Simjanoski v La Trobe University
[2004] VSC 180
•27 May 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4956 of 2004
| YANE SIMJANOSKI, RAFKET ABDUL-HAMID, and ANDREAS PETINIS | Plaintiffs |
| v | |
| LA TROBE UNIVERSITY and RICHARD NIALL, MEG MORRIS and SUZANNE SOMMER (constituting the Reserve Proctorial Board) and ROGER PARISH, SIMON CROWE and ROBERT BROWNLEE (constituting the Faculty Academic Misconduct Committee) | First Defendant Second to Fourth Defendants Fifth to Seventh Defendants |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May 2004 | |
DATE OF JUDGMENT: | 27 May 2004 | |
CASE MAY BE CITED AS: | Simjanoski v La Trobe University | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 180 | |
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Judicial review – decisions of a university academic misconduct committee and the appeals to the university’s proctorial board – did the conduct of the tribunals constitute a denial of natural justice – procedural fairness – whether tribunal entitled to adopt an inquisitorial role – whether tribunal entitled to draw upon its expertise – whether accidental contact between the prosecution and tribunal members constituted apprehended bias – whether tribunal entitled to admit evidence not available for cross-examination – no finding of a failure to apply procedural fairness – claims dismissed
La Trobe University Act 1964
R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471
Craig v South Australia (1995) 184 CLR 163
Johnson v Johnson (2000) 201 CLR 488
R v Lilydale Magistrates’ Court: Ex parte Ciccone [1973] VR 122
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Rose v Bridges (1997) 79 FCR 378
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr PG Nash QC with Ms N Karapanagiotidis | Access Law |
| For the Defendants | Ms D Mortimer SC | La Trobe University Legal Services |
HER HONOUR:
Introduction
On 15 August 2003 the Faculty Academic Misconduct Committee of the Faculty of Science, Technology and Engineering of the first defendant (“the University”), constituted by the fifth to seventh defendants (“the Committee”), found that six students, including the plaintiffs, had committed an act of academic misconduct. The penalty, apparently for each student, was set as a zero grade for each relevant subject and exclusion from the University until 1 March 2004.
The plaintiffs, among others, appealed from the decision of the Committee to the Proctorial Board of the University, and the appeal was heard by the Reserve Proctorial Board, constituted by the second to fourth defendants (“the Board”). By its decision handed down on 12 February 2004 the Board dismissed the appeals and confirmed the decision of the Committee, including the penalty.
The present proceeding was commenced by originating motion on 10 March 2004, the plaintiffs seeking judicial review of the decisions of the Committee and the Board.
The University legislation
The constitution and powers of the Committee and the Board are established by the statutes and regulations of the University. The power to make statutes is conferred on the University by section 30(1) of the La Trobe University Act 1964 (“the Act”) and section 30(2) provides that any statute made by the Council may provide for the making of regulations for the purpose of that statute. Section 30(3) of the Act provides that:
. . . the production of a verified copy of any such Statute under the common seal of the University shall be sufficient evidence of the making and authenticity of the same in all courts and before all persons acting judicially.
Section 30(4) makes a similar provision in regard to regulations.
The defendants provided to the Court what was described in the covering letter as “a full set of the La Trobe University legislation”, which appeared to include the Act and a set of statutes and regulations. Those documents were not verified in accordance with sections 30(3) and (4) of the Act. However, Mr Nash, for the plaintiffs, raised no objection to the Court’s relying on them, and the hearing proceeded on the tacit basis that they comprised the Act, statutes and regulations as in force at all relevant times.
Statute 16 deals with student discipline and misconduct, and regulations have been made under that statute. The relevant provisions of that statute and those regulations, and of regulation 21.12 read as follows, so far as relevant:
Statute 16Student Discipline and Misconduct
Interpretation
1.In this statute and the regulations made under this statute unless the contrary intention appears
“academic misconduct” includes cheating plagiarism and any conduct engaged in by a student with a view to gain for himself herself or another an unjustified advantage in assessment whether such advantage occurs or not.
.. .
“cheating” means cheating in relation to an examination and includes the taking into any examination room of any material contrary to the statutes and regulations of the university or the instructions for that examination;
.. .
Faculty Academic Misconduct Committees
4.There shall be a Faculty Academic Misconduct Committee in each Faculty appointed by the Vice-Chancellor and constituted in accordance with the relevant regulation made under this Statute which shall have the powers to hear and determine appeals and referrals on matters of academic misconduct within that Faculty relating to degrees diplomas and other awards and to impose penalties for proven academic misconduct in accordance with the relevant regulation made under this Statute.
.. .
The Proctorial Board
6.There shall be a Proctorial Board appointed by Council constituted and conducted in accordance with the regulations made under this Statute which shall have the power to hear and determine appeals on matters of academic and general misconduct and to impose penalties for proven misconduct in accordance with the relevant regulations made under this Statute.
Regulation 21.12 Examinations and Assessment
Definitions
1.. . .
“formal examination” means a supervised examination held in a place and under conditions specified by the University Secretary.
.. .
Suspected Academic Misconduct or Possession of Unauthorised Material at Examinations
. . .
Examinations other than formal examinations
6.(1)Any member of the academic staff who suspects that an act of academic misconduct may have been committed by a student at an examination shall report the matter in writing to the chief examiner.
(2)Within 10 days of receipt of material from a member of academic staff the chief examiner shall inform the student concerned in writing that such report has been received and that the student may make a written explanation in answer to the report within a time specified by the chief examiner.
(3)Upon receiving a written explanation from the student, or at the expiration of the specified time, whichever is the earlier, the chief examiner shall examine the matter to determine whether in the opinion of the chief examiner, academic misconduct has occurred.
Chief examiners [sic] action
7(1)Where the chief examiner determines in relation to a matter under section 5 or section 6 that academic misconduct has occurred the chief examiner may decide
.. .
(f)that the matter should be referred to the Academic Misconduct Committee.
Regulation 16.2 Student Discipline and Misconduct
Academic Misconduct
Appeal to the Proctorial Board against decision of Faculty Academic Misconduct Committee
4.Where the Faculty Academic Misconduct Committee decides both to disallow any work of a student in a subject or course and to exclude that student from the University for a period of more than 6 months, the student may appeal against that decision to the Proctorial Board in accordance with Regulation 16.3 within 30 days of the date on which the decision was made.
Regulation 16.3 The Proctorial Board
.. .
Composition of Proctorial Board
2.(1)There shall be a Proctorial Board consisting of three members one of whom shall be a person admitted to practice in Victoria as a barrister and solicitor and appointed by Council on the nomination of the Vice-Chancellor.
.. .
(7)No person shall sit as a member of the Proctorial Board on a matter where that person has prior knowledge or acquaintance with the matter or has taken part in any proceedings in relation to the matter.
.. .
Matters to be heard by the Proctorial Board
3.(1)The Proctorial Board shall hear and determine any appeal made to it by any person under the provisions of any statute or regulation and any such appeal may be made against a finding of misconduct or the severity of any penalty imposed or against both finding and penalty.
(2)The proceedings of the Proctorial Board shall be held in camera.
.. .
(4)The Proctorial Board shall find an allegation proved only if on the material before it the Board is satisfied on the balance of probabilities, due regard being taken to the gravity of the allegations and the consequence of a finding of misconduct to the person against whom the allegations have been made.
Conduct of hearing before Proctorial Board
4.(1)On the hearing of any matter before the Board, the Board shall not be bound by rules or practice as to evidence imposed in a court of law and may follow any procedure it considers appropriate but must
(a)act fairly to all parties;
(b)give each party the opportunity to state that party’s case and to comment upon any relevant adverse material;
(c)ensure that all documents which are to be relied upon by a party at the hearing have been made available to the other party; and
(d)otherwise observe the principles of natural justice.
.. .
Appeal procedure
5.(4)Any appeal to the Proctorial Board against a finding of misconduct shall be determined by a rehearing of the matter.
Assistance at hearing
6.The student may in proceedings before the Board be accompanied by a person who may act as an advocate.
The claims of the plaintiffs
Apparently in reliance on regulation 16.3.3(2), the plaintiffs initially sought an order prohibiting the publication of their names or identities. Mr Nash did not press this claim, and I accept the submission of Ms Mortimer, for the defendants, that there was no reason for the Court to depart from the usual practice. Accordingly, no such order was made.
Ms Mortimer referred to regulation 16.3.5(4), which provides that any appeal to the Proctorial Board against a finding of misconduct is to be determined by a rehearing of the matter. Given that provision, she submitted that any asserted denial of procedural fairness by the Committee could be and was cured by the invocation by the plaintiffs of their right to a rehearing, and Mr Nash did not oppose that submission.
Ms Mortimer relied, among other authorities, on R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation [1] where Mason J said:
In any event, what happened before Marks J cannot constitute a basis for prohibition on the ground that there was a denial of natural justice. The BLF exercised its right of appeal to the Full Bench. On an appeal the Full Bench may admit further evidence and it may confirm, quash or vary the award or decision under appeal or make an award or decision dealing with the subject matter of the decision under appeal.
. . . In Twist v Randwick Municipal Council (1976) 136 CLR 106, this Court held that the existence of a full statutory right of appeal on facts and law was indicative of a legislative intention that the citizen’s only right of redress against the council’s failure to give him an opportunity to be heard before making a demolition order was by way of appeal.
. . . In my opinion the BLF received a full and fair hearing in the appeal and in those circumstances any denial of natural justice before Marks J was irrelevant (Calvin v Carr [1980] AC 574 at 593).
[1](1981) 147 CLR 471 at 484-5
On that basis I am satisfied that I do not need to consider the claims for relief against the Committee appearing in the originating motion.
The remaining claims for relief appearing in the originating motion (omitting one duplicitous claim) are as follows:
B.That, until further order, [the University] be prohibited from giving effect to or acting upon the decisions of, and penalties imposed by [the Board].
D.A declaration that the decisions of, and penalties imposed by, [the Board] was [sic] null and void.
E.An order of, or in the nature of, certiorari quashing the decisions of, and penalties imposed by, [the Board].
Claims B and D effectively depend on the granting of an order in the nature of certiorari quashing the decision of the Board, and do not require separate consideration.
In Craig v South Australia[2] the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record". Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it.
[2](1995) 184 CLR 163 at 175-176
The referral and the appeal
The matter was apparently initiated by letters, both dated 10 July 2003, from Dr Seaton and Dr Usher, subject co-ordinators respectively in a mathematics subject and an engineering subject, to their respective chief examiners, Dr Prince for mathematics and Dr Devlin for engineering, written in accordance with regulation 21.12.6(1). [3] Each letter indicated that the writer considered that, on the basis of their performance in the relevant examination, the manner in which they had answered certain questions, and their past performance in the relevant subject, certain named students, including the plaintiffs, must have had access to the examiner’s paper setting out the answers to the questions (“the solutions paper”), which had been prepared at the time of preparing the examination paper. In particular, it was said that in each subject each student had reproduced, in their examination answer, minor errors in the solutions paper.
[3]Mr Nash did not suggest that the procedure under Regulation 21.12.6 was inappropriate, and it is to be assumed, given the heading to that regulation, that the examinations in question were not “formal examinations” as defined in regulation 21.12.1.
Each chief examiner, pursuant to regulation 21.2.6(2), wrote to each of the students concerned in that examiner’s subject, pointing out the inclusion in their answers of the errors from the relevant solutions paper and inviting the students to respond in writing to an allegation of academic misconduct. The letter set out the definition of “academic misconduct” from statute 16 and stated that a copy of what was referred to as “the relevant legislation” was attached.
After receiving written responses from the students as required by regulation 21.12.6(3), each chief examiner referred the matter to the Committee pursuant to regulation 21.12.7. The decision of the Committee appears in [1] above.
Regulation 16.2.4 sets out the circumstances in which an appeal is available from a decision of the Committee. The expression “disallow any work of a student”, appearing in that regulation does not appear to be defined in the regulations. Presumably the effect of awarding a zero grade for a subject is to be regarded as the same as the effect of disallowance of the work of the student in that subject. It was not suggested that the plaintiffs were not entitled to appeal to the Board.
Before the hearing of the appeal the Board notified the chief examiners that it expected them or their representative from the faculty to attend the hearing and to provide copies to the Board of any materials in support of the allegations. Dr Prince attended, but Dr Devlin was unable to attend due to illness and Professor Cahill, the head of the department of electronic engineering, attended on his behalf.
The hearing before the Board was conducted as a hearing de novo in accordance with regulation 16.3.5(4) and occupied three days. The students were represented by Mr Lavery of counsel. It appears that the University indicated that it did not wish to participate in the hearing.
All three plaintiffs had sat the examinations in both the mathematics subject and the engineering subject. The Board dealt first with the mathematics subject and then with the engineering subject. The students chose not to give oral evidence with regard to the engineering subject, save that their solicitor, Mr Kuek, gave evidence that each of the students denied cheating. The Board found in respect of each examination that each of the plaintiffs had had access to the relevant solutions paper and that this access constituted academic misconduct. As has been said above, it confirmed the decision of the Committee, including the penalty imposed.
The submissions for the plaintiffs
The inquisitorial role of the Board
Regulation 16.3.6 provides for the student to be accompanied, at a hearing before the Board, by a person who may assist the student as an advocate. However, there is no corresponding provision as to how or by whom the allegation of misconduct is to be presented or prosecuted .
Mr Nash submitted that it was the task of the chief examiner in each subject to present the allegation against the students and prosecute that allegation before the Board. In his submission, the Board had taken over this role, and had treated the chief examiners simply as witnesses, or persons assisting the Board, rather than as prosecutors bringing the charges and responsible for establishing the case. That was improper, he submitted; the function of the Board was judicial. To an extent the Board had recognised the true role of the chief examiners, by referring to them as “the moving party” and accepting that it was the obligation of the chief examiner to put forward material in support of the allegations. He submitted that the Board’s request set out in [17] above that the chief examiners attend and provide materials meant in effect that the Board led the evidence constituted by those materials. The transcript showed that the Board had itself cross-examined the students. This was improper, given the Board’s judicial role.
Assuming without deciding the correctness of Mr Nash’s description of the manner in which the Board conducted itself, I note that regulation 16.3.4(1) provides that, so long as it observes the requirements of that provision, the Board may follow any procedure it considers appropriate. The Chairman said that the Board did not regard itself as having no investigative role, and in my view it was fully entitled to take that approach. An inquisitorial or partially inquisitorial role is open to the Board, provided that it observes the requirements of the regulation. On a number of occasions courts have given a wide interpretation to similar provisions, [4] and I see no ground for limiting the operation of the regulation other than in accordance with its terms.
[4]See Minister for Immigration, Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 41 FCR 71 at 77-78 per Keely J; Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 64 per Sackville J; Lynch v Medicare Participation Review Committee (1995) 35 FCR 592 per Wilcox J
The request that the chief examiners attend and provide materials was, as the Board said in ruling on an application that it disqualify itself, to advise the chief examiners of the hearing and “to ensure that if they were to assist [a transcription error for persist?] in the allegation, that they would be required to produce material”. It was a means of ensuring administratively that the hearing could proceed.
Mr Nash submitted that where there was no-one to prosecute except the Board itself it would not be possible to comply with the rules of procedural fairness. I do not accept that submission.
The expertise of Dr Sommer
Mr Nash further submitted that it was apparent from the questioning of the plaintiffs by Dr Sommer, a member of the Board, that she had expertise in mathematics. He submitted that it was inappropriate that a member of a disciplinary tribunal should have expertise related to the subject matter before the tribunal.
However, he produced no authority for that proposition, and the relevant provisions of Regulation 16.3.2 impose no such limitation. Further, there is authority for the possession and use of expertise by disciplinary tribunals. In a different context, in Australian Football League v Carlton Football ClubLtd [1998] 2 VR 546, Hayne JA said at 569, speaking of the AFL Tribunal:
. . . in my view the members of the tribunal may bring to their deliberations whatever expert knowledge they may have about football.
and Ashley AJA at 581:
It does not follow, however, from the conclusions which I have just expressed that the tribunal cannot bring to account its own knowledge concerning matters of general application in the world of football.
See also R v Brewer; Ex parte Renzella[5] and Calvin v Carr[6] relating to racecourse stewards conducting an inquiry.
[5][1973] VR 375 at 380
[6][1980] AC 574 at 596
An application was made for the Board to disqualify itself on the ground inter alia that the presence on the board of Dr Sommer’s specialist expertise was a denial of procedural fairness. In dismissing that application, the Board said:
In our view it is neither inappropriate nor unusual for committees such as this to possess some knowledge of the discipline from which the accusations of academic misconduct arise. In our view, it is appropriate for the Board to consider the material of the parties that is presented to it in the light of that knowledge and expertise . . . provided that it is done in a way which is fair to all of the parties.
I would, with respect adopt that passage, which is consistent with the Board’s having the inquisitorial role which I have found to be permitted to it by the university legislation.
Mr Nash relied on a passage from the judgment of Branson J in NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[7] where Her Honour said:
Where the [Refugee Review] Tribunal contemplates calling in aid the presiding member’s own observations in a way which could be prejudicial to the interests of an applicant, the applicant is entitled to be given an opportunity of commenting on those observations in the contest of the applicant’s claims.
[7][2002] FCA 927 at [13]
In response, Ms Mortimer submitted, and I accept, that the plaintiffs were aware, from the questions which she put to them, of the manner in which Dr Sommer’s expertise was brought to bear on the issues before the Board. The mathematics subject was dealt with first, and each student gave evidence and was questioned. By asking questions of the students, Dr Sommer put them in a position of effectively being able to comment on her views in the answers which they gave.
I find no breach of the principles of procedural fairness in the presence on the Board of Dr Sommer.
Apprehended bias
It appears that coffee was available in the hearing room. During a break in the hearing, Dr Sommer, a member of the Board, and Dr Cahill, who was in the course of giving evidence, obtained coffee at the same time and walked out of the room together, in conversation. After the break, counsel for the students made application for the Board to disqualify itself on the ground of apprehended bias arising from this incident. Dismissing the application, the Board found that the contact between Dr Sommer and Mr Cahill was minor and incidental and not likely to give rise in the mind of the reasonable observer to an apprehension of bias.
Mr Nash submitted that, accepting that the incident was minor, nevertheless, when it was taken with the matters outlined in [21] above, there was an accumulation of circumstances which might lead to an apprehension of bias in the mind of the reasonable observer. I should emphasise that he made no suggestion of the existence of actual bias in any member of the Board.
In Johnson v Johnson Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said: [8]
It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
Their Honours emphasised [9] the need to remember that the observer is taken to be reasonable, and that the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”. In this case, while the chairman of the Board was a barrister, none of the members could be described as “a professional judge”.
[8](2000) 201 CLR 488 at 492
[9]at 493
Mr Nash did not point to any statement or question by the Board as, by its substance, giving rise to a reasonable apprehension of bias; his submissions related only to the procedures adopted, and to the coffee episode. As to the procedures, I have already found that the Board was entitled to adopt an inquisitorial approach, and I do not find the adoption of that approach as giving rise to any such reasonable apprehension. The coffee episode gives me more cause for concern.
There appears to have been some uncertainty as to who was intended to have access to the coffee. Mr Lavery stated in the course of his submissions that neither he nor his clients had been invited to partake of it, and apparently no person had suggested to Dr Cahill that it was available to him.
McInerney J said in R v Lilydale Magistrates’ Court: Ex parte Ciccone[10] :
. . . certain canons of conduct for judges and legal practitioners have, by long experience, been found desirable both in the interests of ensuring that justice is done in fact (or as near as may be, in this imperfect world) and that the judge is not exposed to suspicion of bias.
The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.
It has, therefore, long been accepted that a judge or magistrate does not normally go on a view in the company of one party only or of a legal adviser or of a witness for one party only.
[10][1973] VR 122 at 127
Ms Mortimer submitted that decisions involving magistrates were not relevant to the Board, which was a hybrid tribunal, principally administrative. She referred to Re Refugee Review Tribunal; Ex parte H[11] where Gleeson CJ, Gaudron and Gummow JJ considered, without deciding, whether the normal test for apprehended bias was appropriate in the context of an inquisitorial tribunal which sat in private.
[11](2001) 179 ALR 425 at [27] and following
In that case their Honours said at [5] (with citations added):
It was held in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 that administrative decisions may be reviewed in this Court for failure to observe the rules of natural justice. Further, it was accepted in Minister for Immigration and Multicultural Affairs v Jia (2001) 75 ALJR 679 . . . that such a failure would extend to cases in which apprehended bias is established. However, the rule with respect to apprehended bias, as it has developed in relation to the judicial process, is not based solely on the concept of natural justice. Its development is also referable to the need to maintain confidence in the judicial process. Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover – and on this the parties are in substantial agreement – regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned.
and at [27] to [30]:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the [Refugee Review} Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the [Refugee Review] Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
However, in that case, the relevant distinction which weighed with their Honours was the manner of the tribunal in testing the evidence before it when the party claiming bias was not legally represented, which is not the case here.
Mr Nash did not submit that the coffee incident, by itself, was significant in this context; his submission, as set out in [32] above, related to the accumulation of circumstances. After much consideration, and taking into account all the circumstances of this case in the light of the purpose of the apprehended bias rule as set out above by McInerney J and by the High Court, I do not find that it would give rise to an apprehension of bias in the mind of the fair minded lay observer. Nevertheless, I should point out that the provision of coffee in the hearing room could suggest to those present a degree of informality in the proceeding which might on another such occasion, give rise to incidents of which that could not be said.
The charges
Mr Nash submitted that the plaintiffs were not made aware of the case which they had to meet. The only allegation of misconduct which was put to them was the allegation set out in the letters to the students described in [14] above that they had written examination answers which corresponded in certain respects with the answers on the solutions papers. At no stage was the act of academic misconduct more precisely particularised. Nothing was put to them as to the method by which they were said to have obtained access to the solutions papers.
However, the basis for the charges appears to have been the similarity, including the similarity of errors, between the solutions papers and the students’ examination answers. That matter was put clearly to the students in the letters referred to, and, while the letters could have been better drafted, I am satisfied that they conveyed enough information for the plaintiffs to be aware of the charges against them. I note that there was no finding made by the Board as to the method by which the plaintiffs were said to have obtained access to the solutions papers, and it clearly did not consider that matter as relevant to the issues before it.
The letters from Dr Seaton and Dr Usher
Neither Dr Seaton nor Dr Usher attended the hearing. It appears that Dr Seaton was on maternity leave and Dr Usher was overseas. Nevertheless, the Board admitted into evidence, over the objection of Mr Lavery in the case of Dr Seaton, the letters from Dr Seaton and Dr Usher referred to in [13] above. Mr Nash submitted that there were a number of matters which could have been put to them in cross-examination, such as whether similar problems were dealt with in tutorials, whether similar problems or identical problems appeared on old examination papers, or whether a tutor or a member of staff giving private tutorials to one or more of these students, might have had access to the solutions paper.
The Board, in admitting the letters, expressly took into account the effect on the weight to be given those documents by the failure to call the authors. They also took into account the failure of the plaintiffs to identify any specific matters in the letters which they challenged or to make any other submissions or produce any other evidence that might cast doubt on the authenticity of the letters. They noted that the plaintiffs, in their defence, had relied heavily on the evidence in Dr Seaton’s letter that the document was kept securely by her, and had submitted that if that were the case, they could not have relied on it in the examination.
Nothing was said as to whether any steps had been taken to see when Dr Seaton and Dr Usher could be available (although there was a suggestion by Mr Lavery that the date of the hearing had originally been fixed for the convenience of Dr Seaton).
The question is, whether the Board, which is not bound by the rules of evidence, is nevertheless required by the provisions of regulation 16.3.4(1) not to admit a document if the author of the document is not available for cross-examination. A similar question was considered by Finn J in Rose v Bridges. [12] His Honour concluded[13] that:
. . . a right to cross-examine witnesses cannot be asserted to be a possible requirement of procedural fairness where the inquiry or Tribunal in question does not possess the power to require the giving of oral evidence and the submission of witnesses to cross-examination. . . . the inquiry officer in the present matter does not possess such powers. They have not been legislatively conferred on him. And save possibly in relation to his dealings with public servants . . . they are not available to him at common law: cf Maclean v Workers’ Union [1929] 1 Ch 602 at 620-621.
. . . That a person in Mr Bridges’ position cannot be required on grounds of procedural fairness to allow cross-examination does not mean that he is not still required to act fairly in the circumstances. Where, as here, the relevant circumstances are contested and there are conflicts in evidence and issues of credibility, it may well be necessary for a person charged with misconduct to be given access to all material upon which the inquiry officer intends to rely and to be provided still with an opportunity to test that evidence.
It may, for example, be the case that in relation to some part or parts of the contested material available to the inquiry officer, no such opportunity can be given – in which case it may be necessary for the inquiry officer to exclude it from consideration if this is practicable given the charges inquired into. . . .
As to testing information, notwithstanding the lack of a power to require cross-examination, there are, obviously, a variety of expedients open to an inquiry officer. These range, for example, from arranging cross-examination through agreement with the witnesses concerned, to providing opportunity both for comment on adverse evidence and for submitting evidence in rebuttal, to having questions put to witnesses through the inquiry officer.
[12](1997) 79 FCR 378 at 386
[13]at 387-8
I would, with respect, adopt those findings. The Board is in the same position as Finn J found the inquiry officer to be in that case, being bound to act fairly, while having no power to compel witnesses. The question thus becomes whether the Board ought, in the absence of Dr Seaton and Dr Usher, to have excluded the two letters from consideration, or whether it should have provided an opportunity for their contents to be tested in some other way than cross-examination.
In its decision, after considering Mr Lavery’s object to the reception of the letter, the Board stated, as to the mathematics question [14] :
In summary we rely on Dr Seaton’s letter for the primary facts to which the letter relates. Namely the method of preparation of the solutions paper, the fact that it contained errors and that it was kept securely.
They came to similar conclusions with regard to the engineering subject on the basis of Dr Usher’s letter. Dr Prince and Professor Cahill in their evidence compared the solutions papers with the plaintiffs’ answers in their respective subjects and they were questioned at length by the Board and by Mr Lavery. I note that in the case of the mathematics subject, Dr Prince pointed out the replication of transcription errors found in the solutions paper, and in the case of the engineering subject Professor Cahill pointed out what he described as “crippling errors in the students’ workings in some questions yet the correct answer was arrived at”. I am not, of course, concerned with the merits of the Board’s decision.
[14]at [42]
Having considered the matter, I am satisfied that the evidence connecting the two solutions papers with the answers produced in the examinations by the plaintiffs was sufficiently tested by and before the Board to meet the requirements of regulation 16.3.4(1), read in the light of the judgement of Finn J in Rose v Bridges. That is, I find no breach of the principles of natural justice (“procedural fairness”) in the reception of the letters from Dr Seaton and Dr Usher, and I find that the Board acted fairly to all parties in the manner in which it dealt with that material.
Conclusion
For the reasons given, the claims of the plaintiffs are dismissed. Counsel may wish to make submissions as to costs.
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