IJW (a pseudonym) v Swinburne University of Technology

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 02849

BETWEEN:

IJW (A PSEUDONYM)	Plaintiff
v
SWINBURNE UNIVERSITY OF TECHNOLOGY	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2022
DATE OF RULING:	24 February 2023
CASE MAY BE CITED AS:	IJW (a pseudonym) v Swinburne University of Technology
MEDIUM NEUTRAL CITATION:	[2023] VSC 75

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JUDICIAL REVIEW – Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 56 – Extension of time within which to commence proceeding – Special circumstances required – Special circumstances disclosed – Arguable case – Application allowed.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendant	C M McDermott	Moray & Agnew

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 1

Material relied upon by the parties................................................................................................ 4

Relevant legal principles.................................................................................................................. 5

Period of delay.................................................................................................................................... 7

Reason for delay............................................................................................................................... 10

Arguable case.................................................................................................................................... 14

Justice or prejudice to parties........................................................................................................ 35

Public interest in the finality of litigation.................................................................................. 36

Joinder of the Ombudsman........................................................................................................... 37

Costs.................................................................................................................................................... 38

Conclusion......................................................................................................................................... 38

HIS HONOUR:

Introduction

This decision is about whether the Court should grant IJW (plaintiff) an extension of time to apply for judicial review of a Swinburne University of Technology (Swinburne) decision to disallow the plaintiff’s appeal (Appeal Decision)[1] of Swinburne’s earlier decision to exclude the plaintiff from his course.
[1]The plaintiff’s amended originating motion for judicial review seeks judicial review of the ‘expulsion decision of Swinburne University of Technology made on 27 August 2018 made by the Deputy Vice Chancellor’. As explained in the background section of these reasons, an authorised officer of Swinburne University (Authorised Officer) made a decision on 21 March 2018 to exclude the plaintiff from the university (Exclusion Decision). The plaintiff sought review of the Exclusion Decision which resulted in a review decision made on 15 May 2018 (Review Decision). The plaintiff appealed the Review Decision which resulted in the Appeal Decision made on 27 August 2018. To avoid confusion, I will refer to the decision made on 27 August 2018 that is the subject of the plaintiff’s judicial review application as the Appeal Decision.

If the Court decides not to grant the extension of time, the plaintiff seeks leave to add the Victorian Ombudsman (Ombudsman) as a defendant to the proceeding.

Swinburne opposed the plaintiff’s application for an extension of time.

For the reasons that follow, I have decided to grant an extension of time to the plaintiff, limited to two of his proposed grounds. I have also decided not to join the Ombudsman to the proceeding. The costs of the plaintiff’s summons will be costs in the proceeding.

Background

In IJW v Swinburne University of Technology, [2] a decision which concerned the plaintiff’s application for a pseudonym order and a protective costs order, I set out the background to the proceeding as follows:
[2][2021] VSC 846, [7]–[22].

In February 2017, the plaintiff commenced a Diploma of Nursing at Swinburne University…. [I]n late 2017, the plaintiff received an assessment notice from Swinburne University and noticed that his final mark appeared not in the ‘Mark’ column but in the ‘Comment’ column. The plaintiff intended to use his assessment in his nurse graduate program application the following year and was concerned that potential employers looking at his clinical placement marks would misunderstand the assessment notice and disregard any figure in the comment column. Additionally, the plaintiff was concerned to maintain academic integrity. The plaintiff complained to the university, seeking that his assessment be corrected.
Dissatisfied with the university’s response, on 30 October 2017, the plaintiff submitted a complaint with the Victorian Ombudsman (Ombudsman). The Ombudsman investigated the plaintiff’s complaint and found that Swinburne University acknowledged that the plaintiff’s marks were listed in the wrong column, explained that it would be difficult for the records to be adjusted and agreed to send the plaintiff a clarifying letter that could be shown to potential employers.
On 28 November 2017, the plaintiff met with Safer Community, an internal investigative and advisory team at Swinburne University, whose role is to provide services to university staff and management relating to issues of student and staff wellbeing and behaviour. The meeting was to discuss behavioural concerns about the plaintiff raised by university staff. While not completely clear from the material before the Court, it appears the behavioural concerns involved the alleged frequency and tone of the plaintiff’s email communications with the university’s staff, including in relation to his complaint about his assessment.
On 17 January 2018, Swinburne University issued the plaintiff with a formal written warning in relation to his conduct and communication with staff.
On 6 February 2018, while undertaking a student placement at Cabrini Hospital as part of his nursing course, the plaintiff was involved in an incident with the hospital receptionist (incident). As a result of the incident, the receptionist lodged a complaint against the plaintiff and a meeting was held involving the hospital and Swinburne University. The plaintiff’s placement at Cabrini Hospital was terminated on 7 February 2018.
On 8 February 2018, the plaintiff applied to withdraw from the Diploma of Nursing on the basis of ill health, supported with a letter from his mental health clinician.
On 14 February 2018, Swinburne University informed the plaintiff that he was required to attend a meeting with university staff to discuss the incident and concerns of misconduct. The plaintiff was put on notice that if he was found to have engaged in serious misconduct, a possible outcome was that he would be suspended or excluded from Swinburne University.
At Swinburne University, allegations of student misconduct are referred to an ‘Authorised Officer’ of the university who investigates allegations of student misconduct and determines appropriate sanctions.
Also on 14 February 2018, Swinburne University informed the plaintiff that his application to withdraw from the Diploma of Nursing had been processed and approved. The following day, on 15 February 2018, Swinburne University informed the plaintiff that his withdrawal application had been processed in error[3] and that his enrolment had been reinstated pending the outcome of the misconduct investigation.
On 22 February 2018, the plaintiff met with Swinburne University staff to discuss the incident and allegations of misconduct. During this meeting, the plaintiff provided a written submission in which he says, amongst other things, that he did not intend to abuse or harass staff and that his behaviour was caused by mental health issues outside of his control, as well as other stresses in his life. In his submissions, the plaintiff apologised for his behaviour and asked the Authorised Officer not to impose a sanction because of a number of mitigating factors. In support of his case, the plaintiff also provided further detailed written submissions dated 2 March 2018 addressing the alleged misconduct.
On 21 March 2018, the Authorised Officer wrote to the plaintiff to notify him of the finding that the plaintiff had engaged in misconduct and of the decision to exclude the plaintiff from Swinburne University from that date onwards (Exclusion Decision).
The Exclusion Decision is a reviewable decision under Swinburne University’s regulations, and on 20 April 2018 the plaintiff requested a review of the Exclusion Decision (Review Application). In short point, the grounds relied upon by the plaintiff included that there were procedural irregularities in the decision, the decision was manifestly excessive, extreme and unfair, and new evidence was available.
The Review Application was referred to a Review Officer, who in a letter dated 15 May 2018 advised the plaintiff that the Exclusion Decision had been reviewed and upheld (Review Decision).
The Review Decision is an appealable decision under Swinburne University’s regulations. On 24 May 2018, the plaintiff submitted an application to appeal the Review Decision (Appeal Application). Pursuant to Swinburne University’s regulations, the University Secretary is required to review any appeal application. By letter dated 27 August 2018, the Acting University Secretary disallowed the Appeal Application on the grounds that no evidence of procedural irregularity had been adduced nor was apparent and, further, exclusion for serious misconduct of a student whilst on a placement is a standard outcome and, as such, the decision was not manifestly excessive.
On 5 December 2018, the plaintiff lodged an application in the Human Rights List of the Victorian Civil and Administrative Tribunal (‘VCAT’) with reference H393/2018 (HRL proceeding) alleging that he has been discriminated against on the basis of race and disability and claiming that the Exclusion Decision was reached as a result of false allegations relating to his mental health disability. The HRL proceeding has been adjourned to March 2022 as a result of the plaintiff’s judicial review application in this Court.
On 10 February 2021,[4] the plaintiff issued a second proceeding against Swinburne University in the Civil Claims List at VCAT, bearing reference C929/2020 (Civil proceeding). The subject matter of the Civil proceeding involves at least some of the subject matter involved in this proceeding in this Court as well as allegations of breach of contract, negligence and breaches under the Australian Consumer Law. The Civil proceeding has also been adjourned to March 2022.
[citations omitted]
[3]I note that the plaintiff submits that this is incorrect. The wording used in Swinburne’s email to the plaintiff dated 15 February 2018 is as follows:
I have been advised that you were notified yesterday morning that your withdrawal application for HLT54115 has been processed. Please note that as you have a misconduct investigation pending, your enrolment has been reinstated for the time being. Your withdrawal will be dependent on the outcome of the misconduct investigation.
Swinburne communicated its exclusion decision to the plaintiff on 21 March 2018. In this correspondence Swinburne noted the plaintiff had sought to withdraw from his course following the incident on placement and had been advised that his ‘withdrawal was processed in error’.
[4]I note that this date is incorrect and the correct date is 10 February 2020.

Material relied upon by the parties

The plaintiff relied upon the following material in support of his application for an extension of time for judicial review:

(a) originating motion filed 9 June 2021 and amended originating motion filed 3 August 2022;

(b) summons filed 9 June 2021;

(c) plaintiff’s affidavit 7 and its exhibits filed 30 March 2022; and

(d) plaintiff’s submissions filed 29 June 2022.

In addition, the plaintiff sought to rely on his email to Chambers dated 25 August 2022 on the question of costs. While Swinburne did not oppose the plaintiff’s email submissions, it advised, through its email to Chambers dated 26 August 2022, of a small number of observations in reply.

In opposition to the application, Swinburne relied upon:

(a) affidavit of Kornel Koffsovitz sworn 29 September 2021;

(b) affidavit of Madelaine August sworn 29 September 2021;

(c) affidavit of Kornel Koffsovitz sworn 18 May 2022;

(d) Swinburne's submissions filed 20 July 2022; and

(e) Swinburne's list of authorities filed 20 July 2022.

Relevant legal principles

The plaintiff’s application for judicial review is made pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).

The Court’s judicial review jurisdiction is supervisory. It is concerned with the decision making process rather than the decision itself. It is not an appellate procedure by which this Court can conduct a general review of the order or decision of an inferior court or tribunal or other administrative decision maker, or substitute an order or decision which this Court thinks should have been made.[5] As has been said before, the Court’s judicial review jurisdiction is not concerned with the merits of the decision under review, that is, it is not concerned with whether the decision was fair or correct.
[5]Craig v South Australia (1995) 184 CLR 163, 175–6.

Rule 56.02 of the Rules provides:

56.02 Time for commencement of proceeding
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

The requirement for special circumstances and the principles to be applied on an application under Order 56 were explained by Derham AsJ in Lazarevic v Victoria Police (Lazarevic):[6]
[6][2014] VSC 497, [30]–[36]. The decision was appealed and dismissed in Lazarevic v Victoria Police [2015] VSC 13.

The expression “special circumstances” is by its very nature incapable of precise or exhaustive definition. Whether circumstances are special depends upon the context in which they occur. This does not mean that the circumstances must be unique; but they must have a particular quality of unusualness that permits them to be described as special: Per Toohey J in Re Beadle and Director-General of Social Security, See also Mann v Medical Practitioners Board of Victoria; Lednar v Magistrates’ Court, Carra v Hamilton.
In Mann v Medical Practitioners Board of Victoria at first instance, Osborn J expressed the view that it was not appropriate to seek to define the meaning of the phrase “special circumstances”. The phrase is deliberately flexible and designed to encompass cases that might not easily be anticipated by more prescriptive words. His decision was upheld on appeal and no error of principle in his reasoning was discerned.
The requirement that the plaintiff show “special circumstances” requires that he make out circumstances that are not “general in character”, but something exceeding “that which is usual or common”.
It is clear from the wording of the sub-rule (and the authorities) that the special circumstances are not confined to the failure to commence the proceeding within the prescribed period of 60 days. The terms of the rule may be contrasted with other provisions requiring particular reasons for an extension of time. For example, s 109(5) of the Magistrates’ Court Act 1989 provides for an extension of time to appeal, but only if the failure to institute the appeal within the period referred to in sub-section (2)(a) was due to exceptional circumstances. The sub-section was considered by McDonald J in Schwerin v Equal Opportunity Board and his Honour held that it was necessary for an appellant to establish that a failure to institute an appeal within time was due to exceptional circumstances and it was not sufficient to establish exceptional circumstances generally with respect to the appeal.
The language of the requirement in r 56.02(3) is significantly different. It is general language precluding the court extending time “except in special circumstances”. This expression has been said to be “discouraging rather than encouraging” because of its negative expression.
The authorities establish that:
(a)The rule requires the Court to be objectively satisfied that special circumstances exist;
(b)The existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c)The factors relevant to the exercise of the discretion under Rule 56.03(2) (sic) include, but are not limited to:
(v) the period of the delay;[7]
(vi)the reason for the delay;
(vii)whether the plaintiff has an arguable case;
(ix)the justice to both parties, including the prejudice to the parties; and
(v)the public interest in the finality of litigation.

It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being “special circumstances”, for if that were so there would be little practical point to the time limit contained in the Rule. On the other hand, where it is clear that a plaintiff’s grounds are not arguable, or he has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.
[citations omitted]

[7] I note that the formatting is incorrect and the sub-paragraphs should run from (i)-(v).

In Naik v Monash University (Naik),[8] Richards J said of the interrelation between delay, prejudice and the public interest in finality in litigation:

Statutory limitation periods are imposed for good reasons, including the effect of delay on the quality of justice, the oppression involved in litigation of matters long past, the need for certainty and finality and the speedy resolution of disputes. A limitation period involves a judgment about the point where the interests of justice are best served by an end to disputation.
The time limit for judicial review of administrative action is ‘a compromise between the desirability of correcting error or other injustice and the need for finality’. The need for finality:
…reflects the public interest in a manageable system by which disputes, once raised, may be put to rest, and the private interest in avoiding unfair vexation. Finality is closely related to accessibility. Without it, the system would collapse under its own weight.

[citations omitted]
[8][2018] VSC 605, [60]-[61] , affirmed by the Court of Appeal in Naik v Monash University [2019] VSCA 72. Leave to appeal was refused.

Period of delay

The parties did not agree about the length of the plaintiff’s delay in filing his application for judicial review. The plaintiff’s amended originating motion seeks judicial review of Swinburne’s Deputy Vice Chancellor’s ‘expulsion decision’ of 27 August 2018.[9] Taken from that date, and taking into account the 60-day time period for filing the application, the plaintiff filed his originating motion 957 days out of time.
[9]For the purpose of clarity, I have elsewhere referred to this decision as the Appeal Decision.

The plaintiff submitted that his option to pursue judicial review in this Court was enlivened by information in a letter from the Ombudsman’s office dated 1 April 2021, as confirmed in further correspondence from the Ombudsman on 19 April 2021. Taking these dates as the starting point, the plaintiff submitted that his application was not filed out of time.

The Ombudsman’s letter of 1 April 2021 came about in the following circumstances. As referred to above, the plaintiff made a complaint to the Ombudsman after he received the Appeal Decision. That complaint was considered by an Investigation Officer who decided not to inquire further into it. The Investigation Officer, in communicating his decision to the plaintiff on 17 October 2018, incorrectly referred to Swinburne’s processing of the plaintiff’s application to withdraw from his course as ‘automated’. At the plaintiff’s request a Senior Investigation Officer conducted an internal review of the Investigation Officer’s handling of the plaintiff’s complaint, including the plaintiff’s concerns that Swinburne had lied to the Ombudsman about how his withdrawal application was processed. The Senior Investigation Officer decided, on 11 January 2019, to maintain the original decision not to inquire further into the plaintiff’s complaint. As part of his assessment the Senior Investigation Officer referred to Swinburne’s decision not to allow the plaintiff to withdraw from his course while Swinburne completed its disciplinary or exclusion process, finding that its decision to proceed with its misconduct proceeding was not unreasonable. The Senior Investigation Officer’s correspondence to the plaintiff also incorrectly referred to the withdrawal process as being ‘automated’.

On 5 March 2021 the plaintiff again contacted the Ombudsman. The plaintiff referred to the statement in the Investigation Officer’s correspondence of 17 October 2018 that ‘[t]he university advised in its correspondence to you of 21 March 2018 the online withdrawal process was automated and did not consider the circumstances of the withdrawal or the relevant policies’ and requested the name of the university staff member who made this statement.

The Ombudsman’s Office letter of 1 April 2021, relied on by the plaintiff as enlivening his option to pursue judicial review, was a response to the plaintiff’s request. That letter is in the following terms:

Request for information from the Victorian Ombudsman
Thank you for your email request dated 5 March 2021 regarding a previous complaint you made to our office about Swinburne University (File No: C/18/17337).
You have referred to a letter sent to you by our office on 17 October 2018 in which it is stated ‘The university advised in its correspondence to you of 21 March 2018 the online withdrawal process was automated and did not consider the circumstances of the withdrawal or relevant policies.’ You requested the name of the staff member who made this statement.
Our office has reviewed the letter dated 21 March 2018 and all the information provided to the Victorian Ombudsman from the university on this file. We have determined the university stated in its letter to you dated 21 March 2018 ‘As you have been advised, your withdrawal was processed in error’. Our review has not found any reference to an automated withdrawal process.
We apologise for any inconvenience this has caused and for the delay in providing you this response.

On 14 April 2021 the plaintiff requested that the Ombudsman conduct a further internal review of his complaint about Swinburne, specifically that his withdrawal application had been ‘processed in error’. On 19 April 2021 the Ombudsman informed the plaintiff that it was satisfied the plaintiff’s concerns had already been adequately examined by an internal review and accordingly the Ombudsman would not reopen or reconsider his complaint. The Ombudsman’s letter concludes by informing the plaintiff, in response to his request for details of an external avenue of appeal, that the Victorian Inspectorate can receive complaints about the Ombudsman.

The confusion during the investigation and review processes by the Ombudsman about whether Swinburne had referred to its withdrawal processes as automated or processed in error do not reveal new grounds for the grant of the relief or remedy claimed in relation to the Appeal Decision. This is because Swinburne had stated in its letter to the plaintiff on 21 March 2018, well before the references by the Investigation Officer and Senior Investigation Officer to an automated process, that the plaintiff’s withdrawal was processed in error. The confusing reference to ‘automated’ by the Investigation Officer’s correspondence of 17 October 2018 was explained to the plaintiff and that confusion, while unfortunate, does not alter the original advice provided by Swinburne to the plaintiff that his withdrawal was processed in error. Put another way, the Ombudsman’s letter of 1 April 2021 at best merely put the plaintiff in the same position he was in prior to receiving the Investigation Officer’s letter of 17 October 2018.

Counsel for Swinburne submitted that the plaintiff’s grounds for the grant of relief or remedy first arose when Swinburne decided to exclude the plaintiff on 21 March 2018 and not on 27 August 2018 when he was informed of the Appeal Decision. Swinburne submitted that the plaintiff, by his application, really seeks to quash the decision to exclude him and so it is appropriate to measure the plaintiff’s delay from the Exclusion Decision. Taking that date, ie, 21 March 2018, as the starting point, the plaintiff’s application is 1116 days out of time.

I accept that the relevant starting date for the purpose of considering whether the plaintiff’s judicial review application has been lodged within time is 21 March 2018. I have reached this view because, while on the face of the plaintiff’s amended originating motion the decision the plaintiff seeks review of is the Appeal Decision of Swinburne’s Deputy Vice Chancellor made on 27 August 2018, the plaintiff’s proposed grounds of appeal do not explicitly mention the Appeal Decision and are clearly directed to the Exclusion Decision and the Review Decision. In my view it is therefore appropriate to measure time from the Exclusion Decision.

In any event, whether the delay is 957 days or 1116 days, it is a very significant delay.

Reason for delay

The plaintiff advanced a number of reasons for the delay in filing his judicial review application.

First, the plaintiff submitted that when the Ombudsman told him that Swinburne’s withdrawal application process was automated, he thought judicial review was not available because Swinburne’s Exclusion Decision was legally correct. The plaintiff submitted that the effect of the Ombudsman’s formal confirmation on 19 April 2021 that Swinburne’s processing of the plaintiff’s withdrawal application was not automated was to invalidate Swinburne’s initial Exclusion Decision, making it susceptible to an application for judicial review. The plaintiff explained that the invalidity arose because the plaintiff was potentially no longer a student at the time the Exclusion Decision was made. Related to this, the plaintiff submitted that Swinburne’s records do not show the plaintiff as being investigated for misconduct before his withdrawal application was lodged.

Counsel for Swinburne submitted that the plaintiff’s own documents reveal that he was aware of the possibility of judicial review in this Court from at least April 2019 and that he had sought preliminary legal advice from lawyers around April 2018. Counsel pointed to the plaintiff’s originating motion filed 9 June 2021 in which the plaintiff explained that when his complaint to the Ombudsman was unsuccessful he thought judicial review of the Ombudsman’s decision would be useless and so decided to commence proceedings in the Victorian Civil and Administrative Tribunal (VCAT) to gain evidence. This, Swinburne submitted, demonstrated that the plaintiff was aware of judicial review procedures well before the date he filed his originating motion.

Counsel for Swinburne also submitted that the fact that the plaintiff formulated an argument after the Ombudsman clarified its earlier mistake about the ‘automated’ process does not constitute special circumstances.

Second, the plaintiff submitted that he could not file his application for judicial review without first obtaining documentary evidence. The plaintiff submitted that he had made twelve freedom of information requests to Swinburne, many of which had been refused and subject to review by the Office of the Victorian Information Commissioner (OVIC). The plaintiff submitted that he only received the documents he required in March or April 2021.

Third, the plaintiff submitted that Swinburne had contributed to the delay by not providing him with the documents he sought.

Counsel for Swinburne submitted that there is no evidence of a requisite standard before the Court to support the plaintiff’s complaints about Swinburne’s conduct in the litigation and its contribution to the delay by not providing documents to the plaintiff. Swinburne urged the Court to disregard the assertions of the plaintiff of misconduct.

Fourth, the plaintiff submitted that the overall complaints process had not been finalised by the time he filed his application for judicial review. The plaintiff said that he worked through Swinburne’s review and appeal processes and was then told by Swinburne that the next step was to complain to the Ombudsman. The Ombudsman, according to the plaintiff, told him that the next step after exhausting all internal review options was to complain to the Victorian Inspectorate. Similarly, the plaintiff referred to the review of his freedom of information requests by the OVIC and subsequent proceedings at VCAT. The plaintiff submitted that he ‘followed the complaint process and always lodged the complaint within the time limit at all times’.

Swinburne submitted that it is not permissible for the plaintiff to await the outcome of whatever external processes he chose to pursue before bringing his application for judicial review in this Court. If this were allowed, Swinburne submitted, the time limit in r 56.02(1) of the Rules would be rendered nugatory. Swinburne submitted that it is open for the Court to conclude that the plaintiff made an informed choice to pursue remedies in VCAT.

The plaintiff’s fifth reason again related to Swinburne’s conduct.

Sixth, the plaintiff made the bare statement that his case for judicial review is arguable. The parties’ submissions in relation to arguable case are discussed below at 44 - 116.

Seventh, the plaintiff reiterated the submission he made at the hearing of his application for a pseudonym and protective costs order, that this is public interest litigation. The plaintiff asserts that he is being victimised by Swinburne for complaining to the Ombudsman about his marks having been recorded in the wrong column in his assessment notice and that it is necessary that students making complaints about Swinburne to the Ombudsman are protected.

Eighth, the plaintiff submitted that COVID-19 lockdown restrictions from May to June 2021 impeded his ability to swear his affidavit before a witness and that the Court would not accept an unsworn affidavit for filing.

I am not satisfied that the plaintiff’s first reason provides an adequate explanation for the delay. This is because the argument the plaintiff seeks to make about no longer being a student at the time the Exclusion Decision was made was always available to the plaintiff. That argument’s availability was not affected by the Investigation Officer’s erroneous reference to Swinburne’s processing of the plaintiff’s application to withdraw from his course as ‘automated’. In any event, even if it was so affected, the plaintiff has not explained the delay between the decisions of the Investigation Officer and Senior Investigation Officer on 17 October 2018 and 11 January 2019 respectively, and his later contact with the Ombudsman’s office on 5 March 2021.

I also do not accept the plaintiff’s submission that he could not commence his judicial review application until he had followed other external review avenues. The plaintiff’s original originating motion demonstrates that the plaintiff was aware of the possibility of bringing a judicial review application. He considered bringing one in relation to the Ombudsman’s decision not to inquire further into his complaint and decided against it. Those decisions were made by the Ombudsman in late 2018 and early 2019. Instead the plaintiff deliberately chose to pursue VCAT proceedings.

It is difficult to assess the plaintiff’s argument about the delay being caused because Swinburne has only recently provided the documents necessary to commence his judicial review application. Part of the reason for this difficulty is that the plaintiff refers to his multiple freedom of information requests and the involvement of the OVIC, the Victorian Inspectorate and perhaps VCAT in obtaining documents. He does not however identify the timing of the provision of particular documents. It appears from the plaintiff’s affidavit that some of his freedom of information requests remain before the OVIC. The plaintiff also stated that he received important documents in August 2020 ‘that reveal the extent of the victimisation’. Assuming that to be true, it does not explain the additional delay between August 2020 and 9 June 2021 when the plaintiff filed his originating motion in this Court.

I accept Swinburne’s submission that the plaintiff’s statements about Swinburne’s conduct in the litigation contributing to delay, including by withholding access to documents, are assertions that the Court should be cautious to accept in the absence of other evidence.

In IJW v Swinburne University of Technology,[10] I considered and rejected the plaintiff’s characterisation of this proceeding as public interest litigation.
[10][2021] VSC 846, [66]–[70].

I accept that the COVID-19 related restrictions on movement between May and June 2021 are likely to have contributed to the plaintiff’s delay in filing his application for judicial review. The plaintiff’s reasonable explanation for delay during that two-month period does not explain the very significant period of delay before May 2021.

Taking all of the factors raised by the plaintiff into account, I find that the plaintiff has provided a reasonable explanation for the delay for the period up to August 2020 when he received key documents from Swinburne and for the period between May and June 2021 when COVID-19 restrictions were in place in Victoria. The plaintiff has not otherwise provided a reasonable explanation for the additional delay.

Arguable case

It is necessary to say at the outset that the material filed by the plaintiff was not easy to understand. His written material was voluminous and prolix and his oral submissions, at times, involved reading out his written submissions. In addition, while his application seeks judicial review of the Appeal Decision, the plaintiff’s written and oral submissions and his affidavit material traversed both the process leading to the Exclusion Decision and the Review Decision. Further, the plaintiff often raised issues going to the merits of the various decisions rather than the process or other well known heads of judicial review. Finally, where the plaintiff called something a procedural irregularity, it was often apparent from the substance of the plaintiff’s submission that he was complaining about the merits of various decisions rather than process. For example, the plaintiff submitted on his appeal that a procedural irregularity occurred because there was no evidence of misconduct such as to justify the Exclusion Decision.

In an application for an extension of time the Court will not interrogate the merits of the plaintiff’s case in the same way that it would in the substantive hearing of that case. The plaintiff, being a self-represented litigant, is entitled to the assistance and leeway of the Court to ensure a fair hearing. [11] Taking both these matters into account, along with the plaintiff’s originating motions, his affidavit, and written and oral submissions, I am not satisfied that the plaintiff has articulated an arguable case in relation to all of his proposed grounds. I am however satisfied that the plaintiff has an arguable case in relation to two of his proposed grounds.
[11]Roberts v Harkness (2018) 57 VR 334; [2018] VSCA 215, [46]–[50].

The plaintiff’s amended originating motion seeks judicial review of the Appeal Decision of Swinburne’s Deputy Vice Chancellor made on 27 August 2018. The primary relief sought by the plaintiff is certiorari in relation to the Appeal Decision. The plaintiff’s amended originating motion seeks that the Appeal Decision be set aside ‘because of absence of jurisdiction, jurisdictional error, failure to observe the requirements of procedural fairness, fraud, no evidence or no proof, ultra vires, etc’.

The plaintiff’s amended originating motion also seeks other orders ‘as part of this judicial review to overturn the [Appeal Decision] because they are all procedural errors leading to (or parts of) the [Appeal Decision]’. The plaintiff’s proposed other orders include: prohibition to prevent Swinburne from acting beyond its jurisdiction or in contravention of the requirements of procedural fairness; quo warranto ‘to prevent [Swinburne] from wrongfully exercising … the functions of an “authorised officer” unlawfully [and] to prevent [Swinburne] to force (sic) enrolling the plaintiff without the plaintiff (sic) consent’; mandamus to ‘grant exemption from the 7 units that are failed (sic)’ and to reverse the plaintiff’s re-enrolment on 14 February 2018; declarations that the Exclusion Decision and re-enrolment decision were unlawful and that Swinburne’s investigation of the plaintiff was unlawful because the Authorised Officer was not validly appointed. The plaintiff also seeks declarations relating to other matters including alleged conflicts of interest of Swinburne staff involved in his misconduct investigation and a declaration that the plaintiff passed the Cabrini hospital clinical placement. Finally, the plaintiff seeks ‘[a]ny other order deemed appropriate by the Court to do justice between the parties’.

Some of the relief sought by the plaintiff is beyond the relief a court would contemplate on a judicial review application. For example, it is doubtful the Court has the power on a judicial review application to make a declaration that the plaintiff passed the Cabrini hospital clinical placement component of his course. Quo warranto as a remedy does not operate to prohibit or prevent action.

As I understand the plaintiff’s amended originating motion, the plaintiff relies on the following grounds:

(a) there was no evidence of misconduct to justify the decision to exclude the plaintiff;

(b) the plaintiff was no longer a student at the time Swinburne purported to decide to exclude him and so the Authorised Officer did not have jurisdiction to make the Exclusion Decision;

(c) Swinburne failed to produce evidence that the plaintiff was still a Swinburne student when the Exclusion Decision was made;

(d) Swinburne was not authorised and did not have the power to re-enrol the plaintiff after he had withdrawn;

(e) the Exclusion Decision was attended by a reasonable apprehension of bias because the decision to exclude the plaintiff[12] was predetermined after the plaintiff made a complaint to the Ombudsman about his assessment record;
[12]The plaintiff here referred to the ‘expulsion’ decision but not the date of that decision. I understood this to be a reference to the Exclusion Decision of 21 March 2018.

(f) Swinburne breached the rules of natural justice;

(g) Swinburne failed to take into account the plaintiff’s mental health as a relevant consideration in making the Exclusion Decision;

(h) Swinburne committed an error of law by making the decision to exclude the plaintiff because Swinburne’s policies only permit exclusion after four serious instances of misconduct; and

(i) the expulsion decision[13] breached sections 10, 13, 24, 38 and 39(1) of the Charter.

[13]Again, I understood this to be a reference to the Exclusion Decision of 21 March 2018.

In order to understand the plaintiff’s application it is helpful to set out the regulatory framework in which the Exclusion Decision, Review Decision and Appeal Decision were made.

The Swinburne University of Technology Act 2010 (Vic) (Act) confirms the establishment of Swinburne University on 1 July 1992 under the earlier Swinburne University of Technology Act 1992 (Vic). Part two of the Act sets out the general powers and functions of Swinburne. Part five of the Act provides for ‘University statutes and university regulations’. Section 28 empowers Swinburne’s Council (Council) to make any university statutes and regulations with respect to any matter relating to Swinburne and any person entering or on land or other property of Swinburne or using Swinburne facilities. Section 29 provides that university statutes and regulations may be made for or with respect to discipline and students. Section 30 provides that a university statute may provide for the making of university regulations for any matter or thing for the purposes of the university statute, by the Council or, if the university statute authorises it, by the Vice Chancellor or the academic board.

Section 33 of the Act provides that university statutes and regulations are not statutory rules for the purposes of the Subordinate Legislation Act 1994 (Vic) or subordinate instruments for the purposes of s 32 of the Interpretation of Legislation Act 1984 (Vic).

Swinburne’s Academic and Student Affairs Statute 2012 (ASA Statute), made pursuant to s 28 of the Act, regulates academic and student matters including conduct, discipline, reviews, hearings and appeals.

Part five of the ASA Statute deals with admission, conduct and exclusion.

Division one of Part five deals with admissions. Section 17 provides that Swinburne must conduct admission of students in accordance with Swinburne’s legislation, policies and procedures. Swinburne has a broad discretion whether to accept an application for admission as a student. Upon enrolment a student is bound by Swinburne’s statutes, regulations, policies and procedures.

Division two of Part five deals with student misconduct. Section 18 provides that a person commits misconduct if the person commits student academic misconduct or student general misconduct. Student general misconduct is defined in s 20 of the ASA Statute, which provides that a person commits student general misconduct if he or she while a student engages in conduct that is prescribed in the regulations to be student general misconduct.

Division four of Part five of the ASA Statute provides for suspension, exclusion and sanctions. Section 22 provides that a person found to have committed student general misconduct is liable to the sanction determined under the regulations. Section 23 of the ASA Statute provides that the regulations may confer on a person who has been excluded a right to apply for the review of the decision and appeal of a review decision.

Section 24 of the ASA Statute provides Swinburne with the power to exclude a student where the reasonable opinion of Swinburne, based on history or other circumstances, is that a student is likely to cause emotional disturbance to other persons, disrupt university activities or cause health or safety risks to university staff or students.

Section 27 of the ASA Statute empowers the Council to make regulations under the ASA Statute with respect to student misconduct.

On 5 March 2012 the Council made the Student General Misconduct Regulations 2012 (General Misconduct Regulations). The objective of the General Misconduct Regulations is to regulate the conduct of students participating in Swinburne activities and to facilitate the proper functioning of Swinburne. Part two of the General Misconduct Regulations deals with general misconduct. Regulation 4 provides that it is general misconduct if, among other things, a student while engaging in Swinburne activities engages in improper behaviour including harassment, threatening or intimidating behaviour or abusive language. A student will also commit general misconduct if the student engages in conduct which is detrimental to the reputation of Swinburne or engages in a pattern or sequence of conduct which places substantial demand on Swinburne’s resources, vexatiously or without proper justification.

Regulation 6 of the General Misconduct Regulations provides that the Vice Chancellor must appoint authorised officers for the purpose of the General Misconduct Regulations. If an authorised officer becomes aware of, or has brought to his or her attention, an act of general misconduct and if the authorised officer is reasonably satisfied based on the evidence (including any evidence that the authorised officer may have gathered through investigation) that a student has engaged in general misconduct, the authorised officer may impose one or more of the sanctions listed in reg 6, including exclusion. An authorised officer may only exclude the student if the student has first been advised of the proposed decision and has been given reasonable opportunity to make a submission to the authorised officer. A student must be informed in writing of the decision of the authorised officer within five working days of the decision being made: reg 7.

Swinburne’s Reviews and Appeals Regulations 2012 (Reviews and Appeals Regulations) provide for reviews and appeals relating to academic and student affairs at Swinburne. The Vice Chancellor must appoint review officers for the purpose of the Reviews and Appeals Regulations. Sub-regulation 5(1) states that a person who considers a review or an appeal under the Reviews and Appeals Regulations must comply with the rules of natural justice. Sub-regulation 5(2) gives substance to that obligation by providing that a person considering a review application or an appeal must take into consideration any submission included in the application; may inform himself or herself as he or she thinks fit; and is not required to notify the student or invite further submissions if at the time the student made the application the student was aware of the allegation and the student had reasonable opportunity to make a submission about the allegation. Relevantly, a person who considers a review application or an appeal under the Reviews and Appeals Regulations is not required to act formally or to comply with the rules of evidence or procedure which apply to court proceedings.

Part two of the Reviews and Appeals Regulations deals with reviewable decisions. Regulation 6 provides that a general misconduct decision is a reviewable decision. Part three of the Reviews and Appeals Regulations deals with review of decisions. Division one of Part three is entitled ‘Review process and outcome’ and sets out the scope of reviewable decisions, the form required of the application for review and the timeframe for the review officer to make a decision. Regulation 16 provides that the decision on review must be that the reviewable decision is affirmed, amended as set out in the decision or set aside. The review decision must include a statement of reasons. If requested and subject to any requirement or restriction under Swinburne legislation, legislation or the common law, the review officer must provide a copy of any document which was taken into consideration in making the decision.

Part four of the Reviews and Appeals Regulations deals with appeals. Regulation 18 provides that an application to appeal must be on one or more of the following grounds:

(a) that there is relevant evidence that was not taken into consideration by the review officer and which could not have been known by the person prior to the review;

(b) that the decision was manifestly wrong;

(c) a procedural irregularity occurred which may have affected the review officer’s decision;

(d) that a penalty imposed on the person was manifestly excessive;

(e) that the review officer failed to made a decision within the time required under the Reviews and Appeals Regulations.

Other than the above, the Reviews and Appeals Regulations do not prescribe the process to be undertaken on review or appeal.

Part five of the Reviews and Appeals Regulations is entitled ‘External Review’. Regulation 24 provides that a person may apply to the Ombudsman for review of a decision not to allow an appeal. If the Ombudsman recommends that the decision be amended or cancelled, or that another decision be made, Swinburne must consider that recommendation and notify the student of the outcome of its consideration of that recommendation and the reasons for it.

In addition to the university statutory and regulatory framework, Swinburne has published various policy documents and guidelines. For example, Swinburne has developed:

(a) Work Instructions for authorised officers;

(b) decision making guidelines that set standards and provide assistance to staff members to make good decision in cases affecting students’ rights;

(c) sanctions guidelines to assist staff members who impose sanctions on students in misconduct matters by setting out the principles a decision maker should take into account when deciding on the type and severity of a sanction;

(d) People, Culture and Integrity Policy, which includes a section entitled ‘Conflicts of interest’ noting that if a person’s decision making is influenced or potentially influenced by their private interests, personal circumstances, or their involvement with another organisation, they are in a conflict of interest.

Next it is helpful to set out, in summary form, the evidence before the Court relevant to the Exclusion Decision, the Review Decision and the Appeal Decision.

Swinburne informed the plaintiff on 14 February 2018 that he was required to attend a meeting with university staff to discuss the incident with the Cabrini Hospital receptionist (incident) and concerns of misconduct.

On 22 February 2018 the plaintiff attended the meeting. The other attendees of the meeting were Helen Smit from Process and Integrity, the Nursing and Health Programs Manager, Leanne Griffin, Rameeza Barnes from Safer Community and the plaintiff’s advocacy officer, Leilani Fatupaito.

On 22 February 2018, following the meeting, Simone McInnes, a Process Integrity Officer in the Swinburne’s Governance, Legal and Integrity department sent an email to the plaintiff. Ms McInnes’ email identified the date of the incident and the plaintiff’s alleged behaviour. The email noted that the plaintiff had previously received a warning notice regarding his communications with Swinburne university staff members. It went on to state that since the incident, the plaintiff had been contacting numerous staff across Swinburne. Staff at Swinburne’s Student Life had reported that the nature of, frequency and intensity of some of their interactions with the plaintiff had been stressful for the staff involved. The email stated that the plaintiff’s communications were so persistent that Safer Community had to email the plaintiff to request that he refrain from communicating with staff, other than his advocacy officer, any further and that the plaintiff had previously received a formal warning regarding his interactions with staff. Ms McInnes wrote that the plaintiff had expressed remorse for his actions during the meeting on 22 February 2018 and explained that his behaviour was due to mental health issues and financial difficulties he had been experiencing.

Ms McInnes’ email also informed the plaintiff that his behaviour constituted general misconduct under Swinburne’s General Misconduct Regulations, including: a major incident of bringing Swinburne’s reputation into disrepute; engaging in threatening or intimidating behaviour while on university premises, using university facilities and services, or engaging in university activities; and engaging in harassment while on university premises, using university facilities and services, or engaging in university activities.

Ms McInnes’ email informed the plaintiff that due to the serious nature of the incident, the level of sanction that could be imposed could result in his suspension or exclusion from Swinburne. Ms McInnes stated that this decision would be made by an authorised officer. Ms McInnes invited the plaintiff to make a further submission regarding his conduct and sanction to be imposed. The email concluded by informing the plaintiff that once Swinburne received his written submission, his case would be considered by an authorised officer and that the plaintiff would be informed once a determination had been made.

The evidence before the Court included a personal statement written by the plaintiff dated 2 March 2018 which he submitted during the misconduct investigation prior to the Exclusion Decision. In that statement the plaintiff acknowledged the allegations of misconduct made against him including the incident and provided his explanation for the events. The plaintiff acknowledged that he was informed exclusion was a possible sanction that could be imposed by Swinburne in the event misconduct was found to have occurred. The plaintiff set out extenuating circumstances he asked Swinburne to take into account in determining any sanction to be imposed.

Swinburne provides guidance in the form of a Work Instructions document to authorised officers, who are required to investigate and make findings about allegations of student misconduct and determine appropriate sanctions. A copy of the Work Instructions was provided to the Court. It outlines the responsibilities of authorised officers, including to investigate incidents of alleged misconduct, make findings that misconduct has been committed if reasonably satisfied based on the evidence and to decide what sanction to impose.

On 21 March 2018 the Authorised Officer communicated the Exclusion Decision to the plaintiff. The decision letter commences by stating, “[y]ou are receiving this notice as we have found you to have engaged in general misconduct.” The Exclusion Decision:

(a) indicated that the plaintiff had been given the opportunity to address the allegations of misconduct at the meeting on 22 February 2018;

(b) noted the plaintiff’s written submissions provided prior to and at the meeting on 22 February 2018 had been considered along with additional written submissions the plaintiff provided on 2 March 2018;

(c) noted that during the meeting on 22 February 2018 and in the plaintiff’s written submissions, he had expressed remorse for his actions and stated that his behaviour was due to his mental health issues; and

(d) then stated that Swinburne:

“appreciates that you recognise these issues and would like to thank you for the apologies provided. However, in light of the issues raised above, from a health and safety perspective, the university believes sanctions must apply given the nature of the misconduct.

Misconduct on placement, particularly in a care environment such as a hospital, is considered very serious and often results in exclusion as the university must consider the risks to vulnerable people such as patients, its relationship with the placement provider, and its duty to the wider community”.

The Exclusion Decision stated that the plaintiff’s misconduct had been identified as general misconduct, specifically that the plaintiff had engaged in conduct that was detrimental to the reputation of Swinburne; the plaintiff had engaged in threatening or intimidating behaviour while engaging in Swinburne activities; the plaintiff had engaged in harassment; and that the plaintiff had engaged in a pattern of conduct which placed substantial demand on Swinburne’s resources. The Exclusion Decision informed the plaintiff of his review rights.

The evidence before the Court included the plaintiff’s review application dated 20 April 2018 (Review Application). The plaintiff’s grounds of review include procedural irregularities in the decision, that the decision was manifestly excessive and that he had fresh evidence. The procedural irregularities identified by the plaintiff were: that there were no valid grounds for the Exclusion Decision because the behaviour said to be misconduct did not occur, that is, that the plaintiff was not abusive or aggressive; and that the decision maker disregarded the plaintiff’s mental health condition. The plaintiff requested that CCTV footage of the incident be presented and that the review consider appointing a different Authorised Officer.

In his Review Application the plaintiff submitted that Swinburne’s decision to exclude him was excessive because he was not, given his mental health issues, intentionally abusive or aggressive and had shown remorse at the meeting on 22 February 2018. In addition the plaintiff stated that he had shown a script of the alleged incident that had been provide to him in the meeting on 22 February 2018 to solicitors who had advised him that his behaviour, as outlined in the script, was not aggressive. The plaintiff requested to be allowed to send a formal apology to the hospital and provide an explanation that any behaviour was unintentional.

The plaintiff’s fresh evidence, in addition to the solicitors’ advice, was that the incident did not happen at the reception area but at a small information booth at the back of the hospital that was only open during particular days and times.

On 15 May 2018 Swinburne notified the plaintiff of its Review Decision which upheld the Exclusion Decision. The Review Decision noted the review had been conducted in accordance with the Reviews and Appeals Regulations. It identified the Exclusion Decision as the decision under review and the plaintiff’s grounds of review. The Review Decision stated that the reviewer considered the information provided by the plaintiff and conducted an investigation, including discussing the issues with staff involved in the initial incident and the Authorised Officer, to confirm the Exclusion Decision. The Review Decision then set out the plaintiff’s appeal rights.

The plaintiff’s application to appeal the Review Decision was before the Court. The plaintiff’s appeal grounds were first, procedural irregularities in the decision and the lack of independence of the Review Decision, and second, that the decision was manifestly excessive. The plaintiff set out three reasons for his dissatisfaction with the Review Decision. These were that the Review Decision did not address his fresh evidence and therefore the review was not in accordance with usual procedure; the review was not independent in that it was unfair for the reviewer to have spoken to the Authorised Officer; and the plaintiff’s requests, made in his review submission, were not taken up by the reviewer.

The plaintiff’s appeal was considered by the Deputy Vice Chancellor. In the Appeal Decision, Swinburne’s Deputy Vice Chancellor noted:

[The plaintiff is] appealing on the grounds that a procedural irregularity occurred which may have affected the review officer’s decision and that the penalty imposed was manifestly excessive.

You have not provided any evidence of a procedural irregularity and no such error is apparent.
Exclusion for serious misconduct on a placement is a standard outcome and therefore not considered to be manifestly excessive.

Having set out the regulatory framework and the evidence before the Court, I now turn to consider whether the plaintiff’s proposed grounds of appeal are arguable. Where the plaintiff’s proposed grounds raise similar or overlapping themes, I have considered them together.

None of the plaintiff’s proposed grounds of appeal make reference to the Appeal Decision the subject of the plaintiff’s application for judicial review. It is apparent that the plaintiff seeks to raise issues on his judicial review application that were not raised by the plaintiff in his review submissions or his appeal submissions. These include that he was no longer a student at the time of the Exclusion Decision, that Swinburne had no power to re-enrol him following his withdrawal from the course, that the Authorised Officer was not validly appointed, and that Swinburne breached the Charter.

(a) Lack of evidence of misconduct to justify the Exclusion Decision

The plaintiff’s proposed ground about there being a lack of evidence of misconduct to justify the Exclusion Decision, identified at 49(a) above, goes to the merits of the Exclusion Decision and not the process of the Appeal Decision.

Swinburne submitted that the decision to exclude the plaintiff was open on the available material and that the plaintiff had and took up the opportunity to make submissions on that material as part of the process leading to the Exclusion Decision.

Part of the plaintiff’s argument in relation to this proposed ground is that the Exclusion Decision cannot be sustained on the evidence because of the plaintiff’s ‘fresh evidence’. The plaintiff’s ‘fresh evidence’ was set out in the Review Application and referred to in his appeal.

In my view the evidence before this Court demonstrates that the Authorised Officer’s finding that the plaintiff had engaged in misconduct was open on the material before the Authorised Officer. This remains the case notwithstanding the plaintiff’s other proposed grounds of appeal relating to bias. The fact that in his Review Application the plaintiff asked the reviewer to take into account that the plaintiff had shown the script of the incident to solicitors who told him his behaviour was not aggressive or abusive did not alter the fact that a finding of misconduct was open on the other available material. The reviewer did not have to agree with the solicitors’ opinions. Nor did this fresh evidence negate the other material before the Authorised Officer and the review, including the plaintiff’s acknowledgement and explanation for his behaviour. Similarly, the plaintiff’s fresh evidence about the location of the incident provided to the reviewer, did not, taken in combination with the other material, mean that the finding of misconduct was not open on the evidence.

(b) The plaintiff was not a student when Swinburne purported to make the Exclusion Decision and therefore Swinburne was not authorised to make the Exclusion Decision; (c) Swinburne failed to produce evidence that the plaintiff was still a Swinburne student when the Exclusion Decision was made; (d) Swinburne was not authorised and did not have the power to re-enrol the plaintiff after he had withdrawn

I understood the plaintiff to be arguing in these grounds that the Exclusion Decision involved a jurisdictional error because the plaintiff was not a student at the time the decision was made. If made out, this ground could affect the validity of the Exclusion Decision, Review Decision and the Appeal Decision. The plaintiff’s argument that he was not a student is based on his assertion that Swinburne did not have the power to re-enrol him in his course after notifying him that his application to withdraw from the course had been successful.

The evidence before the Court was that the plaintiff had repeatedly requested that Swinburne identify the source of their power to re-enrol him following his withdrawal from his course. In an email from Swinburne’s solicitor to the plaintiff dated 21 September 2020 the solicitor identified reg 19 of the Academic Course Regulations 2013 (ACR) as the source of that power. The email also states that Swinburne had previously identified the same regulation in earlier advice provided to the plaintiff by emails dated 20 February 2018 and 21 February 2018, i.e. before the plaintiff attended the meeting on 22 February 2018.

Regulation 19 of the ACR is in the following terms:

19. Imposition of conditions

1. The University may, at any time, impose conditions on a student’s study and participation in University activities.

2. Conditions imposed under this regulation may include conditions relating to—

a. the number of units to be taken (including a maximum number);

b. the expected level of achievement;

c. engagement with support services or counselling as required by the University as a consequence of a student progress decision, student misconduct or concerns about student’s behaviour;

d. expected behaviour.

3. The university may suspend or exclude a student or impose further conditions if conditions are not complied with.

Unfortunately, the balance of the ACR was not before the Court and so it is difficult to interpret the meaning of reg 19, divorced from its context within the ACR and the purpose of the ACR. It is sufficient to note that on its face reg 19 authorises the university to impose conditions on a student’s study and participation in university activities. It does not, in terms, authorise Swinburne to re-enrol a student who has withdrawn from his course without his consent. It appears to me to be arguable that reg 19 does not extend so far as to authorise re-enrolment of a student who has withdrawn from his course.

Swinburne submitted that the plaintiff had not identified any basis under the Act or Swinburne’s statutes and regulations that would render it without power to reverse the plaintiff’s withdrawal application process as it did, and then to take subsequent steps against him. So much may be accepted, however, it appeared clear to me that the plaintiff did not agree that reg 19 provided Swinburne with such a power. The plaintiff’s proposed ground is, in my view, arguable.

(e) The Exclusion Decision was attended by a reasonable apprehension of bias in that it was predetermined after the plaintiff made a complaint to the Ombudsman about his assessment record

The plaintiff submitted that Swinburne had determined to exclude the plaintiff a week after he made his complaint to the Ombudsman about Swinburne’s refusal to fix the mark recording error. I understand the plaintiff’s proposed ground to be that the decision of the Authorised Officer, to exclude the plaintiff is attended by a reasonable apprehension of bias.

The plaintiff relies on:

(a) a Safer Community Report dated 6 November 2017 by Rameeza Barnes about the plaintiff noting “Behaviour Risks/Unreasonable Complaining”, “Target-University” and “Student has gone through the internal complaint system (complaint, review and appeal stage) and has been referred to the Ombudsman. He has now emailed a number of senior people over the weekend asking them to look into his case.” The report notes under the heading Case Management Plan, “teacher to arrange meeting with student and SC [Safer Community], undertake a behavioural assessment if needed, student to be excluded”;

(b) a Safer Community Report dated 19 January 2018 by Rameeza Barnes, including an email from Rameeza Barnes to Helen Smit in which Rameeza Barnes relays statements made by a mental health nurse who had been involved in a behavioural assessment of the plaintiff in 2017. The mental health nurse’s statements included that “[the plaintiff] will most likely be involved in other incidents” and “expressed concern about [the plaintiff] going out into the world and specifically into nursing, as there could be concerns people have regarding their safety around [the plaintiff]”;

(c) a Safer Community Report dated 12 February 2018 by Rameeza Barnes noting the content of a phone conversation of that date “Emma Lincoln would like [the plaintiff] excluded from his course as he is a potential risk to the community. I agree with this approach. The [plaintiff] has submitted a course withdrawal form, but is also asking about enrolment dates, fees and has applied for SPX so I am not sure that he actually intends to leave Swinburne altogether. Leanne Griffin will be drafting the exclusion notification, and Helen has asked that Leanne run it through her.”

(d) A Safer Community Report dated 22 February 2018 containing notes of the meeting with the plaintiff, including, “[the plaintiff] asked who would make the decision; to which Helen explained the decision would be made by an authorised officer. [The plaintiff] asked if he could get the contact details of the authorised officer as it feels it would be unfair if the authorised officer didn’t hear about his case directly from him. Helen and I looked at each other and said no -: I explained over the course of the last two days [the plaintiff] had harassed multiple staff, so we don’t want the risk of the authorised officer being constantly contacted by him. [The plaintiff] tried to push some more but we were very firm in stating this wasn’t a possibility. Leilani then assured him his submission and supporting evidence would be forwarded by Helen to the authorised officer. [The plaintiff] accepted this reasoning reluctantly.”

(e) An email from Rameeza Barnes to Helen Smit and the Authorised Officer, Kirsten Jeffery, dated 19 March 2018 that includes the following, “Kristen, my apologies but would you please be able to sign the letter with it dated 21^st of March? Helen, I don’t have a MS word version of the letter – would you please be able to send Kristen an amended version for her to sign?”

(f) An email from an OVIC Case Manager to the plaintiff dated 26 February 2021 reporting that Swinburne had informed the OVIC that, “[a]fter making enquiries with the relevant staff, there is no investigation report or similar document. An internal document relating to the misconduct and detailing the nature of it has been provided to the [plaintiff].”

Swinburne submitted that there is no evidence before the Court to suggest that Swinburne’s Authorised Officer or any subsequent merits review decision makers engaged in any conduct which would give rise to a reasonable apprehension of bias or otherwise engage in decision making that was unlawful. It submitted that there was no evidence to justify any argument that:

(a) Ms Jeffery was not able to perform the role, or did not perform the role, of authorised officer;

(b) Any Swinburne staff sought to impose a sanction on the plaintiff having regard to various extraneous matters concerning the plaintiff’s complaint to the Ombudsman in 2017 and the formal warning Swinburne gave the plaintiff in around January 2018;

(c) Particular members of Swinburne had any unlawful involvement in the ultimate decisions taken by Ms Jeffery, or the subsequent merits review decision-makers, or that particular members of Swinburne had some unidentified but direct interest in excluding the plaintiff from Swinburne that was divorced from an appropriate, lawful exercise of available regulatory powers;

(d) Ms Jeffery, or the subsequent merits review decision-makers, had regard to any of the material that the plaintiff attacks as being irrelevant or against his interests;

(e) Ms Jeffery, or any of the subsequent merits review decision-makers, did not have regard to the plaintiff’s written submissions, and did not independently make a decision impartially on the merits.

Swinburne further submitted that the plaintiff had not identified how the involvement of other individuals besides Ms Jeffery renders her exercise of power unlawful in the circumstances.

The General Misconduct Regulations provide that acts of general misconduct may be brought to the attention of the authorised officer. The same regulations also require the authorised officer to be reasonably satisfied based on the evidence (including evidence the authorised officer may have gathered through investigation) that a student has engaged in general misconduct, before excluding a student.

In my view, on the evidence before the Court, the plaintiff has an arguable case that the Authorised Officer’s decision to exclude him was attended by a reasonable apprehension of bias. That evidence includes emails indicating that Swinburne staff involved in the meeting on 22 February 2018 with the plaintiff had decided, prior to the meeting, that the plaintiff should be excluded from the university, and drafted the Exclusion Decision for the Authorised Officer to sign. In other words, the plaintiff has raised an arguable case that the Authorised Officer merely signed the Exclusion Decision without satisfying herself of the matters required by reg 6(2) of the General Misconduct Regulations. The plaintiff’s reasonable apprehension of bias ground is arguable.

(f) Swinburne breached the rules of natural justice

The plaintiff’s proposed ground of a breach of natural justice, identified at 49(f) above, identified thirteen bases, each of which repeated issues canvassed in his other proposed grounds. These included the assertion that he was no longer a student at the time of the Exclusion Decision and there being no evidence of misconduct, which have been considered above. Another basis was that the meeting on 22 February 2018 was attended by and the Exclusion Decision was written by Swinburne staff who were previously determined to exclude the plaintiff. This appears to be, at least in part, the same as the plaintiff’s proposed ground identified at 49(e) above. It is unnecessary to reconsider them.

A further basis was that there was no proof of the Authorised Officer’s appointment by the Vice Chancellor.

Swinburne submitted that the plaintiff had offered no basis on which the Court might find that Ms Jeffery was not able to perform or did not perform the role of Authorised Officer.

Regulation 6 of the General Misconduct Regulations provides that the Vice-Chancellor must appoint authorised officers for the purposes of those regulations.

The plaintiff’s assertion that Ms Jeffery was not properly appointed by the Vice Chancellor is not supported by evidence. The evidence before the Court was that Ms Jeffery was identified by Swinburne as the Authorised Officer for the purpose of considering the plaintiff’s misconduct. I am not satisfied that the plaintiff’s argued basis rises above the level of assertion.

On the face of the evidence before the Court the plaintiff was afforded the opportunity to make submissions on his appeal, and indeed at both the investigation and review processes. It is also apparent from the Appeal Decision that the basis of the plaintiff’s appeal was considered. One of the plaintiff’s appeal grounds related to the independence of the person responsible for the Review Decision, in particular because the reviewer had spoken to the Authorised Officer as part of the review process.

Swinburne’s Reviews and Appeals Regulations sets out the requirements of a person considering a review application or appeal under that regulation. Regulation 5 provides that in considering an application or appeal a person may inform himself or herself as he or she thinks fit. Additionally the person is not required to notify the student or invite the student to make further submission if at the time the student made the application the student was aware of the allegation and had a reasonable opportunity to make a submission about the allegation. A person conducting a review or appeal is not required to comply with the rules of evidence or procedure which apply to court proceedings.

In light of reg 5 of Reviews and Appeals Regulations, it was open to the reviewer to inform herself in this way and also open to the reviewer not to call for further submissions from the plaintiff in response.

I am not satisfied that the plaintiff has an arguable case that Swinburne breached the rules of natural justice.

(g) Swinburne failed to take into account the plaintiff’s mental health as a relevant consideration in making the Exclusion Decision

It is apparent from the evidence before the Court discussed above at 76 that the Authorised Officer took the plaintiff’s mental health into consideration in making the Exclusion Decision. On the face of the evidence the plaintiff put before the Court this proposed ground of judicial review is not arguable.

(h) Swinburne committed an error of law because its policy only permits exclusion after four serious instances of misconduct

Guidelines, such as the sanctions guidelines described at 67(c) above, do not share the same status as legislation and subordinate legislation. This has ramifications for the availability of judicial review of decisions made under university guidelines.

In Naik,[14] Richards J noted:

However, a failure by a decision-maker to follow a relevant policy or procedure is not necessarily a ground for a remedy on judicial review. A policy or procedure document is generally ‘soft law’ that is not to be applied with ‘statutory nicety’. Often, the only remedies available for breach of soft law are themselves ‘soft’, such as a complaint to an Ombudsman. There are limited circumstances in which non-compliance with a policy or procedure might amount to jurisdictional error that could be corrected by certiorari. Those circumstances include where the non-compliance involves a want of procedural fairness that results in practical injustice, where it demonstrates a failure to have regard to a relevant consideration or legal unreasonableness. A mere failure to follow a non-statutory assessment policy or procedure would not, without a good deal more, amount to jurisdictional error that invalidates a decision.

[citations removed]

[14][2018] VSC 605, [51].

I am not satisfied that this proposed ground is arguable. First, the plaintiff did not identify any relevant part of the sanctions guidelines or other Swinburne statute, regulation or policy to make good his contention that the guidelines require four instances of serious misconduct before a decision to exclude a student is permitted. Second, the plaintiff did not explain why, if such a breach of policy did occur, that breach would be amenable to judicial review.

(i) Breach of the Charter

Swinburne submitted that the plaintiff’s claims that Swinburne has breached the Charter are expressed at such a level of generality so as to be meaningless.

I agree that the plaintiff’s proposed ground relating to Swinburne’s breach of the Charter is expressed as an assertion of breaches of various listed sections of the Charter without any clear expression of how those sections have been breached.

Conclusion in relation to arguable case

For the reasons given above, I am satisfied that the plaintiff has demonstrated an arguable case limited to the following proposed grounds:

(a) Swinburne did not have jurisdiction to exclude the plaintiff because he was not a student at the time the Exclusion Decision was made; and

(b) The Exclusion Decision was attended by a reasonable apprehension of bias.

Justice or prejudice to parties

The plaintiff did not make submissions directed specifically to this element.

Swinburne submitted that it will be prejudiced if it is required to defend the proceeding because of the lapse of time since the events in question. In particular Swinburne submitted that several of the relevant individuals involved in the underlying factual controversy no longer work at Swinburne. Swinburne also submitted that the delay is highly likely to have impacted on the quality of the evidence such people could reasonably give in this Court.

Swinburne further submitted that any prejudice to the plaintiff as a result of delay is of the plaintiff’s own making.

I accept Swinburne’s submissions that it will be prejudiced if an extension of time is granted. I also accept that to the extent the plaintiff would be prejudiced by the delay, he must bear some responsibility. In my view the plaintiff will be prejudiced if an extension of time is not granted in relation to his arguable proposed grounds of judicial review because he will lose the opportunity of having Swinburne’s decision reviewed by the Court.

Public interest in the finality of litigation

Swinburne submitted that there is significant public interest in ensuring that, absent very good reasons, statutory time limits are not undermined. Swinburne also submitted that the interests of justice favoured bringing an end to the disputation between the plaintiff and Swinburne, particularly having regard to the plaintiff having exercised his rights to merits review of the Exclusion Decision.

I accept Swinburne’s submissions which appear to me to align with the principles identified in the authorities.[15]
[15]See Naik referred to above at [13].

Conclusion on whether the plaintiff has established special circumstances

The plaintiff has demonstrated an arguable case in relation to two of his proposed grounds. As noted by Derham AsJ in Lazarevic the fact that a plaintiff has demonstrated an arguable case does not automatically result in there being special circumstances. There would be no real point to the time limit in r 56.02 if that were the case.

I have found that the plaintiff’s delay in bringing his application for judicial review is very significant and that he has provided a reasonable explanation for only part of that delay. I accept that part of that delay may have been caused by the delay in obtaining documents relevant to his proposed ground that the Exclusion Decision was predetermined. The plaintiff relies on email correspondence that was not available to him until provided by Swinburne. On the basis of the material before the Court it appears these documents may have been provided to the plaintiff in August 2020. There is no similar explanation for the delay in relation to the plaintiff’s other arguable ground. The plaintiff raised questions about his enrolled student status with Swinburne from early 2018. The plaintiff also raised the independence of the reviewer on his appeal based on information in the Review Decision that the reviewer had discussed his case with the Authorised Officer. In arguing this proposed ground the plaintiff does not rely on other information or documents obtained at a later date.

I have found that if time were extended, Swinburne would suffer prejudice. The events the plaintiff complains about occurred in early 2018. There is considerable public interest in the finality of litigation. On the other hand if time is not extended the plaintiff will lose the opportunity of judicial review of the Exclusion Decision.

Weighing all of these factors I am satisfied that the plaintiff has demonstrated special circumstances in relation to his two arguable grounds.

Joinder of the Ombudsman

The plaintiff seeks that the Court join the Ombudsman in the event the Court declines to extend the time for the plaintiff to bring his application for judicial review.

I have decided not to join the Ombudsman as a party to this proceeding for the following reasons. First, the plaintiff’s amended originating motion seeks no relief in relation to the Ombudsman. Second, there is no evidence before the Court that the Ombudsman has been given notice of the plaintiff’s application for joinder. In these circumstances there is no utility in joining the Ombudsman and it would be inappropriate to do so.

Costs

Swinburne seeks its costs of the plaintiff’s application in the event the Court decides not to grant an extension of time.

I have decided that special circumstances exist such that the Court should extend time for the plaintiff to bring his application for judicial review, limited to his two arguable grounds.

I will order that the costs of the plaintiff’s summons are costs in the proceeding.

Conclusion

For the above reasons I have allowed the plaintiff’s application for an extension of time to file his application for judicial review, limited to his two arguable grounds. I have refused the plaintiff’s application to join the Ombudsman to the proceeding. I will order that:

(a) the plaintiff’s application for an extension of time to file his amended originating motion for judicial review is allowed, limited to the following grounds:

(i) Swinburne did not have jurisdiction to exclude the plaintiff because he was not a student at the time the Exclusion decision was made; and

(ii) The Exclusion Decision was attended by a reasonable apprehension of bias;

(b) the plaintiff’s application to join the Ombudsman to the proceeding is refused; and

(c) the costs of the plaintiff’s summons are costs in the proceeding.

SCHEDULE OF PARTIES

S ECI 2021 02849
BETWEEN:
IJW (A PSEUDONYM)	Plaintiff
v
SWINBURNE UNIVERSITY OF TECHNOLOGY	Defendant

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Citations

IJW (a pseudonym) v Swinburne University of Technology [2023] VSC 75

Most Recent Citation

Brewer (a pseudonym) v Swinburne University of Technology [2025] VCC 351

Cases Citing This Decision

2

Lee v La Trobe University [2024] VSC 472

Brewer (a pseudonym) v Swinburne University of Technology [2025] VCC 351

Cases Cited

6

Statutory Material Cited

0

IJW v Swinburne University of Technology [2021] VSC 846

Kirk v Industrial Court of New South Wales [2010] HCA 1

Craig v South Australia [1995] HCA 58

[2023] VSC 75

24 February 2023