Neav v Monash University

[2010] VSC 158

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST

PRACTICE COURT

No. 1779 of 2010

MARGARET NEAV	Applicant
v
MONASH UNIVERSITY	Respondent

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2010
DATE OF JUDGMENT:	16 April 2010
CASE MAY BE CITED AS:	Neav v Monash University
MEDIUM NEUTRAL CITATION:	[2010] VSC 158

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ADMINISTRATIVE LAW – interlocutory injunction – decision by chair of university exclusion appeals committee – whether reasonable apprehension of bias – whether procedural irregularity – whether right to relief waived by applicant – whether balance of convenience in favour of applicant – injunction granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr. J. Wilson SC with Ms R. Brezzi	Mercader Barristers & Solicitors
For the Respondent	Mr P. Hanks QC with Mr R. Harrington	Lander & Rogers

HIS HONOUR:

1. In this matter the applicant, a student at Monash University in the law faculty, seeks an order to stay the decision of the Chair of the Exclusion Appeals Committee, which would have the consequence of excluding her from study in her degree of Bachelor of Laws. 

1. Two complaints were made about the process that led to this decision.  The first was that the primary committee, the Academic Progress Committee, which determined that she should be excluded, fell into error inasmuch as it committed a procedural irregularity.  There is evidence from the applicant that the Chair of the committee, on a previous occasion in 2009 when she appeared before the same committee, said to her that if she returned, she would be excluded.  She also says that when the hearing of this committee in 2010 commenced, the same person as Chair of the committee, said, "I remember you". 

1. There is much to be said for the fact that this may or may not have occurred but for present purposes I assume that there is a triable issue, that her evidence as to this will be accepted.  In those circumstances that would amount, I think, to a triable case of apparent bias.

1. In answer to that, counsel on behalf of the university pressed me with the fact that even accepting, as he must for present purposes, that the statements were made, she nonetheless waived her rights to insist upon a reconstitution of the committee inasmuch as she was offered another date in March and furthermore, when she actually attended the committee on 3 February 2010, she was asked whether she had any objection to any of the members of the committee.  She raised no objection.

1. Counsel on her behalf said that, accepting this, for present purposes, the situation, nevertheless, may not amount to waiver.  They said that if the matter were fully explored and the relationship between the student and her views were fully explored at the hearing the necessary requirements for waiver might not be established.

1. Again it is not for me to make any finding as to this.  Counsel for the university pressed me by saying that she was obviously well aware of her rights.  While there is much to be said for that, I think again there is a triable issue as to this point so that there is, on the face of it, a triable issue as to the biased question.

1. The second complaint that was made about the decision of the Chair of the appeals committee was that he failed to have sufficient regard to the fresh evidence which she offered, that evidence being a further report from her doctor, Dr Rice, about the impact of her medical condition upon her ability as a student.

1. Again I am seeking only to discover that there is a triable issue as to this question.  It seems to me that the medical report of Dr Rice of 9 March 2010 stands in a rather different position from the position as it was exposed in her earlier report of 2 February 2010.  The earlier report and the material before the first committee, that is the Academic Progress Committee, was to the effect that the student's mother had suffered serious illness in the earlier year and that this had an impact upon her ability to study.  It showed, further, that the student herself suffered an illness which was identified as being an illness affecting her thyroid.  What emerged in the second report was that the mother's illness was associated to a similar thyroid condition.  To my mind it is likely that this would have a greater impact upon a person rather than simply if she were the first person in the family to have this condition.  There is the possibility that this new information would shed greater light on the student’s psychological condition, her ability to cope with her studies, to concentrate and to perform at exam level.

1. Now, the burden is on the applicant, as I have indicated, to show that there is some basis for apprehending that the Chair of the appeals committee failed to have sufficient regard to this new evidence.  On the face of it, looking at the reasons given by the Chair, I am again of the view that there is a triable issue here.

1. I turn now to the question of the balance of convenience, bearing in mind the principles that I must apply as set out by the Court of Appeal in the Bradto case.[1]  The student, as things presently stand, is excluded from the university.  She is, as I understand the statute, ineligible to enrol in the law school for the rest of this year and may do so next year only on satisfying a committee in terms of her rehabilitation and her student performance.  In the event that she should be successful at trial this disability will be removed.  It seems to me that, although there is every prospect that she will have a quick trial of the matter so that the delay will not be undue, the disability with which she suffers may well prevent her from enrolling, should she choose to do so, in the second half of the year.

   [1]Bradto v State of Victoria (2006) 15 VR 65.

1. Furthermore, she says, and perhaps there are some gaps in what she says about this, that her continuing status as a student at the university will have an affect on her employment.  Again I see no reason to put that at risk on an interlocutory basis, particularly as the interval between now and the time of the trial is not likely to be very great.

1. In the circumstances it seems to me that the balance of convenience requires that the position prior to the exclusion be retained as far as possible.

1. The order that is being proposed contains the usual undertaking as to damages.  While it is hard to imagine that the university would suffer damage by reason of the making of the order, I am content to accept that undertaking as it is proffered. 

1. The substantive order then will be as proposed in paragraph (1) of the minute of order submitted to me by counsel for the applicant, namely, that the decision of the Chair of the Exclusion Appeals Committee be stayed pending the hearing and determination of this proceeding or further order.

1. It is implicit in an order of this kind that the matter should proceed with as much expedition as possible and counsel for both parties agreed that the orders should set a timetable for the filing and service of any further affidavit material.

1. I will formally order that:

1.        The effect of the decision of the Chair of the Exclusion Appeals Committee of the respondent 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.

2.        Any further affidavits for the applicant be filed and served by 30 April 2010.

3.        Any further affidavits for the respondent be filed and served by 14 May 2010.

4.        The matter be fixed in the Judicial Review and Appeals List for hearing with expedition.

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