Alajmi v Macquarie University

[2019] NSWSC 1026

Supreme Court

New South Wales

Medium Neutral Citation:

Alajmi v Macquarie University [2019] NSWSC 1026

Hearing dates:

4-5 June 2019

Date of orders:

15 August 2019

Decision date:

15 August 2019

Jurisdiction:

Common Law

Before:

Payne J

Decision:

(1)   Summons dismissed.
(2)   Plaintiff to pay the costs of the defendant as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – reviewability – justiciability – subject matter of power or decision – matter of academic judgement – decision by a university thesis supervisor not to certify that a doctoral thesis met the University’s preparation requirement that the thesis was the student’s “own work” – findings of an investigatory panel into allegations of plagiarism against the student taken into account – not an exercise of public power – impermissible merits review

 

ADMINISTRATIVE LAW – legal unreasonableness – whether the “non-certification decision” and the panel’s findings were legally unreasonable – Briginshaw standard did not apply – inferences made were reasonably open and logically available – not legally unreasonable – no irrelevant consideration – no apprehended bias – no impermissible fetter of discretion or subjugation of state of satisfaction

 

CONTRACTS – implied terms – parties agreed to be bound by the University’s By-laws and Rules – no term that the parties also agreed to be bound by the University’s Code, Policy and Procedure should be implied

 

CONTRACTS – legal unreasonableness – alleged failure to exercise a unilateral contractual discretion reasonably – “non-certification decision” not legally unreasonable

 

ESTOPPEL – estoppel by convention – mutual assumption – assumptions not supported by the evidence

  ESTOPPEL – estoppel by representation – detrimental reliance – representations not made – representations not relied upon

Legislation Cited:

Evidence Act 1995 (NSW), ss 57, 136
Interpretation Act 1987 (NSW), s 42
Macquarie University Act 1989 (NSW), ss 4-6, 20, 28-29
Macquarie University By-Law 2005 (NSW), by-law 35
Supreme Court Act 1970 (NSW), ss 23, 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; 340 ALR 560
Amaba Pty Ltd (Under NSW Administered Winding Up) v Booth; Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth [2010] NSWCA 344
Amos v Western New South Wales Local Health District [2016] NSWSC 1162
Antoun v The Queen [2006] HCA 2; 80 ALJR 497
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General for the States of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21
Ballina Shire Council v Knapp [2019] NSWCA 146
Bartlett v Australia & New Zealand Banking Group Ltd (2016) 92 NSWLR 639; [2016] NSWCA 30
Bezer v Basan [2017] NSWCA 333
Braganza v BP Shipping Ltd [2015] 1 WLR 1661
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bromley London Borough Council v Greater London Council [1983] 1 AC 768
Chan v Sellwood [2009] NSWSC 1335
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5
Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; 155 LGERA 230
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Dornauf v The Stewards of the Harness Racing Board [1994] VR 302
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Graham v Minister for Immigration and Border Protection [2017] HCA 33; 91 ALJR 890
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7
Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kruger v The Commonwealth (1997) 190 CLR 1 at 36; [1997] HCA 27
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; 329 ALR 1
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35
R v Panel on Take-overs and Mergers; Ex parte Datafin PLC [1987] QB 815
Re Day [2017] HCA 2; 91 ALJR 262
Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84
Thomas v University of Bradford [1987] AC 795
Wilkie v The Commonwealth [2017] HCA 40; 91 ALJR 1035

Texts Cited:

M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters)
JD Heydon QC, Heydon on Contract (2019, Thomson Reuters)
P Kamvounias and S Varnham, “In-house or in Court? Legal Challenges to University Decisions” (2006) 18(1) E&L 1
E Lim and C Chan, “Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law” (2019) 135 LQR 88

Category:

Principal judgment

Parties:

Sharaf Alajmi (Plaintiff)
Macquarie University (Defendant)

Representation:

Counsel:
B K Nolan (Plaintiff)
H El-Hage (Defendant)

  Solicitors:
Pacific Maritime Lawyers (Plaintiff)
Bartier Perry (Defendant)

File Number(s):

2018/00060623

Publication restriction:

None

Judgment

1. PAYNE J: Mr Alajmi, a former PhD student at Macquarie University, brought proceedings in this Court against the University about a number of aspects of the conduct of the University concerning Mr Alajmi’s doctoral thesis.

2. On 7 January 2015, Macquarie University received an anonymous complaint relating to Mr Alajmi’s thesis, then in final draft, in these terms:

“I learned that a friend of mine has purchased his thesis from an online essay company called allanswers.co.uk. This student is Sharaf Alajmi and he is my friend. …I am ashamed to say that I looked at his computer. There were two years of exchanges with this company, all relating to the chapters of the thesis. In the latest exchanges he was saying ‘please ask the statistician to find a way to make the regressions significant’. He said his supervisors would not be happy with the results and he would be happy to pay more to get true results. He was asking the writer to change the model in chapter 3 and to make sure that the next chapter discusses the limitations of the model etc. He has employed a writer and someone to do his stats. … He has not written a single word of anything himself, and he hasn’t done the analysis. He has spent A LOT of money with this company.”

3. Mr Alajmi admitted to the University that he used “allanswers.co.uk” [1] to assist him in relation to his thesis. Exactly what work “allanswers.co.uk” did for Mr Alajmi was, however, controversial. Accordingly, the University decided to conduct an investigation into the anonymous complaint. In a variety of ways, Mr Alajmi complains about the decision to conduct the investigation, the content of the “Final Report” of the investigation and the fact that his PhD thesis supervisor, Associate Professor Wright, refused to certify under the relevant Macquarie University policy that she was satisfied that the thesis was all Mr Alajmi’s “own work”. In reaching that state of non-satisfaction, the thesis supervisor took into account the “Final Report” on the plagiarism complaint and submissions made by Mr Alajmi’s lawyers about that report.

   1. Also referred to in these reasons as “All Answers Pty Ltd” and “All Answers”.

4. Mr Alajmi’s case was framed as an administrative law complaint attacking two decisions styled the “Final Report” and the “non-certification decision”. The case was filed by his lawyers in the administrative law list of the Court. As a result, only a summons and, eventually, points of claim were filed. In hindsight, it is clear that this is a case in which a properly articulated statement of claim was required.

5. The points of claim identified the two impugned decisions and sought declaratory relief and certiorari in relation to each of those decisions. There was also a claim of estoppel. The estoppel claim received virtually no mention in the oral and written submissions on behalf of Mr Alajmi.

6. The points of claim did not address any claim in contract. Written submissions filed by Mr Alajmi almost immediately before the trial, and 10 days after the date originally ordered by the Court that they be filed, however, identified a claim based in contract. In the oral submissions made by Ms Nolan, on behalf of Mr Alajmi, most attention was given to that contract claim. Mr El-Hage, who appeared for Macquarie University, complained that the contract claim was not pleaded. Nevertheless, he was content to address the contract case propounded by Mr Alajmi on the merits and defer my ruling about the availability of the claim until this judgment.

7. I have concluded that the contract claim was not pleaded, but that I should address the claim made rather than dismiss it as not having been pleaded in circumstances where:

1. the contract claim was articulated by Mr Alajmi in written submissions before the hearing;

2. no additional evidence was sought to be filed by either party to address that claim; and

3. Macquarie University understood the claim being made and had an opportunity to address that case and make detailed submissions about it.

Judgment

Evidence

Mr Alajmi’s evidence

Macquarie University’s evidence

Joint court book

Factual findings

Issues to be determined

Submissions of the parties

Mr Alajmi’s submissions

Administrative law

Contract

Estoppel

Macquarie University’s submissions

Administrative law

Contract

Estoppel

Discretion to refuse relief

Consideration

Framework in which this case is to be determined

Consideration of issues

Administrative law

Contract

Estoppel

Discretion to refuse relief

Conclusion and orders

Evidence

Mr Alajmi’s evidence

8. Mr Alajmi read the affidavits of Sharaf Alajmi sworn on 18 September 2018 and Anthony John Stanton sworn on 23 February 2018. There was no cross-examination.

9. Mr Alajmi’s affidavit sets out, at length, the steps he took in preparation of his thesis and the events relating to the investigation into the allegations against him. Objections were made by the defendant to the admissibility of substantial parts of the affidavit on the ground of relevance. Paragraphs 14, 17, 18 (first and third sentence), 19, 20, 21, 22 and 24 were not pressed by Mr Alajmi. In relation to the remaining paragraphs to which objection was taken, 6-11, 25-48, 50-65, 67-79, 81-86 and 88-91, I made a ruling admitting those paragraphs provisionally pursuant to s 57 of the Evidence Act 1995 (NSW).

10. I have decided that the paragraphs which were provisionally admitted are admissible. The only objection, relevance, provides a low hurdle to admissibility. I have concluded that the evidence may be relevant to the estoppel claim which was advanced. No fall back limitation pursuant to s 136 of the Evidence Act was sought by Macquarie University.  I reserve the question of the weight to be attached to that evidence. I should note, at this stage, that virtually none of the evidence to which objection was taken was referred to, at least in any detail, in the extensive written and oral submissions made by Ms Nolan.

11. Mr Stanton is a solicitor acting for Mr Alajmi. His affidavit sets out some relevant facts and outlines aspects of the governance framework. Paragraphs 3, 4, 5, 6, 7, 14, 18 and 19 of Mr Stanton’s affidavit were permitted to be read, subject to a s 136 Evidence Act limitation, as submissions only. There was virtually no reference to Mr Stanton’s evidence in the written or oral submission of either party.

Macquarie University’s evidence

12. Macquarie University read the affidavits of Alan Kilgore sworn on 27 November 2018, Louise Dwyer affirmed on 24 October 2018, Zoe Williams affirmed on 24 October 2018 and James Mattson sworn on 31 May 2019. There was no cross-examination.

13. Professor Kilgore was employed by Macquarie University from July 2001. From March 2011 to December 2014, he was Mr Alajmi’s primary PhD thesis supervisor. Prior to his retirement in December 2014, Professor Kilgore was the Deputy Head of the Department of Accounting and Corporate Governance. From December 2014 to December 2016, he held an honorary appointment with the University. Paragraphs 11 and 40 of his affidavit were not pressed by the defendant. Paragraph 33 was rejected. I provisionally admitted paragraphs 14 to 27 of the affidavit on the same s 57 basis as the evidence of Mr Alajmi. I am persuaded that these paragraphs (which are responsive to Mr Alajmi’s evidence which I have admitted) should be admitted.

14. Ms Dwyer is employed by Macquarie University as the Deputy Director, Governance and Operations. She has held this role since March 2016. Her key responsibilities include oversight of a team that looks after the operations of higher degree research students, including admission, from enrolment to completion.

15. Ms Williams is employed by Macquarie University as the Head of Governance Services. She has held this role since April 2012. Her key responsibilities include leading the development and implementation of a strategic framework for student and academic governance. Paragraph 21 of her affidavit was admitted as a submission only.

16. Mr Mattson is a solicitor acting for Macquarie University in these proceedings. His affidavit sets out correspondence between Mr Alajmi and Macquarie University’s previous solicitors.

Joint court book

17. The joint court book comprised seven volumes and was marked Exhibit A. The documentary evidence was voluminous. A number of draft versions of Mr Alajmi’s thesis were tendered.

18. The documents at tab 25 were materials produced under a notice to produce dated 4 July 2018 issued to Macquarie University. Those documents were received as provisionally relevant in that they related to passages in Mr Alajmi’s affidavit to which objection was taken. These documents principally go to an issue, alleged apprehended bias, which was not clearly pleaded in the points of claim and addressed only fleetingly in the written submissions filed before the hearing. Oral submissions were made about those documents by both parties. The documents were also said to go to the issue of legally unreasonable decisions made by Macquarie University and Associate Professor Wright. I have decided to admit in evidence the documents behind tab 25 of Exhibit A despite their principally relating to an unpleaded issue. I am satisfied that Macquarie University had a sufficient opportunity to address the unpleaded issue.

19. The documents at tab 29 of Exhibit A were tendered by consent. They are a compilation of documents which were exhibited to the affidavit of Robert Johnston, the defendant’s previous solicitor, sworn on 14 May 2018. Rather than read Mr Johnston’s affidavit, the parties sensibly agreed that the documents at tab 29 should be tendered.

Factual findings

20. My principal factual findings are as follows. Where necessary I will make additional factual findings when addressing various aspects of the parties’ arguments.

21. Mr Alajmi is a Kuwaiti national. Macquarie University is:

1. a body corporate established under s 4 of the Macquarie University Act 1989 (NSW);

2. a public office within the meaning of the State Records Act 1998 (NSW); and

3. a public authority within the meaning of the Ombudsman Act 1974 (NSW) and Independent Commission against Corruption Act 1988 (NSW).

22. On 3 February 2011, Macquarie University offered Mr Alajmi a position in its Doctor of Philosophy in Accounting and Corporate Governance program. A term of the offer was that Mr Alajmi agreed “to abide by the By-laws and Rules of Macquarie University”. On 8 February 2011, Mr Alajmi accepted the offer. On 8 February 2011, the Kuwait Public Authority for Applied Education and Training certified that Mr Alajmi had been granted a scholarship to obtain a Doctor of Philosophy in Accounting from Macquarie University.

23. Between 21 March 2011 and March 2015, Mr Alajmi was engaged in work in respect of his PhD thesis. During his PhD candidature, Mr Alajmi’s primary supervisor was Professor Kilgore and his associate supervisor was Associate Professor Wright. Mr Alajmi met regularly with his supervisors. Mr Alajmi made notes during those meetings. There is some debate in the affidavit evidence about Mr Alajmi’s capacity to read, speak and write in English. I am in no position to make a finding about that subject. I do, however, find to the extent that it is relevant that Mr Alajmi’s PhD supervisors believed that he read, spoke and wrote English well and was well-versed in English grammar.

24. It was standard practice in the Accounting and Corporate Governance Department at Macquarie University to provide each PhD student with a specified amount of money, some of which would be used to engage a copy editor in the final stages of preparation of a doctoral thesis. In April 2013, Mr Alajmi was not at the stage where his thesis was completed or nearing completion such as to require a copy editor. That this is so was demonstrated by an exchange between Professor Kilgore and Mr Alajmi some months later. On 23 August 2013, Professor Kilgore sent Mr Alajmi an email regarding the timeline for reviewing the draft chapters of Mr Alajmi’s doctoral thesis. In this email, he stated:

“Following this review you will probably need to make further changes to the thesis. This process is likely to need repeating until the thesis is completed to our satisfaction. This stage was not included in your schedule. Once this is completed you will then be able to have the document professionally edited.” (Italics added.)

25. Later on 23 August 2013, Mr Alajmi responded and stated:

“Thank you for your email. I agree with you.”

26. Some months earlier, however, Mr Alajmi had already retained “All Answers”. The scope of that engagement and the work done by All Answers remains in dispute between Mr Alajmi and Macquarie University. Although framed in traditional administrative law and contract terms, many, if not all, of the submissions advanced by Mr Alajmi in this case were predicated on an assumption that the Court could itself determine the merits of this debate between Mr Alajmi and Macquarie University. I do not propose to embark upon a process of impermissible merits review.

27. On 17 May 2013, Mr Alajmi emailed All Answers to engage them to assist him with his doctoral thesis:

“Dear Customer Service Team,

I would like to know if you provide professional editing services for doctoral thesis. I have completed my thesis and the only service I need is professional editing.

Please advise.

Kind regards,

Sharaf Alajmi”

28. In April 2014, Mr Alajmi returned to Kuwait and decided to remain living in Kuwait whilst completing his PhD thesis.

29. On or about 13 October 2014, Professor Kilgore completed the 2014 Annual Progress Report for Mr Alajmi which included the following notation:

“Sharaf has had some difficulty in his thesis writing. His command of English is very good, however, at times he has had some difficulty in articulating his arguments. This has improved following specific/detailed reviews by his supervisors and a more disciplined and focused approach to his revisions. He is now nearing the end of his candidature and is very focused on completion of his thesis.”

30. Mr Alajmi never informed Professor Kilgore or Associate Professor Wright that he was using All Answers, or any other organisation, to provide him with assistance.

30. On 15 December 2014, Associate Professor Wright replaced Professor Kilgore as Mr Alajmi’s primary supervisor.

31. On 7 January 2015, Professor Kilgore received an email entitled “Student plagiarism” from an anonymous source. The email alleged that Mr Alajmi had engaged in academic misconduct by employing All Answers to contribute to the intellectual content of his doctoral thesis. The email stated:

“I learned that a friend of mine has purchased his thesis from an online essay company called allanswers.co.uk. This student is Sharaf Alajmi and he is my friend. … I am ashamed to say that I looked at his computer. There were two years of exchanges with this company, all relating to the chapters of the thesis. In the latest exchanges he was saying ‘please ask the statistician to find a way to make the regressions significant’. He said his supervisors would not be happy with the results and he would be happy to pay more to get true results. He was asking the writer to change the model in chapter 3 and to make sure that the next chapter discusses the limitations of the model etc. He has employed a writer and someone to do his stats. … He has not written a single word of anything himself, and he hasn’t done the analysis. He has spent A LOT of money with this company.”

33. On 14 January 2015, Associate Professor Evans, Higher Degree Research Coordinator for Macquarie University, emailed Mr Alajmi informing him of the allegation and inviting him to respond as soon as possible. The email stated:

“Because of the serious nature of these allegations and the university’s obligation to follow up, I am letting you know the particular issues raised by the email:

1. The writing of your thesis (and the analysis) was by an online essay company called all answers.co.uk;

2. There has been two years of correspondence with the company in relation to the thesis; and

3. There were specific instructions to the company about receiving help from a statistician about “making the regressions significant”, “to change the model in Chapter 3” and “make sure that the next chapter discusses the limitations of the model”.”

34. On 15 January 2015, Mr Alajmi responded to Associate Professor Evans’ email, confirming that he had worked with All Answers and stating that All Answers had “been helping with things like proofreading, feedback on the work and general support”. The email stated:

“I can confirm that I have worked with an online company called All Answers for the past year and half. However I have not had my thesis written by All Answers and they have not completed the analysis in my thesis. All Answers produce model answers and provide assistance that has helped me do my own work. After completing my first draft of the thesis, a lot of issues were raised but at the time my supervisors were very busy and I could not get the level of support I really needed. At this point I contacted All Answers who have been helping with things like proofreading, feedback on the work, and general support. ... I have spoken recently with a statistician who provided advice on the possibility of changes to the work and specifically the model. All analysis was designed by myself and a major flaw with the thesis is that results are not as significant as expected. I needed to make a change to the model or do additional tests, and advice was given about this.”

35. In February 2015, Professor Pretorius, Deputy Vice-Chancellor (Research), established an Internal Institutional Misconduct Inquiry to investigate the allegation and appointed a panel consisting of Professor Mansfield (Chair), Dr Alter and Professor Quinn (“the Panel”).

36. Between March 2015 and November 2016, the Panel investigated the following allegation:

“Mr Sharaf Alajmi engaged an organisation(s) and/or individual(s) to create intellectual content to be included in his doctoral thesis in breach of the Higher Degree Research Thesis Preparation, Submission and Examination Policy, The Macquarie University Code for the Responsible Conduct of Research 2015 and the Academic Honesty Policy”

37. On 26 February 2015, Associate Professor Wright emailed Professor Quinn a draft of Mr Alajmi’s thesis.

38. On 4 March 2015, the Research Integrity Office sent an email to the anonymous informant’s email address. No response was received. Macquarie University was unable to confirm the identity of the informant.

39. On 4 March 2015, Professor Mansfield, Dean of Higher Degree Research and Chair of the Panel, wrote to Mr Alajmi notifying him that the University had received an anonymous allegation of research misconduct against him relating to his alleged engagement of All Answers or its related companies. The allegation was expressed as follows:

“That you engaged an organisation(s) and/or individual(s) to create intellectual content to be included in your doctoral thesis in breach of the Higher Degree Research Thesis Preparation, Submission and Examination Policy, and the Macquarie University Code for the Responsible Conduct of Research”.

40. On 16 March 2015 at 3.26pm, Professor Quinn emailed Associate Professor Wright, stating: 

“I can’t really find any evidence that the candidate has done other than take your advice in fixing his statistical analysis. In particular, I can’t find any evidence that he has sought the advice of a statistical expert to redo his analysis. For example, he keeps on talking about running a model to test a hypothesis. No statistician would do this.”

41. Later that day at 3.41pm, Associate Professor Wright replied to Professor Quinn:

“I won’t comment on your conclusion because it’s not my position to do so.”

42. At 3.45pm, Professor Quinn replied to Associate Professor Wright:

“I just wanted to run this past you as a courtesy before I wrote to the panel. I didn’t want to write anything that upset you. If my conclusions had been different, I may not have consulted you first!”

43. At 3.51pm, Associate Professor Wright replied to Professor Quinn:

“I do not preten[d] to be a statistician, so I’m not upset by your comments. I’m not impressed by his latter analysis, for reasons that are related to the ones you describe, but never as clearly articulated.

The comment I would make as long as it doesn’t change your report is, you can only determine if he has had assistance from an expert, not a non-expert. It is equally as wrong to get assistance from a non-expert, but it’s not as likely to assist him in passing.”

44. At 3.56pm, Professor Quinn emailed Professor Mansfield, stating:

“I can’t find any evidence that the candidate has done other than take his supervisors’ advice in fixing his statistical analysis. In particular, I can’t find any evidence that he has sought the advice of a statistical expert to redo his analysis. For example, he talks about running a model to test a hypothesis. No statistician would say this.”

45. On 17 March 2015, Professor Quinn wrote a memorandum to Professor Mansfield:

“In conclusion, if Mr Alajmi did obtain statistical help, I believe it was of a minor and non-expert nature. The explanations of his SPSS-computed tables are correct, but, for example, he has not explained what a logistic regression actually is, and how it relates to the problem he is examining.”

46. On 18 March 2015, Mr Alajmi submitted his PhD thesis for examination with a form titled “Submission of a HDR Thesis for Examination” (“Submission Form”). Mr Alajmi signed under section 7 of the Submission Form, which provided:

“7. Declaration by the Candidate

I hereby submit my thesis for examination in accordance with the regulations and declare that:

1. The thesis is my own composition, all sources have been acknowledged and my contribution is clearly identified in the thesis.”

47. On 19 March 2015, Associate Professor Wright signed under section 9 of the Submission Form, which provided:

“9. Certification by the Supervisor and the Head of Department

I hereby certify:

1. that the thesis has been prepared and bound in a form approved by the Higher Degree Research Committee and includes a summary of approximately 200 words for a Masters and 300 words for a Doctoral degree;

2. that the length of the thesis conforms to the requirements as to the length prescribed by the Head of Department;

3. that any instances of inadequate presentation and content were pointed out to the candidate and corrected before the thesis was bound;

4. that the candidate has completed the approved program of advanced study and research as set out above.

5. that the abstract submitted above for the purpose of Australian Higher Education Graduation Statement is accurate and is a true reflection of the candidate’s thesis and area of research.

[Supervisor’s Signature]

[Head of Department’s Signature]”

48. The bottom of section 9 of the Submission Form, which required the signature of the Head of the Department, was unsigned. Section 10 of the Submission Form, which required the signature of the Associate Dean (HDR), was unsigned. It stated:

“10. Certification by the Associate Dean (HDR) of Faculty:

...

I hereby certify:

1. that the examiners have already been approved or submitted to the Higher Degree Research Office for this thesis, OR 

2. that Faculty has provided advice to the candidate where there are areas of concern.

[Associate Dean (HDR)’s Signature]”

49. On 20 March 2015, Mr Alajmi emailed Professor Mansfield attaching his written response to the allegation. In his written response, Mr Alajmi stated:

“Please explain the nature of your relationship with All Answers.

I initially contacted All Answers (specifically their website UK Essays) in 2013 following the completion of the first draft of my thesis. At this stage, I had completed my first complete draft, and received a large amount of editorial comments from my supervisors. After a conversation with my supervisors regarding this issue, it was agreed that I could have the thesis professionally edited.

At this point in time, I was finding it very difficult to make significant progress on the thesis for a number of reasons. The comments/feedback I received was very general regarding the editorial work needed and was hand-written. I felt I really needed to have my thesis professionally edited because these editorial comments were distracting me from making progress on other work the thesis might need before finalizing my thesis. I was under the impression that I would get my thesis closer to be submitted to the examiners when I contacted the company. I felt that I needed to motivate (push) my supervisors to get them involved in my research by showing them my progress after the editorial work.

At this point (with my supervisors agreement I could have my thesis proofread and professionally edited) I approached All Answers with a complete draft of my thesis. Everything about the thesis at this point was fully developed and confirmed with my supervisors. The entire thesis had been written, and the reference list was fully complete. The main data analysis and additional analysis was fully complete and I sought editorial assistance only, because the comments were general in nature and editorial only. I would like to confirm that I am the sole author of my thesis and I did not include any intellectual content created by others in my doctoral thesis and my thesis is free from any deception and plagiarism.

After my initial engagement with the company, work commenced with an editor who worked in track changes and editorial comments in Microsoft Word. Every change was recorded and manually approved or declined by myself. The work was edited over four reviews. Editorial work consisted of spelling and grammar checking and formatting. I took extreme care with the work to make sure nothing was added or changed. No references were added to the thesis. The editorial work I received from All Answers gradually reduced over the year and half period. As I completed in depth reviews with my supervisors of each chapter and addressed in depth comments and small changes to the work to improve it, the editorial work from All Answers provided reduced. My supervisors’ feedback became much more targeted as their reviews went on, providing track change comments in Word rather than handwritten comments, and being more directive. This, alongside the editorial work allowed me to develop a greater understanding of how to push myself closer towards completion of the thesis on my own.

Towards the middle of December 2014, closer to completing the third review of my thesis by my supervisors, when reviewing the later chapters, my supervisors and I discussed some additional tests that may have been beneficial to my thesis. The current results were not giving me a significant enough amount of material to discuss in the main analysis. Following the comments from my supervisors, I developed some additional tests to provide additional material for discussion. At this point, I needed my thesis to be professionally edited. It was then that I was recommended the services of a statistician, by All Answers, however I refused this because I had already developed my own additional test and analysis.

I have provided the last editorial draft I received from All Answers, from 12th December. This demonstrates the editorial review that was undertaken. I had just completed amendments to Chapter 5 and a draft of Chapter 6 was being reviewed by the supervisors. I had therefore passed Chapters 1-4 to All Answers for editorial review, which was completed and sent to me on the 12th along with the suggestion of using the services of a statistician. I declined, and on the 14th December passed my own suggestions onto the supervisors for approval. I was due to send a final draft of all chapters to All Answers for editorial review in late January, but following the allegations, decided against any further contact with the company.

How long have you been in correspondence with All Answers Ltd?

I have been in contact with All Answers Ltd since late May, 2013 until mid-December, 2014. To be clear, I had a further review for editorial work on the entire thesis scheduled in January, but due to the allegations I received, I did not contact All Answers again. Therefore, my last contact was December, but I officially ceased the relationship in January.

To confirm exactly, the exact schedule of work with All Answers was as follows:

Editorial Review 1 – A full review of the entire thesis prior to individual chapter reviews (between May and December 2013)

Editorial Review 2 – Chapters 1 and 2 (between January 2014 and April 2014)

Editorial Review 3 – Chapters 1, 2,3 (between May 2014 and October 2014)

Editorial Review 4 – Chapters 1,2,3,4 (between November and 12th December 2014)

Editorial Scheduled Review 5 – Chapters 1, 2, 3, 4, 5, 6 and 7 (January 2015) – Cancelled

My communication has always been with individuals working for All Answers as part of the customer service team there, not directly with an editor or a statistician. All communication, including correspondence and draft work was conducted over Skype during this time, and as a result there is little correspondence I can provide. I have provided my most recent editorial draft from All Answers to demonstrate the type of assistance I received from them.

I was recommended the company by international PhD students studying in Australia, who had used the company themselves. I contracted the company initially via e-mail, and never dealt with an editor or a statistician directly. The only service I received was editorial – no ghost-writing, custom writing, or statistical assistance. As stated, I was offered assistance with the statistical part of my thesis, but I refused this.

I took great care in researching the company beforehand, reading their privacy policy and terms and conditions, and consulting external review sites. I understand how using a company such as this can be seen as not acceptable, and that it is down to the individual user of the service offered to make sure that plagiarism does not occur. I made it very clear from the beginning of my communication with All Answers Ltd that I had no interest in services that would involve adding any intellectual content or changing the thesis.

Please detail the statistical assistance that you received.

All Answers recommended the services of a statistician, when the editor was professionally editing chapters 1 to 4. At the time, I was working on chapters 5, 6 and 7, and All Answers were aware I was exploring this issue. The company suggested I could make changes to the model components, by changing or removing variables to completely change the model. This would never have been suitable for me, as it would lead to a change to my hypothesis and thesis as a whole. At this point, I declined these services. I knew this kind of assistance was not acceptable. I had already decided upon my own additional tests to add to the thesis, which had been passed onto my supervisors for approval. Following approval of this from my supervisors, I completed my additional tests – a Wald backwards elimination model and Kruskal-Wallis test and added them into my thesis. No data was passed to the statistician or All Answers at any point – the data is the property of the university and cannot be shared.”

50. On 26 March 2015, Associate Professor Wright wrote to Ms Botros of the Kuwait Culture Office, stating that Mr Alajmi had “submitted his doctoral thesis on time, on March 18th 2015. His thesis is awaiting examination”.

51. On 8 April 2015, Professor Mansfield wrote to Mr Alajmi, requesting his email correspondence with All Answers, any record of the agreement he entered into with All Answers, copies of the requests he made to them and the work they undertook to do.

52. On 14 April 2015, Mr Alajmi responded to Professor Mansfield’s email, stating that there was only email correspondence sent by Mr Alajmi to All Answers, that no written contract existed between Mr Alajmi and All Answers and that Mr Alajmi did not have earlier drafts of his thesis:

“I can confirm to you that I only have one email and it is regarding the inquiry of their service I made to All Answers. I enquired about the service through this email, and immediately called All Answers through the Skype contact provided in their website. During this phone conversation, I was asked if communication over Skype would be preferable. After that, all communication was through Skype, including the exchange of the files containing my thesis. I do not know anything about the significant email correspondence that you mention.

…

I can also confirm to you that there is no written contract outlining the work between All Answers and myself. Terms & Conditions for the service were provided to me via the website. The only service requested and agreed over the initial Skype conversation to be provided to me by All Answers was editorial and there was no need for significant amount of correspondence. As I have previously mentioned, after I sent the inquiry email, I called All Answers via Skype and a customer care staff member from All Answers spoke with me to explain the editorial work that they could do and their prices. We agreed that I was going to be charged a flat fee per review. I am providing pdf files containing the invoices for each review. At that point we also agreed to the following: that the work I needed was merely editorial, that we will always work through Skype since it would be easier for me to revise the editorial work while they were on the phone.

…

I have 4 editorial reviews as part of the service I received from All Answers, and I have provided my most recent editorial draft to demonstrate the type of assistance I received. Unfortunately, I do not have earlier drafts of my thesis for a number of reasons.

Firstly, I had a previous bad experience with working on the wrong file, causing me a setback with the work. At one point, I accidentally worked on an old draft file and did not realise until submitting the work to my supervisors, meaning my work was in large parts incorrect. After this, I made the decision to only keep one singular version of the file at any one time, and work continually within that file, to make sure no further mistakes were made.

Secondly, I was provided with a laptop via Macquarie to use and did the majority of my work on this. I had a significant number of issues with the computer crashing and loosing data and files. I filed several tickets with the IT department to try and solve the issue, and it was only ever solved temporarily. Since I have moved back to Kuwait and had to change computers, I have lost data, another reason keeping a singular file of the thesis was easier for me.

The only files I still have are the files containing my supervisors’ comments. The files from my supervisors are the ones I used to work on improving my thesis according to their comments – I would take each comment and address it in my single draft file of the work, keeping just one working draft. After addressing my supervisors’ comments and finalizing my thesis myself, I then sent the work to the editor for editorial review.”

53. On 24 June 2015, Ms Davies, Chief Information Officer, granted the Research Integrity Office permission to access Mr Alajmi’s student email account and student data backup folder to retrieve relevant documents.

54. On 23 July 2015, Professor Mansfield wrote to Mr Alajmi, inviting him to comment on extracted files retrieved from the folder named “42403472”. The folder enclosed 12 files which included: two files named “chapter6 instructions.docx” authored by Mr Alajmi; a file named “Sam instruction­_15-05-2013.docx” authored by Mr Alajmi; and a file named “Literature Review 352002 c.doc” last saved by a person identified as “Paul Lines”.

“We have reason to believe that you are not being honest with us for the following reasons:

1. In our possession, we have copies of files that have been backed up on university IT equipment that provide evidence of your dealings with a third party. These backup files were stored in a folder titled “42403472”. These files appear to include instructions to another person directing changes to the intellectual content of your thesis which go well beyond simply requesting professional editorial assistance. Could you please explain these instructions and identify who they were directed to?

For example:

a. In the file titled “chapter6instructions.docx” your first comment reads “I have listed all the results and findings in this chapter. The purpose of this chapter is to write about the results and findings of my study. Please see explanations for each table/subsection in order to write about them. Format the tables based on the dissertation format. At the end of this chapter, you will discuss and summarise the results and finding.”; and

b. In the file titled “Sam_instruction_15-05-2013.docx”, your third comment reads “Please write the introduction using these points and use the figures to develop the story.”

2. Further, you claim in your written response on 23 March 2015, that you had no direct communication with either an editor or a statistician. We believe that you did have direct contact with an individual known as Paul Lines. It appears that Mr Lines has contributed directly to the content of your thesis. We would appreciate it if you would please advise us as to Mr Lines’ role in the editing of your thesis. We also request that you provide us with copies of your correspondence with Mr Lines, or any other person who was engaged to provide editorial or writing services to you.

3. We also believe that the invoices you have sent through to us as evidence of your payments to All Answers Ltd are fraudulent. A recent enquiry with the company directly has informed us that All Answers Ltd does not send through invoices in the format presented by you but, rather, requests payment through an online security system. We request that you provide us with the proper evidence of your payment/s to All Answers Ltd.

4. Finally, a recent enquiry with All Answers Ltd directly has informed us that all individuals who engage the services of All Answers Ltd are required to sign a confidentiality agreement at the outset. We request that you provide us with a copy of your original confidentiality agreement with All Answers Ltd.”

55. On 24 July 2015, Mr Alajmi emailed Professor Mansfield and the Research Integrity Office, responding to Professor Mansfield’s letter of 23 July 2015. In that email, Mr Alajmi denied that instructions to another person directing changes to the content of his doctoral thesis went beyond editorial assistance. The email stated:

“1) ... I can say that the files that “appear to include instructions to another person directing changes to the intellectual content of your thesis which go well beyond simply requesting professional editorial assistance” are not my files. I have never directed any instruction regarding changing or completing my work to anybody else. I have only original files with instructions from my supervisors to me. The instructions you referred to in the letter are the instructions from my supervisors.

2) I can reassure to you that I have never had any direct or indirect contact with any editor or statistician. I do not know who “Mr. Paul Lines” is. I would not even know if he was part of the editors’ team from All Answers. All Answers does not disclose the names of their editors. Thus, I never exchanged any kind of communication with such person.

3) Regarding the invoices, All Answers Ltd requests payment through an online security system however I requested an invoice for each payment for my own records, which All Answers Ltd were happy to provide. These are the invoices they have provided me.

4) As I had previously explained to you in another letter, I have never signed any contract with All Answers. Terms & Conditions for the service were provided to me via the website.

I have contacted All Answers and requested to speak with a Manager to clarify the invoices and the contract issues. I was then transferred to Mr. Daniel Dennehy, the senior manager at All Answers Ltd, and he is happy to speak with you directly regarding this if you wish. He has confirmed no formal confidentiality agreement or contract is ever signed between customers and the company, and the Terms & Conditions act as a contract. I also did not deal with Mr. Dennehy at all during the time I was corresponding with All Answers, so he is able to speak from that perspective.

It may be beneficial to speak directly with the company and ask these questions, as they will be able to confirm my responses for points 3 and 4 you have mentioned. I suspect that they would not be able to confirm the identity of “Mr Paul Lines” due to the data protection mentioned in their Terms & Conditions, as I was never able to obtain details about any editor. As I stated previously, I dealt only with the customer service representatives working at All Answers. I would speak to the person who answered the call over Skype, and exchange any files over Skype during the call. There were many customer services representatives that I spoke with and I did not have a fixed point of contact. I was never able to speak directly with any editor or writer.

I have contacted All Answers today regarding this and to give them my permission to be honest about any questions you wish to ask, as I really do not have any further evidence to provide to help support my statements. They can confirm to you that these invoices are not fraudulent.”

56. On 17 September 2015, Professor Mansfield emailed Mr Alajmi, enclosing copies of the files retrieved from the folder named “42403472” and inviting him to comment:

“On 3 August 2015, we informed you that we would provide you with the opportunity to review and comment upon the evidence we have obtained in relation to the research misconduct investigation regarding your thesis.

Please find attached to this email a copy of the files we have been provided with by the Macquarie University IT department. The file names have been listed in the table below along with the date and time they were created and the author of each file. These files were located in a backup folder under your student number 42403472.

File Name	Date and time created	Author
chapter6 instructions.docx	16/07/13 8:43:34 PM	Sharaf Alajmi
chapter6 instructions.docx	23/07/13 8:22:02 PM	Sharaf Alajmi
Literature Review Template.xls	22/07/13 3:00:34 PM	Sharaf Alajmi
My_WorkingpPaper.docx	20/05/13 6:06:08 PM	Sharaf Alajmi
early__Comments_Clarks_Research_Paper_Short.docx	17/05/13 4:34:06 PM	Sharaf Alajmi
Literature Review 352002 c.doc	22/05/13 1:59:46 PM	Last saved by Paul Lines
Sam_instruction_15-05-2013.docx	06/07/13 11:53:00 AM	Sharaf Alajmi
Sirca_Workshop_Sharaf.docx	16/06/13 12:32:52 PM	Sharaf Alajmi
Research Overview.docx	15/05/12 8:13:18 PM (modified 22/06/15 4:47:15 PM)	Sharaf Alajmi
April.01,2013_Ph.D._Dissertation.doc	14/07/13 7:59:10 PM	Sharaf Alajmi
Literature Review Template for CG factors and manager turnover.xls	02/07/13 10:21:48 AM	Unknown
Note for the literature review section.docx	12/02/13 8:40:32 PM	Sharaf Alajmi

Upon reviewing each of these files, the inquiry panel has reason to believe that the following is true:

1. That you have instructed another person to make changes to the intellectual content of your thesis which go well beyond simply requesting professional editorial assistance;

2. That the instructions to another person mentioned in the first point above are not instructions or comments to or from your supervisor/s; and

3. That you have had direct contact with an individual known as Paul Lines and that Mr Lines has had a role in contributing directly to the content of your thesis.”

57. I will address the contents of these documents, and in particular the comments in the margins which were authored by Mr Alajmi, when I address the substance of his complaints below. To the extent that Mr Alajmi, as part of his complaint of unreasonableness, sought findings from the Court about the content of those documents, it is sufficient to note at this stage that I find that a large number of comments in the above documents were plainly drafted by Mr Alajmi in the form of directions to a third person about the substantive content of the draft thesis and there were comments from third parties, including from a person named Paul Lines, who I find was one of the recipients of those instructions, contained in the documents.

58. On 19 September 2015, Mr Alajmi emailed Professor Mansfield again asserting that the comments written in the third person were instructions directed at himself. He denied knowing a person named Paul Lines. The email stated:

“I do not understand how this evidence acts as proof for any of the points you have made. I have never heard of or dealt with an individual named Mr. Paul Lines. The comments within the documents are those for myself, they are not written for another person and I cannot see how this can be classed as significant correspondence. …

1) Comments that you can see within the files are simply those written by myself to tell myself what to do later. I made these comments in supervisors reviews to instruct myself on the changes I would need to make later. I concede and understand how you can read these as if they are instructions to somebody else, but this is just my way of writing these.

2) The files in question are very old, and I do not know how you can confirm that they are not instructions to or comments from my supervisors. Many are notes I made myself in meetings and conversations.

3) I have not had any direct or indirect contact with a Mr. Paul Lines and do not know who this person is or recognise this name at all. I see where this has come from, but this name is only in one document. During my time working on the thesis I attended seminars and conferences and often used other laptops at this time. I cannot speculate how this name may have entered my document.

...

This process has now been ongoing for 8 months, and while I appreciate the need for the investigation to take as much times as necessary, I am eager to resolve this. At this point, and with all due respect, I would like to express my desire to sit down and speak with the committee in order to clear any remaining doubts.”

59. On 9 November 2015, the Panel conducted a 30 minute Skype interview with Mr Alajmi. The transcript of the interview records the following:

“[Professor Mansfield]: ... All our questions are focused on the issues that we raised when we wrote to you and we received your response from you on September the nineteenth. So our focus will be on a series of comments in the draft versions of your PhD thesis ... what I intend to do is simply look at a series of examples from your thesis. There are five marginal comments that we want to look at and just ask if you can provide us with an explanation as to what these comments actually are.

The first is from a file named “April 2013 Dissertation” and I’ll read out the comment. The comment reads “could you please make my idea more clear in this section to show how directors’ independence effectiveness could affect the advisory role. As it is the writing does not show any relevance. Please link this section to my research questions emphasising that board effectiveness are not only important to strategic decisions in the context of the monitoring role but also to the strategic decisions in the context of the advisory role of any deeds”.

What we’d like to know about this comment and the other comments is this reads to us as if it’s phrased as part of a conversation, a direction that you’re issuing to a third party. Could you please respond to that?

[Mr Alajmi]: … I needed to distinguish my comments from my supervisors okay, and I found it a way, maybe it’s a strange way ... that I could use a third party or third person write in academic writing in order for me to say I incorporated all the comments that I need before I start writing. ... these files are, you know, just notes for myself. …

[Professor Mansfield]: … So the first sentence again is “could you please make my idea more clear in this section to show how directors’ independence effectiveness could affect the advisory role.” That sounds to me like you have your own idea and you’re passing it over to someone else to rewrite in a way that achieves a certain goal. The second sentence is “to describe my data in the tables, you could use the work in my research paper”. Again that seems to be that you have a research paper but you’re asking somebody else to rework it to another form. ... it really does read like a direction you’re giving about your work which you describe in the first person as “my” to someone else who you describe in the second person as “you”. That’s where we’re confused.”

…

[Mr Alajmi]: … So when I say that “my”, when I use “my” in this sentence I’m showing that I already reviewed it and I added my own ideas in these comments. Okay. So this how I [filed] these comments. So it’s coming from my supervisors – they’re asking me to do something in these comments ... so I’m combine it from you know the feedback from my supervisors from the recording and my own so when I listen to them I try to generate these comments.

...

[Professor Mansfield]: ... we also have a document called “Literature Review 352002c doc” and it contains the following comments - one comment “yes this has been published. See reference” and the author of that comment is Paul Lines. There is also a comment “but is there any?” from FBE Admin and a response to FBE Admin “I can’t find any” and later there’s another comment from Paul Lines “I cannot find a copy of this article free on the net”. Can you say who Paul Lines is and what your relationship with him is?

[Mr Alajmi]: I don’t know who’s this person and I cannot you know recognise this name at all.

…

[Professor Mansfield]: There is a person Paul Lines who runs a company called RE and D which is and also which is on a website called read essays.com who runs an essay and dissertation writing service. From the UK.

…

[Mr Alajmi]: … So Paul Lines I told you I don’t know this person at all. At all. I never had any communication with this person or I don’t know him actually. Okay, the second part is how did his name comes to the property of my document? That’s a mystery.

...

it could be that I was writing some comments in some computers, you know, computer machines and it picked the property of this person. I use different, I have problems with my, with my laptop and I have, I lost [my laptop] ... There are reasonable expectations, okay, for that is, you know, is that I opened one of these machines while I’m in a conference or seminar or somehow and I was working on my files because always I generate ideas in terms of comments. Okay, so the property of the, of this person could be picked by the file while, when I saved it at the end.

…

[Professor Mansfield]: Okay, but your explanation would depend on the fact that someone else had used one of the computers you’d had access to who had that name?

[Mr Alajmi]: It could be I have no idea. But what I’m saying, I have no idea exactly how is it, how this happened, you know.”

60. On 2 March 2016, Dr Pitcher, Research Integrity Officer, telephoned Mr Dennehy, Customer Service Experience Manager at All Answers, requesting information about Mr Alajmi’s engagement of All Answers. On 3 March 2016, Dr Pitcher wrote to Mr Dennehy requesting further information about Mr Alajmi’s engagement of All Answers. On 8 March 2016, Dr Pitcher emailed “Re&d Research Essays & Dissertations” requesting that Mr Lines provide information about his involvement with the preparation of Mr Alajmi’s doctoral thesis. No response was received from Mr Lines.

61. On 28 June 2016, Ms Montague of the University’s Office of the General Counsel wrote to Mr Alajmi’s solicitors enclosing the Panel’s Draft Report (“Draft Report”). That letter stated:

“Under clause 26.2 of the Macquarie Code for the Responsible Conduct of Research, [Mr Alajmi] is to be provided with an opportunity to examine, comment upon the draft report, and has a period of five days from receiving the draft report to provide comment.

In the circumstances, we would like to offer [Mr Alajmi] further time (such further time to be reasonable) to consider and make any submissions in respect of the report that he may wish to make.”

62. On 30 June 2016, Mr Alajmi’s solicitors wrote to Ms Montague, requesting that Mr Alajmi have until 29 July 2016 to provide his submissions in relation to the Draft Report. That same day, Ms Montague responded to Mr Alajmi’s solicitors, agreeing to the requested date.

63. On 7 July 2016, Mr Alajmi wrote to Ms Montague, enclosing his formal response to the Draft Report. The response was 14 pages in length and included Mr Alajmi’s submissions in relation to procedural fairness and jurisdictional error and his response to the draft findings and submissions on the next steps. Mr Alajmi stated in summary:

“In essence, [Mr Alajmi] submits that the Inquiry Panel was not properly constituted and was clearly biased against him. Further, the panel had no probation [sic probative] evidence to make the findings, took into account irrelevant considerations and in any event misdirected themselves as to the appropriate issue. Finally, it is submitted that the appropriate way forward is to properly examine [Mr Alajmi] as that is the mechanism provided for in University Policy.”

64. On 17 August 2016, Ms Montague emailed Mr Alajmi’s solicitors, stating:

“1. After taking into consideration the submissions made by [Mr Alajmi] in relation to certain draft findings of the Panel (namely, the submissions set out in Section 2 “Responses to Findings” of your letter dated 7 July 2016), the Panel is preparing a list of written questions for [Mr Alajmi] to address. I expect to be in a position to send those questions to you on or before Monday 22 August 2016.

2. The Panel proposes to give [Mr Alajmi] 14 days to respond to those questions in writing, or such further time that he requires.

3. Subject to paragraph 4 below, on receipt of [Mr Alajmi’s] response to those questions, the Panel intends to finalise the investigation report within 14 days and a copy of the report will be provided to the relevant parties in accordance with section 26.3 of the Code.

4. If any fresh evidence is taken into consideration by the Panel in the final report, [Mr Alajmi] will, of course, be given an opportunity to respond to that evidence before the report is finalised, and the above timeframes will be adjusted as necessary.

Finally, the Panel has now received correspondence from All Answers advising that they are awaiting confirmation from [Mr Alajmi] that he is willing to allow All Answers to provide the Panel with information it holds in relation to [Mr Alajmi’s] engagement of them. The Panel would appreciate if [Mr Alajmi] could provide that confirmation (such consent can be provided by way of email) so the Panel can seek such further information.”

65. That same day, Mr Alajmi’s solicitors replied to Ms Montague, stating:

“For clarity, it appears from your email that the Panel consider the inquiry ongoing and are have reopened evidence gathering. If so, we find that surprising given the issues raised by [Mr Alajmi] of actual and ostensible bias and procedural defect that are so obvious on the documents.

We infer therefore that the Panel has made a decision to disregard or reject [Mr Alajmi’s] submissions on these issues, and to blithely charge on regardless.”

66. On 23 August 2016, Ms Montague emailed Mr Alajmi’s solicitors with a list of questions from the Panel, noted that the Panel awaited Mr Alajmi’s consent for the Panel to contact All Answers with some questions and requested that Mr Alajmi respond within 14 days.

67. On 1 September 2016, Mr Alajmi requested an extension of time to respond to the list of questions. On 2 September 2016, the Panel agreed to grant an extension of time to 20 September 2016 and again asked whether Mr Alajmi had provided his consent to All Answers responding to the Panel’s questions. Mr Alajmi had asserted on 24 July 2015 (quoted at [55] above) that he had told All Answers that he gave permission for them to answer any questions.

68. On 7 September 2016, Mr Dennehy of All Answers emailed Dr Pitcher, confirming that Mr Alajmi had been a customer of All Answers, that the invoice obtained from Mr Alajmi had been generated by All Answers and that they do not supply invoices as standard practice and only by request.

69. On 13 September 2016, the Research Integrity Office on behalf of the Panel emailed Dr Rieschild, a former lecturer in the Department of Linguistics at the University, with enquiries about the Arabic language and specifically about the relevance of English being Mr Alajmi’s second language. That same day, Dr Rieschild responded to the Research Integrity Office, stating:

“In sum, it is the use of “please” and “you” that is most strongly suggestive of these being notes to someone else and not notes to self. Given our knowledge of Arabic first language English speakers, the reasons the individual gives for these being notes to self are not reasonable.”

70. On 13 September 2016, Ms Montague emailed Mr Alajmi’s solicitors about Dr Pitcher’s correspondence with Mr Dennehy, attaching the email correspondence and requesting Mr Alajmi’s comments about Mr Dennehy’s response.

71. On 21 September 2016, Mr Alajmi requested a further extension of time to respond to the Panel’s list of questions. On 23 September 2016, the Panel agreed to grant a further extension of time to 30 September 2016. On 30 September 2016, Mr Alajmi requested a further extension of time to respond to the list of questions. That same day, the Panel agreed to grant a further extension of time to 5 October 2016.

72. On 5 October 2016, Mr Alajmi’s solicitors emailed Ms Montague with Mr Alajmi’s response to the Panel’s list of questions dated 23 August 2016.

73. On 11 October 2016, Ms Montague emailed Mr Alajmi’s solicitors a copy of the transcript of the Skype interview with Mr Alajmi on 9 November 2015.

74. On 20 October 2016, Ms Montague emailed Mr Alajmi’s solicitors regarding the opinion that the Panel had received from Dr Rieschild on 13 September 2016. That email stated:

“- that a further issue relevant to the Inquiry had been the subject of recent consideration by them;

- that is, on or around 6 October 2016, the Panel received an opinion from Dr Verna Rieschild, who is a former lecturer from the Department of Linguistics at the University (contained in an email exchange spanning the period 8 to 13 September 2016) in relation to certain of the margin comments/annotations in the context of English being [Mr Alajmi’s] second language (the language issue);

- that Dr Rieschild retired in or about July 2015, and since the start of 2016, she has not been a lecturer at the University, but she continues to provide research supervision to her remaining Higher Degree Research students at the University;

- that the Panel regards that information as relevant to its considerations; and

- as a matter of procedural fairness, to now enclose the relevant email exchange for [Mr Alajmi’s] consideration.

The Panel invites [Mr Alajmi] to provide any written response in relation to that material that [Mr Alajmi] wishes to provide by 28 October 2016 (noting it is working towards the finalisation of its report by 4 November 2016 – as to this see further below). If [Mr Alajmi] requires further time to respond, please let me know as soon as possible.”

75. The Panel decided not to have regard to the opinion of Dr Rieschild in the circumstances, including after consideration of the objection by Mr Alajmi to the Panel doing so.

76. On 10 November 2016, the Panel released the Final Research Integrity Investigation report (“the Final Report”). The Final Report made the following findings:

“On the balance of probabilities, the Inquiry Panel finds that, on consideration of the totality of the relevant information and evidence, it is more likely than not that the allegation that [Mr Alajmi] engaged an organisation(s) and/or individual(s) to create intellectual content to be included in his doctoral thesis is sustained. Specifically, the Inquiry Panel finds that on the balance of probabilities, it was more likely than not that:

i. [Mr Alajmi] engaged one or more third parties (one of which it finds was All Answers) to create intellectual content to be included in his thesis;

ii. [Mr Alajmi] has admitted to engaging All Answers; and

iii. the scope of [Mr Alajmi’s] engagement of one or more third parties (one of which it finds was All Answers) included services beyond what a professional editor may provide when editing a doctoral thesis.”

77. On 10 November 2016, Ms Montague emailed Mr Alajmi’s solicitors with the Final Report and appendices. The email stated:

“A copy of the report will now be provided to the Deputy Vice-Chancellor (Research) for his consideration in accordance with Section 27.1 of the Macquarie University Code for the Responsible Conduct of Research 2015 (Code).

To accord [Mr Alajmi] procedural fairness, [Mr Alajmi] is invited to provide any written submissions to the Deputy Vice-Chancellor (Research) in relation to the actions available to him under section 27.1 of the Code, by 25 November 2016. Any written submissions provided by [Mr Alajmi] will be provided to the Deputy Vice-Chancellor (Research) for his consideration.”

78. On 24 November 2016, Mr Alajmi formally responded to the Final Report, rejecting entirely its findings. The response stated:

“For the reasons we briefly set out below, it is [Mr Alajmi’s] submission that you cannot rely on the Final Report to make the decision or recommendation urged upon you by the Panel in accordance with Paragraph 27 of the Code because:

• The discretion of the Director, Research Ethics miscarried in characterising the allegation as research misconduct on the information available;

• The Panel was not properly constituted in accordance with the Code;

• The Panel has been dilatory in the conduct of the inquiry, causing delay contrary to the Code and the principles of procedural fairness, to [Mr Alajmi’s] detriment;

• The Panel’s and its advisors’ actual and apprehended bias; and

• The burden of proof has not been met in the circumstances.”

79. On 12 January 2017, the Deputy Vice-Chancellor (Research) wrote a memorandum to Dr Yi of the Higher Degree Research Office with his recommendation. That same day, the Deputy Vice-Chancellor (Research) wrote to Mr Alajmi advising him of his recommendation:

“4. Under section 27.1 of the Code, having reviewed the findings of the Inquiry Panel and taken into account your submissions, on 12 January 2017 I made the following recommendation to the Higher Degree Research Office pursuant to section 27.1(b) of the Code:

Recommendation to Higher Degree Research Office

1. I refer to the Final Investigation Report dated 10 November 2016 with respect to a research misconduct investigation undertaken by the Research Integrity Office in respect of PhD candidate, Mr Sharaf Alajmi, pursuant to the Macquarie University Code for the Responsible Conduct of Research (Code).

2. Pursuant to section 27.1(b) of the Code, I recommend that the Final Investigation Report, together with the letter dated 24 November 2016 from Mr Alajmi’s lawyers, be provided to Mr Alajmi’s Principal Supervisor, Associate Professor Susan Wright, so that Associate Professor Wright may have regard to them as part of her assessment as to whether or not Mr Alajmi’s thesis should be certified that it meets the University’s preparation requirements.”

…Right of Appeal under section 30 of the Code

5. In accordance with sections 27.3 and 30.2 of the Code, you may appeal the findings of the Inquiry Panel to the Chair of the Academic Senate which appeal must be made in writing and in accordance with section 30.3 of the Code within 10 working days of you ([Mr Alajmi]) receiving my decision in relation to the findings of the Inquiry Panel.

Further actions under the Code

I reserve any rights to take any further action under the Code.”

80. Mr Alajmi did not seek a review of the Final Report under s 30 of the Macquarie University Code.

81. On 16 January 2017, Dr Yi wrote a memorandum to Associate Professor Wright regarding the Deputy Vice-Chancellor (Research)’s recommendation on 12 January 2017. That memorandum stated:

“The actions required by you

8. As Principal Supervisor of a PhD candidate, you are required under the Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014 (HDRTPSE Policy) to certify whether [Mr Alajmi’s] thesis has met the University’s preparation requirements.

9. In the course of considering whether or not to certify that [Mr Alajmi’s] thesis meets the University’s requirements, we hereby provide you with a copy of the following material which you may have regard to:

a. Final Report – Research Integrity Investigation Report – Research Misconduct Case Number 2015-0002 dated 10 November 2016; and

b. Letter from MER Solutions addressed to Professor Sakkie Pretorius dated 24 November 2016 setting out [Mr Alajmi’s] submissions in relation to the Final Report.

10. Please let me know in due course in writing the outcome of your assessment and whether or not you have decided to certify that [Mr Alajmi’s] thesis has met the University’s preparation requirements.”

82. On 20 January 2017, Mr Alajmi’s solicitors wrote to Macquarie University’s solicitors regarding the Deputy Vice-Chancellor (Research)’s recommendation.

83. On 24 January 2017, Mr Alajmi received an email from Associate Professor Wright. In that email, she advised:

“I am moving universities to University of Newcastle (Australia) effective 1st February 2017, and I can no longer be your PhD supervisor from this date. I propose a change of supervisor …

Please note that in the meantime I am completing my assessment of whether your thesis meets the University’s preparation requirements in accordance with the Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014 and will advise you of the outcome shortly.”

84. On 27 January 2017, Mr Alajmi’s solicitors wrote to Macquarie University’s solicitors explaining that Mr Alajmi opposed the actions proposed by Associate Professor Wright in her email of 24 January 2017. That letter stated:

“It is implicit in A/Prof Wright’s email that she will be making the assessment of [Mr Alajmi’s] thesis without any further regard to him. Such an approach does not seem to be in accordance with the principles of procedural fairness, and we reiterate our questions in our letter sent [20] January 2017.

…

A/Professor Wright’s resignation from Macquarie University completely changes the character of Professor Pretorius’ recommendation, and [Mr Alajmi] must reserve his rights to bring an appeal against the recommendation as a consequence. Given that A/Professor Wright’s email contains new information and describes circumstances completely outside [Mr Alajmi’s] control, [Mr Alajmi] seeks an extension of time for the submission of an appeal, if that is required, until such time as this latest issue has been resolved.

Consequently, we seek [Mr Alajmi’s] confirmation that [Mr Alajmi’s] rights under the Code are preserved in these changed circumstances.”

85. On 31 January 2017, Macquarie University’s solicitors wrote to Mr Alajmi’s solicitors, responding to their letters dated 20 January 2017 and 27 January 2017. That letter stated:

“Incomplete certification process commenced in 2015

2. We confirm that Associate Professor Wright partially completed Section 9 (Certification by the Supervisor) of a ‘Submission of a HDR Thesis for Examination’ form, which was signed and dated by her on 19 March 2015 (2015 Submission Form) (see attached for your records). You will note that the matters listed in Section 9 of the 2015 Submission Form do not address all of the matters that are expressly required by the Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014 (2014 Policy) to be considered as part of the certification process to be undertaken by a Supervisor

3. Specifically (and contrary to the assertion in your letter dated 20 January 2017), Section 9 of the 2015 Submission Form does not address whether your client’s thesis is ‘his own work’.

4. You will also note that the 2015 Submission Form is incomplete, as the required certification from the Head of Department and the Associate Dean (HDR) of the Faculty has not been provided.

5. We are instructed that the certification process and the 2015 Submission Form were never completed because the Research Integrity Investigation with respect to your client was underway.

6. Now that the investigation has been finalised with the delivery of the Final Report, that certification process can now be resumed and finalised ... There is not, as you have sought to characterise it, a “re-certification” process being undertaken.

7. We are instructed that given the incomplete nature of matters recorded on the 2015 Submission Form, Associate Professor Wright has considered it more appropriate to withdraw Section 9 of the 2015 Submission Form, to now complete the certification assessment as recommended by the Deputy Vice-Chancellor (Research) on 12 January 2017 and in accordance with the specific requirements of the 2014 Policy and issue a final certification assessment.”

86. On 2 February 2017, Macquarie University’s solicitors wrote to Mr Alajmi’s solicitors advising that Associate Professor Wright could not certify that Mr Alajmi’s thesis met the University’s preparation requirements:

“3. We are instructed that Associate Professor Wright has reviewed the following documents:

a. [Mr Alajmi’s] thesis;

b. the Research Integrity Investigation Report (Case No. 2015-0002) dated 10 November 2016 (including [Mr Alajmi’s] written submissions dated 7 July 2016 and 24 November 2016); and

c. the 2014 Policy [Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014]

and advises that she cannot certify that [Mr Alajmi’s] thesis meets the University’s preparation requirements on the basis that she is unable to satisfy herself that [Mr Alajmi’s] thesis is [Mr Alajmi’s] ‘own work’, as is required of her by the 2014 Policy.

Next steps

4. If, notwithstanding the advice of the Principal Supervisor, [Mr Alajmi] still wishes his thesis to be submitted for examination, we note that the 2014 Policy provides that ‘a candidate may submit a thesis for examination against the advice of the Principal Supervisor, for consideration by the HDRC’.”

87. On 16 February 2017, Mr Alajmi’s solicitors wrote to Macquarie University’s solicitors requesting an extension of time in respect of Mr Alajmi’s submission of his thesis, notwithstanding the assessment of Associate Professor Wright. On 20 February 2017, Macquarie University agreed to an extension of time for Mr Alajmi to determine if he would submit his PhD thesis for examination.

88. Mr Alajmi did not submit his thesis within the time allotted and has not subsequently submitted it. Mr Alajmi’s PhD sponsorship was subsequently cancelled and he has repaid the cost of the program to his sponsor being AUD 529,845.52 (Kuwaiti Dinar 121,130.455).

89. Mr Alajmi’s enrolment at Macquarie University has ceased and he cannot now submit his PhD thesis for examination. This is a consequence of Mr Alajmi not submitting his thesis to be examined within the maximum enrolment period and not having an approved application for extension. Mr Alajmi has been treated by Macquarie University as having discontinued his PhD and would need to apply for re-admission to the degree of Doctor of Philosophy were he to resume his candidature.

90. On 22 May 2018, Associate Professor Wright provided reasons for her decision that she was unable to certify that she was satisfied that Mr Alajmi’s PhD draft thesis was his “own work”:

“Statement of Reasons

Decision not to certify that Mr Sharaf Alajmi’s thesis meets Macquarie University preparation requirements

1. On 12 January 2017, the Deputy Vice-Chancellor (Research) made the following recommendation:

1. I refer to the Final Investigation Report dated 10 November 2016 with respect to a research misconduct investigation undertaken by the Research Integrity Office in respect of PhD candidate, Mr Sharaf Alajmi, pursuant to the Macquarie University Code for the Responsible Conduct of Research (Code).

2. Pursuant to section 27.1(b) of the Code, I recommend that the Final

Investigation Report, together with the letter dated 24 November 2016 from Mr Alajmi’s lawyers, be provided to Mr Alajmi’s Principal Supervisor, Associate Professor Susan Wright, so that Associate Professor Wright may have regard to them as part of her assessment as to whether or not Mr Alajmi’s thesis should be certified that it meets the University’s preparation requirements.

2. For the purposes of assessing whether Mr Alajmi’s thesis should be certified that it met Macquarie University’s preparation requirements as set out in the Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014 (2014 Policy), I was provided with:

(a) Mr Alajmi’s thesis;

(b) a memorandum from Dr Ren Yi dated 19 January 2017 (which is Annexure 1 to this Statement of Reasons);

(c) the research integrity investigation report (case number 2015-002) dated 10 November 2016 which included Mr Alajmi’s submissions dated 7 July 2016 (the Report) and submissions dated 24 November 2016 of Mr Alajmi’s lawyer; and

(d) the 2014 Policy.

3. I understood that the Report found that Mr Alajmi’s thesis failed to meet the requirement of the 2014 Policy that it be his “own work”. In the light of that finding, I was unable to satisfy myself that Mr Alajmi’s thesis was his “own work” and was therefore unable to certify that Mr Alajmi’s thesis met the University’s preparation requirements.

4. I understood from the documents before me that the Report was the product of an investigation into these matters by the University’s Inquiry Panel and that appropriate procedures had been followed. I had no reasons to disagree with either the process of the investigation or its findings, and I therefore considered it appropriate to rely on the findings made in the Report.

5. I recorded my decision by signing a memorandum dated 25 January 2017 (which is Annexure 2 to this Statement of Reasons).”

213. I accept Mr El-Hage’s submission that, on the application of the usual principles for the implication of contractual terms, the Court should not imply a term into this contract that the University was bound to give effect to the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure. Mr Alajmi’s contract case fails at this point.

214. The next threshold difficulty for Mr Alajmi’s contract case is that in Tang Gummow, Callinan and Heydon JJ at [58] said:

“Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988; [2000] 3 All ER 752. The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, “jejune and inappropriate”: Clark [2000] 1 WLR 1988 at 1992; [2000] 3 All ER 752 at 756.”

222. I have earlier found that the core subject matter sought to be raised in the proceedings by Mr Alajmi, namely, whether he engaged a third party to prepare intellectual content for his thesis, is an issue that centrally involves academic judgement. The core subject matter, alleged plagiarism, is a matter best suited to consideration by academics who are involved every day in the relevant field of discourse. That conclusion applies equally to Associate Professor Wright and the “non-certification decision”.

223. I have earlier concluded it would be “jejune and inappropriate” for me to attempt to apply my understanding of academic standards of plagiarism to the particular problem posed by Mr Alajmi’s thesis.

224. I will, however, against the possibility that Mr Alajmi will seek to take this case further and contrary to the findings I have made, consider Mr Alajmi’s contract claim on its merits.

225. It was submitted that the task of this Court is to intervene where a “tribunal” unilaterally exercises power which has adverse consequences on the rights of a party to the contract, and that power is exercised in a manner that is unreasonable. Mr Alajmi submitted that there does not need to be a breach of contract established. Nevertheless, if a breach were required, Mr Alajmi submitted that the relevant breach was the failure to exercise a power reasonably.  Mr Alajmi submitted that what he described as the “non-certification decision” was reviewable on the basis that it involves the exercise of a unilateral contractual discretion, which, as a matter of law, must be exercised reasonably.

226. There is an interesting and developing relationship between unreasonableness in administrative law and in contract. It has been the subject of recent academic analysis: see E Lim and C Chan, “Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law” (2019) 135 LQR 88. As Aronson, Groves and Weeks state in Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at [3.180]:

“… even if the common law’s judicial review procedures and remedies would not be available, one would surely expect a court to be able to grant declaratory or injunctive relief as appropriate: see more generally P Vincent-Jones, “Citizen Redress in Public Contracting for Human Services” (2005) 68 MLR 887; ACL Davies, “Ultra Vires Problems in Government Contracts” (2006) 122 LQR 98; S Bailey, “Judicial Review of Contracting Decisions” [2007] PL 444.”

227. This principle is perhaps discernible in the decision of Finn J in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 180, 195-196, 261 and 264 where it was held that the terms and procedures of requests for tender might sometimes be contractual and that, where that is the case, a duty of fair dealing might be more readily implied into the contract if the requesting party is a government entity. Public law principles would inform the requirements of fair dealing, but not the remedy.

228. There is no rigid formula permitting identification of what “manifest unreasonableness” means in all contexts. In the context of a contract, in order properly to determine the standard which ought to be applied to the statutory scheme, the entire contractual scheme informs what might be manifestly unreasonable in the context of that regime. On the assumption I am wrong about the implication of a term that the parties agreed to be contractually bound by the terms of the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure, I accept the submission of the University that the relevant contractual framework here included the Macquarie University Academic Honesty Policy. That policy identified an ongoing obligation on students not to engage in plagiarism.

“Overview

The nature of scholarly endeavour, dependent as it is on the work of others, binds all members of the University community to abide by the principles of academic honesty. Academic honesty is integral part of the core values and principles contained in the Macquarie University Ethics Statements. Its fundamental principle is that all staff and students act with integrity in the creation, development, application and use of ideas and information. This means that:

- all academic work claimed as original is the work of the author making the claim

- all academic collaborations are acknowledged

- academic work is not falsified in any way

- when the ideas of others are used, these ideas are acknowledged appropriately.

Examples of some dishonest behaviours are deception, fabrication, obstruction, plagiarism and sabotage.”

229. It is and was a fundamental principle that all staff and students act with integrity in the creation and development, application and use of ideas and information. Examples of dishonest fabrication and plagiarism were given. “Plagiarism” is defined in an inclusive way as using or extracting another person’s concepts, experimental results or conclusions:

“Plagiarism: Using the work or ideas of another person, whether intentionally or not, and presenting this as your own without clear acknowledgement of the source of the work or ideas. This includes, but is not limited to, any of the following acts:

- copying out part(s) of any document or audio-visual material or computer code or website content without indicating their origins

- using or extracting another person’s concepts, experimental results, or conclusions

- summarising another person’s work

- submitting substantially the same final version of any material as another student in an assignment where there was collaborative prepatory work

- use of others (paid or otherwise) to conceive, research or write material submitted for assessment (eg ghost writing)

- submitting the same or substantially the same piece of work for two different tasks (self-plagiarism).”

230. On the contingent hypotheses I am addressing Mr Alajmi’s contract claim, the Academic Honesty Policy is part of the contractual framework by which legal unreasonableness is to be judged in the case of Associate Professor Wright’s “non-certification decision” and the Panel’s Final Report. In light of the Academic Honesty Policy, a narrow view of what would constitute “unreasonableness” in addressing alleged plagiarism is appropriate.

231. Gummow J in Service Station Association Ltd v Berg Bennett & AssociatesPty Ltd (1993) 45 FCR 84 at 94 explained that:

“Where one party has an express power the exercise of which will significantly affect the interests of the other party (eg by cancellation of their supply contract) if the holder of the power is satisfied that a certain state of affairs exists, the words of the contract are fairly readily construed (and the more so when the parties have given such a power to a third party) as requiring a reasonable as well as honest state of satisfaction: see the authorities referred to by Priestley JA and Handley JA in Renard Constructions (supra) at 260, 279-280, and see also Amann Aviation Ply Ltd v Commonwealth (1990) 22 FCR 527 at 532, 542-543; and in the High Court, Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 95-97. But this is a result arrived at by a process of construction of the express terms in the setting of the contract as a whole. It is best not seen at all as the implication of a further term.”

232. In Bartlett v Australia & New Zealand Banking Group Ltd  (2016) 92 NSWLR 639; [2016] NSWCA 30 at [39]-[49] it was explained and accepted that broad contractual discretions must be exercised reasonably. In Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233, Gleeson JA (Macfarlan and Meagher JJA agreeing) explained:

“[108] Bartlett v ANZ involved a contract of employment which provided that the employer could dismiss an employee for any reason without notice if, in the employer’s opinion, the employee engaged in serious misconduct, serious neglect of duty or serious breach of the employment contract. After considering a number of authorities dealing with obligations of good faith and fair dealing, as well as Braganza, this Court (Macfarlan JA, Meagher JA and Simpson JA, relevantly, agreeing) held (at [49]) that in forming the opinion that the employee had engaged in serious misconduct, the employer was obliged to act reasonably, at least in the Wednesbury sense and at least so far as its process, as distinct from the result, was concerned.

…

[113] In Braganza at [31], Lady Hale observed that the implication of the reasonableness term in a contract will depend on the terms of the contract and the context of the particular contract involved. Such terms are specific to the contract in question. The implication of a reasonableness term reflects the well-established principles governing the implication of terms into contracts to provide for “business efficacy”: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. The well-known conditions for implication of such a term which must be satisfied are: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that it “goes without saying”; (4) it must be capable of clear expression; (5) it must not contradict any express terms of the contract.”

233. In Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; 329 ALR 1 at [1012] and [1014]-[1015] Edelman J (quoting Lady Hale in Braganza v BP Shipping Ltd [2015] 1 WLR 1661 at [28]) noted that the concept of “reasonableness” was one which was “drawing closer and closer to the principles applicable in judicial review”. On this point, I am bound by the Court of Appeal in Hannover Life Re of Australasia Ltd v Jones where Gleeson JA (Macfarlan and Meagher JJA agreeing) stressed:

“[100] It is necessary to say something briefly about the label “Wednesbury unreasonableness”, and how that criterion for judicial review of administrative discretion is now understood in Australia following the High Court’s decision in Minister for Immigration and Citizenship v Li.

[101] First, as Gageler J explained in Li at [106]:

The label “Wednesbury unreasonableness” indicates “the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion”. Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken “attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground”. [citations omitted]

[102] Further and in contrast to the approach now taken in England (see Braganza at [30] (Hale LJ) and [52] (Hodge LJ)), the use of the term “irrationality” as a separate or differently formulated concept from “unreasonableness” has not been adopted in Australia: Li at [30] (French CJ) and [68] (Hayne, Kiefel and Bell JJ).”

234. In addressing Mr Alajmi’s contract case on the hypotheses I have identified, I will proceed by making the assumptions favourable to Mr Alajmi that:

1. the obligations identified in the Higher Degree Research Policy formed part of the contract between Mr Alajmi and Macquarie University; and

2. as was submitted by Mr Alajmi, the standard of review for the unreasonable exercise of a contractual discretion was the same standard required to judge unreasonableness in administrative law.

235. Without repeating all that I have said at [183]-[211], which applies with equal force to the contract claim and is incorporated here by reference, the inferences drawn by Associate Professor Wright in making the “non-certification decision” (quoted in [86] and [90] above) and to the extent it is relevant in the contract case, by the Panel in the Final Report (quoted in [76] above), were reasonably open, in the sense of being logically available and not legally unreasonable.

236. My evaluative judgment is that the inferences drawn by Associate Professor Wright were obviously open and were logical. It follows that there was no denial of procedural fairness in “basing [the] conclusion on untenable circumstantial evidence” or “no evidence at all”. The Briginshaw standard did not apply to the Final Report. Even if it did, that standard was acted upon and met in the Final Report. The decision to refuse certification, even on the contingent hypotheses I have identified, was not legally unreasonable.

237. At the risk of repetition, the assertion that it “could not be” that Associate Professor Wright “could reasonably and rationally” arrive at the conclusion she did must be rejected. The Final Report contains a series of findings pointing objectively to gross academic misconduct by Mr Alajmi. A supervisor in the position of Associate Professor Wright was entitled to take those findings into account. As I have found, Associate Professor Wright did not subjugate her decision-making to the Final Report.

238. As I have said, I do not regard the email correspondence between Professor Quinn and Associate Professor Wright in March 2015 as leading to any different conclusion. The failure by the Panel to refer to a non-dispositive observation, reached by Professor Quinn at an early stage of the investigation, does not lead me to conclude that the findings of the Panel and the “non-certification decision” of Associate Professor Wright, even on the contingent hypotheses I have identified, were contractually unreasonable in the sense I have explained.

239. It follows that Mr Alajmi’s contract case must be dismissed.

Estoppel

240. There was virtually nothing said in support of the estoppel claim in the almost two days spent on submissions in this matter. That was for good reason. The estoppel claims are unsustainable.

241. The elements of estoppel by convention are not made out:

1. The first common assumption asserted by Mr Alajmi, that decisions made under the Higher Degree Research Policy would be lawfully made, is not supported in the evidence. In any event, I have found that the decisions made under the Higher Degree Research Policy were lawfully made.

2. The second common assumption asserted by Mr Alajmi, that only doctoral theses which meet the University’s preparation requirements may be submitted for examination, is contradicted by the Higher Degree Research Policy itself. The Higher Degree Research Policy states that a candidate may submit a thesis for examination against the advice of their supervisor.

3. The third common assumption asserted by Mr Alajmi, that Associate Professor Wright in filling in part of the “Submission of a HDR Thesis for Examination Form” on 19 March 2015 represented that Mr Alajmi’s thesis met all the University’s preparation requirements, cannot form the basis of estoppel. Associate Professor Wright did not certify that the thesis was Mr Alajmi’s “own work”. In any event, whatever representation or act that might have been engaged in by Associate Professor Wright, the assumption was not shared by the University, given the ongoing investigation into that very subject. Mr Alajmi’s evidence reveals that he did not rely on any such representation and knew that the investigation was ongoing. It was never represented that Associate Professor Wright would not come to a different view following the outcome of the inquiry. In any event, Associate Professor Wright revoked the alleged certification.

242. Relief is also sought in the nature of restraint based upon an equitable estoppel arising from the representation contained in the so-called “thesis certification”. Mr Alajmi, relying on the conventions, which underpinned the common assumption derived from the contract between the parties discussed above, and the representation said to arise from the “thesis certification” on 19 March 2015, elected not to apply for internal review of the Final Report and acquiesced in the Deputy Vice-Chancellor (Research)’s recommendation that the Final Report and Mr Alajmi’s response be provided to Associate Professor Wright.

243. This estoppel claim must be rejected:

1. First, as I have already stated, on 19 March 2015 Associate Professor Wright did not certify that the thesis was Mr Alajmi’s “own work”. More than that she left blank the place on the Submission Form where such a certification would have been made. The Submission Form was incomplete in other respects. Section 9 had not been signed by the Head of Department and section 10 had not been signed by the Associate Dean (HDR) of the Faculty. It was never represented that Associate Professor Wright would not come to a view adverse to Mr Alajmi about whether the thesis was his “own work” following the outcome of the inquiry.

2. Secondly, Mr Alajmi’s evidence reveals that he did not rely on this “representation”. At [99] of his affidavit he states in part:

“My solicitors had informed me of my right to seek an internal review of the Final Report. I chose not to seek an internal review, and chose to accede to the recommendation that Dr Wright be provided a copy of my thesis and the Final Report together with the submissions made by solicitors, to certify whether my thesis met the University’s Higher Research Degree preparation requirements. I made this decision on the basis of my belief that Dr Wright would again certify my thesis was my own work and was ready for examination as she had on 19 March 2015.”

3. The balance of [99] discusses the involvement Associate Professor Wright had in the development of Mr Alajmi’s thesis, which led him to believe that she would certify the thesis as his “own work”. It is clear from his evidence that Mr Alajmi knew that Associate Professor Wright on 19 March 2015 did not make a representation that would bind the University regardless of the outcome of the Inquiry. He knew that any “certification” on 19 March 2015 was not irrevocable. He knew that Associate Professor Wright would have to decide whether to certify the thesis as his “own work” once the Final Report was issued. He hoped that she would form a view that was different to the Final Report’s conclusions. This is not detrimental reliance on the relevant “representation”.

244. None of the suggested elements of an estoppel was proved here. The estoppel claim must be rejected.

Discretion to refuse relief

245. Given the conclusion reached, it is strictly unnecessary for me to address the discretionary bases of relief. If I were otherwise persuaded that Mr Alajmi was entitled to succeed under any of his grounds, I would not refuse relief on discretionary grounds.

246. Whilst Mr Alajmi’s delay in commencing proceedings is regrettable, if I were otherwise satisfied that this was an appropriate case for relief under administrative law principles, contract or estoppel, I would not refuse relief on discretionary grounds.

245. The other available internal and external avenues of review ground pose a more difficult problem. If I had been persuaded that relief should otherwise have been granted, for example on the basis that the University had made a legally unreasonable decision not involving academic judgement which was properly the subject of relief under s 69 of the Supreme Court Act, I would not refuse relief on discretionary grounds.

246. I accept that the Court should be reluctant to intervene in this dispute, given that there are internal appeal avenues available to Mr Alajmi which he has not availed himself of: cf. Chanv Sellwood [2009] NSWSC 1335 at [26]. An often compelling discretionary bar to a claim for prerogative relief is the availability of other relief: Dranichnikov v Minister for Immigration andMulticultural Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ).

247. An internal appeal to the Chair of the Academic Senate in relation to the Panel’s findings was available. The appeal could have been brought on one or more of the grounds specified in s 30.1 of the Macquarie University Code. Mr Alajmi did not avail himself of this opportunity. Additionally, Mr Alajmi could have sought review of the Panel’s findings to the Australian Research Integrity Committee (“ARIC”) pursuant to s 30.8 of the Macquarie University Code. Although there is a time limit of 60 working days following formal notification to apply to ARIC, late applications for review are assessed by ARIC on a case by case basis: Australian Research Integrity Committee Framework (February 2011) at 7. Mr Alajmi did not avail himself of this opportunity.

248. In relation to the “non-certification decision”, Mr Alajmi could have submitted his thesis for examination against the advice of his supervisor. This was made clear to him in the correspondence notifying him of the “non-certification decision”. Mr Alajmi did not avail himself of this opportunity.

249. Despite these available alternative avenues for review, if I had concluded that relief should otherwise have been granted to Mr Alajmi, I would have granted declaratory relief. Given the delay and the expiry of Mr Alajmi’s PhD candidature, injunctive relief would not be appropriate.

Conclusion and orders

252. For the foregoing reasons I make the following orders:

1. Summons dismissed.

2. Plaintiff to pay the costs of the defendant as agreed or assessed.

**********

Endnotes

Decision last updated: 15 August 2019