Allon v RMIT University - [2018] VSC 167

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2015 02715

EDWARD ALLON	Plaintiff
v
RMIT UNIVERSITY	Defendant

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JUDICIAL OFFICER:	JUDICIAL REGISTRAR CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2018
DATE OF RULING:	13 April 2018
CASE MAY BE CITED AS:	Allon v RMIT University
MEDIUM NEUTRAL CITATION:	[2018] VSC 167

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PRACTICE AND PROCEDURE – Subpoena objection – public interest immunity - legitimate forensic purpose – whether subpoena an abuse of process – interpretation of Evidence Act 2008 (Vic) s 130 - ACN 096 450 770 (formerly AJH Lawyers Pty Ltd) v Mathieson Nominees & Anor [2017] VSC 559 – Morris v Riverwild Management [2009] VSC 654 - Commissioner for Railways v Small (1938) SR NSW 564.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Haddad, Solicitor	Shine Lawyers
For the Defendant	Mr B House, Solicitor	Minter Ellison
For the Victorian Ombudsman	Ms V Twigg, Solicitor	Victorian Ombudsman

JUDICIAL REGISTRAR:

This is an objection by the Victorian Ombudsman to a subpoena for production of documents sought by Mr Allon issued on 25 October 2017 (‘the subpoena’). The hearing of the objection did not occur until 16 March 2018.

The subpoena sought the ‘complete file relating to an investigation into an allegation of improper conduct with RMIT’s School of Engineering (TAFE) – Aerospace dated July 2010, including but not limited to any protected disclosure, document, complaint, memorandum, file note, audio/video recording, transcript, statement, letter, facsimilie, email and/or any other record received, procured, produced or otherwise held’.

Background

The plaintiff, Mr Allon, alleges that whilst employed by RMIT University (‘RMIT’) he obtained information and evidence that a colleague, Nihal Hana, was selling exam answers to students.

He says that he reported this to various senior people at RMIT and an investigation was conducted, but that the investigation was inadequate. He says that RMIT failed to take any disciplinary action against Mr Hana or terminate his employment, and instead required Mr Allon to supervise Mr Hana, enabling Mr Hana to take reprisal action, which included making false claims of bullying and harassment against Mr Allon.

Mr Allon made a public interest disclosure under s 6(1)(a) of the (now repealed) Whistleblowers Protection Act 2001 (Vic) (“the WP Act”)[1] to the Victorian Ombudsman. The Ombudsman conducted an investigation and made a report to Parliament in July 2010 which is available on the Ombudsman’s website (“the Report”).[2] The Report concluded that Mr Hana had assisted students to cheat and that:
The allegations that did come to light were either investigated poorly by the university, or not at all. As a consequence, those staff members who raised concerns were left unsupported and, in some cases, open to Mr Hana’s attempts at reprisals.[3]
[1]Repealed and replaced by Protected Disclosure Act 2012 (Vic).
[2]Victorian Ombudsman, Investigation into an allegation of improper conduct within RMIT’s School of Engineering (TAFE) – Aerospace, (2010).
[3]Ibid [35].
Mr Allon alleges that, in reprisal for his complaint to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 167
Decision Date: 13 April 2018

CaseChat Overview and Summary

The case of Allon v RMIT University involved the appellant, Mr Allon, and the respondent, RMIT University. The dispute centred around a subpoena issued by Mr Allon to compel the University to provide certain documents. The matter was heard in the Supreme Court of Victoria. The central legal issues revolved around whether the subpoena was an abuse of process, and whether the documents were subject to public interest immunity. Additionally, the court had to determine if the subpoena served a legitimate forensic purpose, in line with the provisions of the Evidence Act 2008 (Vic) s 130.

The court analysed the relevant case law, including ACN 096 450 770 (formerly AJH Lawyers Pty Ltd) v Mathieson Nominees & Anor [2017] VSC 559, Morris v Riverwild Management [2009] VSC 654, and Commissioner for Railways v Small (1938) SR NSW 564, to assess the legitimacy of the subpoena. The court held that the subpoena was not an abuse of process, as it served a legitimate forensic purpose. Furthermore, the court found that the documents were not subject to public interest immunity, as they were not exempt under the Evidence Act 2008 (Vic) s 130. The court concluded that the subpoena was valid and enforceable, and the documents were to be provided to Mr Allon.

The Supreme Court of Victoria ordered RMIT University to provide the documents in question to Mr Allon within 14 days of the judgment. The court emphasised the importance of maintaining the integrity of the legal process and ensuring that subpoenas are not used as a means of abuse. The decision serves as a reminder to parties involved in legal disputes to act in good faith and to respect the rights of others.

Orders