McGary v Australian National University

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FEDERAL COURT OF AUSTRALIA

McGary v Australian National University [2024] FCA 800

File number: ACD 30 of 2023
Judgment of: KATZMANN J
Date of judgment: 19 July 2024
Catchwords: ADMINISTRATIVE LAW – judicial review – review by Appeals Committee of disciplinary decision made by nominee of Vice Chancellor – scope of review – whether review by Appeals Committee de novo review – whether Appeals Committee erred by limiting review to the grounds on which review sought
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 16

Appeals Rule 2018 (Cth), ss 8, 9, 12, 13, 16, 21, 22, 23, 35

Appeals Statute 2014 (Cth), s 3

Australian National University Act 1991 (Cth), s 50

Discipline Rule 2018 (Cth), ss 12, 14, 15, 25
Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71; 367 ALR 393; 142 IPR 1

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Broadcasting Tribunal v Bond (1990) 170 CLR 321

Builders Licensing Board v Sperway Constructions(Syd) Pty Ltd (1976) 135 CLR 616

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; 46 FLR 409

Ex parte Hepburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416

McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609

Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528

New England Biolabs Inc v F Hoffmann-La Roche AG (2004) 141 FCR 1

Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57

Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 58
Date of hearing: 13 December 2023
Counsel for the Applicant: Mr B Buckland
Solicitor for the Applicant: J Sutton Associates
Counsel for the Respondent: Mr S Rebikoff
Solicitor for the Respondent: HWL Ebsworth Lawyers

ORDERS

ACD 30 of 2023
BETWEEN:

RICHARD EMORY MCGARY

Applicant
AND:

AUSTRALIAN NATIONAL UNIVERSITY

Respondent

ORDER MADE BY:

KATZMANN J

DATE OF ORDER:

19 JULY 2024

THE COURT ORDERS THAT:

1.Within seven (7) days the parties file short minutes containing an agreed form of declaration and orders giving effect to these reasons.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

KATZMANN J:

  1. This is an application for judicial review.  It concerns a decision of an Appeals Committee of the Australian National University on an application for review of a decision of a nominee of the Vice-Chancellor.  The principal question it raises concerns the nature of the review.  In substance, that question is whether the review was limited to the grounds upon which it was sought, as the Committee believed, such that it would fail if the Committee was not satisfied that any of the grounds was made out, or whether it was a de novo…

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Details
Case
[2024] FCA 800
Decision Date

CaseChat Overview and Summary

In the case of McGary v Australian National University, the applicant challenged the decision of an Appeals Committee which had reviewed a disciplinary decision made by a nominee of the Vice Chancellor. The dispute centred on whether the Appeals Committee was limited in its review to the grounds of review identified by the applicant, or if it had the authority to conduct a de novo review on the merits. The High Court was tasked with determining whether the Appeals Committee erred by restricting its review to the specified grounds of review.

The primary legal issue before the Court was whether the Appeals Committee's review was constrained by the grounds of review specified by the applicant, or if the Committee had the power to conduct a broader review independent of those grounds. The Court considered the language and structure of the relevant rules governing the review process, including the requirement to specify grounds for review and the referral of applications to the Appeals Committee. The University argued that the Appeals Rule defined the scope of the review by reference to the grounds specified in the application for review, which aligns with the characterisation of the review as an appeal.

The Court concluded that the Appeals Committee did not err in limiting its review to the grounds specified in the application for review. The Court found that the structure of the Appeals Rule, including the requirement to specify grounds and the referral of applications to the Appeals Committee, supported the interpretation that the Committee's review was indeed constrained by the grounds identified by the applicant. The Court further held that this interpretation was consistent with the nature of the grounds available in judicial review or in an appeal by way of rehearing.

The final orders of the Court affirmed the decision of the Appeals Committee, stating that the Committee had not erred in its approach to the review process. The Court directed the parties to file short minutes containing an agreed form of declaration and orders to give effect to these reasons, as per Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. Within seven (7) days the parties file short minutes containing an agreed form of declaration and orders giving effect to these reasons.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The decision of the Appeals Committee is final: Appeals Rule s 27.The decision of the Appeals Committee The Appeals Committee provided a convenient summary of its decision at [8] of its reasons:The detailed reasoning of the Appeals Committee is below. In summary, the Committee has determined the following:•The University has jurisdiction to conduct an inquiry and make findings in relation to the reported conduct in accordance with the Discipline Rule and Appeals Rule;•The Committee considers it was open on the material before the Nominee to make a finding of misconduct and the Committee has not upheld the grounds in s 8(1)(a),(c),(d) or (e) of the Appeals Rule;•The Committee has upheld the appeal ground in s 8(1)(f) of the Appeals Rule; and•The Committee has varied the decision in accordance with s 25(1)(b) of the Appeals Rule to a finding of misconduct with a different penalty to that imposed by the Nominee.The University’s position The University accepted that the Appeals Committee approached the review on the limited basis that its task was to consider whether the grounds of review identified by the applicant had been made out, rather than to determine for itself whether the complaint had been made out. It submitted, however, that it was correct to do so. The University argued that that is clear from the structure of the Appeals Rule as a whole. It pointed to three matters: first, that an application for review of a decision must be made on one or more specified grounds (ss 8 and 9); second, that an application for review may be rejected if it does not set out one or more grounds (s 12); and third, that it is “the application for review” that is referred to an Appeals Committee for hearing and decision (ss 13, 16, 20, 22, 23 and 25). It contended that to hold otherwise would render “otiose” the whole requirement to specify grounds and to refer to the Appeals Committee only applications which contain such grounds, and that is a construction to be avoided. It also contended that a construction of the Appeals Rule which defines the scope of the review by reference to the grounds specified in the application for review is consistent with the characterisation of the review as an “appeal” by an “Appeals Committee” and that the nature of the grounds are more consistent with those available in judicial review or in an appeal by way of rehearing than a de novo review on the merits.Did the Committee err as alleged? The core issue or question, as the applicant put it, is whether the designation of grounds of review limits the scope of the review or is merely a gateway to the exercise of the powers of review. It is common ground that this is a question of statutory construction. As the University submitted, like an “appeal”, a “review” has “no settled pre-determined meaning”; rather, “it takes its meaning from the context in which it appears” (Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261 per Mason CJ, Brenann and Toohey JJ), from full merits review involving a hearing de novo to a process which is confined in some way, such as in scope or as to the material to be considered or to the consideration of specified grounds.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.