Durney v Victoria University

[2014] VSC 161

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 06363
PAUL DURNEY	Plaintiff
v
VICTORIA UNIVERSITY & ORS	Defendants

S CI 2013 00801
PAUL DURNEY	Plaintiff
v
VICTORIA UNIVERSITY & PROF PETER DAWKINS	Defendants

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2014
DATE OF JUDGMENT:	11 April 2014
CASE MAY BE CITED AS:	Durney v Victoria University & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 161

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ADMINISTRATIVE LAW – Procedural fairness – Natural justice – Exclusion of student from university premises – Whether proper notice given to student of the case alleged against him – Whether student provided with documents and information relied on by decision-maker – Victoria University Act 2010 (Vic) ss 28, 30(1) and 34 – Victoria University Regulations (Vic) reg 10.2 cl 2 – Failure to comply with procedural fairness and natural justice – Grant of relief not futile – Exclusion decision invalid and of no effect.   

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendants	Ms P. Knowles	Minter Ellison

HIS HONOUR:

Introduction

1. In 2012, the plaintiff (‘Mr Durney’) was enrolled as a law student at Victoria University (‘the University’). Since 2008, he has made numerous complaints about noise in the University Law Library. The University considered that the manner of his complaints and conduct was disruptive and disturbing for university staff and students.

1. Following correspondence between Professor Greg Baxter, Pro-Vice Chancellor, Academic and Students (‘Professor Baxter’) and Professor Peter Dawkins, Vice-Chancellor and President (‘the Vice-Chancellor’) and Mr Durney, the Vice-Chancellor decided on 19 October 2012 to exclude Mr Durney from being on, in or using any or all premises of the University.

1. Mr Durney brings two proceedings by way of originating motion seeking to challenge the exclusion decision on a variety of administrative law grounds including a lack of procedural fairness, failure to afford natural justice, bias, unreasonableness, and ultra vires. It is unnecessary to set out all of the claims made by Mr Durney.

1. It is common ground that the letters and emails between Professor Baxter or the Vice-Chancellor on the one hand and Mr Durney on the other constituted all that passed between Mr Durney and the University concerning the exclusion decision. The hearing of Mr Durney by the Vice-Chancellor was on the papers. There was no oral hearing. There are no relevant conversations.

1. Mr Durney received two letters. The first is a letter dated 29 August 2012, (‘the first letter’). In this letter, Professor Baxter states in substance:

·    The University was very concerned about Mr Durney’s health and wellbeing and recent behaviour.

·    Mr Durney should seek assistance from qualified professionals.

·    Mr Durney had behaved inappropriately in a number of incidents which occurred on Thursday 23 August 2012 including a complaint to the Law Librarian about noise in the Library which caused the Librarian to sound the duress alarm and call security staff with Mr Durney ultimately being removed by police. On Queen Street, Mr Durney shouted at Professor Andrew Clarke about the noise in the Law Library. Later, Mr Durney returned to the Library and shouted about the noise. Mr Durney twice stated that he intended to commit suicide.

·    On 27 August 2012, Mr Durney sent an email to various Law School and Law Library staff advising of his intention to conduct a “hunger strike” outside the Law Library until the conditions in his email were met or until he died. That afternoon, he lay on the footpath outside the main entrance of the Law School in view of many students until police and ambulance attended.

1. The first letter states:  

Should there be further instances of behaviour that involves:

·     harassment of staff;

·     shouting or using a raised voice towards staff or other students;

·     refusing to leave university premises when asked to do so;

·     threats of self-harm;

·     self-harm;

your behaviour will be referred to the Vice-Chancellor for consideration as to whether he should exercise his authority under the University’s Regulation 10.2 to exclude you from the premises of the University.

1. The first letter advised Mr Durney that if he wished to make a formal response, he should do so to an email address that was provided.

1. On 14 September 2012, the Vice-Chancellor wrote to Mr Durney alleging three further incidents on 10, 11 and 12 September 2012 (‘the second letter’):

·     On Monday 10 September, [Mr Durney] entered the secure, staff only area at the Footscray Park campus library and refused to leave when asked to do so.

·     On Tuesday 11 September [Mr Durney] made an attempt to hang or choke [himself] outside the Victoria Law School premises on Queen Street, in view of many students and staff. Police and ambulance attended the scene.

·     On Wednesday 12 September [Mr Durney] attended at the Footscray Park campus library once again and indicated that [he] would refuse to leave and would continue to return until the librarian met with [him] to discuss providing a silent library space. [He] then approached the Student Engagement reception desk and shouted and swore at a staff member.

1. In the second letter, the Vice-Chancellor states that the University remained extremely concerned about Mr Durney’s health advising him to seek assistance from health professionals. He was now giving consideration as to whether it is necessary to exclude Mr Durney from the premises of the University, in order to maintain a safe environment for staff and students. The Vice-Chancellor requested Mr Durney to respond to the matters raised in that letter by Friday, 21 September 2012.

1. On 21 September 2012, Mr Durney responded to the first and second letters stating among other things:

·    The University had continued to refuse to meet its obligations under its Student and Library Charters to provide silent study areas for private study and a traditional library function and meet the requirements of a disability assessment to provide Mr Durney with the same.

·    The University’s actions were not about the safety of students, but that the University was refusing to meet its obligations to students and silencing him.

·    The University was in breach of several of its own policies.

·    He had not been charged with or found guilty of any disciplinary or criminal offence.

·    There was no lawful authority or ground for his exclusion, and no legitimate case for exclusion.

·    He was suffering from significant health issues.

·    He had consistently attained grades of High Distinctions in recent research papers.

1. On 4 October 2012, Mr Durney emailed the Vice-Chancellor among other things seeking:

·    an acknowledgement of his response of 21 September 2012; and

·    confirmation that the University would meet its obligations to Mr Durney in relation to various University charters and policies.

1. On 5 October 2012, the Executive Officer of the Vice-Chancellor advised Mr Durney that he would receive a response to his email in due course.

1. In a memorandum dated 8 October 2012 addressed to the Vice-Chancellor (‘the joint memorandum’), Professor Andrew Clarke, Dean and Head of School, Victoria Law School (‘the Dean’) and Mr Ralph Kiel, the University Librarian (‘the University librarian’) outlined a number of incidents in August and September 2012, referring to attempts made by the University to accommodate Mr Durney, the impact of his behaviour on staff, and asking the Vice-Chancellor to consider excluding Mr Durney under clause 2 of University’s Regulation 10.2. The joint memorandum was accompanied by fifteen documents mainly being reports and statements concerning the incidents in August and September 2012.

1. The joint memorandum contained numerous statements and comments adverse to Mr Durney not elsewhere advised to him. There were statements and comments in substance:

(a)Mr Durney’s behaviour had caused very significant concern and distress to University staff over recent months, most particularly to those working in the Victoria Law School and in the university libraries.

(b)Up until recently, Mr Durney’s demands and complaints have been disruptive and difficult for staff, who had shown enormous patience and forbearance in dealing with him.

(c)In recent times, Mr Durney’s disruptive and disturbing behaviour in relation to his demands has escalated to the point where his conduct posed a threat to the mental health of staff, who were being repeatedly exposed to these episodes.

(d)The Dean and the University Librarian were concerned that students are being exposed to Mr Durney’s distressing behaviour.

(e)Mr Durney has not attended classes or tutorials in his two law subjects for the past four weeks. He had had long extensions in two assessment tasks.

(f)Mr Durney’s behaviour is erratic and appears to be growing more and more extreme.

(g)The Dean and the University Librarian have had to allocate additional staff in order to ensure that no employee is alone in the library at any time, due to anxiety about Mr Durney’s behaviour. An increased security presence has also had to be maintained both at the libraries and at the Law School.

(h)Staff in both the libraries (in particular the law library) and at the law school office, are in a constant state of tension and unease, wondering when Mr Durney will next cause a distressing incident.

(i)The Vice-Chancellor was asked to consider excluding Mr Durney pursuant to clause 2 of the University’s Regulation 10.2.

1. No copy of the joint memorandum nor of any of the fifteen enclosures was provided by the University to Mr Durney. Two of the enclosures were emails sent by Mr Durney. One enclosure included a flyer circulated by Mr Durney. Apart from these documents, none of the documents provided with the joint memorandum was seen by Mr Durney prior to the exclusion decision.[1]

   [1]The enclosures were:

   1.OHS Incident and Hazard Report Form submitted by Murray Greenway, Law Librarian, re incident at Law Library, 23 August 2012 at 2:05pm.

   2.OHS Incident and Hazard Report Form submitted by Murray Greenway, Law Librarian, re incident at Law Library, 23 August 2012 at 4:30pm.

   3.Security Incident Report No 10/12, 23 August 2012.

   4. Security Incident Report No 11/12, 23 August 2012.

   5. Security Incident Report No 12/12, 23 August 2012.

   6.OHS Incident and Hazard Report form submitted by Adrian Gallagher, Associate Librarian, 23 August 2012.

   7.OHS Incident and Hazard Report form submitted by Frances O’Neil, Associate Librarian, 23 August 2012.

   8.Email from Paul Durney to Olga Florenini, Disability Liaison Officer, 23 August 2012.

   9.“Notification of intention to Hunger strike” email from Paul Durney, 26 August 2012.

   10. Security Incident Report, 11 September 2012.

   11. Email from Professor Andrew Clarke re incident on 11 September 2012 with attached flyer circulated by Mr Durney.

   12.Incident Report by Maryanne Davies, Administration Officer, Student Engagement, 12 September 2012.

   13. Security Incident Report re Incident at Victoria Law School, 14 September 2012.

   14.Impact statement by Garry Potter, Manager Campus Libraries, 18 September 2012.

   15. Statement by Frances O’Neil, Associate Librarian, 18 September 2012 re incident on 10 October.

1. In a letter dated 19 October 2012, the Vice-Chancellor advised Mr Durney that he had been excluded from being on, in or using any or all of the premises of the University (‘the exclusion decision’). The letter stated:

I have read and considered your communications of 21 September and 4 October 2012 which were in response to Professor Gregory Baxter’s letter to you of 29 August and my letter to you of 14 September 2012.

I note that your replies to me do not address the incidents which are of concern, and make no comment in relation to your behaviour.

Recent behaviour

Since my last letter to you I have been alerted to the following further incidents:

·On 10 October 2012 you lay on the ground at the main entrance point to the Victoria Law School on Little Lonsdale Street with a bag covering your head. Police and an ambulance attended and removed you. You returned later in the day and lay in the same position with a bag covering your head.

·On 16 October 2012 you attended at the Victoria Law School reception desk and then at the law library. You raised your voice at library staff and at another student. You then lay at the main entrance point to the Victoria Law School on Little Lonsdale Street with a cloth bag over your head and a noose around your  neck, attached to the steel railings. Police attended and you were removed by ambulance.

Exclusion from Victoria University

I have regretfully come to the conclusion that, due to the impact of your behaviour on other members of the university community, it is necessary to exclude you from the University premises in order to maintain a safe environment for staff and other students.

Pursuant to Victoria University’s regulation 10.2, you are now excluded from being on, in or using any or all premises of Victoria University.   

Arrangements for continuation of your studies

I understand that you are currently studying two subjects in the Faculty of Business and Law. In order to minimise the impact on your studies, a staff member from that Faculty will contact you in due course to make arrangements for you to sit your examinations.

In the meantime you continue to have access to WebCT, Lectopia and all the online resources of the Victoria Law Library. You also continue to have access to your lecturers and tutors via email.

Process for your return to university premises

I will consider revoking this exclusion at such time as I can be provided with some independent assurance that your behaviour does not pose a risk to staff and students, or indeed to yourself. This would need to take the form of a report from a medical practitioner, psychiatrist, or Forensic Psychologist of the university’s choice, at the university’s expense. When you are ready to commence this process, you may contact the Pro Vice-Chancellor (Academic & Students) via email on [email protected].

Assistance which is available to you

I once again entreat you to obtain professional assistance. I reiterate that Dr Darko Hajzler, the University’s Manager of Counselling Services is available to assist you, and can be contacted on 9919 2293.  

1. Subsequently, the Vice-Chancellor provided a statement of reasons dated 19 December 2012 in response to a request from legal representatives for Mr Durney (‘the statement of reasons’). The statement of reasons recited the incidents which had occurred over the period from August to October 2012, and the Vice-Chancellor’s assessment of that behaviour on staff of the University. It also listed 27 reports, statements and emails that the Vice-Chancellor had considered prior to making the

   
   
   

   exclusion decision.[2] Of the 27 documents, seven are emails or letters sent by or to Mr Durney. It was not suggested that any of the other twenty documents had been sighted by Mr Durney prior to the exclusion decision.

   [2]The information considered was listed as:

   (a)OHS Incident and Hazard Report Form completed by Murray Greenway in relation to the incident on 23 August 2012 at 2:05pm;

   (b)OHS Incident and Hazard Report Form completed by Murray Greenway in relation to the incident on 23 August 2012 at 4:30pm;

   (c)Email from Professor Andrew Clarke to Colin MacDonald and Andrew Brewer dated 23 August 2012;

   (d)Security Incident Report 10/12 submitted by Yassir Arab dated 23 August 2012;

   (e)Security Incident Report no 11/12 submitted by Gul Sensakbak dated 23 August 2012;

   (f)Security Incident Report no 12/12 submitted by Gul Sensakbak dated 23 August 2012;

   (g)OHS Incident and Hazard Report Form completed by Adrian Gallagher dated 23 August 2012;

   (h)OHS Incident and Hazard Report Form completed by Frances O’Neil dated 23 August 2012;

   (i)Incident report submitted by Allyce Cowan dated 23 August 2012;

   (j)Email from you to Olga Florenini dated 23 August 2012;

   (k)Email from you to various University staff dated 26 August 2012;

   (l)Letter from Professor Greg Baxter to you dated 29 August 2012;

   (m)Incident report by librarian Frances O’Neil in relation to the incident on 10 September 2012;

   (n)Security Incident Report dated 11 September 2012;

   (o)Email from Professor Andrew Clarke to various University staff dated 11 September 2012 with attached flyer circulated by you;

   (p)Incident report emailed by Maryanne Davies dated 12 September 2012;

   (q)Security Incident Report dated 12 September 2012;

   (r)Security Incident Report dated 14 September 2012;

   (s)Letter from me to you dated 14 September 2012;

   (t)Impact statement by Garry Potter dated 18 September 2012;

   (u)Letter from Professor Andrew Clarke to you dated 20 September 2012;

   (v)Email from you to me dated 21 September 2012 in response to Professor Greg Baxter’s letter dated 29 August 2012 and my letter dated 14 September 2012;

   (w)Statement of Professor Andrew Clarke in relation to incident on 14 September 2012;

   (x)Statement of Allyce Cowan in relation to incident on 14 September 2012;

   (y)Email from you to me dated 4 October 2012;

   (z)Email from Murray Greenway to Garry Potter dated 16 October 2012; and

   (aa)Email from Andrew Clarke to Mary Simpson dated 16 October 2012. 

University Regulation 10.2

1. Clause 2 of University Regulation 10.2 provides:

The Vice-Chancellor may exclude a person from being on, in or using any or all premises or property of the University where, in the opinion of the Vice-Chancellor, the exclusion is necessary or conducive to maintaining a safe environment for any other person on, in or using premises or property of the University.

1. University Regulations are currently made by the University Council under powers conferred by Part 5 of the Victoria University Act 2010 (Vic) (‘the University Act’).[3] Section 28 of the University Act provides:

Subject to this Act, the Council may make any university statutes and university regulations with respect to any matter relating to—

      (a)     the University; and

      (b)     any person—

            (i)     entering or on land or other property of the University; or

            (ii)     using University facilities.

[3]Prior to the commencement of the University Act, regulations could be made under statutes enacted by the Council of the University under s 35 of the Victoria University of Technology Act 1990 (Vic) (‘the Old Act’). Section 72 of the University Act provides that university statutes and regulations made under the Old Act are taken to be university statutes and university regulations made under the University Act.

1. Section 30(1) of the University Act provides:

A university statute made by the Council may provide for the making of university regulations for or with respect to prescribing or providing for any matter or thing for the purposes of the university statute, either by—

      (a)     the Council; or

      (b)     if the university statutes authorise it, by—

            (i)     the Vice-Chancellor; or

            (ii)     the academic board or its equivalent.

1. Section 34 of the University Act provides for courts to take judicial notice of University statutes and regulations.

Procedural Fairness and Natural Justice

1. Mr Durney contends that procedural fairness and natural justice were not observed by the University when the exclusion decision was made. One concern is that he was given no notice at all of the October 2012 incidents relied on by the Vice-Chancellor in the exclusion decision, and no opportunity to address them. A second concern is that he was not provided with most of the documents relied on by the Vice-Chancellor when he made the exclusion decision, including a copy of the joint memorandum. He also advances other complaints which it is not necessary for me to decide in these proceedings.

1. Ms Knowles of Counsel who appeared for the defendants acknowledged that in making the exclusion decision, the Vice-Chancellor was bound to provide procedural fairness and natural justice, and contended that he had done so.

1. In Kioa v West, Mason J held:[4]

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v. Randwick Municipal Council; Salemi [No. 2]; Ratu; Heatley v. Tasmanian Racing; F.A.I. Insurances Ltd. v. Winneke; Annamunthodo v. Oilfields Workers' Trade Union. The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

[4](1985) 159 CLR 550, 582 (citations omitted).

1. Brennan J similarly held in Kioa v West that:[5]

   [5]Ibid 628-9 (citations omitted).

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya; Ridge v. Baldwin per Lord Morris; De Verteuil v. Knaggs. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v. Environment Secretary:

“To ‘over-judicialise’ the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are
competent to operate effectively in the interests of their clients would not be fair.”

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.

…

1. More recently in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the High Court said:[6]

What is meant by “adverse information that is credible, relevant and significant to the decision to be made”? As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about “information that is credible, relevant and significant” takes its meaning from the point his Honour had made only a few sentences earlier: that “[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made”. Moreover, what is meant by “credible, relevant and significant” must be understood having regard also to the emphasis that his Honour had given earlier in his reasons to the fundamental point that principles of natural justice, or procedural fairness, “are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise”. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.

It follows that what is “credible, relevant and significant” information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. “Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.

[6](2005) 225 CLR 88, 95-6 [16]-[17] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) (citations omitted).

1. In Frost v Kourouche, it was said as to the duty to afford procedural fairness:[7]

It was also common ground that the content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond. That is consistent with what has often been held, in a wide range of contexts, including Kioa v West (“the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it”).

…

There is a well-established line of authority for a complementary proposition to that in Kioa referred to above to the effect that critical facts need to be drawn to the claimant's attention. The complementary proposition is that it is not necessary, in order to discharge the obligation to accord procedural fairness, to go further.

In Minister for Immigration and Citizenship v SZGUR, French CJ and Kiefel J said (emphasis added):

“Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.”

[7][2014] NSWCA 39 [32], [35] and [36] (Leeming JA, with whom Beazley P and Basten JA agreed) (citations omitted).

1. Dixon J summarised the effect of the judgment of Brennan J in Kioa v West[8] in Neav v Monash University:[9]

In Kioa v West the High Court was dealing with an appeal against the decision of a delegate where information, which was damaging to the prospects of the appellants being allowed to stay in Australia, was never put to them by the delegate for comment.  It appears that the delegate did not rely upon the allegation in making his decision but nevertheless it was contained in the material before him.  Brennan J identified the applicable principle that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to her interests which the repository of the power proposes to take into account in deciding upon its exercise.  The opportunity does not extend to commenting on every adverse piece of information, irrespective of its credibility, relevance or significance.  His Honour continued:

“It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.”

[8](1985) 159 CLR 550, 628.

[9][2010] VSC 563 [85] (footnotes omitted).

1. As to the receipt of evidence or material from one side behind the back of another, Dixon J said:[10]

   [10]Ibid [95]-[97] (footnotes omitted).

The University submitted that the information contained in the memorandum was not “adverse” to the plaintiff.  It says nothing about her credibility, her academic performance, or her health issues.  It is unnecessary for me to inquire into the probative impact of that memorandum.

There are two reasons why there will be a want of procedural fairness where an adjudicator hears evidence or receives argument from one side behind the back of another, regardless of its probative impact.  These reasons were succinctly identified by Mason P in Seltsam Pty Ltd v Ghaleb.   First, the appearance of fairness has been shattered in a material respect, for, as Lord Denning put it on behalf of the Judicial Committee of the Privy Council in Kanda v Government of Malaya:

“The court will not inquire into whether the evidence or representations did work to his prejudice.  Sufficient that they might do so.  The court will not go into the likelihood of prejudice.  The risk of it is enough.  No one who has lost a case will believe that he has been fairly treated if the other side had access to the judge without his knowing.”

The second reason is that there is virtually no means of discovering the impact of the secret material upon the minds of the adjudicator without transgressing the very assumptions underlying the doctrines of procedural fairness and of judicial review.

1. In X v University of Western Sydney, Hall J said:[11]

The principles constituting the “hearing rule” are well established.

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters that are adverse to his or her interests which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West, supra, at 628 per Brennan J.

In the ordinary case, where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is information that is credible, relevant and significant to the decision to be made: Kioa v West, supra, at 629 per Brennan J.

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, supra, at 592 per Northrop, Miles and French JJ.

180    A hearing is unlikely to be fair when a decision-maker receives material or representations in the absence of one party, or does not disclose relevant material obtained from another source. A fair hearing is not possible if disclosure is inadequate: Judicial Review of Administrative Action, Aronson &, Groves (Law Book, 5th ed, 2013) pp 526-527 at para [8.180].

[11][2014] NSWSC 82 [176]–[180].

1. In an earlier decision of X v University of Western Sydney, Beech-Jones J said:[12]

Secondly, the plaintiff was not apprised of the factors or criteria that were proposed to be relied on or considered before the power was exercised (see sub-clause 110(d); Kioa v West, and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs). As I have stated, those factors included Ms Hawkins' own assessment of the relative strength of the evidence against him, a limited assessment of the hardship that would be occasioned to him by suspension as well as her assessment of the risk he posed.

There were a number of matters that the plaintiff, no doubt with assistance, could reasonably have expected to have been able to put forward in opposition to a suggestion that he be suspended, if proper notice had been given. Without being exhaustive, they include the following. First, he could have reasonably been expected to point out the hardship to him from failing his course attendance requirements if he was suspended even for a short period.

Secondly, if he had been aware that Ms Hawkins proposed to consider the apparent strength of the evidence against him he could be expected to have made submissions to the effect that the case was not that strong bearing in mind the content of the Facebook messages.

Thirdly, and most significantly, the plaintiff could, as his solicitor later suggested, reasonably have been expected to put forward alternative proposals to outright suspension, which carried with it inevitable course failure, and which might have still met the University's concerns. These were all matters of substance which a decision maker acting reasonably could have been expected to consider before exercising the power of suspension.

[12][2013] NSWSC 1329 [65]-[68] (citations omitted).

1. When the exclusion decision was made, it is plain that there was a denial of procedural fairness and natural justice to Mr Durney. The exclusion decision relies on two incidents on 10 October 2012 and 16 October 2012 as well as earlier incidents. It is undisputed that neither of the October incidents were put at any time to Mr Durney, and that he had no opportunity to respond to them. The October incidents were important. They feature prominently in the exclusion decision, and were clearly given weight by the Vice-Chancellor when he made the exclusion decision.

1. I do not accept the submission of Ms Knowles that the October incidents were similar to incidents that had happened before and merely showed that conduct was continuing or made no difference when taken with the incidents that were alleged to have occurred in August and September 2012. The two October incidents are set out on the front page of the decision, were of recent occurrence and are said to have taken place after the first and second letters were sent to Mr Durney. They were never put to Mr Durney who had no opportunity of responding to them.

1. In the Statement of Reasons, the Vice-Chancellor states that prior to making the exclusion decision, he considered the information contained in 27 documents that were provided to him. Whilst seven of the documents were originated or received by Mr Durney, the other twenty were not. Mr Durney was not provided with documents that contained relevant matters adverse to him, and that were taken into account by the Vice-Chancellor when the exclusion decision was made. Mr Durney did not see, and had no opportunity to deal with relevant matters found in the twenty documents. All that he had was the first and second letters. He was not provided with a copy of the joint memorandum despite the adverse statements and comments made in it about him. It is no answer to contend that Mr Durney had not made effective use of the opportunity provided to him in relation to the earlier incidents so that he was not likely to have taken advantage of the opportunity to address later or additional matters. He simply was not provided with twenty documents provided to the decision-maker containing credible, relevant and significant information relating to the exclusion decision which were considered by the decision-maker. The University treated the exclusion decision as if it were an administrative decision, where all relevant reports and evidence had to be comprehensively collected and placed before the Vice-Chancellor rather than as a decision affecting the rights of a person where it needed to ensure that the requirements of procedural fairness and natural justice were carefully observed.

Is the grant of relief futile?

1. Ms Knowles relied on the decision of the High Court of Australia in Stead v State Government Insurance Commission.[13] She contended that relief would be futile because the result would inevitably be the same, and that Mr Durney had no possibility of obtaining a different outcome. She pointed to Mr Durney’s responses as indicating that he had no concern whether his conduct and threats of self-harm caused a risk to the safety of others. Mr Durney had been given an opportunity to respond to the first and second letters. Ms Knowles contended that Mr Durney had not responded to the allegations made against him, and had not addressed whether his conduct posed a risk to the health and safety of others so as to fall within University Regulation 10.2.

   [13](1986) 161 CLR 141.

1. In Ucar v Nylex Industrial Products Pty Ltd, Redlich JA concluded:[14]

In my view, the principle laid down in Stead contemplates two circumstances in which relief may be refused. It will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Secondly, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.

[14](2007) 17 VR 492, 519 [75]

1. Redlich JA highlighted two possible situations where relief might be refused under the principle in Stead v State Government Insurance Commission.[15] They were where:

(1)there was an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness; or

(2)it would be futile to conduct a further trial because the result would inevitably be the same.

[15](1986) 161 CLR 141.

1. There are a number of difficulties in the way of Ms Knowles’ submission. First, it is impossible to conclude that if the two October incidents had been put to Mr Durney, and the documents had been made available to him, the result would inevitably have been the same. Mr Durney never had the opportunity to address the allegations made against him concerning the October incidents or to review the twenty documents with which he was not provided. To predict what he might have done by way of response is to enter the world of speculation. Secondly, Mr Durney is a litigant in person. That was not always the case. He might seek, and act on legal advice, and put a case directed at the fundamental issues alleged against him. Thirdly, the Vice-Chancellor stated in the exclusion letter that he would consider revoking the exclusion:

at such time as I can be provided with some independent assurance that your behaviour does not pose a risk to staff and students, or indeed to yourself. This would need to take the form of a report from a medical practitioner, psychiatrist, or Forensic Psychologist of the university’s choice, at the university’s expense.

Such professional advice might indeed be forthcoming if a rehearing is conducted with the consequence that a different outcome might result. It is not possible to predict what might follow the provision of psychiatric or forensic psychological evidence such as the Vice-Chancellor has invited.

1. I am not satisfied that there is any incontrovertible fact or point of law which provides a discrete basis for the decision and which is not affected by the procedural unfairness. I am not satisfied that it would be futile to declare the exclusion decision invalid and remit the matter back to the University for decision in accordance with the requirements of procedural fairness and natural justice.

1. Ms Knowles informed the Court that since the exclusion decision was made, University Regulation 10.2 has been repealed and replaced by a new and different statute. She advised that over the period from 1 January 2013 to 31 July 2013 an interim statute was in force within the University. On 31 July 2013, the University enacted the Governance, Academic and Student Affairs Statute 2013 (‘the Governance Statute’) under s 28 of the University Act.

1. Section 41 of the Governance Statute now provides:

Suspension or exclusion on health or safety grounds

The University may refuse to enrol a person as a student, or may suspend or exclude a student, if it appears that the student –

(a)has a health condition or disability for which there is a demonstrable reason (based on history or other circumstances) to be believe that –

(i)        the person may harass or harm other persons;

(ii)the enrolment of the person, or the person’s behaviour as an enrolled student, may cause emotional disturbance to other persons or to himself or herself; or

(iii)the person may disrupt the provision of the University facilities or services or University activities; or

(b)is likely, taking into consideration history or other circumstances, to –

(i)harass, harm or cause emotional disturbance to other persons;

(ii)disrupt the provision of University facilities and services or University activities; or

(iii) cause health or safety risks to University staff or students.

1. Ms Knowles informed the Court that if the Court held that there had been a departure from procedural fairness or natural justice, the University would initiate proceedings under the Governance Statute. This is a matter for the University on which I make no comment, but the existence of a new statute highlights that reconsideration of the matter by the University can hardly be regarded as futile. Section 41 refers to ‘the University’ as the decision-maker. It was not clear during the hearing before me whether it would be the University Council, the Vice-Chancellor,[16] or another University senior officer who would be the ultimate decision-maker. Again, this points to the fact that reconsideration of the matter cannot be considered to be futile.

   [16]See, eg, s 22(1) and (3) of the Governance Statute.

Conclusion

1. I am satisfied that in making the exclusion decision the University and the Vice-Chancellor failed to comply with the requirements of procedural fairness and natural justice and that the grant of relief is not futile. The result is that a declaration should be made that the exclusion decision is invalid and of no effect. I will hear submissions from the parties as to what should be done as to costs.