Fleming v Flinders University
[2025] SASC 171
•15 October 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FLEMING v FLINDERS UNIVERSITY
[2025] SASC 171
Judgment of the Honourable Justice Gray
TORTS - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH
STATUTES - ACTS OF PARLIAMENT - ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES - BREACH OF STATUTORY DUTY
EDUCATION - INSTITUTIONS - UNIVERSITIES AND OTHER TERTIARY INSTITUTIONS
The applicant, Ms Fleming, claims in negligence that the respondent, Flinders University, breached its duty of care, and that the respondent breached its statutory duty of care. The applicant contends that the respondent is vicariously liable for the actions of its staff.
Ultimately, the applicant’s claim seeks to place herself in the position she held as an undergraduate with a granted extension to meet the final requirements of her bachelor’s degree.
Six separate incidents were the subject of factual disputes, being:
1. The events of the first mentor meeting on 23 March 2018;
2. The events at the lecture theatre on 23 March 2018;
3. The events of the second mentor meeting on 6 April 2018;
4. The events at the lecture theatre on 4 May 2018;
5.The extent to which appeals were instituted and pursued concerning decisions by the respondent concerning the applicant; and,
6.The extent to which staff of the respondent were acting recklessly or in concert to adduce a consequence of the applicant being excluded from completing all of the required topics to graduate with a Bachelor of Laws and Legal Practice degree.
The applicant contended that she had not done anything wrong during either the mentor meetings or the lectures. She further contended that she had exhausted her appeal rights regarding the allocation of the fail grade.
The respondent claimed it had not breached any duty to Ms Fleming and no relevant duty was properly pleaded. The University claimed Ms Fleming had not suffered any relevant loss as a consequence of any alleged breach of duty, and Ms Fleming had not established any particular act or omission giving rise to identifiable loss or damage.
Held, dismissing the applicant’s claim:
1.The evidence of the applicant in relation to the factual issues in dispute is rejected. Factual findings are made accepting the version of events given at trial by the respondent’s witnesses: at [71], [79]-[81], [92]-[93], [115]-[117], [123]-[124] and [159];
2.No cause of action is established in the tort of negligence. No particular act or omission is established on the evidence to support such a cause of action, and no identified act or omission is linked to identifiable loss or damage: at [181];
3.The applicant has not on the facts of this case established a statutory duty arising pursuant to s 18A of the Flinders University Act 1966 (SA) or pursuant to University Statute 6.4 and a breach of that duty giving rise to any identifiable loss or damage: at [191]-[192]; and,
4. No basis for the remedies sought has been established by the applicant: at [198].
Flinders University Act 1966 (SA) s 3-5, s 18A and s 20; Civil Liability Act 1936 (SA) s 31-32 and s 34, referred to.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410; CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 259 CLR 339; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469; Darling Island Stevedoring & Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36; Downs v Williams [1971] HCA 45; (1971) 126 CLR 61; Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99; Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464; Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317; Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; X (Minors) v Bedfordshire County Council [1005] 2 AC 633, considered.
FLEMING v FLINDERS UNIVERSITY
[2025] SASC 171Civil: Claim – Tort, Equity
GRAY J:
Introduction
This matter concerns events that occurred in 2018 whilst Ms Kim Fleming, the applicant, was undertaking a Bachelor of Laws and Legal Practice degree at Flinders University, the respondent (“the University”). The events included an incident on 4 May 2018 which resulted in police attending the University’s Victoria Square campus and escorting Ms Fleming from the University grounds.
Ms Fleming claims in negligence that the University breached the duty of care that the University owed to her. Ms Fleming also claims that the University breached an applicable statutory duty of care.[1] Ms Fleming contends that the University is vicariously liable for the actions of the staff of the University.
[1] Amended Claim (FDN 25), Reply (FDN 53).
Ms Fleming did not allege that there was a failure by the University to follow its policies or procedures. Ms Fleming expressly stated that she did not seek any form of administrative review of the University’s decisions.[2] Rather, Ms Fleming’s case was that certain University staff were reckless in the actions that they took against her, and the University is vicariously liable for the actions of its staff.[3] Ms Fleming claimed to have been individually harmed by University staff and that the identified staff acted in concert to harm her.[4] Ms Fleming frames her case as being that the manner in which the University implemented its policies and procedures, through the actions of certain staff members, was reckless, resulting in the University breaching its duty of care.
[2] T35.
[3] Reply (FDN 53) at [4]; T14.
[4] T36.36-7.4
The University claims that it has not breached any duty to Ms Fleming and no relevant duty is properly pleaded in these proceedings.[5] Further, the University claims that Ms Fleming has not suffered any relevant loss as a consequence of any alleged breach of duty by the University so as to establish any cause of action.[6] The University’s position is that Ms Fleming did not establish that any particular act or omission was the basis of her cause of action in negligence and Ms Fleming did not link any such act or omission to any identifiable loss or damage.[7] The University denies any breach of a statutory duty of care.
[5] Amended Defence (FDN 51).
[6] Amended Defence (FDN 51).
[7] Respondent’s Written Submissions dated 28 March 2025 (FDN 107) (“RWS”) at 2, [9].
Background
Ms Fleming completed a Bachelor of International Studies Degree on 30 October 2017. She also successfully completed all topics to graduate with a Bachelor of Laws Degree.[8] Ms Fleming did not however, complete the required topics to graduate with a Bachelor of Laws and Legal Practice degree. The outstanding topics that needed to be completed as at 2018 were LLAW7001 (Practical Legal Training: Legal Practice Management) and LLAW7002 (Practical Legal Training: Transactional Legal Practice).[9]
[8] Exhibit A63.
[9] Exhibit A23.
The matters set out below detail, in chronological form, matters that were considered in the course of the trial concerning Ms Fleming’s studies. These matters emerge largely from documents which were tendered at trial. The occurrence of the events to which the documents refer were largely undisputed at trial. What is in dispute is the details of the events that occurred and the reasons for those events occurring. I address separately, later in this judgment, by reference to the witness evidence the factual findings I make in respect of disputed aspects of the evidence.
It was not in dispute at trial that it was a requirement of the University that, in the absence of an extension being granted, the degree in which Ms Fleming was enrolled was required to be completed within 10 years. On 15 December 2017, Ms Fleming was granted an extension beyond the 10-year limit to complete the Bachelor of Laws and Legal Practice degree. The extension was granted until the end of semester 2 of 2018.[10] This would have provided Ms Fleming with the opportunity to complete LLAW7001 and LLAW7002. Following successful completion of those two components, Ms Fleming would then have been eligible to graduate from the University with a Bachelor of Laws and Legal Practice degree.[11]
[10] Exhibit A23.
[11] Exhibit A23.
In semester 1 of 2018, Ms Fleming enrolled in the LLAW7002 topic. The topic included an optional engagement in a mentoring program which involved students being assigned into small groups and being allocated a mentor who was a member of the legal profession (“the Mentor Program”). The mentor’s role included meeting with the group on a regular basis during the topic and providing general guidance to the students in a group environment.[12] Ms Fleming was assigned to mentor group 13 (“the Mentor Group”).
[12] Exhibit A15.
On 23 March 2018, Ms Fleming attended her first mentor meeting session at a café located in Victoria Square (“the first mentor meeting”). Following the first mentor meeting Ms Fleming attended a lecture in the LLAW7002 topic concerning succession law which was presented by Ms Vanessa Varga. There is a factual dispute about what occurred at both the first mentor meeting and the lecture on 23 March 2018. I address these events later in my assessment of the evidence.
The following week on 27 March 2018, Ms Fleming sent an email to Dr Michael McNamara, Lecturer in Law and Legal Practice at the University outlining a series of concerns that she had in relation to the first mentor meeting. On the same day, Dr McNamara responded to Ms Fleming stating that he had forwarded her email to Ms Melissa Huish, the then Acting Director of Professional Programs.[13]
[13] Exhibit A28.
On 6 April 2018, the Mentor Group met once again at a cafe in Victoria Square (“the second mentor meeting”). There is a factual dispute about what occurred at the second mentor meeting, and I address that factual dispute later in my assessment of the evidence.
On 6 April 2018, Ms Fleming sent an email to the Deputy Vice-Chancellor (Students) of the University, Ms Clare Pollock. Ms Fleming raised concerns about the Mentor Program. In the course of that correspondence, she indicated that she felt she had been “harassed and bullied by educators and ... students” at the University. Ms Fleming requested an appointment with the Deputy Vice‑Chancellor (Students).[14]
[14] Exhibit A31.
On 7 April 2018, Ms Fleming sent a further email to the Deputy Vice‑Chancellor (Students) again raising her concerns and requesting a response. In Ms Fleming’s view, she said that her mentor was an “unstable and potentially dangerous person”.[15]
[15] Exhibit A37.
On the same day, Ms Fleming also sent an email directly to the mentor raising her concerns about the Mentor Group.[16] The mentor responded on the same day stating that Ms Fleming’s email would be forwarded to Ms Huish.[17] That occurred and Ms Huish then forwarded the email to Professor Mary Heath, Dean of Education, College of Business, Government & Law of the University.[18]
[16] Exhibit A34.
[17] Exhibit A35.
[18] Exhibit A38.
On 12 April 2018, Ms Fleming emailed Ms Huish raising her concerns about the second mentor meeting.[19] Ms Fleming said that she was concerned for her safety with attending the remaining three mentor meetings. She also stated that she had not yet received a response from Ms Huish regarding her previous concerns. Ms Huish replied on the same day stating that she was away but could arrange a time to speak on the following Monday.[20]
[19] Exhibit A42.
[20] Exhibit A43.
On 24 April 2018, Ms Fleming sent an email in response to an email that she had received from Professor Heath. Ms Fleming’s email outlined a series of questions in relation to her ongoing involvement with the Mentor Program and the effect of a potential exclusion from the Mentor Program on her progress in the topic.[21]
[21] Exhibit A52.
On 26 April 2018, Professor Heath responded to Ms Fleming acknowledging her concerns. In relation to Ms Fleming’s queries about her involvement in the Mentor Program, Professor Heath advised that Ms Huish would be in contact. Professor Heath stated that she had not decided to exclude Ms Fleming from the Mentor Program.[22]
[22] Exhibit A53.
There were two emails sent on 3 May 2018 by Ms Huish to Ms Fleming.[23]
[23] Exhibits A56 and A57.
On 3 May 2018, at around 2:23 pm Ms Huish sent an email to Ms Fleming confirming that the mentor group of which she had been a member[24] had been disbanded and Ms Fleming would not be re-allocated to another mentor group at that time. The email gave notice to Ms Fleming that under the University’s Work‑Integrated Learning Procedure a decision had been made to withdraw Ms Fleming from participation in the Mentor Program for the remainder of the LLAW7002 2018 course.
[24] Referred to as mentor group 13.
The email went on to state that the decision to withdraw Ms Fleming from participation in the Mentor Program had been made based on reports that had been received about Ms Fleming’s behaviour during the Mentor Group meetings held on 23 March 2018 and 6 April 2018.[25] The email records that the reports had raised concerns about Ms Fleming’s behaviour, which was described as aggressive, discourteous, unprofessional and outside the acceptable boundaries of professional behaviour.
[25] Exhibits A56 and A57.
The email also stated that the withdrawal from the Mentor Program did not prevent Ms Fleming from satisfactorily completing the LLAW7002 topic. The email noted that there was a statement of assessment methods for the LLAW7002 topic and this, inter alia, included a requirement not to lose all five stars in the professional scheme (“the 5 Star Professional Assessment Scheme”). The email noted that the 5 Star Professional Assessment Scheme allowed for ongoing assessment of professional behaviour, and that all students would be written to that day concerning their progress in the 5 Star Professional Assessment Scheme as part of a mid-semester review. Evidence at the trial indicated that to successfully complete the LLAW7002 subject, students were required not to lose all five stars.[26]
[26] Exhibit R19 at 10-2, [63]-[71].
The email noted that if Ms Fleming sought to review the decision to withdraw her from the Mentor Program or the decision not to reallocate her to another mentor or to another mentor group, she was advised to contact the Dean of Education, College of Business, Government & Law.[27]
[27] Exhibit A56.
At around 3:37 pm on 3 May 2018, a second email was sent by Ms Huish to Ms Fleming informing Ms Fleming that the outcome of the 5 Star Professional Assessment Scheme review was that she had lost a total of four stars. The email indicated that three stars were lost as a consequence of Ms Fleming’s behaviour at the second mentor meeting. Ms Fleming’s behaviour was described in the email as being rude, discourteous and disrespectful to a fellow student and to the mentor, being a member of the legal profession. Ms Fleming’s behaviour was also described in the email as diminishing the reputation of the University, Flinders Law and her fellow students, and bringing the reputation of the University, Flinders Law and her fellow students into disrepute through her conduct in a public place. The email also indicated that one star was lost for inappropriate comments made by Ms Fleming about drug use by legal practitioners during class on 23 March 2018, which comments were described in the email as bringing the legal profession into disrepute.[28]
[28] Exhibit A57.
On 4 May 2018, Ms Fleming attended a lecture as part of the LLAW7002 course. There is a factual dispute about what occurred in the lecture theatre that day. It is however not in dispute that police attended and escorted Ms Fleming from the lecture theatre. I address separately later in this judgment the factual findings that I make concerning what occurred in the lecture theatre on 4 May 2018.
On 4 May 2018, a letter was sent from the Deputy Vice-Chancellor (Students) to Ms Fleming.[29] The letter stated that Ms Fleming had been reported to have behaved inappropriately and aggressively towards a law faculty staff member and another student in front of a class that was held that morning. It stated that Ms Fleming refused to follow a direction from a staff member and security to leave the University premises. As a result, the police were called, and Ms Fleming was removed from the premises. The Deputy Vice-Chancellor (Students) determined as a consequence that it was appropriate for Ms Fleming to be suspended from the University for a period of 28 days.[30] During the period of suspension, there would be an investigation into Ms Fleming’s behaviour. If Ms Fleming had any queries about the letter, she was advised to contact Mr Robert Houghton, Senior Student Policy and Integrity Advisor. Mr Houghton was appointed by the Deputy Vice-Chancellor (Students) to conduct the investigation.
[29] Exhibit A59.
[30] Exhibit A59.
On 8 May 2018, Ms Fleming sent an email to Professor Heath asking how she was to complete the LLAW7002 topic whilst under the 28-day suspension.[31] Professor Heath responded on the same day stating that she appreciates Ms Fleming’s concerns and took them seriously. She said that Ms Fleming’s email would be referred to the Office of the Deputy Vice-Chancellor (Students).[32] Later that morning, Ms Fleming also sent an email to Ms Huish querying how she was to complete the compulsory topic during her suspension.[33]
[31] Exhibit A58.
[32] Exhibit A58.
[33] Exhibit A61.
By letter dated 9 May 2018, Ms Fleming replied to the suspension letter dated 4 May 2018.[34] Ms Fleming acknowledged the events that had transpired at the University on 4 May 2018 and requested an appointment with the Deputy Vice‑Chancellor (Students) to discuss her studies and how she could return to the University.
[34] Exhibit A64.
On 9 May 2018, Mr Robert Houghton, Senior Student Policy and Integrity Advisor wrote on behalf of the University to Ms Fleming.[35] Mr Houghton’s correspondence, inter alia, provided:[36]
As you have been awarded a Fail (F) grade for the topic LLAW7002, and given that this topic is not offered in Semester Two 2018, you will not be in a position to pass your last two topics for the Bachelor of Laws and Legal Practice within the time frame of your extension. In this context, you may wish to consider the option of exiting from the Bachelor of Laws and Legal Practice with the Bachelor of Laws degree. You may then consider the option of undertaking Practical Legal Training with another provider.
[35] Exhibit A63.
[36] Exhibit A63.
On 10 May 2018, Ms Fleming sent an email to Professor Heath.[37] That email, amongst other things advised that Ms Fleming regretted not leaving the premises on 4 May 2018, as that matter had impacted her studies greatly.[38] Amongst other things, Ms Fleming raised that it was her intention to pursue an investigation within, or external to the University, as Ms Fleming alleged that what had happened at the University to her during the course of her studies was not acceptable. Ms Fleming advised of her wish to appeal the grade and sought advice as a matter of urgency as there was only four weeks left before the end of the course which was described as being a 9-unit Practical Legal Training topic.[39]
[37] Exhibit A65.
[38] Exhibit A65.
[39] Exhibit A65.
Professor Heath replied on 10 May 2018, indicating that she would attend to the matter as soon as she was able to do so.[40] Professor Heath then wrote again on 14 May 2018[41] and 15 May 2018[42] asking Ms Fleming to state her grounds of appeal.
[40] Exhibit A65.
[41] Exhibit A67.
[42] Exhibit A68 at 4.
On 11 May 2018, Mr Houghton replied to Ms Fleming’s letter dated 9 May 2018 which was sent to the Deputy Vice-Chancellor (Students).[43] Mr Houghton confirmed that he had been appointed to undertake a preliminary investigation into the incident that had occurred at the University on 4 May 2018. Mr Houghton indicated that he would be conducting interviews with relevant persons in relation to the matters and would interview Ms Fleming.[44]
[43] Tender Book (‘TB’) at tab 213.
[44] TB at tab 213.
Ms Fleming replied to Mr Houghton’s email raising a number of questions in relation to the decision for her to be suspended and removed from the LLAW7002 topic.[45]
[45] TB at tab 213.
On 15 May 2018, Professor Heath responded to Ms Fleming’s questions.[46] She stated that Mr Houghton would respond to Ms Fleming regarding her questions about the suspension. Professor Heath also responded to Ms Fleming’s questions about the LLAW7002 topic. She also outlined the procedure to request a review of the grade.
[46] Exhibit A77.
Also on 15 May 2018, Mr Houghton sent an email to Ms Fleming making it clear that the investigation into the events that had transpired on 4 May 2018 and Ms Fleming’s grade for the topic of LLAW7002 were two distinct matters. Mr Houghton then outlined the situation regarding the suspension.[47]
[47] Exhibit A78.
On 24 May 2018 Ms Fleming requested a 10-day extension to lodge an appeal concerning her fail grade.[48] On 25 May 2018, Professor Heath sought confirmation that Ms Fleming sought 10 working days until 21 June 2018.[49] On 28 May 2018, Ms Fleming asked further questions of Professor Heath concerning the appeal.[50] On 29 May 2018, Professor Heath granted the extension until 21 June 2018.[51] On 20 June 2018, Ms Fleming appealed against her final grade.[52] On 26 June 2018, the appeal was refused and Ms Fleming was advised that she could submit a written complaint to the Deputy Vice-Chancellor (Students) under section 6.7 of the Student Appeals and Complaints Policy.[53] The reasons for the refusal referred to the loss of five stars by Ms Fleming in the LLAW7002 topic. Part of the requirements of that topic was that a student not lose all five professional stars.[54] Ms Fleming was notified by Ms Huish on 3 May 2018 that she had lost four stars.[55] The letter of 26 June 2018 records that Professor Heath notified Ms Fleming of the loss of the fifth and final star as a consequence of her conduct on 4 May 2018. As indicated above, Mr Houghton notified Ms Fleming of her fail grade on 9 May 2018. The fail grade was awarded due to the loss of all five stars. The course requirements as indicated above stipulated that a student who lost all five stars would be afforded a fail grade.
[48] Exhibit A68 at 2.
[49] Exhibit A68 at 1.
[50] Exhibit A68 at 1.
[51] Exhibit A68 at 1.
[52] Exhibit A96.
[53] Exhibit R4.
[54] Exhibit R19 at 10-2, [63]-[71].
[55] Exhibit A57.
There is a factual dispute about whether a written complaint to the Deputy Vice-Chancellor (Students) under s 6.7 of the Student Appeals and Complaints Policy was instituted. I address this issue later in my assessment of the evidence.
On 30 May 2018, the Deputy Vice-Chancellor (Students), Ms Pollock advised Ms Fleming that the suspension had been extended for a further 14 days (i.e., until midnight on 15 June 2018) to enable Mr Houghton to complete his investigation and provide a report on the incident.[56] That correspondence reiterated the University’s position that Ms Fleming was not permitted access to the University’s premises.
[56] Exhibit A71.
By letter dated 13 June 2018[57] sent from Ms Pollock, Ms Fleming received a formal warning and under clause 5.2 of the Policy and Procedures for Handling a Matter under Statute 6.4: Student Conduct.[58] Under that policy, following investigation of a complaint, the Deputy Vice-Chancellor (Students) could take one of a number of actions including, inter alia, finding no case to answer, or finding a prima facie case of misconduct and referring the matter for hearing before a Board of Inquiry. Pursuant to the Policy and Procedures for Handling a Matter under Statute 6.4: Student Conduct, the outcome of a Board of Inquiry could include expulsion or suspension from the University.[59]
[57] Exhibit A72.
[58] Exhibit R24 at 85 (Annexure CP-4).
[59] Exhibit R24 at 88 (Annexure CP-4).
The issuing of a formal warning was an option available to the Deputy Vice‑Chancellor (Students) pursuant to clause 5.5(c) of the Policy and Procedures for Handling a Matter under Statute 6.4: Student Conduct.[60] That clause provided that the Deputy Vice-Chancellor (Students) may:[61]
determine that there is a prima facie case of misconduct, but that the actions of the student do not warrant referral to a Board of Inquiry. In this case, the Deputy Vice-Chancellor (Students) will issue a formal warning to the student to discontinue the alleged misconduct and inform the student of any actions the University may take in the event of any further occurrence of the alleged misconduct.
[60] Exhibit R24 at 85 (Annexure CP-4).
[61] Exhibit R24 at 85 (Annexure CP-4).
By the letter dated 13 June 2018, the formal warning directed Ms Fleming’s attention to clause 3 of Statute 6.4. Clause 3 of Statute 6.4 states:[62]
A student must respect the rights and welfare of other persons who use the University, and the reasonable freedom of such other persons to pursue their studies, research, duties or activities. A student will not wilfully damage or use without authority the property of the University and will ensure that his or her conduct does not infringe the rights of other members of the University.
[62] Exhibit R24 at 85 (Annexure CP-4).
Ms Fleming was advised to ensure that, in the future, she respect the rights of staff and other students of the University, including by using respectful language. She was instructed to desist from shouting and to be respectful and follow any instructions from University staff members.[63] Ms Fleming was reminded that in the event of any further occurrences of inappropriate behaviour, she would be immediately suspended from classes and referred for formal investigation by a Board of Inquiry. Ms Fleming’s temporary suspension from the University ceased from the date of the decision.
[63] Exhibit A72.
On or around 30 August 2018, Ms Fleming made an application for a further extension to the 10-year rule, given that, as noted above, in 2018, Ms Fleming was completing her degree pursuant to a one-year extension that she had been granted on 15 December 2017.[64] The documents indicate that by letter dated 21 September 2018 Ms Fleming’s application for a further extension of the 10‑year rule was refused.[65] Ms Fleming appealed against that decision to the Student Appeals Committee and she was advised on 16 July 2020 that that appeal was unsuccessful.[66]
[64] Exhibit A23.
[65] Exhibit R7.
[66] Exhibit R17.
The above matters appear from the documents adduced at trial, many of which were put forward by the applicant as part of her case. As indicated above, the authenticity of these documents are not in dispute and the documents speak for themselves as to the chronology of events. No party challenged that the documents accurately represent the correspondence that was sent. I make factual findings that such correspondence was exchanged and that the correspondence accurately records the dates on which events occurred.
There were however as I have indicated, a number of factual issues in dispute between the parties, and the witnesses called in this matter gave varying accounts of events that occurred at the University relevant to the complaints that Ms Fleming advances. What is in dispute is whether what is recorded in the documents accurately describes what occurred. So, whilst I make factual findings as to the chronology of events set out above and as to the correspondence that was sent, and in respect of the non-contentious matters set out above, I address separately below the evidence given at trial concerning the factual issues in dispute.
As I explain in my assessment of the evidence, Ms Fleming’s version of various events differed from the accounts given by the witnesses called by the University.
Evidence at trial
Prior to considering the factual issues in dispute I make the following preliminary observations concerning the evidence of the witnesses. I also note that the civil standard of proof on the balance of probabilities applies and that is the standard I apply in making factual findings. Ms Fleming bears the onus of proof in establishing her claim.
Ms Kim Fleming
Ms Fleming gave evidence at trial. She did so in part by adopting her written witness statements and in part by oral evidence.[67] Ms Fleming’s oral evidence concerned, amongst other matters; the first mentor meeting, the events in the lecture theatre of 23 March 2018, and the second mentor meeting. For the reasons explained further below I do not accept the version of events that Ms Fleming gave in respect of these three events. Ms Fleming’s evidence differed markedly from that given by other witnesses called by the University.
[67] Exhibits A73 and A94.
Ms Fleming also gave evidence concerning the events in the lecture theatre on 4 May 2018. Her oral evidence about what occurred on that day was inconsistent with a number of other witnesses’ accounts. Ms Fleming’s evidence was to the effect that she did not do anything wrong, and she was unaware that she had done anything wrong.[68] This evidence is difficult to accept. It is inconsistent with the other evidence given by Ms Fleming in which she admitted that she refused to leave the premises even when she was informed by a security officer that police would be called.[69]
[68] T304.27-33.
[69] T305.8-11.
I have addressed below, in relation to each event, the reasons for rejecting Ms Fleming’s version of the events described above. I also have had cause to scrutinise carefully Ms Fleming’s evidence, because her evidence across numerous different events differed from that presented by other witnesses. I find on balance that it is unlikely that a number of other witnesses would be independently lying about such a number of different events.
In relation to the topic of the extent to which appeals were instituted, and the case advanced that members of the University staff were acting recklessly or in concert to achieve a consequence of Ms Fleming being excluded from completing a Bachelor of Laws and Legal Practice degree, Ms Fleming claimed at various times that the documents supported her version of events. The documents upon which Ms Fleming relied to corroborate her perspective were either not produced by Ms Fleming,[70] or the documents which Ms Fleming pointed to simply did not support the inference that Ms Fleming sought to draw from them.[71]
[70] For example, no documents were adduced by Ms Fleming to show that she appealed against the decision of 26 June 2018 upholding her fail grade for LLAW7002.
[71] See for example the documents concerning Ms Fleming’s removal from the online learning portal: Exhibits A75, A76, A77, A78, A79, A80 and A81. See also, the documents concerning the application for an extension of the 10-year rule, which documents showed that Ms Fleming appealed this decision contrary to her initial assertion that she did not: T221, cf T359.
I find that Ms Fleming was not a witness of truth and that she held a false and distorted perception of events. Ms Fleming’s version of events appeared to be based upon her perspective that she was a victim of actions that were undertaken without regard to the harm of such actions upon her. In contrast, other witnesses largely saw Ms Fleming as being the aggressor in verbal exchanges in the University setting, with University staff acting in accordance with policies and procedures to address this behaviour.
Ms Melissa Huish
Ms Melissa Huish was the Acting Director of Professional Programs and topic co-ordinator for the LLAW7002 program in which Ms Fleming was enrolled. Ms Huish had significant involvement with Ms Fleming’s engagement in the Mentor Program. Ms Huish was also present on 4 May 2018 when Ms Fleming was removed from the lecture theatre by police. Ms Huish was involved in both the removal of the five stars from Ms Fleming during the course of her enrolment in the LLAW7002 program and in the subsequent decision to accord Ms Fleming a fail grade for that subject.
Ms Huish was cross-examined at length by Ms Fleming. Ms Huish presented as a witness who was very detail-orientated and was very fixed and rigid in her evidence. Ms Huish answered most questions put to her at length and by repeating the evidence that she gave in evidence-in-chief in her written statement. Ms Huish at times expressed her opinion about the question being asked of her, even when objection was not being taken, by the respondent’s counsel. These matters contributed in some way to the length of time taken for Ms Huish’s evidence to be completed. Ms Huish was at some points emotional in the evidence she gave, and it was clear that she was significantly impacted by her interactions with Ms Fleming. I take all these matters into account in assessing Ms Huish’s evidence. In my view, these matters do not affect the veracity of the evidence that Ms Huish gave, and I find Ms Huish to be a witness of truth. Where Ms Huish’s evidence differed from the account given by Ms Fleming, as indicated below, I prefer the version of events given by Ms Huish. Her evidence for the reasons I outline below was largely corroborated by other witnesses, including a number of independent student witnesses.
Ms Despina Anagnostou
Ms Despina Anagnostou was a legal practitioner assigned as a mentor to the Mentor Group. Ms Anagnostou gave evidence about both the first mentor meeting and the second mentor meeting. Her evidence was considered and detailed. Ms Anagnostou in her answers to questions and under cross-examination exhibited a genuine concern for her students and a genuine desire to assist in the Mentor Program and to ensure that the students had a positive experience as part of their involvement in that program. For the reasons outlined below, I find Ms Anagnostou to be a truthful witness, and I accept her evidence.
Mr Robert Houghton
Mr Robert Houghton gave evidence primarily concerning the investigation that he was appointed by Ms Pollock to conduct into Ms Fleming’s conduct on 4 May 2018. In 2018, Mr Houghton was the Senior Student Policy and Integrity Advisor. His role involved the conducting of investigations concerning alleged student misconduct and his evidence is relevant to the allegation that various members of the University were “acting in concert” with a view to excluding Ms Fleming from completing the degree for which she enrolled. I address Mr Houghton’s evidence in this context below. For the reasons outlined below, I find Mr Houghton to be a truthful witness.
Mr Thomas Hill
Mr Thomas Hill was a law student who was part of the Mentor Group, of which Ms Anagnostou was the mentor. Mr Hill gave evidence concerning his involvement in the first mentor meeting and the second mentor meeting. Whilst Mr Hill could not recall the exact detail of conversations that were had during the course of the mentor meetings, the effect of his evidence was that he did not recall Ms Anagnostou’s conduct or behaviour being inappropriate, nor did he feel uncomfortable during the course of the first mentor meeting.
Mr Hill presented in a very straightforward manner. Mr Hill was clearly doing his best to give his evidence to the best of his recollection. Generally, Mr Hill’s evidence was corroborative of Ms Anagnostou’s version of events and did not support the version of events given by Ms Fleming. It was clear that Ms Fleming’s behaviour whilst observed by Mr Hill did not impact him greatly. I make no criticism of Mr Hill’s lack of recall of events. The events occurred some six years ago, and did not, on his evidence, have a significant impact upon him. As a consequence of the fact that Mr Hill’s recollection of events was less detailed than the recollection of other witnesses, I place less weight upon his evidence. Mr Hill presented as a witness of truth.
Professor Mary Heath
In 2018, Professor Mary Heath was a Professor of Law and the Dean of Education for the College of Business, Government and Law at the University. Professor Heath was a careful witness who expressed genuine compassion and concern for Ms Fleming’s well‑being in relation to the decisions she made and the actions she took in her role of Dean of Education. I address Professor Heath’s evidence below. Professor Heath’s evidence is primarily relevant to the factual issues in dispute concerning whether Ms Fleming sought to appeal her fail grade and whether Professor Heath acted together with other staff of the University “in concert” with a view to having Ms Fleming excluded from the degree in which she had enrolled. I find Professor Heath to be a witness of truth.
Ms Clare Pollock
In 2018, Ms Clare Pollock was the Deputy Vice-Chancellor (Students) at the University. Ms Pollock gave evidence primarily concerning her involvement in the investigation concerning Ms Fleming’s conduct that resulted in Ms Fleming being escorted from the lecture theatre on 4 May 2018. Ms Pollock’s evidence is relevant to the factual issue in dispute between the parties concerning whether certain University staff were acting “in concert” to ensure that Ms Fleming was prevented from completing the degree in which she was enrolled in 2018 and is dealt with in that context below. Ms Pollock was a truthful witness.
Ms Tania Leiman
In 2018, Ms Tania Leiman was the Deputy Dean of Law at the University. Ms Leiman gave evidence concerning her involvement with decisions made in respect of the incidents involving Ms Fleming. This evidence concerned both the incidents arising related to the Mentor Program and the 4 May 2018 incident. Ms Leiman also gave evidence concerning her understanding of the 5 Star Professional Assessment Scheme and the nature of the law course offered at the University. The effect of Ms Leiman’s evidence was that the University no longer offers a combined Bachelor of Laws and Legal Practice degree and that students undertaking the current law degree at Flinders University which is entitled Bachelor of Laws Legal Practice Entry Degree are required on completion of that degree to undertake further studies to complete any Practical Legal Training requirements. Ms Leiman was not cross-examined about the evidence that she gave concerning the legal practice degrees that are offered, and this is relevant to the nature of the relief that Ms Fleming seeks in these proceedings.[72] I accept Ms Leimann’s evidence.
[72] T802-3.
Ms Alexandra Douvartzidis
Ms Alexandra Douvartzidis gave evidence in a clear, concise and upfront manner. Ms Douvartzidis was clear about those matters she did recall and those she did not. Ms Douvartzidis gave detailed evidence about the events at the lecture on 23 March 2018, which is referred to below, as well as more brief evidence concerning the incident that occurred on 4 May 2018. Ms Douvartzidis was a truthful witness.
Mr Thomas McCourt
Mr Thomas McCourt was upfront about what he could recall and could not recall. His evidence primarily concerned the lecture on 23 March 2018 and the incident on 4 May 2018. I have considered the evidence about the 4 May 2018 incident in my assessment below. I accept Mr McCourt’s evidence.
Other student witnesses, Mr Anthony Stoks and Ms Meghan Fitzpatrick
Mr Anthony Stoks and Ms Meghan Fitzpatrick gave evidence concerning the 4 May 2018 incident and I address the evidence of these witnesses in that context below.
Factual issues in dispute
There are six significant factual matters about which oral evidence was given, with each of those matters having vastly differing versions of events given in evidence. These matters are:
1. The events of the first mentor meeting;
2. The events at the lecture on 23 March 2018 which followed the first mentor meeting;
3. The events at the second mentor meeting;
4. The events in the lecture theatre on 4 May 2018;
5. The extent to which appeals were instituted and pursued concerning decisions made by the University concerning Ms Fleming; and,
6. The extent to which University staff were acting recklessly or in concert to adduce a consequence of Ms Fleming being excluded from completing all of the required topics to graduate with a Bachelor of Laws and Legal Practice degree.
Events of the first mentor meeting
The evidence of Ms Fleming concerning the first mentor meeting was that Ms Anagnostou “went on a tirade for an hour using expletives”,[73] and that the events constituted “a public display that was offensive, loud and public.”[74] Ms Fleming indicated that the words, “fuck” and “fuckhead” had been used 13 times over 45 minutes, and that Ms Fleming considered that to be “nonstop”.[75] There were some inconsistencies in Ms Fleming’s evidence about what was said during the course of the first mentor meeting. In particular, there were inconsistencies in the evidence that Ms Fleming gave concerning the words that were used. Initially, Ms Fleming said Ms Anagnostou used the words “fucking fuckwits”, “fucking fuckheads” and “fuckheads”.[76] Ms Fleming clarified in cross‑examination that it was only the words “fuck” and “fuckhead” that were used.[77]
[73] T71.
[74] T236.32-3.
[75] T239.18.
[76] T77.13.
[77] T239.3-4.
The effect of Ms Anagnostou’s evidence was that during the first mentor meeting, Ms Fleming did not pay attention or seem attentive to other people when they were speaking and would often interrupt or speak over others. Ms Anagnostou noted that Ms Fleming’s personality was “prickly” particularly towards Ms Anagnostou. Ms Fleming was said to be standoffish, confrontational and did not appear to be receptive to the matters discussed by Ms Anagnostou or any other members of the mentor group.[78] Ms Anagnostou indicated that she formed the view from the beginning of the first mentor meeting that Ms Fleming did not appear to have any respect for Ms Anagnostou as a mentor or as a solicitor. Ms Anagnostou also observed that Ms Fleming lacked self‑awareness and demonstrated a lack of concern for the effect of her interruptions and manner upon the other members of the mentor group.[79]
[78] T647.20-35; Exhibit R22 at 4, [22].
[79] T649.32-50.9; Exhibit R22 at 4, [22].
Ms Anagnostou denied the allegations that Ms Fleming made about what occurred at the first mentor meeting and denied in her evidence that she said the words “fuck” and “fuckhead” repeatedly. Ms Anagnostou acknowledge that she did use the word “fuck” during the course of the first mentor meeting, but it was used on no more than five occasions and in the context of explaining a case specific example of the inappropriate use of that word.[80]
[80] T658.1-15 See also T659.2-10, T660.2-34 and T661.1-6.
Ms Anagnostou’s evidence was that Ms Fleming did not pay attention during the first mentor meeting nor was she attentive to other people when they were speaking and would often interrupt or speak over others.
Mr Hill, a law student who was part of the same mentor group, gave evidence that although he could not recall the detail of the conversations during the course of the mentor meetings, he did not recall Ms Anagnostou’s conduct or behaviour being inappropriate, nor did he feel uncomfortable during the course of the first mentor meeting.
Mr Hill presented in a very straightforward manner and gave his evidence in that way. His version of events was generally corroborative of Ms Anagnostou’s version of events and did not support the version of events given by Ms Fleming.
I find on balance that Ms Anagnostou’s account of the events of the first mentor meeting to accurately represent the events that occurred during the first mentor meeting. Ms Anagnostou’s account of events is to be preferred. Ms Anagnostou’s evidence was considered and detailed. In her evidence-in-chief and also in cross-examination, Ms Anagnostou exhibited a genuine concern for her students. Ms Anagnostou’s evidence is also corroborated to some extent by the evidence of Mr Hill. I reject the evidence of Ms Fleming concerning the allegation that Ms Anagnostou went on a 45-minute tirade repeatedly using the words “fuck” and “fuckhead”. Ms Fleming’s evidence of events was not consistent. It would seem implausible that events would have occurred as described by Ms Fleming and not be the subject of concern by other students. Ms Fleming’s evidence on this topic appeared to represent a reconstructed or distorted view of events in which Ms Fleming perceived herself to be the victim, whereas other witnesses such as Ms Anagnostou viewed Ms Fleming as generally self-centred and aggressive in her interactions with others.
The events at the lecture on 23 March 2018 which followed the first mentor meeting
It was not in dispute between the parties that following the first mentor meeting, the students from Ms Fleming’s mentoring group and other students undertaking the LLAW7002 course attended a lecture that same day on succession law presented by Ms Varga.[81]
[81] T248.34-9.11.
Ms Fleming gave evidence that during the course of that lecture, there was a discussion about defendants taking drugs. Ms Fleming’s evidence was that in the context of that discussion, she expressed an opinion to the effect that “where a defendant must disclose any drug use or prescription drug use, so too should a person who is going to, a legal representative who is going to represent that defendant.”[82] Ms Fleming denied that she said words to the effect of “most lawyers are on antidepressants anyway so there is no real difference”.[83]
[82] T254.6-10.
[83] T254.15-20.
Ms Fleming’s evidence of the incident at the lecture theatre, like a number of the other events in relation to which her evidence differed from the account given by other witnesses, was fixated on a particular version of those events. The account of the incident in the lecture theatre on 23 March 2018 given by Ms Fleming contained some identical phrases in both examination-in-chief and cross‑examination; for example, her concern that defendants would be “at risk of losing their liberty”.[84]
[84] T136, T252-53.
Ms Douvartzidis gave evidence in a clear, concise and upfront manner about the lecture on 23 March 2018. She was clear about those matters she did recall and those she did not. The effect of Ms Douvartzidis’ evidence was that during the course of the succession law class discussion that occurred during the 23 March 2018 lecture, there was general discussion concerning how to navigate preparing and executing wills when the solicitor is aware the client is taking medication to treat or manage mental illness.[85] Ms Douvartzidis gave evidence that during the course of such discussion, Ms Fleming said words to the effect of “there is no difference between someone with drug tracks and people on antidepressants, they both alter your mind”.[86] Ms Douvartzidis’ evidence indicated that she was shocked and angered by Ms Fleming’s comments as she considered the viewpoint expressed to be outdated and to stigmatise mental illness. Ms Douvartzidis responded at the time indicating that she considered that Ms Fleming’s comment was ridiculous and inappropriate. That day, following class, Ms Douvartzidis emailed Ms Huish as the topic co-ordinator about what had been said, explaining and expressing her concerns.[87] There was further exchange by way of email correspondence between Ms Douvartzidis and Ms Huish. Ms Douvartzidis gave evidence that she also met with Ms Huish to discuss the matter. However, as matters transpired and given other commitments in Ms Douvartzidis’ life, she did not ultimately pursue the matter further.
[85] Exhibit R27 at 4, [41].
[86] Exhibit R27 at 4, [42].
[87] Exhibit R27 at 4, [47].
Ms Huish gave evidence that she received a complaint from Ms Douvartzidis in respect of comments made by Ms Fleming in the 23 March 2018 lecture.[88] Ms Huish’s evidence was that as Ms Douvartzidis did not wish to proceed with a formal complaint against Ms Fleming, Ms Huish did not take any further action under the University’s complaints policies and procedures to investigate the allegations about the 23 March 2018 class incident, nor did Ms Huish formally refer the matter to Professor Heath.[89] The matter was however considered further by Ms Huish in the context of the removal of stars from Ms Fleming.
[88] Exhibit R19 at 13-5, [77]-[91]. See also T477.5-12.
[89] Exhibit R19 at 15, [91].
Mr McCourt’s evidence primarily concerned the lecture on 23 March 2018 and the incident on 4 May 2018. Mr McCourt was upfront about what he could recall and what he could not recall. Mr McCourt indicated that he recalled that during the 23 March 2018 lecture, Ms Fleming made a comment which inferred that if people took medication to treat mental illness, such as antidepressants or antipsychotics, they lacked testamentary capacity. Mr McCourt indicated that he could not recall the exact words now used but the comment was words to the effect that if people were taking antidepressants or antipsychotics, they lacked testamentary capacity.
Mr McCourt was clear in cross-examination that he rejected any suggestions that the context in which these comments were made concerned the representation of a client in a criminal matter. Mr McCourt indicated that he considered the comments made by Ms Fleming in the 23 March 2018 lecture to be offensive and tone deaf. He described this as meaning that the comments occurred in the context of the class having recently learned about the mental health issues which are present in the legal profession. Mr McCourt gave evidence that Ms Fleming’s comments were not “encouraging a constructive discourse around medication and capacity” and failed “to take into account some of the broader discussions [they’d] had about mental health challenges that do plague the profession.”[90] Mr McCourt’s evidence was that he was offended by the comments that Ms Fleming made, and he considered them to be offensive however, he could not be bothered making a complaint and he was very upfront about his actions in that respect.
[90] T874.28-5.7.
I find that Ms Douvartzidis’ account of the events of the 23 March 2018 lecture to accurately represent the events that occurred during that lecture. Ms Douvartzidis’ account of events is to be preferred as Ms Douvartizidis was a clear and careful witness and Ms Douvartzidis made a written record of what occurred.[91] It is also corroborated in a general way by the evidence of Mr McCourt, who I find was also an upfront and truthful witness. Whilst Mr McCourt was more general in what he recalled, it is clear that he recalled the context of the discussion being testamentary capacity.
[91] Exhibit A25.
There were some differences between the accounts of Ms Douvartzidis and Mr McCourt. For example, Ms Douvartzidis recalled a comment referring to “drug tracks” and “people on anti-depressants”, whereas Mr McCourt recalled a more general reference to people taking medication and the question of testamentary capacity. I find those differences are to be expected as Ms Douvartzidis was more affected than Mr McCourt by the comments which were made. I do not find those differences as being a reason to reject Ms Douvartzidis’ account of the event and I find her account of events on the balance of probabilities to reflect what occurred.
I reject the evidence of Ms Fleming that the conversation in the lecture theatre on 23 March 2018 concerned the representation of a criminal client. Ms Fleming’s version of events was inconsistent with the evidence given by two independent students who were present. Ms Fleming’s version of events also seems less plausible as there was no cogent explanation for the discussion concerning representation of a criminal defendant. It is more likely that a class discussion in a succession law class would concern testamentary capacity. I find that Ms Fleming made comments during the class discussion on 23 March 2018 about drug use, including prescription drug use by legal practitioners, that a number of students found to be offensive.
The events at the second mentor meeting
In relation to the second mentor meeting, Ms Fleming’s evidence was to the effect that she was asked to outline her experience and there was some discussion concerning a mentor letter.[92] Ms Fleming indicated that she considered the discussion was focused on her and she asked for the attention to be taken off of her.[93] Ms Fleming indicated that she asked another student to speak about their experience as a way for her to have a break.[94] Ms Fleming stated that she didn’t know what happened but that the next minute Ms Anagnostou was screaming at the top of her lungs for her to leave.[95]
[92] T73, although later in her evidence Ms Fleming stated that the discussion concerning the mentor letter occurred at the first mentor meeting: see T78-80.
[93] T73.17-22.
[94] T73.25-6.
[95] T73.27-30.
In relation to the second mentor meeting, there was some inconsistency in the evidence Ms Fleming gave concerning what occurred. In particular, she stated that she did not believe the whole coffee shop would have heard Ms Anagnostou telling her to leave,[96] despite her evidence that Ms Anagnostou was “screaming at the top of her lungs”.[97] When that inconsistency was put to Ms Fleming, she denied that the two matters were inconsistent.[98]
[96] T284.12-20.
[97] T73.27-30.
[98] T285-7.
Ms Anagnostou also gave evidence concerning the second mentor meeting and her evidence was detailed. Ms Anagnostou indicated that one of the female mentees was sitting to her left and Ms Fleming was siting to her right and that two male mentees were sitting opposite her. Ms Anagnostou’s evidence of the second mentor meeting was that Ms Fleming repeatedly wanted to talk about herself, and Ms Fleming was antagonistic.[99] Ms Anagnostou explained in detail the efforts she made throughout the meeting to try and calm the situation, however towards the end of the meeting, Ms Fleming became increasingly agitated and began pointing her finger at the female mentee to the left of Ms Anagnostou. Ms Anagnostou’s evidence was that whilst Ms Fleming was not standing up as she spoke, she was raising herself out of the chair and speaking in a very aggressive way to the other student.[100] Ms Anagnostou indicated that she sensed that the other student was very uncomfortable with this behaviour, and so she asked Ms Fleming to pack her bag and leave. Ms Anagnostou’s evidence was that she had to repeat this request a number of times. Ms Fleming did not respond to Ms Anagnostou’s first request to leave the mentor meeting,[101] and she had to call an end to the mentor meeting.
[99] Exhibit R22 at 6, [41].
[100] T668.1-6.
[101] T677.
Ms Anagnostou sent an email to Ms Huish at 9:41 am on 6 April 2018 about the second mentor meeting.[102] Ms Anagnostou’s email made certain allegations about Ms Fleming’s behaviour during the course of the second mentor meeting, including that Ms Fleming did not listen to what Ms Anagnostou was saying during the meeting. Ms Fleming was reported to have acted aggressively and angrily towards Ms Anagnostou and other students. Ms Fleming interrupted and spoke over Ms Anagnostou, was argumentative and became angry, using an angry tone. In the course of the second mentor meeting, Ms Fleming accused Ms Anagnostou of running the mentoring meetings in an unequal way which Ms Fleming alleged was disadvantageous to herself.[103]
[102] Exhibit A29.
[103] T260.9-11.
Ms Anagnostou categorically rejected the version of events of the second mentor meeting put to her by Ms Fleming. Ms Anagnostou described Ms Fleming’s conduct in the second mentor meeting as being belittling and confronting to witness.[104] Ms Anagnostou indicated both in her evidence-in-chief and in cross‑examination that she considered the second mentor meeting had become an unsafe environment for students and particularly for the female mentee who was seated to the left of Ms Anagnostou.[105] Ms Anagnostou described Ms Fleming’s behaviour as appalling and unprofessional and behaviour that she considered to be dangerous to herself and the rest of her mentor group.[106]
[104] Exhibit R22 at 5, [38].
[105] T672.21-2.
[106] Exhibit R22 at 6, [39].
Ms Anagnostou categorically denied in both her evidence-in-chief and in cross‑examination that during the second mentor meeting she singled Ms Fleming out or in any way insisted Ms Fleming had not provided an introductory letter to her as required by the University.[107] Ms Anagnostou was consistent in the evidence she gave that it was Ms Fleming who appeared to want to only talk about herself and not to listen to any other students, rather than Ms Anagnostou directing any particular attention towards Ms Fleming, other than what was necessary to address Ms Fleming’s behaviour.[108]
[107] T674.15-24. Although, Ms Fleming gave differing accounts of when the issue with the introductory letter arose.
[108] T679.16-28.
Ms Anagnostou accepted that she needed to speak in a tone that was louder than a conversational tone to be heard at the end of the second mentor meeting to appropriately address Ms Fleming’s behaviour. Ms Anagnostou denied that she was yelling at the top of her voice.[109]
[109] T679.16-28.
On 6 April 2018, Ms Huish received an email from Ms Anagnostou at 9:41 am on 6 April 2018 about the second mentor meeting.[110] Ms Anagnostou’s email made certain allegations about Ms Fleming’s behaviour during the course of the second mentor meeting, including that Ms Fleming did not listen to what Ms Anagnostou was saying during the meeting. Ms Fleming was reported to have acted aggressively and angrily towards Ms Anagnostou and other students. Ms Fleming interrupted and spoke over Ms Anagnostou and accused Ms Anagnostou of running the mentoring meetings in an unequal way which Ms Fleming alleged was disadvantageous to herself.[111] Ms Huish was also copied into an email sent at 11:50 am that day by Ms Anagnostou to the other students in the Mentor Group.[112] Ms Huish discussed the matters with Professor Heath and received advice from Professor Heath. Ms Huish then wrote to the other students of the Mentor Group and offered those students the opportunity of seeking support from health and counselling services at the University.[113] In cross‑examination, Ms Huish indicated she did not, at that stage, following the second mentor meeting, write to Ms Fleming offering her health and counselling services, however such an offer had been extended previously to Ms Fleming by Dr McNamara in response to Ms Fleming’s communications concerning the first mentor meeting.[114]
[110] Exhibit R19 at 21, [151]. See also Exhibit A29.
[111] Exhibit R19 at 21, [152]. See also Exhibit A29.
[112] Exhibit R19 at 22, [156]. See also Exhibit A30.
[113] Exhibit R19 at 24, [169]. See also TB at tab 53.
[114] T559.28-35. See also T605.30-6.1.
Ms Huish gave evidence that she spoke to Ms Anagnostou over the weekend on Saturday, 7 April 2018, and it was on that date that Ms Huish formed the view that the mentoring relationship between Ms Fleming and Ms Anagnostou had irretrievably broken down.[115] During the 7 April 2018 conversation, Ms Huish also discussed with Ms Anagnostou the allegations that had been made by Ms Fleming concerning Ms Anagnostou’s behaviour during the 23 March 2018 mentor meeting.[116]
[115] T567.31-8.12. See also Exhibit R19 at 25, [175]-[178].
[116] Exhibit R19 at 24-6, [173]-[182].
Mr Hill gave evidence concerning the second mentor meeting. In respect of the second mentor meeting, Mr Hill could not recall in great detail what was being discussed but he did recall that the discussion escalated to the extent that he described there being an argument between Ms Anagnostou and Ms Fleming. His recollection was that Ms Fleming was being unreasonable which he described in evidence as being that she was refusing to let issues go and enable the group to move on with its discussion. Mr Hill gave evidence that Ms Anagnostou was trying to diffuse the situation and was becoming frustrated when her attempts to do so were unsuccessful. The effect of Mr Hill’s evidence was that he did not consider that Ms Anagnostou was verbally abusive towards Ms Fleming at any stage.[117] I accept Mr Hill’s evidence.
[117] T730.17-1.19.
Ms Fleming’s account of events in respect of the second mentor meeting differs from the account provided by Ms Anagnostou. I prefer the evidence given by Ms Anagnostou. I accept Ms Anagnostou’s account of events and find that Ms Anagnostou accurately describes the events that occurred on 6 April 2018. Ms Anagnostou’s version of these events is supported by the contemporaneous report that she made some forty minutes after the second mentor meeting to Ms Huish.[118] The report is detailed and describes the circumstances and events in a manner which was generally consistent with the evidence Ms Anagnostou gave both in evidence-in-chief and cross-examination. Ms Anagnostou’s evidence is also corroborated in a general way by the evidence of Mr Hill.
[118] Exhibit A29.
I reject the evidence given by Ms Fleming as to what occurred at the second mentor meeting. I note and repeat the concerns expressed above concerning Ms Fleming’s evidence. Ms Fleming’s evidence concerning what occurred at the second mentor meeting was inconsistent and appeared to be fixated upon a view of the events in which she was the victim. I find that although Ms Anagnostou spoke in a louder than conversational tone at the end of the second mentor meeting and asked Ms Fleming to leave, she was not yelling or screaming at the top of her lungs. I find that Ms Fleming acted in an aggressive manner to another student in the second mentor meeting and did not leave the meeting when first asked to do so by Ms Anagnostou.
The events in the lecture theatre on 4 May 2018
The events of 4 May 2018 in the lecture theatre occurred during the mid-morning break which was scheduled as part of the weekly timetable and usually lasted approximately thirty minutes.[119] Ms Fleming gave evidence that at that time she was excited to report to Ms Huish the feedback she had had from an interview that she had been involved in the previous day.[120]
[119] Exhibit R19 at 49, [318].
[120] T84.28-32.
Ms Fleming indicated that she sat at the back of the lecture theatre and in the mid-morning break she proceeded to the front of the lecture theatre to speak to Ms Huish. Once at the front of the class, Ms Fleming indicates that she spoke to Ms Huish and said, “I only have LPEAC feedback is great. Would you rather I come back and give it later or shall I do it now?”.[121] Ms Huish responded, on Ms Fleming’s version of events by saying “No, you can give it.”[122] Ms Fleming stated that she proceeded to wait in line, as there was a student with Ms Huish, then another student before her. Ms Fleming indicated all the students in line were female students.[123] Ms Fleming indicated that she was chatting to the student in front of her and asking if the student had had her LPEAC interview.[124] On Ms Fleming’s account, the next minute Ms Huish said “I’d like you to pack up your things now and leave.”[125] To which Ms Fleming replied, “What for, I haven’t done anything”.[126] Ms Huish is said to have replied, “If you don’t leave, pack up your things and leave I will call security.”[127] Ms Fleming indicated that she was concerned about the effect of leaving on her studies as there was a compulsory attendance requirement, so she returned to her seat at the back of the lecture theatre in the hope that the matter would “blow over”.[128]
[121] T84.28-31.
[122] T84.31-2.
[123] T85.7-10.
[124] T85.15-6.
[125] T85.29-30.
[126] T85.31.
[127] T85.31-3.
[128] T86.5-6.
Ms Fleming explained that Ms Huish then left the lecture theatre and some 15 to 30 minutes later a female security officer attended and asked Ms Fleming to leave and indicated that if Ms Fleming did not leave then Ms Huish would call the police.[129] Ms Fleming reports being distressed at this time.[130] The security officer left and a little later police attended.[131] Ms Fleming indicated that upon police attending, she packed up her things and left immediately.[132]
[129] T86.7-13.
[130] T86.23-6.
[131] T87.4-5.
[132] T87.4-13.
Ms Fleming was cross-examined about her recall of these events. Her evidence in cross-examination on this topic was largely consistent with the evidence she gave in chief.[133] Ms Fleming’s version of events differs in some significant respects from the accounts given by other witnesses.
[133] T290-304.
Ms Huish gave evidence that her personal practice was to stand at the lectern at the front of the classroom and provide students with an opportunity of coming to the front of the classroom and forming an orderly line in which they could then take turns if they wished to speak to Ms Huish about something.[134]
[134] T578.19-35.
The effect of Ms Huish’s evidence was that she remained at the eastern lectern at the front of the classroom during the mid–morning break on 4 May 2018 and engaged in a private conversation with a student. During the course of that conversation, Ms Huish gave evidence that Ms Fleming approached from the eastern side of the classroom and was in effect pushing in front of the line ahead of other students waiting to speak to Ms Huish.[135]
[135] T579.21-38.
Ms Huish’s evidence was that Ms Fleming came and stood quite close to where Ms Huish was discussing a matter with the first student and tried to interrupt that conversation.[136] Ms Huish gave evidence that she responded to Ms Fleming in the same way she had to a previous student and used words to the effect that Ms Fleming had to wait her turn, and back away as she was having a private conversation. Ms Huish indicated that Ms Fleming did not initially move away and started querying how long it would be before she could be spoken to. Ms Huish stated that she needed to repeat the request for Ms Fleming to wait and move away, and that she was not prepared to enter into a discussion with Ms Fleming as she had to wait her turn. Ms Huish said that Ms Fleming eventually moved away a few paces and Ms Huish had to ask her to move back further.[137]
[136] Exhibit R19 at 50, [329].
[137] T579.24-7.
Ms Huish then observed as she was speaking to another student that Ms Fleming physically poked, using her finger, another student who had been waiting to speak to Ms Huish and in a loud voice, using an aggressive tone said words to the effect of “is your issue private?”[138] Ms Huish said Ms Fleming then began questioning other students waiting at the front of the classroom whilst pointing her finger in an aggressive manner and asking the other students whether their issue was confidential or private. Ms Huish indicated that she became concerned about Ms Fleming’s behaviour at that point in time and was concerned that her behaviour may escalate. Ms Huish gave evidence that she said words to Ms Fleming to the effect of “Kim you can’t speak to other students like that, and you cannot touch other students like that, please return to your seat”.[139]
[138] T583.9-16.
[139] Exhibit R19 at 51, [337].
Ms Huish indicated that Ms Fleming reacted adversely and angrily, yelling aggressively at Ms Huish very loudly. Ms Huish could not recall all of the words that Ms Fleming used when yelling at her. The effect of Ms Huish’s evidence was that she requested Ms Fleming to return to her seat and that although Ms Fleming did return to her seat, she continued to yell at Ms Huish.[140] Ms Huish indicated that she recalled suggesting to Ms Fleming that she leave the class that day in a further attempt to de-escalate the situation.[141] Ms Fleming refused to leave and continued yelling loudly and aggressively. Ms Huish then demanded Ms Fleming pack up her belongings and leave the class for the day.[142] Ms Fleming remained in her seat and refused to leave, continuing to yell.[143] Ms Huish gave evidence that as a consequence, she called security to assist using the University phone located on the eastern lectern.[144] Ms Huish gave evidence that Ms Munro, a security officer, arrived at the classroom fairly quickly and at about the same time Dr McNamara returned to the classroom. Ms Huish gave evidence that she then left the classroom in a further attempt to de-escalate the situation.[145] Ms Huish returned to the lecture theatre after the mid-morning break. Ms Huish repeated in cross-examination the version of events that she described in her evidence-in-chief.
[140] T584.18-32.
[141] Exhibit R19 at 52, [349].
[142] Exhibit R19 at 52, [355].
[143] Exhibit R19 at 52, [356].
[144] Exhibit R19 at 52, [360].
[145] T586.24-30.
Ms Douvartzidis’ evidence concerning the incident of 4 May 2018 was briefer than the evidence she gave concerning the events at the lecture theatre on 23 March 2018. Although Ms Douvartzidis recalled the incident occurring during the mid-morning break, she had stepped out of the classroom during the break and was only just re-entering the classroom as the incident continued to unfold. She did however indicate that she recalled Ms Huish saying to Ms Fleming words to the effect of “I’m giving you another opportunity to leave”.[146]
[146] Exhibit R27 at 5, [59].
Ms Douvartzidis’ evidence indicated that she recalled security attending and then leaving, and then police arriving and escorting Ms Fleming from the classroom. Ms Douvartzidis also provided a statement about the incident on 4 May 2018, which statement was dated 1 June 2018.[147] Ms Douvartzidis was cross-examined about her evidence concerning the 4 May 2018 incident, however her evidence in cross-examination did not alter from the evidence she presented as her evidence-in-chief. Ms Douvartzidis’ evidence was generally corroborative of the evidence of Ms Huish.
[147] Exhibit R27 at 13 (Annexure AD-2).
Mr McCourt gave evidence about the 4 May 2018 incident. Mr McCourt was one of the students who was waiting in line at the front of the class to speak to Ms Huish one-on-one about some employment opportunities that he was considering. Mr McCourt’s evidence was very corroborative of the version of events that Ms Huish gave concerning the 4 May 2018 incident. In particular, he indicated that, whilst he was waiting in line, standing a few metres away from Ms Huish, he saw a second student skip the queue and approach Ms Huish, standing directly behind the first student as they were having a discussion with Ms Huish. In response, Mr McCourt indicated that Ms Huish explained to the second student that they needed to step back as she was having a private conversation, and she would speak to the student concerned shortly.[148]
[148] Exhibit R28 at 4, [41]-[42].
The effect of Mr McCourt’s evidence was that within the first few moments of the second student following Ms Huish’s direction and returning to their desk, Ms Fleming repeated what the second student had done by skipping the queue and approaching Ms Huish and standing close to her while she was talking to the first student. Mr McCourt indicated that he recalled Ms Huish repeating to Ms Fleming what she had told the second student, that is, words to the effect that Ms Fleming needed to stand back and give the first student some space as she was having a private conversation with the first student.[149]
[149] Exhibit R28 at 4, [45].
Mr McCourt gave evidence that he recalled that Ms Fleming appeared to be offended when Ms Huish asked her to stand back and that Ms Fleming started behaving erratically. Mr McCourt explained in his oral testimony that by behaving erratically, he meant that Ms Fleming appeared to be offended and to be in a heightened state with a level of unpredictability to her behaviour.[150] Mr McCourt indicated that Ms Fleming started approaching other students in the line intensely, asking these students if their conversation with Ms Huish was private. Mr McCourt recalled that Ms Fleming’s questions were very loud, forceful and erratic. Mr McCourt indicated that he recalled thinking that Ms Fleming’s conduct was inappropriate and that she was trying to inflame the situation.[151]
[150] T880.7-9.
[151] T881.20-8.
Mr McCourt gave evidence that there was then a verbal exchange between Ms Huish and Ms Fleming, and although Mr McCourt could not recall the detail of that conversation, he could recall that Ms Huish warned Ms Fleming and asked her to return to her seat, or she would be asked to leave. Mr McCourt gave evidence that Ms Fleming did not return to her seat, and he recalled Ms Huish then asking Ms Fleming to leave for the day and that Ms Fleming refused to leave.[152] Mr McCourt indicated that he recalled thinking that Ms Huish was handling the situation entirely appropriately in the circumstances. Mr McCourt then left the classroom with Ms Huish to discuss a matter in private. Mr McCourt indicated that when he returned to class most students were seated, and it was time to resume class following the break.
[152] T884.11-5.11.
Mr McCourt indicated that his recollection of what occurred after that was more vague, but he did recall subsequently Ms Fleming returning to her seat and security attending to remove her from the class. It was his belief that Ms Huish had called security. Mr McCourt’s evidence was to the effect that Ms Fleming refused to leave when security arrived, and this resulted in police having to be called.[153]
[153] Exhibit R28 at 4, [52].
Mr McCourt indicated that South Australia Police arrived and, after some discussion with Ms Fleming, they escorted her from the class. Mr McCourt could not recall the verbal exchange between Ms Fleming and the police. He described his memory of those events as being patchy.[154]
[154] T880.18-24.
Whilst I make allowances for the difficulties that Mr McCourt had in recall in relation to specific aspects of his evidence, overall Mr McCourt’s evidence is consistent with and corroborative of the evidence that Ms Huish gave about the events of 4 May 2018. Mr McCourt was less emotional than Ms Huish in the manner in which he presented his evidence, and whilst I take into consideration that Mr McCourt openly acknowledged that his memory at certain points was patchy, overall, his evidence was clear, concise and factual. I accept the truth of Mr McCourt’s evidence.
Mr Stoks gave evidence primarily concerning the 4 May 2018 incident. Mr Stoks was clear in the evidence he gave, however, much of the evidence that Mr Stoks gave was based on a reconstruction having regard to a statement about the incident that occurred on 4 May 2018, which statement was dated 31 May 2018. I do not rely upon the evidence he gave about events as the distinction between those matters about which Mr Stoks had an independent recollection and those about which he relied upon his statement provided in 2018 was less clear than that adduced through other witnesses. I make no criticism of Mr Stoks’ lack of recall of events that occurred some time ago and did not appear to trouble him.
The evidence of Ms Fitzpatrick was direct and clear and concerned primarily the incident on 4 May 2018. Ms Fitzpatrick was upfront about the fact that she did not have a clear and independent recall of the events many years later, although she could recall the general sequence of the events, and she could also recall Ms Fleming becoming quite upset and Ms Huish saying to Ms Fleming words to the effect of “I think it’s best that you leave”. Ms Fitzpatrick recalled that Ms Fleming did not leave the class, and that security was called to remove Ms Fleming from the class and when she refused the South Australia Police were called and then South Australia Police escorted Ms Fleming from the class.[155]
[155] Exhibit R30 at 3, [31]-[33].
Ms Fitzpatrick also made reference to her statement that she gave on 29 May 2018 however, again, a number of the matters in the statement made in 2018 were no longer within the independent recollection of Ms Fitzpatrick. I take this into consideration in the weight I accord Ms Fitzpatrick’s evidence, and no criticism is made of Ms Fitzpatrick who was very clear about what she could recall and could no longer recall of her own independent recollection. The sequence of events given by Ms Fitzpatrick was generally corroborative of the version of events provided by Ms Huish and the other students other than Ms Fleming. I accept the truth of Ms Fitzpatrick’s evidence.
The evidence of Ms Huish, Ms Douvartzidis, Mr McCourt and Ms Fitzpatrick concerning the events in the lecture theatre on 4 May 2018 was largely consistent. Each presented a version of events in which Ms Fleming behaved erratically when spoken to by Ms Huish at the front of the classroom. The only one minor area of difference between the evidence of Ms Huish and the evidence of Mr McCourt and also the later evidence given by Ms Fitzpatrick, is that Ms Fitzpatrick and Mr McCourt recall Ms Huish indicating prior to leaving the lecture theatre that she would call security or the police if she needed to, whereas Ms Huish’s evidence suggested that the involvement with the police was a consequence of the invoking of the critical incident policy and occurred when she was in her office with Mr McCourt after having left the classroom. This difference does not cause me to doubt the veracity of the evidence given by these witnesses. The exchange between Ms Fleming and Ms Huish became intense and I accept that Ms Huish may have mentioned calling police at that point in time. It is unnecessary that I make any finding as to when reference was first made by Ms Huish as to when South Australia Police would be called. Save in respect of this matter of when Ms Huish first made reference to calling police in relation to which I make no finding, I accept the version of events given by Ms Huish about the events that occurred in the lecture theatre on 4 May 2018.
I reject Ms Fleming’s version of events. Ms Fleming’s version of events portrays Ms Huish as making unreasonable demands of Ms Fleming, in circumstances where Ms Fleming asserts that she was acting reasonably. Ms Fleming in evidence portrayed herself as the victim of unjustified treatment. Ms Fleming’s version of events is inconsistent with the version of events given by at least four other witnesses. I find that Ms Fleming holds a distorted and untruthful view of the events that occurred on 4 May 2018.
I find that Ms Fleming was acting aggressively towards other students when she was first asked to leave the lecture theatre by Ms Huish. I find that Ms Fleming then began behaving erratically and refused to leave the lecture theatre. Where Ms Huish’s evidence differed from the account given by Ms Fleming concerning the events of 4 May 2018, I prefer the version of events given by Ms Huish. I find that Ms Fleming’s failure to leave as directed by Ms Huish resulted in security being called. I find that Ms Fleming’s failure to leave the lecture theatre when asked to by security resulted in police being called.
The extent to which appeals were instituted and pursued concerning the fail grade accorded to Ms Fleming
There was a dispute between the parties as to whether Ms Fleming instituted and pursued an appeal concerning her fail grade. Whilst Ms Fleming stated that she did file a further appeal,[156] she did not adduce any documents to support that proposition.
[156] T353.34-7.
Professor Heath presented as a clearly compassionate witness. She was clear about the role that she had, and it was evident that she sought to fulfill that role in a professional and compassionate way. I find it implausible that Professor Heath would have acted carelessly or recklessly in the manner in which she fulfilled her role. The seven documents upon which Ms Fleming relied[210] to support the allegation that University staff were acting against her in relation to her removal from the online portal do not substantiate the allegations Ms Fleming makes. Whilst the documents show certain decisions were made following interactions between University staff, these documents do not show a deliberate attempt by University staff to act with the purpose or intent of ensuring that Ms Fleming did not complete the degree in which she enrolled.[211] The email of 15 May 2018 from Professor Heath to Ms Fleming[212] records that Ms Fleming was notified of the loss of a fifth star as a consequence of her behaviour in the break between morning classes on 4 May 2018.[213] The fifth star was recorded as being deducted because Ms Fleming’s behaviour was rude, discourteous and disrespectful to students and staff.[214] The consequence of the loss of that fifth star was Ms Fleming received a fail grade for the topic LLAW7002.[215]
[210] Exhibits A75, A76, A77, A78, A79, A80 and A81.
[211] See Exhibits A75, A76, A77, A78, A79, A80 and A81.
[212] Exhibit A77.
[213] Exhibit A77 is the primary record of this notification relied upon by the respondent together with Exhibit A63 being the letter to Ms Fleming from Mr Houghton dated 9 May 2018.
[214] Exhibit A77.
[215] Exhibit A63.
I find that the loss of the fifth star by Ms Fleming in LLAW7002 was an action undertaken by University staff in a considered way and consequent upon the application of course requirements. I find that the according of a fail (F) grade to Ms Fleming for the topic LLAW7002 was consequent upon actions undertaken by University staff in a careful and considered way and consequent upon the application of course requirements. I accept the evidence given by Professor Heath and I find that she acted appropriately and compassionately in implementing the University policies and procedures.
Ms Pollock presented as an impressive and considered witness who had a clear understanding of the University’s statutes, policies and procedures. Ms Pollock gave evidence which indicated she was very cognisant of her role and responsibility as Deputy Vice-Chancellor (Students) and her responsibility to ensure the safety and welfare of the general student population and staff at the University. Ms Pollock gave evidence particularly concerning her involvement in the aftermath of the 4 May 2018 incident and the reasons that she appointed a complaints officer, Mr Houghton, to investigate the matters.
Ms Pollock gave evidence concerning the consideration that she gave to the appointment of the complaints officer, the first four-week suspension, the second two-week extension of the suspension, and the decision to impose a formal warning upon Ms Fleming following the investigation of the 4 May 2018 incident.[216]
[216] T745-800.
Ms Pollock was cross-examined, and it was suggested to Ms Pollock that she acted together with Mr Houghton, Professor Heath and Ms Huish for the purpose of achieving an outcome whereby Ms Fleming was removed from the degree in which she had enrolled.[217] Ms Pollock denied the allegations put against her and explained again in cross-examination, the reasons for her decision, including her concern for the safety and welfare of students and the importance of her responding appropriately to relevant incidents, having regard to the application of the University’s critical incident policy. I accept the evidence of Ms Pollock. I find that Ms Pollock did not, in appointing Mr Houghton or in making decisions concerning the investigation into Ms Fleming’s conduct, act (either individually or with others) for the purpose of to adduce a result which harmed Ms Fleming and resulted in Ms Fleming being excluded from the degree in which she had enrolled. I find that Ms Pollock acted in accordance with the University’s policies and procedures cognisant of the importance of the wellbeing and safety of staff and students of the University, including Ms Fleming.
[217] T792.27-8.17.
Ms Pollock also gave evidence concerning the distinction between decisions made concerning student conduct and academic progression. She rejected the suggestion put to her in cross-examination that she should have herself interviewed Ms Fleming or intervened in the investigation in circumstances where she had appointed a complaints officer. Ms Pollock also rejected the suggestion that in dealing with the incident as a student conduct incident, she should have investigated further the academic progress of the student.[218] Ms Pollock indicated that the matter she was addressing concerned Ms Fleming’s conduct not her academic progress. I accept Ms Pollock’s evidence.
[218] T759.7-12.
I reject Ms Fleming’s claim that University staff were acting recklessly or ‘in concert’ to ensure that Ms Fleming was harmed and prevented from completing the degree in which she was enrolled. I find that University staff acted in compliance with University policies and procedures to respond to Ms Fleming’s behaviour and in particular to investigate the incident on 4 May 2018 in the lecture theatre in accordance with the requirements of procedural fairness. I also find that Ms Fleming’s progress through the LLAW7002 program was assessed in accordance with the course requirements. Whilst investigation and consideration of those matters had consequences for Ms Fleming’s progress in her degree, I find those consequences were a result of Ms Fleming’s actions. I find that the removal of the fifth star as part of the 5 Star Professional Assessment Scheme was a considered response by University staff undertaken consequent upon the application of course requirements. I find that Ms Fleming has not established that the removal of stars, the according of a fail grade for LLAW7002, and Ms Fleming’s failure to complete the degree in which she enrolled were a result of University staff acting inappropriately or in a manner which was reckless, or with an intent to harm Ms Fleming.
Legal Issues
Ms Fleming claims firstly, in negligence, that the University owed her a duty of care.[219] Ms Fleming claims that the University breached this duty by certain staff being reckless and acting in concert against her to adduce a result whereby Ms Fleming was prevented from graduating from the course in which she had enrolled. Secondly, Ms Fleming claims that the University breached the statutory duty of care that the University owed to her.[220]
[219] Amended Claim (FDN 25).
[220] Amended Claim (FDN 25).
Ms Fleming identified that the relief she sought was:[221]
To be returned to the position I was in as an undergraduate student prior to being mistreated in 2018 with a granted extension for meeting final requirements for the award in Undergraduate Bachelor of Laws and Legal Practice Degree.
[221] Amended Claim (FDN 25).
Ms Fleming maintained that she did not seek damages and did not seek compensation,[222] stating, “a million dollars means nothing”[223] and “I will not accept damages under any circumstances.”[224] These statement were made in the context of an explanation being provided that damages were the usual remedy.[225] Ms Fleming also indicated that she did not seek judicial review of the decisions of the University,[226] and that she did not assert that there had been any failure by the University or its staff to follow their own policies and procedures.[227]
[222] T16.17.
[223] T32.37.
[224] T33.5.
[225] T32.25-6.
[226] T326.4-11.
[227] T36.34-7.13.
Ms Fleming articulated her claim in negligence[228] as being that: [229]
Melissa Huish, Clare Pollock, Mary Heath and Robert Houghton, individually, harmed me and, in concert harmed me. Nothing to do with the university per se, they were actual teaching staff being of education who then pulled a deputy vice chancellor who then pulled in Robert Houghton. I can show a nexus between each and every one of those four employees.
[228] T36.12-20.
[229] T36.34-7.4.
The respondent contends that the applicant has not adequately articulated what particular act or omission led to any relevant damage as is required to establish a cause of action in the tort of negligence.[230]
[230] RWS at 2, [9].
The respondent submits that:[231]
1. There is no conduct of any individual which has been identified which can be found to breach any identified duty of care owed to the applicant;
2. Even if such conduct and duty could be identified, the applicant has not and cannot articulate any remedy which she now seeks which would be appropriate as a remedy in respect of such conduct;
3. The applicant has not, in any event, articulated any remedy which the Court would or could provide; and,
4. In any event, on the actual evidence called, the actions apparently complained of by the applicant (insofar as they can be identified) were justified.
[231] RWS at 3, [11].
The legal issues in dispute between the parties are:[232]
1. Has the applicant established a cause of action in the tort of negligence and identified a particular acts or omission as being the basis of the cause of action and linked those acts or omissions to any identifiable loss or damage?
2. Has the applicant established on the facts of this case a statutory duty arising pursuant to section 18A of the Flinders University Act 1966 (SA) (“Flinders University Act”) or pursuant to University statute 6.4 entitled “Student conduct” (“Statute 6.4”) and a breach of that duty giving rise to any identifiable loss or damage?
3. Has the applicant established the availability of the remedy that she seeks?
4. Even if such remedy is available, are there reasons to deny the relief sought including because there was a failure on behalf of the applicant to exhaust the remedies available to her within the University?
Consideration
[232] T940-2.
Negligence
To establish her claim in negligence the applicant must show that the University owed her a duty to take reasonable care, and that the University breached that duty by failing to take reasonable care.[233] Ms Fleming would also need to establish that the University’s breach of duty caused the damage which Ms Fleming says she suffered; and that the damage suffered was not too remote a consequence of the breach of duty.[234] I address remedies separately below.
[233] Civil Liability Act 1936 (SA) s 31; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. See also Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317.
[234] Civil Liability Act 1936 (SA) s 34.
In assessing a cause of action in negligence consideration must be given not only to the existence of a duty of care between the parties, but also to the nature of the duty on the facts of the case.[235] As Kirby J held in Neindorf v Junkovic:[236]
It is true that it is neither possible nor desirable to attempt to consider the duty of care issue independently of the breach element or, indeed, the other elements relevant to a decision on liability for negligence. The questions that the successive stages of negligence doctrine pose are not entirely free standing. They are interrelated. Negligence is a unified concept. Its subdivision into issues is adapted for convenience and to promote consistency of approach and accurate analysis. The parts should not divert attention from the whole.
[235] Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469 at 472-3, [1] (Gleeson CJ); at 487, [56] (Gummow and Hayne JJ, citing McHugh J in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 575-6, [81]).
[236] Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at 352-3, [50] (Kirby J).
Regard also needs to be had to the provisions of ss 31 and 32 of the Civil Liability Act 1936 (SA) (“the Act”) and the statutory articulation of the duty of care and the limits on that duty.
Section 31(1) of the Act states that:
For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all information that the defendant either had, ore ought reasonably to have had, at the time of the incident out of which the harm arose.
Section 32(1) of the Act states that:
A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
Section 32(2) of the Act states that:
In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
I find that Ms Fleming’s claims in negligence encounters difficulty consequent upon her version of events not being accepted for the reasons outlined above.
The claim articulated by Ms Fleming in negligence is essentially a claim that certain University staff, namely Ms Huish, Professor Heath, Ms Pollock, and Mr Houghton caused harm to Ms Fleming, either individually or by their collective action. Ms Fleming’s claim is that these staff individually and collectively harmed her by taking actions to ensure that Ms Fleming did not complete the degree in which she was enrolled.
Whilst it is correct that it was consequent upon the actions taken by these University staff that Ms Fleming was prevented from completing the degree in which she had enrolled, namely a Bachelor of Laws and Legal Practice degree, that in and of itself does not establish a breach of duty.
The respondent states that the applicant made generalised claims and failed to identify particular acts of individuals for which Ms Fleming claims the University is vicariously liable.[237] Whilst, in some respects, this was the case, Ms Fleming was self-represented at the hearing, and I would not find that there was a complete failure to identify particular acts.
[237] RWS at 5, [21].
Rather, the breach of duty to the extent that it has been articulated by Ms Fleming is said to arise because stars were said to have been wrongfully removed from Ms Fleming as part of the 5 Star Professional Assessment Scheme in LLAW7002 resulting in a fail grade, based upon what Ms Fleming claimed was a falsified version of events.[238] Another basis for a breach of duty to the extent that specific acts were identified is said to arise from the investigation into the incident in the lecture theatre on 4 May 2018 being conducted with a view to a particular outcome being established.[239]
[238] T625.24-6.19; T626.38-7.16.
[239] T713.36-4.4.
For the reasons articulated above, the factual findings that I have made do not support the case advanced by Ms Fleming on either basis. The factual basis upon which stars were removed represented an accurate account of events and accords with the factual findings I have made above. There was no falsification of what occurred, and the removal of stars was consistent with the application of the course requirements.
The evidence does not demonstrate that the investigation into the incident in the lecture theatre on 4 May 2018 was conducted with a view to a particular outcome being established. Rather, as I have found above, that investigation was carried out carefully by Mr Houghton, consistently with the University’s policies and procedures and in a manner which afforded Ms Fleming procedural fairness.
I have also considered the more generalised forms of complaints advanced by Ms Fleming during the course of the hearing and upon which Ms Fleming relies in seeking to establish breach of a duty of care owed to her. I am unable to find that any of the generalised complaints advanced by Ms Fleming demonstrates a breach of a duty of care owed by the University to Ms Fleming. I have also not found on the facts established at trial any breach of duty by a member of University staff for which the University is vicariously liable which gave rise to any damage to Ms Fleming.
I find that the applicant has not established a cause of action in the tort of negligence. The applicant has not on the evidence established any particular acts or omissions which could form the basis of such a cause of action and has not linked any identified acts or omissions to any identifiable loss or damage. I find that Ms Fleming has not established her claim in negligence.
Breach of statutory duty
To establish a breach of statutory duty there are generally four elements that Ms Fleming would need to establish:
1. Firstly, that Parliament intended to protect a specified class of person and intended to create a private right of action for breach of duty imposed by the provision;[240]
2. Secondly, that Ms Fleming was a person within the class of persons intended to be protected, and the University conduct fell within the scope of the statutory provision;[241]
3. Thirdly, that the obligation imposed by the statute was breached;[242]
4. Fourthly, that Ms Fleming suffered damage as a result of the breach.[243]
[240] Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 424 (Brennan CJ, Dawson and Toohey JJ); Darling Island Stevedoring & Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36; O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464.
[241] Darling Island Stevedoring & Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36.
[242] Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156.
[243] X (Minors) v Bedfordshire County Council [1005] 2 AC 633.
As Windeyer J, explained in Downs v Williams:[244]
To succeed in a claim for damages for breach of a statutory duty causing him harm, a plaintiff must shew that the defendant was a person on whom the statute cast the duty: that he, the plaintiff, was a person, or one of a class of persons, for whose benefit the duty was created: that the defendant failed to perform the duty: that this failure gave rise to a civil right of action.
[244] Downs v Williams [1971] HCA 45; (1971) 126 CLR 61 at 75 (Windeyer J).
Ms Fleming asserts that s 18A of the Flinders University Act creates a relevant duty. Further, the applicant asserts that Statute 6.4, which is a University Statute created under the Flinders University Act, creates a statutory duty of care. Ms Fleming framed her case as being:[245]
that Flinders University owes a statutory duty of care to students as a class of persons in 2018. The applicant, being a full-time enrolled student in 2018, is a member of the class contemplated for the duty to be owed to students by employees and staff as defined in the Flinders University Act 1966 and statute 6.4. Against the reasonable person test, the applicant will show the duty owed to the applicant was breached by repetitive, wrongful and reckless actions of the … respondent university employees named in the claim during the course of their employment, both individually and in concert, while having a close and direct relationship with the applicant and resulting in loss and damage of a kind reasonably foreseeable in the circumstances.
[245] T17.3-18.
The respondent claims that s 18A of the Flinders University Act does not establish any enforceable statutory duty which would be relevant to Ms Fleming’s claim, and Ms Fleming does not belong to a class of persons that the Flinders University Act is intended to protect.[246] Further, the respondent claims no private right of action is created.[247] The respondent denies that Statute 6.4 imposes a statutory duty.[248]
[246] RWS at 8, [37].
[247] RWS at 8, [38]; Flinders University Act 1996 (SA) s 18E.
[248] RWS at 8, [41].
I find as a matter of law that Flinders University Act establishes the University.[249] The functions of the University include amongst other things the provision of educational facilities and the provision of courses of study.[250] The Flinders University Act provides for the establishment of the Council as the governing body of the University.[251] The Council is charged amongst other things with overseeing and reviewing the management of the University.[252] Section 18A of the Flinders University Act imposes a duty upon a member of the Council to at all times in the performance of his or her functions, exercise a reasonable degree of care and diligence, and to act in the best interest of the University.
[249] Flinders University Act 1996 (SA) s 3.
[250] Flinders University Act 1996 (SA) s 4.
[251] Flinders University Act 1996 (SA) s 5.
[252] Flinders University Act 1996 (SA) s 5(2)(c).
Section 20 of the Flinders University Act 1996 provides in part that the Council has the power to make, alter and repeal any statutes and regulations, in relation to numerous matters, including in relation to the discipline of the University and other matters regarding the University.[253] Section 21 concerns the power to award degrees in accordance with the statutes and regulations of the University.
[253] Flinders University Act 1996 (SA) s 20. See in particular Flinders University Act 1996 (SA) ss 20(1)(b), 20(1)(n).
Statute 6.4 is a University Statute which was in place at the relevant time concerning student conduct. That statute provides amongst other things that: [254]
[t]he university is required to exercise a duty of care towards staff and students, and those who use its facilities and property, and to provide a safe, secure and suitable environment for the conduct of educational, scholarly and community activities.
[254] Exhibit R24 at 85 (Annexure CP-4).
I have some difficulty accepting the first limb of Ms Fleming’s claim, namely that the requirements of s 18A of the Flinders University Act which concern the duty of members of Council to exercise care and diligence, or the University Statute 6.4, was intended to give rise to private right of action in Ms Fleming as a student. Even putting that difficulty to one side, it is clear that Ms Fleming’s claim for breach of statutory duty must fail as Ms Fleming has not on the evidence before this Court established that there was any breach of an obligation imposed by either s 18A of the Flinders University Act or the University Statute 6.4.
In alleging a breach of these provisions, Ms Fleming relied upon the same allegations against members of University staff as those advanced in respect of her claim in negligence. On the factual findings of this Court, Ms Huish, Professor Heath, Ms Pollock and Mr Houghton did not breach any duty of care owed to Ms Fleming for which the University was vicariously liable. I have found that each of these members of University staff acted appropriately in accordance with University policies and procedures to respond to Ms Fleming’s behaviour and to implement course requirements. Further, and in any event, s 18A concerns the members of the Council, and Ms Fleming has not raised any allegations against members of the Council.
I find that the applicant has not established on the facts of this case a statutory duty arising pursuant to s 18A of the Flinders University Act or pursuant to University Statute 6.4, and a breach of that duty giving rise to any identifiable loss or damage.
The applicant has not made out her claim for a breach of statutory duty.
Relief sought
In addition to not establishing either a claim in negligence or a breach of statutory duty, the applicant has not established that she would be entitled to the relief that she seeks for the following reasons.
The relief sought by Ms Fleming includes orders with regard to her reinstatement as an undergraduate student and a retraction of the Formal Warning Notice brought under Statute 6.4, as well as a granted extension.[255] Ms Fleming also asks this Court to make orders to the effect that the University recognise Ms Fleming’s prior learning for LLAW7002, being a component of the Practical Legal Training Course of which Ms Fleming was a student in 2018. [256]
[255] Amended Claim (FDN 25).
[256] Amended Claim (FDN 25).
As to the availability of that relief and to the extent that Ms Fleming seeks declaratory relief, declarations are a broad and discretionary remedy.[257] However, ordinarily a declaration would only be granted based upon a legal right.[258] To the extent to which the relief sought by Ms Fleming amounts to a mandatory injunction, such relief would also require the identification of the legal or equitable right upon which such an order is sought.[259]
[257] CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 259 CLR 339 at 363-4, [67]-[69] (French CJ, Kiefel, Bell and Keane JJ).
[258] Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421 (Heydon J, French CJ, Gummow, Crennan, Kiefel and Bell JJ agreeing, Hayne J dissenting).
[259] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at 241, [91] (Gummow and Hayne JJ); Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 638 (Gaudron J).
Additionally, there would be practical difficulties as Ms Fleming has not established how the relief that she seeks could now be granted. The evidence adduced by the respondent in this matter from Ms Leiman indicated that a Bachelor of Laws and Legal Practice degree was no longer offered by the University.[260] Although Ms Fleming did not appear to accept that evidence, no cogent evidence to the contrary was adduced by Ms Fleming[261] and I accept Ms Leiman’s evidence on that topic. In any event, Ms Fleming has not established that damages would not be an adequate remedy. Ms Fleming did not seek damages and did not lead any cogent evidence in respect of damages.
[260] Exhibit R25 at 7, [62]. See further T802-3.
[261] T323.
A further difficulty that Ms Fleming would encounter given the form of the relief that she seeks is that Ms Fleming seeks to have this Court, in effect, interfere with the decision of a University in respect of the awarding of a fail grade in circumstances where Ms Fleming did not exhaust her appeal mechanisms within the University. Further, ordinarily, a court would not interfere with academic decisions of a University.[262]
[262] Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at 141-3, [165]-[171] (Kirby J).
Ms Fleming has not established a basis for the remedies that she seeks.
Conclusion
I dismiss the applicant’s claim.
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