Durney v Deakin University

[2014] VSC 577

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 02984

PAUL DURNEY	Plaintiff
v
DEAKIN UNIVERSITY	First Defendant
KEAN SELWAY	Second Defendant
JANE DEN HOLLANDER	Third Defendant
KERRIE BRIDSON	Fourth Defendant

S CI 2014 04260

PAUL DURNEY	Plaintiff
v
DEAKIN UNIVERSITY	First Defendant
KEAN SELWAY	Second Defendant
FACULTY STUDENT MISCONDUCT COMMITTEE	Third Defendant
KERRIE BRIDSON	Fourth Defendant
DAMIEN KINGSBURY	Fifth Defendant
ANNE HORN	Sixth Defendant
SUE OWEN	Seventh Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2014
DATE OF JUDGMENT:	24 November 2014
CASE MAY BE CITED AS:	Durney v Deakin University
MEDIUM NEUTRAL CITATION:	[2014] VSC 577

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Interlocutory Injunction — Plaintiff student excluded from university — Whether sufficient notice of hearing prior to exclusions given — Deemed notice of receipt — Whether prima facie case — Balance of convenience — Interlocutory injunction refused— Deakin University Act 2009 — Electronic Transactions Act 1999 (Cth) s 13A

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APPEARANCES:	Counsel	Solicitors
The plaintiff appeared in person
For the Defendants	Mr P H Clarke	Minter Ellison

HER HONOUR:

Introduction

1. The plaintiff, Mr Paul Durney, has brought these two proceedings against the defendants by way of originating motion challenging certain decisions to exclude him from Deakin University (‘the university’) on a number of grounds, including procedural fairness, failure to afford natural justice, bias, failure to consider a relevant factor, consideration of irrelevant factors, and ultra vires.

1. The defendants include the university as well as individual officers and servants of the university who are alleged to have witnessed Mr Durney’s alleged misconduct, managers of affected staff or those involved in the decision-making to exclude Mr Durney.  The defendants in the proceedings are as follows:

(a)Deakin University;

(b)Mr Kean Selway, Vice-President (Enterprise);

(c)Professor Jane den Hollander, Vice-Chancellor and President;

(d)Dr Kerrie Bridson, Chair of the Faculty Student Misconduct Committee;

(e)the Faculty Student Misconduct Committee;

(f)Professor Damien Kingsbury,  Chair of the University Appeals Committee;

(g)Ms Anne Horn, University Librarian, Geelong Campus; and

(h)Ms Sue Owen, Deputy University Librarian, Burwood Campus.

The two proceedings before the Court

1. The original proceedings were brought by way of an originating motion filed 16 June 2014 in proceeding S CI 2014 02984.  By summons filed the same day, Mr Durney sought declaratory relief, injunctive relief and other interim relief until all avenues of appeal have been exhausted. 

1. Mr Durney brought another proceeding S CI 2014 04260 by way of an originating motion and summons filed 15 August 2014 with substantially similar claims for relief.

1. After various procedural hearings, including applications by Mr Durney in the Practice Court, Daly AsJ made orders on 2 September that the two proceedings be heard together and listed them for trial on 28 October 2014.

1. By notice of appeal filed 17 September 2014, Mr Durney appealed against the orders listing the two proceedings for trial.  On 9 October 2014 orders were made by Dixon J vacating the trial dates for both proceedings, with the interlocutory applications…