Neav v Monash University

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1779 of 2010

MARGARET NEAV	Plaintiff
v
MONASH UNIVERSITY	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25, 26 NOVEMBER 2010
DATE OF JUDGMENT:	13 DECEMBER 2010
CASE MAY BE CITED AS:	NEAV v MONASH UNIVERSITY
MEDIUM NEUTRAL CITATION:	[2010] VSC 563

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Administrative Law – Judicial Review – Order 56 Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Statute 6.2 under Monash University Act, 2009 - Academic Progress Committee – Student excluded from candidature for law degree - apprehended bias – waiver – procedural irregularity – whether correct question addressed – whether relevant considerations taken into account – Appeal to Exclusion Appeals Committee – Whether material before committee not disclosed to student – whether denial of possibility of successful outcome – Relief refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Broadfoot with Mr J. Gottschall	DLA Phillips Fox
For the Defendant	Mr P. Hanks QC with Mr N. Harrington	Lander & Rogers

HIS HONOUR:

Introduction

The plaintiff is a student at Monash University. In 2004 she commenced studying for a Bachelor of Arts degree. In 2007, she was accepted into the Law Faculty to study for a Bachelor of Laws degree.

The plaintiff’s academic record in 2004 and 2005 was poor but a move away from science to sociology saw her achieve creditable results in 2006. In her first year in the Law Faculty in 2007 her academic progress seemed satisfactory, although she failed to pass two subjects, including a core subject. In 2008 and 2009 the plaintiff’s academic progress deteriorated significantly.

Consequent upon her unsatisfactory academic performance, the plaintiff appeared before an Academic Progress Committee (APC) at the beginning of 2009 and again at the beginning of 2010. The 2009 APC resolved that the plaintiff be permitted to continue her studies in the Faculty on conditions. The 2010 APC resolved on 10 February 2010 that the plaintiff be excluded from studying for the degree of Bachelor of Laws for the 2010 academic year. The reason for the plaintiff’s exclusion was her failure to meet the Faculty’s academic progress requirements in that the plaintiff failed 57 percent of credit points in 2009 and failed a core subject (LAW3401 - Property A) at least two times.

The plaintiff appealed. On 24 March 2010, the Exclusion Appeals Committee (EAC) dismissed the appeal, the Chair of that EAC having determined there were no prima facie grounds for an appeal.

On 1 April 2010, the plaintiff commenced this proceeding. She seeks relief pursuant to Order 56 in the nature of certiorari to quash the decision of the APC dated 10 February 2010, the decision of the EAC dated 24 March 2010, and an order in the nature of mandamus remitting the question of exclusion from the Faculty of Law to the APC for reconsideration in accordance with law.

The plaintiff’s application for an interlocutory injunction was heard by Byrne J in the Practice Court on 16 April 2010. His Honour ordered that the effect of the decision of the Chair of the EAC, to exclude the applicant from study in the degree of Bachelor of Laws in the 2010 academic year, be stayed pending hearing and determination of this proceeding or further order.

The plaintiff gave evidence and was cross-examined. Affidavits were read on behalf of six witnesses for the defendant, being:

·Dr Gerry Nagtzaam, Ms Suda Pillai, Ms Karen Wheelwright and Ms Victoria Lanyon, each of whom was cross-examined;
·Mr Anthony Calder, whose affidavit was tendered without the deponent being required to attend for cross-examination; and
·Mr Kwame Mfodwo whose affidavit was read, without the deponent being available for cross-examination, over objection from the plaintiff, a matter to which I shall return.

The Applicant’s Contentions

At trial, counsel for the plaintiff confined her case to three grounds.

The first ground for relief was that the 2010 APC failed to take into account relevant considerations that it was bound to take into account, according to the statute conferring the power on the APC. Specifically, that the 2010 APC failed to consider whether the plaintiff’s psychological impairment during the examination periods in 2009, arising firstly in June from the diagnosed condition for which she was on medication and, later in November, from her concern that she may have suffered a relapse of a serious illness, meant that her poor performance was due to factors beyond her immediate control.

The plaintiff contended that the evidence of her psychological and medical circumstances was accepted by the committee. Those matters provided a proper explanation for the plaintiff’s poor academic performance in 2008 and 2009. Thus, it was put, it was a very odd situation that the committee would take into account the plaintiff’s explanation yet still conclude the plaintiff was unable to successfully complete her degree, given her performance in 2007 when the explained factors were absent.

It was contended that in the 2010 APC’s decision, it is a false supposition that it took adequate account of that medical material; that the objective factual evidence of the plaintiff’s performance in 2007 could only lead to the conclusion that she was, in 2010, able to adequately progress towards her law degree. It was contended that the 2010 APC addressed the wrong question; once proper consideration was given to the accepted explanation for her poor academic performance, the 2010 APC could not properly form the opinion that the plaintiff was incapable of completing her studies having regard to, on the evidence, her acceptable academic performance in 2007.

The second ground for relief was that the decision of the 2010 APC is infected with apprehended bias. This is a factual dispute involving a conflict in the evidence. Bias could reasonably apprehended, submitted the plaintiff, from a number of features of the conduct of one member of the APCs, namely Dr Nagtzaam.

First, in an affidavit sworn 5 April 2010, the plaintiff stated that at the conclusion of the 2009 APC Dr Nagtzaam stated to the plaintiff:

If I see you at another APC hearing again, the University will exclude you.
(“the pre-judgment statement”)

The plaintiff also said that the 2010 APC opened ominously:
When I entered the room, Dr Nagtzaam said to me, “I remember you”, in a rude and aggressive tone.

Dr Nagtzaam denies that either statement was, in fact, made. The plaintiff contended that the pre-judgment statement is sufficient to give rise to a reasonable apprehension of bias on the part of a fair-minded observer.

Second, other aspects of the 2009 APC constituted an expression by a decision-maker of a lack of confidence in a student’s ability to be successful which, when that decision-maker sits in a subsequent hearing, would lead a fair-minded observer to apprehend or suspect bias in the sense of the possibility of pre-judgment.

Third, reliance was placed on conduct alleged against Dr Nagtzaam during the course of the APC hearing, such as cutting short the plaintiff’s submissions, interrupting the plaintiff, being blunt and direct, or rude and aggressive.

Such matters, whether considered separately or cumulatively, would lead a fair-minded person to reasonably apprehend, or suspect, that Dr Nagtzaam had, or might, pre-judge the issue before the 2010 APC. There was no waiver of an apprehension of bias by a failure to raise it at the first opportunity, since the plaintiff was under a misapprehension as to her options. This submission was based on communications between the plaintiff and Ms Pillai, which occurred prior to the hearing, and the plaintiff’s contention that she was unaware of the option of a March hearing.

The third ground for relief was that the EAC failed to give the plaintiff an opportunity to deal with adverse information that was credible, relevant and significant to its decision, namely a memorandum dated 16 March 2010, relevant to the issue of apprehended bias, sent by the Chair of the 2010 APC to the Secretary of the EAC. This additional ground was raised by leave granted at trial.

This ground was factually rooted in the Faculty’s response to the appeal to the EAC The memorandum of 16 March 2010 from Dr Nagtzaam was, of itself, new evidence that would lead a fair-minded observer to conclude that there might have been bias. This was put in two ways. Firstly, it was contended that the fact that Dr Nagtzaam had chosen to write to the appeal committee at all, was because he felt the need to defend his reputation. Secondly, in the memorandum Dr Nagtzaam stated, “I did not convince any member of the committee through my bias towards Ms Neav to vote for her exclusion”.

Background Facts

The plaintiff, who is 25, lives with her mother and younger brother. Her parents have been separated a long time. In early 2008, her mother was diagnosed with a serious illness. In mid 2008 she unsuccessfully underwent surgery and thereafter was involved in much medical testing and attendances upon doctors. The plaintiff became her caretaker during this time. In October 2008, the plaintiff’s mother underwent another major operation and was bedridden for approximately one month thereafter, a period which coincided with the plaintiff’s end-of-year exams. Apparently, an application to defer those exams was rejected.

The plaintiff did not perform well in the 2008 academic year. She failed to pass five out of eight subjects including the core subjects Property A and Equity 406. The plaintiff performed better in practical subjects, obtaining a distinction in Professional Practice 512, a credit in the Family Law Assistance Program - Professional Practice and a pass in Lawyers, Ethics and Society 506.

In late January 2009, the plaintiff appeared before the 2009 APC. Two of the University’s witnesses, Dr Nagtzaam and Mr Mfodwo, were members of this committee. The 2009 APC was told about the difficulties faced by the plaintiff due to her mother’s circumstances. The committee acknowledged that these circumstances may have caused her poor academic performance in 2008. It was also recorded that the plaintiff seemed disengaged. While the committee resolved to allow the plaintiff to continue to study for her degree, the record of its deliberations expressed a lack of confidence that she would be successful. The committee resolved upon conditional enrolment for 2009, requiring the plaintiff to:

·Study Property A plus two other units in semester 1, one of which the committee recommended be Evidence; and
·Study Torts B, Property B or Constitutional Law and elective units (no more than three units in total) in semester 2; and
·Pass all units in 2009.

The plaintiff enrolled in the subjects required of her but in semester 1 of 2009, she failed to pass both Property A and Evidence 506. Her failure to pass Property A, a core subject, was the second occasion on which she had failed to pass that subject. In semester 2 of 2009, the plaintiff obtained a bare pass in Torts B but failed Constitutional Law 306 and Restrictive Trade Practices 506.

The plaintiff stated that in June 2009, she suffered an anxiety attack during the Property A exam and panicked, lost focus and was unable to concentrate. The plaintiff’s anxiety continued so that she was unable to sleep that evening; when she sat the Evidence exam the following day she again felt anxious and had difficulty concentrating.

The source of the plaintiff’s anxiety was diagnosed in August 2009 and she was placed upon medication. She said that she felt she was responding well, if slowly, to the medication. The full details of these diagnoses and of the plaintiff’s medical issues generally were made known to the 2010 APC and were before me in evidence.

During the November 2009 examination period, after the plaintiff sat the Torts B exam, she developed symptoms of a possible serious illness. She believed that she may have been suffering a relapse of a serious condition she had suffered as a teenager and became very upset and anxious that she might be very ill. She was in this psychological state when she sat the remaining exams of the November 2009 period, which she failed.

During December 2009 and January 2010, the plaintiff undertook various medical tests and consultations with doctors. At the same time she was notified that the Faculty regarded her academic progress in 2009 as unsatisfactory. She was called to appear before another APC.

I should state that while detailed evidence of the plaintiff’s symptoms, medical conditions and medical history was placed before me and placed before the 2010 APC, it is neither necessary nor desirable that I set out the detail of it in this judgment. The University’s witnesses all gave evidence that they accepted the information placed before them by the plaintiff concerning her symptoms, medical conditions and medical history.

The background circumstances which I have outlined were not contentious between the parties. However, there were issues, principally in respect of the allegation of apprehended bias, on which there was direct conflict between the evidence of the plaintiff and the evidence of the witnesses called by the University. Conflict first arose about the outcome of the 2009 APC.

The Governing Regulation

Statute 6.2 is a form of delegated legislation made under the Monash University Act 2009. The relevant provisions of the statute are as follows:

3. Academic progress committees
The faculty board of each faculty must constitute, as prescribed under this statute, one or more academic progress committees.
4. Exclusion appeals committees
4.1There shall be one or more exclusion appeals committees of the university constituted as prescribed by or under this statute.

5. Powers of faculty boards
Where the faculty board of a faculty is of the opinion that –
5.1.1the academic progress of a student enrolled in the faculty is unsatisfactory having regard to the student's results in or failure to undertake any examination, test, assignment, essay or other work, the faculty board may –
5.1.1.1impose terms and conditions on the student's continuing candidature; or
5.1.1.2subject to the regulations, refer the matter to an academic progress committee of the faculty for hearing; or

…
6. Powers of academic progress committees
An academic progress committee, after hearing a matter referred –
6.1.1. under subparagraph 5.1.1.2 may –
6.1.1.1permit the student concerned to continue candidature subject to any terms and conditions specified; or
6.1.1.2exclude the student from candidature for the degree or other award concerned or from candidature from any award of the faculty; or

…
7. Appeal to exclusion appeals committee
7.1Subject to this section, a student who has been excluded under subparagraph 6.1.1.2 may, by notice as prescribed, appeal to an exclusion appeals committee.

…
7.3A student's right of appeal to an exclusion appeals committee is limited to one or both of the following grounds –
7.3.1new evidence, being evidence not reasonably available to the student at the time of the academic progress committee hearing; and

7.3.2 procedural irregularity.

Under s.12 of statute 6.2, the Academic Board may make regulations with respect to the constitution and conduct of academic progress and exclusion appeals committees. The relevant provisions of the exclusion for unsatisfactory progress or inability to progress regulations, made pursuant to statute 6.2 are as follows:

3. Reference to academic progress committee
3.1Before referring a matter to an academic progress committee under subparagraph 5.1.1.2 of the statute, unless otherwise determined by the Academic Board, a faculty board must be satisfied that the student concerned has –
3.1.1completed at least two semesters of candidature and, in the period commencing in December of the previous year, passed less than 50 percent of the student’s enrolment;
3.1.2failed the same compulsory subject twice; or
3.1.3failed to comply with any terms or conditions imposed by the faculty board under subparagraph 5.1.1.1 of the statute or by an academic progress committee of the faculty.

Submissions of the University

The University submitted that I should reject the allegation of jurisdictional error. The University characterised the plaintiff’s submission as being, essentially, that there was a failure to ask a question that ought to have been asked, having regard to statute 6.2 and the regulations. In identifying relevant considerations from the statute, it can be noted that between the category of relevant considerations, which the statute characterises as obligatory, and the category of irrelevant considerations, which the statute characterises as prohibited, lies a third category of considerations which might be described as permissible considerations. It is not within the supervisory jurisdiction of this Court that reviewable error be found where the issue is about a consideration that is neither irrelevant nor mandatory.

Here it is necessary to identify relevant factors for the decision of the committee from the subject matter, scope and purpose of the statute. The statute directs the inquiry to whether the academic progress of the student enrolled in the Faculty is unsatisfactory, an inquiry to be undertaken in regard to the student’s results in or failure to undertake various forms of assessment. Thus, submitted the University, the committee is not prohibited from considering whether there is an explanation for poor progress. Neither is it prohibited from coming to the view that the plaintiff should be excluded because the committee was not satisfied she would continue to progress satisfactorily within the Faculty. It was directly relevant for the committee to approach the review on the basis that it needed to be satisfied that the plaintiff was capable of completing her degree.

The University contended that the medical circumstances were not matters that were required to be taken into account. If they were, clearly the case here, the weight to be given to them was a matter for the APC, not the Court, which should not embark upon any inquiry into whether such material was adequately considered.

On the ground of bias, counsel for the University submitted that if the plaintiff had a legitimate basis for objecting to Dr Nagtzaam participating in a decision, she must raise this objection at the earliest opportunity. The plaintiff did not do so. The plaintiff knew of the pre-judgment statement and of its significance, and kept it in her pocket waiting to see how the proceeding turned out on the basis of the medical evidence. This tactical decision deprived the APC of the opportunity of remedying the problem had it arisen.

I was invited to, and I do make the finding that the 2010 APC did anticipate a possible submission of apprehension of bias and would have avoided that issue if there had been any objection raised at the commencement of the hearing. It was submitted I ought find that the plaintiff fully understood her entitlement to object to the composition of the committee on the basis of apprehended bias prior to the hearing on 3 February 2010, and that the pre-judgment statement made at the 2009 APC was so obviously questionable that the plaintiff was bound to object then and there. The University submitted that if I find that the pre-judgment statement was made, the plaintiff’s decision not to object to Dr Nagtzaam as Chair of the 2010 APC has the consequence that she waived any entitlement that she might otherwise have to challenge the decision on the basis of bias.

Beyond the pre-judgment statement, the University submitted that there is nothing in the manner in which Dr Nagtzaam conducted the hearing, the way in which he announced the decision of the committee in 2009, or in his tone or demeanour, that would cause the fair-minded observer to suspect that in 2010 a committee chaired by Dr Nagtzaam would have pre-judged the issue.

Responding to the third ground, the University suggested it was purely speculative whether, had Dr Nagtzaam’s memorandum been provided to the plaintiff, any conflict of fact about the making of the pre-judgment statement at the 2009 APC would have been raised. The University submitted that the information in the memorandum does not respond to or raise any adverse issue of fact concerning the pre-judgment statement. Rather, it addresses a claim of interruption and an inability to develop a submission. The pre-judgment statement was yet to be alleged by the plaintiff.

What the EAC Chair did was to refer to the memorandum in support of a conclusion that the plaintiff got a fair hearing. Because the result was favourable on that occasion, it followed that the submissions and information put by the plaintiff were heard and accepted. This conclusion, in the reasoning of the EAC Chair, answered the plaintiff’s contention that an apprehension of bias might be founded in claims of interruption and an inability to develop her submission.

Thus, the University contended that the memorandum, which explained how a member of the 2009 APC had voted, in conjunction with the outcome of the hearing, provided a basis for concluding that the allegation of bias could not be made out:

·The information in the memorandum was not adverse to the plaintiff;
·The memorandum said nothing about the plaintiff’s credibility, her academic performance or health issues; and
·It was an incontrovertible fact that Dr Nagtzaam had voted in favour of allowing the plaintiff to continue her enrolment in 2009.

Giving the plaintiff an opportunity to respond to the material in the memorandum could not have made any difference to the result. The way in which Dr Nagtzaam voted on the 2009 APC could not have been a matter of controversy and did not involve any assessment of credibility.
Bias

When it is alleged that a tribunal has been or might be actuated by bias, the High Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the tribunal has pre-judged or might pre-judge the case, or might not bring an impartial mind to the resolution of the question the judge is required to decide.[1] The principle behind the reasonable apprehension or suspicion test is that it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.
[1]Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55; at [110].

In Ebner v Official Trustee in Bankruptcy[2] Gleeson CJ, McHugh, Gummow and Hayne JJ restated the bias test in these terms:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide [R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48; (2000) 74 ALJR 1380; 174 ALR 655.] That principle gives effect to the requirement that justice should both be done and be seen to be done [R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ], a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

[2](2000) 205 CLR 337 at [6]-[8].

In Webb v R,[3] Deane J identified categories of apprehended bias including disqualification by association which consists of cases where ‘the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings’. One basis for apprehension of bias in this category may be the previous involvement of a decision-maker in a process where an issue likely to arise in the matter for decision was determined. In Re JRL; Ex Parte CLJ,[4] Mason J explained the principle:

There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established". Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. [Citations omitted]

[3][1994] HCA 30; (1994) 181 CLR 41.

[4](1986) 161 CLR 342, 352; (1986) 66 ALR 239, 245-246.

Context will be relevant. The nature of the decision-making exercise, and the role of the decision-maker with past experience with one party in that exercise, are important considerations. The Court of Appeal in Sonnett v R,[5] when dismissing an allegation of apprehended bias against a trial judge in a trial for conspiracy to murder, observed that Mason J’s statement of principle may operate differently with some forms of civil proceedings where the judge constitutes the tribunal of fact. The risk of apprehended bias in such cases is greater than in a criminal trial due to the narrower fact-finding role which a trial judge must play in jury trials. The Court concluded that in the case of criminal jury proceedings, the fact that a judge has sat on the trial of one co-accused is not a reason to exclude him or her from sitting on a subsequent trial of another co-accused.
[5][2010] VSCA 315.

The present case involves different considerations again, notably that the allegation of bias is not made against all 2010 APC members. Neither is the basis of that allegation the conduct of all members of the 2009 APC. With the exception of the student representative and the administrative assistant in attendance, the University’s APC are constituted by academic lawyers, each of who might reasonably be expected to be conversant with the need for the appearance of impartiality and the importance of determining the merits on the basis of the information before that particular committee.

There are differences in the fact-finding role of a court and the evaluative assessment being made by an APC. When what has occurred on a prior occasion must be put out of a decision-maker’s mind when conducting or participating in a second proceeding, the cases recognise that decision-makers with professional training, especially judges, are well aware that a hearing or trial must proceed on the basis of the evidence adduced in that proceeding.[6] Likewise, where a decision-maker with past experience with one party is one of several decision-makers, a fair-minded observer it is not likely to reasonably apprehend or suspect that the tribunal has pre-judged or might pre-judge the case, or that it is necessary to discount the professionalism of the remaining decision-makers. In the case of deliberations by an APC under Statute 6.2, neither party suggested that the information given to, and the outcome of the 2009 APC was an irrelevant consideration.
[6]R v Kearns [2003] NSWCCA 367 at [38]; Ibid at [26].

Whether the credit of a witness or party was, or is, in issue may be a significant factor for the fair-minded lay observer.[7] In the plaintiff’s circumstances, her credit was not in issue before the APCs.
[7]For example, consider the diverse situations in the following cases: Trustees of the Christian Brothers v Cardone [1995] FCA 1309; (1995) 57 FCR 327 at 336; Fried v National Australia Bank Ltd [2000] FCA 787; Temwell Pty Ltd v DKGR Holdings Pty Ltd [2004] FCA 345.

The fair-minded observer may be taken to know the way the system works and to accept that, in usual conditions, it does so fairly and impartially.[8]
[8]R v George (1987) 9 NSWLR 527, 536 (Street CJ); S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 380–381 (Priestley and Clarke JJA); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 at [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) and 517 [80] (Callinan J), cf 508 at [53] (Kirby J); McCreed v R [2003] WASCA 275; (2003) 27 WAR 554 at [10].

It is beyond doubt that an objection on the grounds of bias can be waived. The principle is long standing. Hood J stated in Re McCrory; ex parte Rivett:[9]

A litigant who knows (as the applicant did here) that there may be some objection to the constitution of the bench is bound to mention it at once, in fairness both to the magistrate and to the other side, and even if the objection be a good one the litigant cannot afterwards be allowed to complain if with knowledge he remains silent.

[9](1895) 21 VLR 3 at [6] approved in Vakauta v Kelly (1989) 167 CLR 568.

In Vakauta v Kelly[10] Brennan, Deane and Gaudron JJ stated:

Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.

[10]At 572.

This statement of the principle of waiver of bias is confined to a party who has legal representation. The facts of the matter on appeal before the High Court were that the comments which were likely to convey an impression of bias had been made by a judge, sitting without a jury, in the course of a trial of a personal injuries case. The weight to be afforded to the legal representation factor will depend on the circumstances of the applicant and the tribunal.

Huang v University of New South Wales[11] was a proceeding in which the plaintiff, who appeared in person, complained before a Federal Magistrate that she had been sexually harassed in contravention of the Sex Discrimination Act 1984 (Cth). The issue, which came before Rares J on appeal from the Federal Magistrates’ Court, was whether the Federal Magistrate had, in introducing affidavit evidence on his own motion, denied the appellant procedural fairness. His Honour stated:

There may be cases where the judicial conduct complained of may be so obviously questionable that an appellate court could say that the unrepresented party was bound to object then and there rather than chancing to how the ultimate decision may go. But, in most cases, unrepresented parties, however intelligent or worldly, will not have a sufficient familiarity with the practice and procedure involved in litigation to know when a judicial officer has gone potentially too far. Not only do unrepresented parties usually feel the ordinary, but very real, stress and nervousness which being in court generates but they are entitled and are likely to assume that the judicial officer is doing his or her job fairly and according to law. So something which is unusual to a lawyer may not strike an unrepresented party as such. An unrepresented party may think what has occurred is how courts do things, and so not realise immediately that anything legally wrong has occurred, however upsetting the judicial officer's conduct may be.

[11](2006) 154 FCR 16 at [39].

Again, it is pertinent to observe that the conduct giving rise to an apprehension of bias was conduct by a judicial officer in court. His Honour was careful to qualify the statement I have extracted from his judgment with the observation that so much will depend on the facts of the particular case that further generalised discussion may not be fruitful.

The gravamen of the plaintiff’s allegation of apprehended bias is that at the conclusion of the 2009 APC, Dr Nagtzaam stated to her:

“If I see you at another APC hearing again, the University will exclude you.”

The plaintiff also stated at the 2010 APC:
When I entered the room, Dr Nagtzaam said to me, “I remember you”, in a rude and aggressive tone.

Both the plaintiff and Dr Nagtzaam were cross-examined about what occurred at each APC hearing. Dr Nagtzaam denied making each of these statements.

Dr Nagtzaam frankly conceded that he may have been blunt and direct in the comments that he made to the plaintiff when conveying the decision of the 2009 APC, permitting the plaintiff to continue her studies. He said he was keen to convey to the plaintiff that she had to improve her results and pass certain subjects. He said he made a comment to the plaintiff to the effect that if she were to come back before the APC a second time, she may not be so lucky.

Dr Nagtzaam’s recollection was supported by Mr Mfodwo, a member of the 2009 APC. However, Mr Mfodwo was not cross-examined. I permitted the tender of his affidavit into evidence, inviting the parties to address what weight I ought give it in final submissions. The plaintiff did not take that opportunity.

This proceeding had earlier been listed for trial in October but was adjourned when the plaintiff’s solicitors withdrew. There was no explanation why the deponents of affidavits had not been given notice to attend before that hearing. The current legal representatives for the plaintiff had been appointed immediately prior to commencement of the trial. Upon their appointment, they served notice requiring all deponents to attend for cross-examination. The notice was, obviously, short. Arrangements were able to be made for the University’s witnesses, save Mr Mfodwo, to attend court on short notice. It was not in dispute that Mr Mfodwo was medically inconvenienced and unable to attend court. I permitted the tender of the affidavit as the plaintiff did not offer a satisfactory explanation for her failure to comply with the Rules. Neither party wanted the proceeding to be adjourned. In my view the lesser risk of injustice, if any were to later emerge and none was suggested by counsel, in this tender lay with the University who was not in default in failing to have the witness available.

Ms Pillai was also present at the 2009 APC hearing but neither party called, or explained the absence of, the other persons who were present at this hearing. I was not invited by either party to utilise the principle in Jones v Dunkel[12] in making findings as to what occurred at this meeting, notably whether the pre-judgment statement was made.
[12](1959) 101 CLR 298.

Having observed both the plaintiff and Dr Nagtzaam giving evidence, I prefer the evidence of Dr Nagtzaam and I find that the statement made to the plaintiff at the end of the 2009 APC was that if she were to come back before the APC a second time, she may not be so lucky. I was impressed by Dr Nagtzaam. In the witness box he answered all questions asked of him directly and, in my view, honestly. I also accept Ms Pillai’s evidence. She stated that she did not recall this statement being made at the 2009 APC hearing. The first time she became aware of the allegation was when it was read to her from the plaintiff’s affidavit sworn 5 April 2010. This fact, when put, caused the plaintiff to prevaricate under cross-examination about the statement. I have not found it necessary to refer to the evidence of Mr Mfodwo in resolving this issue.

There were, I consider, problems with accepting the plaintiff’s version of events. The plaintiff communicated with Ms Pillai about Dr Nagtzaam’s position as Chair of the 2010 APC in late January 2010, before the hearing scheduled on 3 February 2010. The plaintiff asked for her matter to be heard by a committee constituted without Dr Nagtzaam. At this time, the plaintiff apprehended bias on a different basis and no mention was made of the pre-judgment statement. The plaintiff stated to Ms Pillai that Dr Nagtzaam bad been her Torts A tutor and, “As I was not one of the most outspoken students in his class, when I went into my APC hearing last year I felt that Gerry remembered me as his student and therefore already had a biased opinion about me as a student … We have a personality clash which undoubtedly will cause there to be an unfair hearing for me”. Ms Pillai responded by offering to schedule the plaintiff’s hearing before the other APC on 2 February 2010. However, the time offered was inconvenient for the plaintiff, as it clashed with a medical appointment at which she expected to obtain evidence necessary for the hearing.

Curiously, the plaintiff did not raise the issue of bias before the 2010 APC hearing. I do not accept the plaintiff’s evidence that, when she walked into the room at the commencement of the 2010 APC hearing Dr Nagtzaam said to her, “I remember you”. I find that the plaintiff did, at that time, perceive a possibility of bias. That is clear from her request of Ms Pillai to reschedule her hearing before another APC for the reasons I have already mentioned. I accept she felt nervous and concerned about the possible outcome of this second appearance. Nevertheless, I am not satisfied that, in the presence of a majority of persons of whom she did not apprehend bias, and being attuned to the possibility of bias from Dr Nagtzaam before the hearing commenced, the plaintiff was too apprehensive or uncertain of herself to have raised the issue with the committee. In any event, she did not do so.

Dr Nagtzaam was only one of four members in the 2010 APC hearing, including a student representative. I find that when the plaintiff entered the room she was asked to take a seat and did so. Dr Nagtzaam then introduced each of the members of the committee, including identifying himself, and then asked the plaintiff whether she had any objection to any member of the committee hearing and determining the matter. She said she had no objection.

Dr Nagtzaam then explained that the plaintiff had been brought before an APC a second time because she had failed two subjects twice and had failed more than 50 percent of her course load in 2009. He also explained that the committee did not intend to rely on what was potentially a third trigger, namely that the plaintiff had not complied with the condition laid down by the 2009 APC.

The plaintiff then addressed the committee. Both Ms Wheelwright and Ms Lanyon described her presentation as articulate and confident. The plaintiff offered two primary reasons for her poor academic performance. The first was that she was suffering, in June 2009, from a psychological condition. The second was that in November 2009, the plaintiff was suffering from her own medical condition, to which I have already alluded. Having observed the plaintiff under cross-examination, I expect that she did address the committee in a confident and direct manner, despite feeling apprehensive or nervous. I find there was no impediment, by reason of her demeanour, to her raising an objection to Dr Nagtzaam hearing and determining her matter when he asked if she had any objection to any member of the committee.

The plaintiff did not suggest that she was too apprehensive or unsure of her position. She explained to me that she did not raise her apprehension of bias before the committee because of what had occurred earlier with Ms Pillai.

These earlier events were also the subject of conflicting evidence although, ultimately, not much turns upon that conflict. I find that after being notified of the 2010 APC hearing date, the plaintiff emailed Ms Pillai requesting to have Dr Nagtzaam replaced by another member of the Law Faculty on the APC. In setting out detailed reasons in support of this request she did not refer to the pre-judgment statement. It appears that there were two rounds of APC hearings, one in February and a later round in March. Ms Pillai stated that while she could reschedule the hearing to a different committee within the February round it would be necessary for the plaintiff to make a request directly of the APC if she wished to reschedule her hearing to the later round in March. The plaintiff denied that she was told about the opportunity in March. When she attended the hearing on 3 February she believed she had no opportunity to seek an adjournment of the hearing to a later date or a differently constituted tribunal.

There is a difference between seeking to reschedule a hearing in order to shop for a more favourable tribunal or to nip in the bud a perception of bias, and raising before a tribunal a perception of bias when any objection to any member of the committee sitting is specifically sought. The differences in the recollections of the plaintiff and Ms Pillai concerning the conversations and emails prior to the hearing on 3 February 2010, in my view, address the former issue of rescheduling the hearing for whatever reason, and do not provide an adequate explanation for the plaintiff’s failure to raise the issue of bias when the hearing commenced.

Plainly, the plaintiff was alive to the perception of bias. On her evidence, she was alerted afresh to the prospect of bias when, as she contends, Dr Nagtzaam opened the hearing with the comment “I remember you”. The plaintiff could not offer a satisfactory explanation as to why she did not, when asked whether she had any objection to either the hearing taking place or any member serving on the committee, respond with her concern that Dr Nagtzaam may have pre-judged the issue before the committee. The explanation proffered is, ultimately, evasive. The court is left without any explanation as to why the perception about Dr Nagtzaam was not raised before the remaining members of the 2010 APC.

I find that the members of the 2010 APC were concerned, when the hearing commenced, to determine whether there was any subjective apprehension of bias by the plaintiff. I accept their evidence that they each understood the need for the appearance of impartiality and the importance of determining the merits of the student’s academic progress on the basis of the information before that particular committee. I accept the evidence of the witnesses for the University that it was a practice of such committees to inquire at the outset of a hearing whether the student had any objection to any of the members participating in the process and the plaintiff agreed this question was asked of her. More significantly, as one would expect, Ms Pillai had, prior to the plaintiff’s hearing, informed Dr Nagtzaam of the complaint against him by the plaintiff on the grounds articulated in the email, a copy of which was provided to him. Dr Nagtzaam had discussed and agreed, with Dr Sifris, the co-chair of the 2010 APC, that if the plaintiff objected to Dr Nagtzaam hearing her matter they would try and make arrangements for Dr Sifris to chair the plaintiff’s hearing. No further step in this direction was taken because the plaintiff did not take any objection or raise any perception of bias at the hearing.

If I had found that the pre-judgment statement was made, I would find that the plaintiff failed to raise her apprehension when she knew it was appropriate to do so, was able to do so, and had the opportunity to do so, not just before an administrative assistant but before the committee, the majority of whose members were, in her eyes, impartial. The committee was prepared to accommodate any perception of bias, having predetermined a procedure, and specifically inquired whether the plaintiff objected to any member sitting on the committee. That the plaintiff was not legally represented before the committee was not, in the circumstances as I find them, any impediment. I would have found that the plaintiff waived the right to object on the ground of apprehended bias.

There is a further matter to observe about the plaintiff’s contention of a perception of bias on the basis of the pre-judgment statement. The plaintiff appealed to the EAC. The grounds upon which an appeal may be brought are limited under the University statute. The plaintiff admitted in cross-examination that she knew that one of the grounds on which she might succeed was procedural irregularity. The plaintiff knew that the conduct she alleged against Dr Nagtzaam was very serious in that it involved pre-judgment, a denial of a fair hearing. The plaintiff was in no doubt about the relevance of that statement to an appeal ground of procedural irregularity. A third opportunity to have raised the issue of apprehension of bias by reason of Dr Nagtzaam’s pre-judgment statement passed when the plaintiff lodged her appeal. The summary of the relevant ground in the plaintiff’s appeal notice stated:

Bias from Gerry Nagtzaam. I requested to have Gerry Nagtzaam withdrawn from my case as he had previously taught me and unfortunately we had a personality difference. The Law Faculty secretary said she was unable to change the panel for my hearing as the Law Faculty had a tight schedule.

There was no suggestion that the plaintiff was impaired by any anxiety or nerves when she completed her appeal notice.

When cross-examined about her failure to put the pre-judgment statement to advance the issue of procedural irregularity, having admitted she believed it to be her best point on that score, the plaintiff’s responses were unsatisfactory. In her response to the 2010 APC and the appeal regarding her poor academic performance, the plaintiff focussed, overwhelmingly, on an explanation based on the medical evidence. I find no satisfactory explanation as to why the plaintiff did not allege the pre-judgment statement prior to her affidavit sworn 5 April 2010.

It is for these reasons that I reject the plaintiff’s evidence that the pre-judgment statement at the 2009 APC and the “I remember you” statement at the 2010 APC were made.

In other respects, the plaintiff alleged that she apprehended bias from Dr Nagtzaam:

·By reason of not having been an outspoken student in Dr Nagtzaam’s tutorials in 2007;
·By reference to an assertion that Dr Nagtzaam was rude and aggressive, that he would not let her explain her case and cut her off or interrupted her during her presentation, and was otherwise abrupt; and
·A personality difference.

I am not satisfied that there is any substance to the first particular. It was not explored in evidence as to whether the plaintiff had been a quiet student when tutored by Dr Nagtzaam and whether that was capable of supporting an apprehension of bias.

As to the second particular, the plaintiff was unable to articulate in evidence any instances of rudeness and aggression on the part of Dr Nagtzaam, apart from the generic assertion that she was subject to interruption when presenting to the committee. I accept Dr Nagtzaam’s denial that he behaved in this way. He frankly admitted that he may have interrupted the plaintiff in order to direct her submission to matters of interest to the committee or to avoid repetition. Dr Nagtzaam denied using a raised voice or speaking aggressively. He conceded that during the phase of the hearing when the committee’s decision was explained to the plaintiff at each of the hearings, his manner might be interpreted as being blunt. Importantly, each of the other witnesses called on behalf of the University rejected the plaintiff’s assertion about the manner in which Dr Nagtzaam conducted the hearing. Further, the plaintiff’s inability to give evidence of particular situations or examples of exchanges which might evidence the rudeness or aggression of Dr Nagtzaam is consistent with the fact that this basis for procedural irregularity in the conduct of the hearing was also not raised in the notice of appeal.

As to the third particular, while the notice of appeal does refer to a “personality difference”, the generic nature of the evidence given does not permit any finding about the content of that expression.

I find no basis on the evidence to conclude that a fair-minded person might reasonably apprehend or suspect, by reference to matters of attitude, demeanour or personality difference, that Dr Nagtzaam might not bring an impartial mind to the committee.

I conclude that the plaintiff has not made out the bias ground. There is no basis for fair-minded people to reasonably apprehend or suspect that the 2010 APC or Dr Nagtzaam pre-judged or might pre-judge consideration of the plaintiff’s academic progress, or might not bring an impartial mind to such deliberations.

Was the Wrong Question Addressed?

With respect to the first ground raised by the plaintiff, there are certain well-established principles which I must bear in mind. Minister for Aboriginal Affairs v Peko-Wallsend Ltd[13] establishes that the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision. What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. Not every consideration that the decision-maker is bound, but fails, to take into account will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.
[13](1986) 162 CLR 24, 39.

The Court has a limited role; its function is not to substitute its own decision for that of the committee by exercising a discretion which the statute has vested in the committee. The Court’s role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned. Having regard to the terms of the applicable statute in this case, it is for the committee and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the power to exclude.

Thus, for a court to set aside an administrative decision, which has been reached by failing to give weight to a relevant factor of great importance or giving excessive weight to a relevant factor of no great importance, requires an assessment of whether the decision can be characterised as manifestly unreasonable, meaning that no reasonable academic progress committee could have reached it.

The plaintiff contended that the committee’s error on the first ground fell within the description to be found in a passage in the judgment of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation.[14] In the passage to which I was taken, his Honour was, I consider, dealing with a different point. Review of a decision to determine whether extraneous reasons were taken into consideration or whether relevant factors were excluded from consideration is not prevented where the decision-maker has not made known the reasons for the decision. His Honour stated:

The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

Relevant to the circumstances to be considered in this proceeding I do not see any tension between Peko-Wallsend and Avon Downs. Whether the decision can be characterised as manifestly unreasonable, meaning that no reasonable academic progress committee could have reached it may, in appropriate circumstances, be identified by inference from false supposition as much as from analysis of expressed reasons.

[14][1949] 78 CLR 353, 360.

The powers of an APC, as defined by the University statute, are to either exclude the student from candidature or to permit the student to continue candidature whether absolutely or subject to terms and conditions. An APC is a committee of the Faculty and exercises such powers where a student’s academic progress is unsatisfactory. I reject the plaintiff’s contention that the proper inference in all of the circumstances is that the committee did not address itself to the right question. The committee is not excluded from considering explanations for past poor performance, nor is it directed by the statute to conclude that academic progress is satisfactory if it finds an acceptable basis to excuse, or possibly justify, past unsatisfactory performance. The committee is entitled to consider whether a student has the capacity to progress satisfactorily to complete a degree if her candidature continues.

It is clear on the evidence before me that the members of the 2010 APC accepted the explanation based on psychological and medical conditions but addressed, appropriately, the issue of whether the plaintiff could progress to complete the degree. Other considerations which also featured in their deliberations included, for example, the plaintiff’s poor record in compulsory or core subjects and evidence that she suffered anxiety in examinations. It is not for this Court to weigh these various factors in the balance and exercise afresh the discretion of an academic progress committee. I find no basis to infer it to be a false supposition that the committee addressed the right question and took into account all the relevant considerations and no irrelevant considerations. I have reached this conclusion after carefully reviewing the evidence given by the members of the committee of their deliberations and the written material placed before them, which I do not propose to set out in detail in this judgment. For my part, I do not consider that it necessarily follows from acceptable academic performance in 2007 that, once the information provided by the plaintiff concerning her poor performance in 2008 and 2009 is accepted, there is no other conclusion open other than an expectation that the plaintiff’s academic progress is, and/or will continue to be, satisfactory.

Accordingly, I would not grant the plaintiff the relief she seeks on the first ground advanced.

Procedural Irregularity Before the EAC

In Kioa v West[15] the High Court was dealing with an appeal against the decision of a delegate where information, which was damaging to the prospects of the appellants being allowed to stay in Australia, was never put to them by the delegate for comment. It appears that the delegate did not rely upon the allegation in making his decision but nevertheless it was contained in the material before him. Brennan J identified the applicable principle that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to her interests which the repository of the power proposes to take into account in deciding upon its exercise. The opportunity does not extend to commenting on every adverse piece of information, irrespective of its credibility, relevance or significance. His Honour continued:[16]

It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.

[15](1985) 159 CLR 550, 628.

[16]Ibid, 629.

Here, Dr Nagtzaam’s March memorandum to the EAC, which was not disclosed to the plaintiff, was taken into account. The memorandum contained material which was in response to the bias allegation put by the plaintiff, not to the 2010 APC, but in her prior email to Ms Pillai and later in the plaintiff’s appeal notice.

The University reminded me of the principle in Stead’s case.[17] This principle is well known. Not every departure from the rules of natural justice at a hearing will entitle the aggrieved party to a new hearing, particularly where that denial relates to the opportunity of making submissions on a question of law. All that an applicant needs to show is that the denial of natural justice deprived her of the possibility of a successful outcome. To negate that possibility it is necessary for the appellate court to find that a properly conducted trial could not possibly have produced a different result.
[17]Stead v State Government Insurance Commission (1986) 161 CLR 141.

The application of these principles was subject to careful analysis by the Court of Appeal in Ucar v Nylex Industrial Products Pty Ltd,[18] a decision which both parties cited in support of their position. In refusing an application for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 to bring common law proceedings for damages against his employer, the trial judge had made observations about the demeanour of the plaintiff in court from which he drew inferences adverse to the plaintiff. One issue in the appeal concerned the trial judge’s failure to draw these observations to the attention of counsel, thereby depriving the plaintiff of the opportunity either to give evidence or make submissions to explain the events.
[18](2007) 17 VR 492.

Of these circumstances, Chernov JA, with whom Warren CJ agreed, stated:[19]

It is apparent, therefore, as I have said, that, where the judge makes an observation concerning the party’s demeanour in court that is not observable by counsel in circumstances where the court might rely on it to the party’s prejudice, the judge is required to disclose the fact of the observation as well as the possibility that reliance may be placed on it in the resolution of any issue that may affect that party’s property, rights and legitimate expectations. This accords, I think, with the general rule that a party should be given the opportunity to respond to matters prejudicial to its interests that are known only to the court and which might be taken into account in the determination of issues that may affect the party’s property, rights or legitimate expectations. And, as will be explained later, subject to qualifications, failure to disclose such matters will generally result in the decision being set aside. [Citations omitted]

[19]Ibid, 503 at [27].

The qualification which might save the decision under review, to be later explained, was a reference to the principle in Stead’s case. On this aspect of the decision, both Warren CJ and Chernov JA expressed general agreement with the analysis of Redlich JA who concluded:[20]

In my view, the principle laid down in Stead contemplates two circumstances in which relief may be refused. It will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Second, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same. [Citations omitted]

[20]Ibid, 519 at [75].

Following lodging an appeal to the EAC, a package of documents is put together for consideration by the Chair of the EAC. The Chair has power under the Statute to determine whether there are prima facie grounds for the appeal or the appeal is dismissed. Included in the material in the plaintiff’s appeal were two internal memos. One memorandum, dated 16 March 2010 prepared by Dr Nagtzaam, was addressed to the Secretary of the Appeals Committee. It provided Dr Nagtzaam’s response to the allegations of bias on his part, which had been made by the plaintiff. A second memorandum, dated 17 March 2010, had been prepared by Ms Pillai. It stated Ms Pillai’s recollection of her dealings with the plaintiff about the possible rescheduling of the APC hearing, matters to which I have referred above. It is common ground that neither of these memoranda were provided to the plaintiff.

When cross-examined about his use, in the memorandum, of the words “through my bias towards Ms Neav”, Dr Nagtzaam agreed that he used an unfortunate choice of words. He explained that what he intended was to refer to the allegation that was being made against him. Dr Nagtzaam agreed that those words could be construed as an admission that he had been biased but denied that that was an appropriate or an intended construction of the words he used.

The plaintiff contends that the fact that a memorandum was so prepared and submitted to the appeal committee was relevant on the issue of whether a fair-minded observer might have considered there was a possibility of bias. It is a denial of procedural fairness not to have afforded the plaintiff an opportunity to respond to that memorandum. The plaintiff put that had she received a copy of the memorandum, and had the opportunity to think about it, her attention would have been directed to the fact that Dr Nagtzaam was seeking to agitate the issue of bias and she may well have raised with the appeal committee the pre-judgment statement that she was to later allege had been made at the 2009 APC. I cannot accept this submission.

On 24 March 2010, the Secretary of the EAC wrote to the plaintiff formally advising her that her appeal had been dismissed, as the Chair of the EAC found there was insufficient evidence to establish either ground, new evidence or procedural irregularity. The letter enclosed the reasons for decision of the Chair of that committee. In summary, this reasoning was as follows:

(a)The fact that the Chair of the Faculty APC had previously taught the student or chaired a previous APC hearing involving the student does not automatically sustain a claim of bias. Referring, by way of example, to pre-judgment by reason of a previous unfavourable decision such as one involving an adverse finding about credit, the distinction was noted that the apprehension of bias by the student was drawn from a decision in her favour. While that fact alone does not preclude the possibility that the decision-maker might not bring an impartial mind to the matter at hand, mere involvement and nothing more was all that was being alleged in this instance.
(b)It was then noted that aspects of the conduct of the Chair were asserted as specific evidence of bias. The reference was to the assertions of interruption and denial of a fair opportunity to present. In concluding that no prima facie ground of procedural irregularity was established, the Chair referred to the memorandum of 16 March 2010, which had not been disclosed to the plaintiff. The Chair draws from that memorandum the fact that Dr Nagtzaam voted in favour of the decision to allow the student to continue her studies in the 2009 APC and concludes that there is no basis to explain how the matters asserted, if accepted, could evidence a departure from impartiality, having regard to the decision reached.
(c)The mere fact that the student believed Dr Nagtzaam was not impartial was not of itself sufficient to make good a claim of a reasonable apprehension of bias.
(d)If an apprehension of bias could be established it would have been found to have been waived in this case by reason of the student’s decision to decline the offer of a different panel that would hear the case, and her failure to respond to an invitation given to the student in the hearing to raise any concern about the constitution of the panel.
(e)The further medical evidence provided to the EAC was not new evidence. It did not add anything substantially new to the issues raised before the 2010 APC. Further, the student chose to proceed with the APC hearing either because she did not believe the further medical documentation was crucial or she was prepared to proceed without it.

The University submitted that the information contained in the memorandum was not “adverse” to the plaintiff. It says nothing about her credibility, her academic performance, or her health issues. It is unnecessary for me to inquire into the probative impact of that memorandum.

There are two reasons why there will be a want of procedural fairness where an adjudicator hears evidence or receives argument from one side behind the back of another, regardless of its probative impact. These reasons were succinctly identified by Mason P in Seltsam Pty Ltd v Ghaleb.[21] First, the appearance of fairness has been shattered in a material respect, for, as Lord Denning put it on behalf of the Judicial Committee of the Privy Council in Kanda v Government of Malaya:[22]

The court will not inquire into whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe that he has been fairly treated if the other side had access to the judge without his knowing.

[21][2005] NSWCA 208, cited with approval in Ucar op cit at [58].

[22](1962) AC 322, 337-8.

The second reason is that there is virtually no means of discovering the impact of the secret material upon the minds of the adjudicator without transgressing the very assumptions underlying the doctrines of procedural fairness and of judicial review.

The University submitted that the material in the memorandum was not used in a way adverse to the interests of the plaintiff. I cannot accept this submission. To do so requires me to speculate upon the impact of the information contained within the memorandum upon the decision-maker. It was submitted that the memorandum simply stated an incontrovertible fact that allowed the EAC to evaluate the persuasiveness of the plaintiff’s allegation of bias upon the grounds then being advanced. It is plain upon reading the memorandum that it goes much further than this, seeking to challenge allegations of fact about the conduct of Dr Nagtzaam which might be thought to go to a question of whether he had conducted the 2009 APC in a manner which might suggest pre-judgment. Although the reasons published by the Chair disclose that he noted how Dr Nagtzaam voted in 2009, how other material in the memorandum was used is a matter of speculation.

But that is not the end of the matter. Mr Hanks submitted that this is one of those exceptional cases where the decision-maker’s omission to disclose information used, when deciding adversely to the plaintiff, had not deprived the plaintiff of the possibility of a successful outcome. The question is whether giving the plaintiff an opportunity to respond to the memorandum could have made a difference. Did the loss of an opportunity to respond go to an issue that was in controversy and was material to the EAC’s decision?

Dealing with the allegation of bias as it had been articulated to him, the Chair of the EAC rejected the notion that the conduct of the 2009 APC could have been unfair to the plaintiff because it resulted in a decision that the plaintiff be permitted to continue her candidature for a law degree. To achieve a successful outcome before the EAC, the plaintiff needed to establish a prima facie case of procedural irregularity constituted by a reasonable apprehension of bias. That allegation of bias was based upon the conduct of Dr Nagtzaam as a tutor and assertions that his conduct, by interruption and abruptness, denied the student a fair opportunity to present her position in a previous hearing when then outcome delivered by the apparently biased member was favourable to the student.

Applying the first limb of the Stead principle, the Chair of the EAC reasoned that accepting the plaintiff’s allegations, irrespective of any disputed question which could arise about them, the uncontroverted fact was that the decision of the 2009 APC was favourable to the plaintiff. Thus, those allegations could not ground a reasonable apprehension of pre-judgment adverse to the plaintiff on a later occasion. He did not use the memorandum as evidence which contradicted the position of the plaintiff. The applicant could not possibly have obtained a different outcome.

The second limb of the Stead principle would come into play were the plaintiff to assert that the opportunity to respond to the memorandum was an opportunity to raise, for the first time, Dr Nagtzaam making the pre-judgment statement at the 2009 APC. The inability to respond to the secret memorandum, by alleging the pre-judgment statement, would be a circumstance where the procedural unfairness touches upon an issue in dispute that was material to the decision. It would be futile for there to be a further hearing of the EAC to permit procedural fairness as the result would inevitably be the same. There is no possibility that the plaintiff could now obtain a different outcome due to the findings I have made concerning the pre-judgment statement.

For these reasons, the third ground, upon which the applicant seeks relief, also fails.

Discretionary Considerations

Relief pursuant to Order 56 is discretionary[23].
[23]Victoria Legal Aid v Country Court of Victoria (2004) 9 VR 686; Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 at [17].

The decision the 2010 APC was to exclude the plaintiff “from studying the degree of Bachelor of Laws for the 2010 academic year”. Clause 2.2 of the statute provides:

2.2A student who has been excluded may, at any time not less than one year after the year in which the unsatisfactory progress occurred, apply to the relevant faculty board for readmission as a candidate and the faculty board, at its discretion, may, subject to any terms and conditions specified, readmit the student.

The practical effect of the rejection by the EAC of the plaintiff’s appeal against the 2010 APC decision would have been the exclusion of the plaintiff for at least the 2010 academic year from candidature for a law degree and thereafter re-admission is at the discretion of the faculty board. The decision to exclude the plaintiff from studying the degree of Bachelor of Laws in the 2010 academic year was stayed pending hearing and determination of this proceeding or further order.

Clearly circumstances may have changed in the time it has taken to resolve this proceeding. Having obtained this stay, the plaintiff has now undertaken studies towards her degree during the 2010 academic year. She may, or may not, have successfully completed an acceptable course load. Appropriately, no evidence about matters subsequent to the decisions under review has been lead before me. In any event, I ought not, and will not, enter upon a consideration of the merits of the plaintiff’s continuing enrolment in the Law Faculty. No matters which might have gone to the exercise of the discretion were put to me.

Having determined to refuse the plaintiff the relief she seeks in the proceeding, for the reasons I have articulated, any discretionary considerations which might go towards the granting or refusal of such relief are not relevant.

Accordingly, I will make orders refusing the relief the plaintiff seeks by her Originating Motion and I will hear counsel in respect of costs.

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[2010] VSC 563

13 DECEMBER 2010