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

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.

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.

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.

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.

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…

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: [2014] VSC 161
Decision Date: 11 April 2014

CaseChat Overview and Summary

The matter before the court involved Durney, a student, and Victoria University, a tertiary institution. The dispute centred on Durney's exclusion from university premises, which was contested on the grounds that procedural fairness and natural justice were not observed. The case was heard in the Supreme Court of Victoria.

The primary legal issues were whether Durney was properly informed of the allegations against him before the decision was made, and whether he was provided with all documents and information that the decision-maker relied upon. These issues were examined in light of statutory provisions, including sections 28, 30(1), and 34 of the Victoria University Act 2010 (Vic), as well as regulation 10.2 clause 2 of the Victoria University Regulations (Vic). The court had to determine if the university's failure to comply with procedural fairness and natural justice principles rendered the exclusion decision invalid.

The court held that Victoria University did not adhere to the principles of procedural fairness and natural justice, as Durney was neither adequately informed of the allegations nor provided with the relevant documents and information. Consequently, the exclusion decision was deemed invalid and of no effect. The court also determined that granting relief was not futile, as the invalidity of the decision had a direct impact on Durney's rights and interests. The court's decision effectively nullified the university's exclusion of Durney from its premises.

No additional orders were made beyond the declaration that the exclusion decision was invalid and of no effect. The case underscores the importance of procedural fairness and natural justice in administrative decisions affecting individuals' rights and interests.

Orders