Durney v Royal Melbourne Institute of Technology
[2002] VSC 425
•19 September 2002
| SUPREME COURT OF VICTORIA | Not Restricted |
| COMMON LAW DIVISION |
No. 7373 of 2002
| PAUL DURNEY | Plaintiff |
| v | |
| ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY | Defendant |
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JUDGE: | Bongiorno J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 September 2002 |
DATE OF JUDGMENT: | 19 September 2002 |
CASE MAY BE CITED AS: | Paul Durney v Royal Melbourne Institute of Technology |
MEDIUM NEUTRAL CITATION: | [2002] VSC 425 |
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Administrative Law – Interlocutory injunction – Disciplinary hearing – Notice of hearing – Particulars of charge.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | In person | |
| For the Defendant | Ms J. Bornstein | Williams Winter & Higgs |
HIS HONOUR:
By an originating motion issued 19 September, Mr Paul Durney seeks orders against the Royal Melbourne Institute of Technology, sued in that name, in the nature of prerogative relief and injunction in relation to a disciplinary hearing which the University proposes to conduct tomorrow, 20 September 2002, into conduct allegedly engaged in by Mr Durney. In a summons issued on that originating motion, interlocutory relief is sought. Although only issued today the University has been served with these papers and has appeared by counsel before me this afternoon.
By a letter dated 1 August 2002, RMIT University advised Mr Durney that it intended to conduct a hearing into an allegation or allegations that he had committed "a breach of general misconduct" (sic) and referred to RMIT Student Discipline Regulation 2, section 2, which the letter set out. The letter did not specify any charge against Mr Durney and, although there has been an exchange of correspondence, and indeed a flow of correspondence from RMIT to Mr Durney, in which various documents have been sent to him, it was not until a letter apparently incorrectly dated 16 August 2002, but in fact, as conceded by the University, written on 16 September 2002, that the University finally alleged that Mr Durney had been guilty of an assault against one Mr Wood.
The material which had been earlier supplied to Mr Durney enables one to infer that the alleged assault concerned an event which occurred at about 1.55 p.m. on 31 July 2002, when Mr Durney lunged at Mr Wood, smashing him against a door. This event is alleged to have occurred within the University. However, the inferences required to be drawn in order to reach that conclusion were unable to be drawn until the letter dated 16August (which should have been dated 16 September) was received.
Mr Durney made a number of complaints to the Court about the procedure which he alleges RMIT would use in its disciplinary proceeding, and he relied upon what purports to be an affidavit. That document is neither in form nor substance an affidavit but rather an argument based upon assertion, in some cases simply assertion based upon assertion.
At the commencement of this hearing, Mr Durney handed me a bundle of documents which enabled me to make some investigation of the claims he was making. I am satisfied that at this date there is no substance in any of his allegations other than that which related to the specification of the charge against him, the late notice of that charge and the fixing of the date upon which the disciplinary hearing was to be held.
After hearing Ms Bornstein for the university and inviting her to seek instructions, she has offered the Court an undertaking that the University will not proceed with its disciplinary hearing against Mr Durney tomorrow and, indeed, will not do so less than ten days after a notice specifying the charge against him has been served upon him. For its part it seeks from Mr Durney co-operation in the fixing of a date and time for the hearing of the charge, as he expressed concern as to the availability of witnesses he may wish to call if they are not given sufficient notice.
There being no substance in any of Mr Durney's other complaints and in light of the undertaking given by the University, I do not propose to grant any injunction or other relief and I propose dismissing the originating motion brought by Mr Durney, but not without making the following orders:
1.Upon RMIT by its counsel undertaking that it will not proceed with the disciplinary hearing against the plaintiff tomorrow, and until it has given ten clear days' notice of its intention to do so, in respect of a charge of assault allegedly committed by the plaintiff against a Mr Wood on 31 July 2002, the originating motion of the plaintiff and the summons thereon each stands dismissed.
2.Further order that, upon receipt by the plaintiff of such notice as is referred to in RMIT's undertaking, the plaintiff give RMIT notice of four alternative dates and times, (being dates and times not more than 14 days after receipt by him of that notice) at which he will appear at such disciplinary hearing. In default of his giving such notice within 48 hours of the end of the day upon which, in the ordinary course of post, he would have received the notice referred to in RMIT's undertaking, RMIT be at liberty to fix such time, date and place for such disciplinary hearing as it considers appropriate.
It should be made clear that the only charge upon which the RMIT disciplinary hearing can proceed is the charge of assault in respect of Mr Wood as referred to in the letter of 16 September (wrongly dated 16 August) to which I have already referred, which the RMIT University alleges constitutes a breach of Regulation 2(f) of Regulation 6.1.1 - Student Discipline of the RMIT.
I will reserve liberty to apply and I will order that this order be drawn up by the solicitors for the defendant and signed by a judge pursuant to Order 60.04 of the Rules.
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