rowe’s evidence that it was not until he saw Mr O’Connor’s affidavit and the annexures to it that he realised the respondent had a policy dealing with separated parents. I accept Mr Leo’s evidence that a copy of the Parent Handbook was mailed at the commencement of the 2010 and 2011 school years to Mr and Mrs Rowe at the address given by them in the enrolment application and agreement. I find that Mr Rowe had indeed received that document and was aware of the Mailings policy from no later than the commencement of the respondent’s 2010 academic year.
30. Given that I am not satisfied that Mr Rowe ever saw the subject representation before his daughter’s enrolment at the respondent’s school, he does not, and cannot prove on the balance of probabilities that he relied upon the alleged representation.
31. Moreover, Mr Rowe’s case concerning his daughter’s enrolment was difficult to grasp. He claimed that he did not recall enrolling her at the school. He claimed that he had no recollection about signing the enrolment application or agreement. He claimed that his daughter was enrolled at the school by his wife without his consent, notwithstanding that at the time of her enrolment, Mr Rowe’s marriage was intact.
32. In those circumstances, it is difficult to see how it is that Mr Rowe relied on the subject representation even if he did see it prior to his daughter’s enrolment. He certainly gives no evidence that he relied upon it when he made his decision, if he made one, to enrol his daughter at the respondent’s school. In circumstances where he does not prove that he relied upon the relevant representation, he cannot prove that he suffered loss or damage because of the respondent’s breach of s.18 of the Australian Consumer Law.
33. However, assuming for the moment that I am wrong about that and Mr Rowe did in fact rely upon the offending representation when signing the enrolment agreement the next question is: is that statement, in all the circumstances, misleading or deceptive or likely to mislead or deceive?
34. The first matter to notice is that (assuming for the moment that Mr Rowe saw a statement in the same form as Term Fee Schedule 2013 which is annexure CER 1 to the affidavit of Mr Rowe filed on 4 April, 2013) the representation appears in the document headed “Term Fee Schedule”. The document is clearly referring to term fees which are, in the schedule, further dissected into “Tuition Fee” and “Resources/Camps/Excursions”. The document clearly relates to the fees payable in respect of the tuition and education of a child enrolled at the school.
35. There are some disclaimers in the document. For example, it says:
    • Important Note: This fee schedule includes all fees and charges that you will have to pay except text book hire, stationery and voluntary optional excursions. It includes all compulsory costs for excursions and camps. Students doing hospitality/design technology may be asked to bring raw materials at times as part of the planning process. When comparing fees amongst schools you need to be aware of the “extras”. There are no hidden costs to be added to this schedule.
36. The offending statement appears within the context of the “Important Note” set out above.
37. It seems to me that the “fees” and “costs” spoken of in the Term Fee Schedule are fees and costs that are directly referrable to the education of the young people enrolled at the respondent’s school. The respondent argues, and I accept, that the fee in question was not one necessary for the education of Mr Rowe’s child. It was a fee imposed by the school to recover the cost of an activity which the school would not ordinarily incur.
38. In my view, the statement about which Mr Rowe complains, if indeed it was made at the time that he says it was made, was not misleading or deceptive nor likely to mislead or deceive having regard to the context in which it appears. Nor is it the case that the statement about which Mr Rowe complains was intended to convey a meaning that that under no circumstances would parents be asked to contribute further to matters relating to or connected with the enrolment of their children at the respondent’s school. It speaks only of tuition fees costs for resources, camps and excursions.
39. If Mr Rowe’s argument was correct, then taken to its logical conclusion, the statement might mean that a child (or a parent for that matter) presenting him or herself to the school canteen or tuckshop would be entitled to expect to help themselves to the wares therein at no cost. That is clearly not the intention of the statement. As Mr Leo pointed out in his evidence, the charge sought to be imposed by the Mailings policy is no different from any other cost that parents might opt to incur such as after-school training or an overseas trip organised by the school.
40. Mr Rowe suggested in argument that the statement was a form of comparative advertising. It invited comparison between the respondent and others. In my view, however, it is not comparative advertising in the sense advanced by Mr Rowe in argument.
41. Finally, Mr Rowe fails to prove on the balance of probabilities that he has suffered any loss or damage as a result of his reliance upon the alleged representation made by the respondent to him. He claims that he was forced into litigation in the Family Court because of the respondent’s insistence on the payment of the $250 fee associated with providing him with copies of his daughter’s documents.
42. Mr Rowe’s cross-examination on this point made it clear that the proceedings in the Family Court covered a wide range of matters including:
    1. child support issues, including but seemingly not limited to, payment of the respondent’s school fees;
    2. parenting arrangements including how much time Mr and Mrs Rowe’s daughter should spend with each of them; and
    100. property adjustment matters between them.
43. Indeed it became apparent during the course of Mr Rowe’s cross-examination that whilst he had sought an order that Mrs Rowe provide to him copies of all of the documents received by her in respect of their daughter’s school (including report cards and the like) such an order had never been opposed by her. Mr Rowe agreed with the proposition that she had not opposed the making of such an order in the response that she had filed to his application for parenting orders. He led no evidence to the effect that whilst he had asked Mrs Rowe to provide him with copies of the relevant material, she had refused to do so.
44. Moreover, as appears from the order of Howard FM (as he then was) made on 15 December, 2011 an Independent Children’s Lawyer was appointed to represent the interests of Mr and Mrs Rowe’s daughter in those parenting proceedings. The appointment of an Independent Children’s Lawyer is not made as a matter of course and only where it is appropriate to do so: see Re K [1994] FamCA 21; (1994) 17 Fam LR 537. The appointment of an Independent Children’s Lawyer suggests that the issues in the parenting proceedings are more extensive than simply an argument about whether Mrs Rowe should provide Mr Rowe with a copy of their daughter’s report cards.
45. Apart from the costs incurred by Mr Rowe in the family law proceedings he also claims damages by reason of the loss that he sustained making an application under the Privacy Act 1988. In my view, the making of that application had nothing whatsoever to do with what Mr Rowe now claims to be misleading and deceptive conduct on the part of the respondent. There is no causal link established in the evidence between that loss and the alleged representation made by the respondent.
46. Finally, Mr Rowe claimed the costs of other litigation in which he has been involved with the respondent. There is litigation in the Queensland Civil and Administrative Tribunal, the Magistrates Court of Queensland and this Court. Mr Rowe claims that his costs in all of that litigation have come about because of the misleading and deceptive conduct in which he alleges the respondent has engaged. However, even if it was the case that the respondent had engaged in misleading and deceptive conduct as claimed by Mr Rowe (which I do not accept), the amounts for loss and damage claimed by him as a result of the various litigation in which he has been involved with the respondent, have nothing to do with that representation.
47. No doubt Mr Rowe feels aggrieved because he was asked to pay a $250 fee to access his daughter’s school records and the like. He may not have been aware of the school’s policy about that. But his response to the school’s request has been out of all proportion to what was at issue. His response, rather than being measured and appropriate, has been aggressive and inappropriate. He has made threats to the respondent (by its officers and the school principal), which have been wholly inappropriate and unnecessary. He has made complaints about the respondent and its servants and agents to the Australian Consumer and Competition Commission, the Police and the Privacy Commissioner, amongst others. All the while, his sense of outrage and injustice has been underpinned by an entirely misconceived understanding of the law.
48. Moreover, his claim that these particular proceedings were necessary because of the respondent’s misleading and deceptive conduct must plainly be nonsense because when these proceedings were initially commenced, there was no claim for misleading and deceptive conduct made by Mr Rowe. The claim was added by an amendment which he undertook by his further amended application filed on 11 April, 2013.
49. It was suggested to Mr Rowe in the course of cross-examination that he added a claim for misleading and deceptive conduct because he well knew that the balance of the claims made in the application (as it stood before the final amendment) was bound to fail and most likely to be struck out summarily. In my view that proposition was well made and the late amendment to these proceedings to add the claim for misleading and deceptive conduct was designed to achieve that very purpose.
50. In my view, Mr Rowe’s claim to recover loss or damage pursuant to s.236 of the Competition and Consumer Act must be dismissed because he does not prove on the balance of probabilities that:
    1. Mr Rowe did not rely upon the representation, as he impliedly claims he did, when he entered into the enrolment contact with the respondent;
    2. The representation upon which he sues is not misleading or deceptive or likely to mislead or deceive; and
    100. he does not prove that he has suffered any loss or damage because of the respondent’s conduct.
51. Finally, at the conclusion of the proceedings I sought the parties to file written submissions that dealt with the jurisdiction and power of this Court to make a declaration and a declaration alone that the respondent had engaged in misleading and deceptive conduct. Having regard to the submissions delivered by each of the parties, I am satisfied that the Court has jurisdiction to grant such declarations, but for the reasons that I have expressed above, no occasion for making such a declaration arises in this matter.
52. To the extent that Mr Rowe seeks a declaration that the school continues to engage in misleading and deceptive conduct, for the reasons that I have just given, the statement by the respondent where it appears in the Term Fee Schedule 2013 document is not misleading or deceptive nor likely to mislead or deceive. No occasion arise to make the declaration sought by Mr Rowe.
53. For the foregoing reasons, the application is dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 13 June 2013  ^{_{(Source : http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2013/501.html?stem=0&synonyms=0&query=rowe%20emmanuel)}}