Hoang v Monash University
[2001] VSC 376
•4 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 7491 of 2001
| LOC TIEN HOANG | |
| Plaintiff | |
| v. | |
| MONASH UNIVERSITY | Defendant |
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JUDGE: | ASHLEY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 October 2001 | |
DATE OF JUDGMENT: | 4 October 2001 | |
CASE MAY BE CITED AS: | Loc Tien Hoang v Monash University | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 376 | |
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Judicial review - Decision of faculty discipline committee to exclude student from University for a period of 2 years - No error disclosed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr M. Fleming | The University Solicitor, Monash University |
HIS HONOUR:
This is a proceeding brought by Loc Tien Hoang against Monash University. It was commenced by originating motion filed 7 September 2001. It concerns a decision of the faculty discipline committee of the Faculty of Business and Economics at Monash University, specifically a decision made on 31 March 2000 at which the committee, having found Mr Hoang guilty of an act of general misconduct, excluded him from the university from that date to the end of the 2001 academic year, after which time he would be considered for re-admission to his course of study in the faculty, provided that he had not attempted to engage in any further contact with a staff member, Ms Waller, during that period.
The precise nature of the proceeding commenced on 7 September in this court is not easy to understand. That understanding is not much aided by the single affidavit filed by the plaintiff, who evidently prepared both the originating motion and the affidavit and has at all times been unrepresented. It seems likely that the proceeding is intended to be brought under Order 56 of Ch.1 of the Rules, seeking the quashing of the order made by the disciplinary committee, although, in terms, the originating motion seeks that the plaintiff be reinstated to the course from which he was suspended, and seeks the back-dating of that reinstatement to the first academic semester of the present year.
The defendant took a number of technical objections to the proceeding. I think that each of them was made out, and that the proceeding should fail on that account. The defendant also submitted that, whatever was the true nature of the plaintiff's complaint, it failed on the merits. In that connection also I am satisfied that the defendant's submission ought be accepted. But, because, as I said a moment ago, Mr Hoang has at all times been unrepresented, it is desirable that I say something about the conclusions that I have shortly expressed.
The proceedings before the disciplinary committee arose out of contact which it was alleged the plaintiff had with the staff member, Ms Waller, to whom I earlier referred. It was alleged, in effect, that despite a number of attempts that had been made to get him to desist from contacting the staff member, he had not done so. It was said that the university had written to him in late June 1999, directing him not to contact the staff member; that in September 1999 the staff member had obtained an interim intervention order which prohibited him from contacting her, from being within 400 metres of the university's Caulfield campus, and from causing any other person to engage in conduct prohibited by the order; that a little later the Magistrates' Court had made a final intervention order against him which was to last for a three-year period; that in late September he had attended the Caulfield campus of the university and had procured a counsellor to contact the staff member; that in late December 1999 he had sent the staff member red roses, chocolates and a card on which he had written a message inviting her to spend Christmas and the New Year with him; that in February 2000 he had again sent her a bouquet of red roses and a card. The gist of the allegations, no doubt, was that he had pressed his attentions upon the staff member despite she having made it crystal clear that she did not favour those attentions.
When the matter came on before the disciplinary committee, it is conceded by the plaintiff, and is made clear by the minutes of the meeting which are Exhibit D to the affidavit of Amanda Lazar sworn 27 September 2001, that the plaintiff admitted all details of the charges put against him.
Debate before the committee centred upon the plaintiff's denial that his actions constituted harassment or intimidation and upon his contention that it had not been reasonable for the staff member to be intimidated by his attention. The minutes of the meeting further make it clear that the plaintiff contended that a reprimand should suffice, that he should be permitted to continue with his studies, and that he informed the committee of his decision not to pursue the staff member any longer 'as it was no longer any fun'.
It is apparent that the committee considered the plaintiff's proposal concerning penalty was quite inappropriate in circumstances where court orders had been made and had not been complied with. It was in those circumstances that the penalty to which I earlier referred was imposed.
Let me deal with the merits of the present proceeding, assuming that it is a proceeding brought pursuant to Order 56, and that the plaintiff's complaint is, as he articulated it this morning, that the decision of the disciplinary committee to find him guilty of the disciplinary offence with which he was charged was so utterly unreasonable that it could not stand, and that the penalty was likewise so unreasonable that it could not stand.
I make it clear to the plaintiff, in case he is in any doubt, that the proceeding before me is not a proceeding which enables a re-hearing of the matter which was heard by the discipline committee. No such appeal is possible, to this court or to any other court. There was a certain appeal right that Mr Hoang had under the provisions of the university's discipline statute, but he did not avail himself of it. This court is solely concerned with whether or not there was some procedural unfairness in the proceeding below, or whether the decision that was reached was so far out of kilter with the material before the committee that it was shown to be quite unreasonable.
First, as to the finding that the disciplinary charge had been made out, that certainly could not be said to have been unreasonable. Allegations were made. All of them were admitted. The only question was whether they amounted to harassment or intimidation. Mr Hoang contended that they did not, but it was well open to the committee to conclude to the contrary. It was well open to the committee to conclude that the staff member had reached the point of considering it necessary to obtain court orders with a view to persuading the plaintiff not to give her his attentions, but that he had continued to do so both personally and through an intermediary.
The plaintiff told me today that the staff member had encouraged him in his attentions. That is a matter to which he deposed in his affidavit in support of the proceeding. But he told me that he did not place this matter before the committee. Had he done so, it would have been a matter for the discipline committee to consider, even though it seems somewhat far-fetched to imagine that the staff member engaged in such conduct in circumstances where on two occasions she obtained court orders to prevent him paying her attention. None the less, the short point is that Mr Hoang did not bring the particular matter to the committee's attention and for that he has only himself to blame, and it cannot in any way impugn the committee's decision.
Coming to the question of penalty, Mr Hoang repeatedly contended that the penalty imposed upon him was very great and could be compared to a much lesser penalty imposed upon students at the University of Melbourne who had caused property damage in a rampage earlier this year.
The question whether a penalty imposed in a particular case was so unreasonable that it could not stand is not to be measured by attempting to compare penalties imposed in a quite dissimilar case. The question whether the infliction of property damage should be considered more blameworthy and more justifying the imposition of a substantial penalty than conduct which the discipline committee was here entitled to consider had caused a staff member considerable anguish and distress to the point of obtaining court orders, is not a question that permits of one certain answer. I consider that the committee was well entitled to form the view that the plaintiff had persisted in making unwanted advances to the staff member and that this had been distressing to her and merited a significant penalty. I would not say that the penalty imposed was altogether unreasonable. Bear in mind also that the plaintiff's argument was predicated on an assumption that the penalty imposed in the other case was itself appropriate.
There was, I think, no challenge by the plaintiff to the procedural aspects of the matter before the discipline committee. I indicate, however, having reviewed the procedure deposed to by Ms Lazar's affidavit and the exhibits thereto, that I consider that the plaintiff was afforded no less than procedural propriety.
That is enough to dispose of the matter, but for the sake of completeness I should draw attention to procedural aspects pertaining to the present proceeding. Assuming that the proceeding was by intent a proceeding commenced under Order 56, then it was commenced far too late, far beyond the time fixed by Rule 56.02(2). I do not consider that the plaintiff has shown exceptional circumstances that would justify an order extending time beyond the ordinary period of 60 days within which a proceeding must be commenced. The most the plaintiff has been able to say is that, not having a solicitor, he was unaware of the time limit. It might be accepted that that is so, but I do not think it constitutes an exceptional circumstance.
The proceeding itself is many ways defective. The grounds upon which the order was sought are not stated. The relief sought is relief which could not be granted by this court in such a proceeding. There was non-compliance with Rule 56.01(5).
Had I granted leave to the plaintiff to bring an Order 56 proceeding notwithstanding that it was long out of time, and had I thought that there was anything to any of the merits of the matter, I would still not have granted relief. The application having been brought so close to the end of the period of the exclusion, and there being a pretty inadequate explanation why that should be so, I would not have exercised a discretion favourable to the plaintiff to quash the committee's order. There would be no real point in making such an order.
The proceeding is dismissed.
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