Tadros v Charles Sturt University and 2 Ors - [2008] NSWSC 1140

No judgment structure available for this case.

CITATION: Tadros v Charles Sturt University and 2 Ors [2008] NSWSC 1140
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 August 2008, 16, 26 and 29 September 2008

JUDGMENT DATE :
30 October 2008

JUDGMENT OF: Smart AJ at 1

DECISION: See paras 154 and 155.

CATCHWORDS: Correct Construction of Student Academic Misconduct Policy - Requirements of Natural Justice - Duty of Procedural Fairness - Whether required by primary decision maker - Meaning of Internal Appeal Provision - University withdrawing refusal to hear appeal - Whether subsequent hearing of appeal "cures" any prior defects or should lead to refusal of relief on discretionary grounds - Academic Misconduct capable of being regarded as serious - Appeal Committee erroneously including certain factors as bearing upon the seriousness of the offence - Relief limited to declarations.

LEGISLATION CITED: Nil.

CATEGORY: Principal judgment

CASES CITED: Bayliss v Lea & Anor (1961) SR (NSW) 247
Calvin v Carr (1979) 1 NSWLR 1
Dinsdale v The Queen (2000) 202 CLR 321
Etherton v Public Service Board [1983] 3 NSWLR 297
Galea v Galea (1990) 19 NSWLR 263
Haoucher v Minister for Immigration and Ethinc Affairs (1990) 169 CLR 648
Hill v Green (1999) 48 NSWLR 161
House v The King (1936) 55 CLR 499
Kioa v West (1985) 159 CLR 550
Mitchell v Royal New South Wales Crime Council Limited (2001) 52 NSWLR 242
R v General Medical Council, Exp Gee [1987] 1 WLR 564
R v Thomson and Houlton (2000) 49 NSWLR 383, Cameron v The Queen (2002) 209 CLR 339
Re MIMA and Anor; Exp Miah (2001) 206 CLR 57
Romeo v Asher (1991) 29 FCR 343
Russell v Duke of Norfolk [1949] 1 All ER 109
Sedleigh-Denfield v O'Callaghan (1940) AC 880
Weinburger v Inglis [1919] AC 606
Yung v Adams (1997) 80 FCR 453

TEXTS CITED: Nil.

PARTIES: Sherrie Maria Tadros v Charles Sturt University Deputy Vice Chancellor (Academic) of Charles Sturt University and Academic Secretary of Charles Sturt University

FILE NUMBER(S): SC 30018/2008

COUNSEL: M. Seymour (P)
C. Simpson S.C. and J. Oakley (D's)

SOLICITORS: Trump Spader (P)
Eakin, McCaffery & Cox (D's)

48

- -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

SMART AJ

31 October 2008

30018 of 2008

SHERRIE MARIA TADROS
v
CHARLES STURT UNIVERSITY
DEPUTY VICE CHANCELLOR (Academic) OF CHARLES STURT UNIVERSITY and ACADEMIC SECRETARY OF CHARLES STURT UNIVERSITY

JUDGMENT

INTRODUCTION

1 Miss Tadros, the plaintiff, was a student enrolled in the University at its Orange Campus. She anticipated completing her studies for the degree of Bachelor of Pharmacy in December 2008. Between January 2007 and December 2007 she was enrolled in the subject PHM315 Pharmacy Practice which entailed the completion of practical work experience in community pharmacies. About September-October 2007 she submitted material to the University indicating completion of practical work experience in that subject when she had not done so. The material contained misleadingly incorrect information to her knowledge. It was conceded that what she had done could reasonably be considered to defeat a learning experience and was academic misconduct under the Student Academic Misconduct Policy.

2 Ultimately reports from the Head of School Biomedical Sciences and the Acting Dean, Faculty of Science were forwarded to the Deputy Vice Chancellor (Academic) (DVC (Ac)) who failed the plaintiff in the subject PHM 315 and excluded her from the University for 2 years. After an initial refusal by the University to entertain her subsequent appeal against the severity of the penalty because it was not based on procedural grounds, the University, after these proceedings had been instituted but before they had been heard, permitted and arranged for the plaintiff's appeal to proceed before the Academic Misconduct Appeals Committee which upheld the penalty imposed by the DVC (Ac). The Academic Senate of the University had issued the "Student Academic Misconduct Policy (the Policy)" and there was considerable debate as to the effect of the terms of that Policy and the gaps which seemed to appear in that Policy. The plaintiff ultimately alleged that there had been serious non compliances with the Policy, that there had been a denial of procedural fairness, that the Appeal Committee had misdirected itself and that there had been breaches of the University's common law obligations. The plaintiff sought declarations as to the decisions of the DVC (Ac) and the Academic Misconduct Appeals Committee having the effect of negativing those decisions, orders in the nature of prerogative relief and an injunction restraining the University, its servants or agents from taking any step in reliance on the decisions of the DVC (Ac) and the Academic Misconduct Appeals Committee. Although in the pleadings the plaintiff sought relief in respect of the initial refusal of the University to entertain her appeal that matter slipped into the background when that refusal was withdrawn and attention was concentrated on the decision of the DVC (Ac) and that of the Academic Misconduct Appeals Committee. This Court's jurisdiction to intervene was not in issue.

Background

3 On 24 October 2007 the plaintiff advised Associate Professor Simpson that she had not done her placement and that the externship forms and the workbook were false. The plaintiff explained that she had originally intended to do the placement but a couple of days beforehand she had received a phone call from her family. They thought her father had had a stroke. She felt she should go to Sydney to be with her father. Much of the burden of caring for him fell upon the plaintiff, her mother having limitations and there being no siblings. The plaintiff’s explanation for her conduct was that she did not think matters through properly. It eventuated that her father had suffered the return of a serious illness. An investigation into the plaintiff's misconduct occurred. Associate Professor Simpson reported to Associate Professor Angel, Head of School, Biomedical Sciences, who in turn reported to the Acting Dean, Faculty of Science on 29 October 2007. It appears that prior to the plaintiff speaking to Assoc. Prof. Simpson the Clinical Co-ordinator for Pharmacy based at Orange during a random audit had ascertained that the plaintiff had not done an externship placement in September 2007 and that the plaintiff was aware of the audit's outcome. It also appeared that the plaintiff had admitted submitting falsified documents. The Head of School, who conducted the enquiries, recommended that the Dean recommend to the DVC (Ac) that the plaintiff be failed in the subject PHM315 Pharmacy Practice and be excluded from the University for two years.

4 The Acting Dean wrote to the DVC (Ac) on 7 November 2007 attaching the report of the Head of School and made the same recommendation. On 12 November 2007 the DVC (Ac) wrote to the plaintiff enclosing a copy of the report of the Head of School and a copy of the Acting Dean’s report and on the basis of these reports stated that he found her guilty of academic misconduct, decided that she be failed in the subject PHM315 Pharmacy Practice and that she be excluded from enrolment in the University for two years effective immediately. He then specified the conditions which applied to her exclusion. These included that if she wishes to resume study at the University after the period of exclusion, she must apply for admission as if she were a new applicant.

5 The letter advised the plaintiff of her appeal rights under what was described as cl 6.1 of the Student Academic Misconduct Rule.

6 On 29 November 2007 the plaintiff lodged an appeal against the severity of the penalty imposed upon her. In this she stated, amongst other matters:

I admit to, recognise and deeply apologise for my foolishness of handing in a misleading completed and signed Externship Site Form. I am deeply remorseful and deeply sorry for my actions and am seeking into the University’s leniency to lessen the severity of the imposed penalty.

7 On 4 December 2007 the Academic Secretary, by letter to the plaintiff acknowledged receipt of her appeal against the severity of the penalty imposed upon her. He advised her that her appeal would not be heard because:

“The Student Academic Misconduct Policy states that academic misconduct appeals shall only be made on procedural grounds …”

8 By letter of 7 January 2008 the solicitors for the plaintiff requested an informal meeting with the Academic Secretary to address the matters raised in his letter of 4 December 2007 and to ensure that procedural fairness was properly afforded to her, in addition to a review of the matter on its merits. The solicitors foreshadowed a possible application for a merits review in the Administrative Decisions Tribunal and/or proceedings in the Administrative List of this Court.

9 The Academic Secretary, by letter dated 9 January 2008 explained the University’s processes for considering cases of academic misconduct and stated that he was satisfied that this process was carried out for the plaintiff’s case according to procedural fairness and in accordance with the University’s regulations.

10 On 28 February 2008 these proceedings were instituted by summons and in early March 2008 the University was served. Thereafter there were pleadings with a Statement of Claim being filed on 19 March 2008 and a Defence being filed on 7 April 2008. The principal affidavit of the plaintiff was sworn on 16 April 2008 and presumably delivered shortly thereafter.

11 On 22 April 2008 the Academic Secretary wrote to the plaintiff:

I have arranged for the appointment of an Academic Misconduct Appeals Committee to hear your appeal against exclusion for academic misconduct, in accordance with clause 6.2 of the Student Academic Misconduct Policy.

The Committee will consider your appeal against the severity of the penalty imposed upon you, in accordance with clauses 6.2.2 to 6.2.8 of the policy.

12 She was asked whether she wished to attend the meeting of the Academic Misconduct Appeals Committee, to have a representative with her and to call witnesses.

13 By letter of 23 April 2008 the University’s solicitors advised the plaintiff’s solicitors that the decision of the University communicated to her by the Academic Secretary of 4 December 2007 “will be withdrawn” and:

"The Academic Misconduct Appeal Committee will consider and determine the plaintiff’s appeal against severity on penalty lodged on 29 November 2007 in accordance with clauses 6.2.2 to 6.2.6 of the University’s Academic Misconduct Policy".

14 This was stated to be for the removal of any doubt and avoidance of any confusion, but without the University, the Academic Secretary and the DVC (Ac) admitting liability that they had any further obligations to her.

15 By letter of 7 May 2008 the Secretary of the Appeals Committee advised the hearing would be held on 21 May 2008 and enclosed a copy of the Academic Senate’s Policy for the Conduct of Hearings and a copy of the documentation "that will be considered by the Committee at the hearing". This was supplemented on 15 May 2008.

16 The plaintiff’s solicitors forwarded submissions on her behalf to the Committee as to penalty.

17 On 21 May 2008 the Appeals Committee held that the penalty imposed by the DVC (Ac) was lenient rather than severe.

Student Academic Misconduct Policy

18 There was no issue that Ms Tadros was guilty of serious academic misconduct (cl 2.1) and that the Head of School was bound to investigate, nor that Ms Tadros had admitted academic misconduct. Where this occurs the person conducting the enquiries reports the findings of the enquiries to the Dean and recommends action in accordance with cl. 5.5 of the Policy (cl. 4.4.1). One course is recommended out of eight possible courses of action in ascending degrees of severity ranging from taking no action against the student to failing the student in the subject and excluding the student from the University.

· The seriousness of the academic misconduct;

· The experience of the student at University level (i.e. more leniency would be shown in the case of a first year student); and

· Whether or not the student has previously been found guilty of academic misconduct at the University.

19 Assoc. Prof. Angel completed her enquiries and made her report to the Dean on 29 October 2007. She recommended to the Dean under cl 4.4.1 of the Policy that he recommend to the DVC (Ac) that the plaintiff be failed in PHM315 and be excluded from the University for two years effective immediately. Where a student admits to academic misconduct then within seven days of the conclusion of the enquiries the person conducting the enquiries must advise the suspected student in writing of the nature of information and/or evidence which led to the enquiry, the enquiries made and the findings and the recommendation made to the Dean under cl 5.5, that is, which course of action is recommended (cl 4.4.1(c)). Assoc. Prof. Angel does not depose to having done so and the University accepted that she had not complied with the sub-clause. The plaintiff said that after she spoke with Assoc Prof Simpson she received no further notice of any investigation by the University and was asked no further questions by anyone. Apparently the next she heard was when she received the letter of the DVC (Ac) of 12 November 2007.

20 Under cl 4.4.2.2 of the Policy (after receiving a report and a recommendation) the Dean shall take action in accordance with cl 5.6.1 of the Policy which allows the Dean to take no action against the student or impose a limited penalty or recommend to the DVC (Ac) that a more severe penalty be imposed.

21 As earlier mentioned, the Dean took the last mentioned course. Under the Policy, if the Dean takes this course he is under no duty to notify the student. However, if the Dean decides to deal with the matter himself (or herself) and decides to take no action against the student or impose one of the three lesser penalties he is required to notify the student of the outcome (cl 5.6.1). Clause 5.7.1 of the Policy enables the DVC (Ac), after receiving a report from the Dean under cl 5.6.1(c) to declare the student guilty of academic misconduct and take the course of failing the student in the subject and excluding the student from the University completely for a specified period of at least two years.

22 Clause 6.1 of the Policy provides

Lodging Appeals

A student contesting a decision of the Dean or the Deputy Vice Chancellor (Academic) made under this Policy may appeal to the Academic Misconduct Appeals Committee of the Academic Senate. Appeals shall only be made on procedural grounds, or in other words should focus exclusively upon the correct application of University regulations, by the University, to the case in question. An appeal will not be an opportunity to revisit the substantive matter of the case, except insofar as it relates to procedural matters. The Academic Secretary may reject appeals which do not meet these criteria.

The appeal must be lodged in writing with the Academic Secretary within twenty-one days of the date of notification of the decision unless granted an extension of time by the Academic Secretary.

A student may appeal against:

(a) a finding of academic misconduct; and/or

(b) a penalty imposed upon him/her; and/or

(c) the severity of the penalty imposed.

23 However, Counsel for the University submitted that it was unnecessary for the Court to engage in what would be an arrid construction exercise of cl 6.1.1 because of the attitude and actions taken by the University as manifested in the letter of 23 April 2008 from the solicitors for the University, the DVC (Ac) and the Academic Secretary that the appointment had been arranged of an Academic Misconduct Appeal Committee in accordance with cl 6.2 of the Policy to hear the plaintiff’s appeal lodged on 29 November 2007 against the severity of penalty, that the decision of the University communicated to the plaintiff by letter of 4 December 2007 from the Academic Secretary “will be withdrawn and the Appeal Committee will consider and determine her appeal against severity of penalty … in accordance with clauses 6.2.2 to 6.2.6 of the University Academic Misconduct Policy”.

24 The University took the view that it had the power to waive or not insist upon the provision in the Policy that the appeal be restricted to procedural grounds. It was the Policy of the Academic Senate and notice had been given of the University’s approach. No objections had been raised by the plaintiff who was legally represented. Her solicitors made written submissions on her behalf. These were primarily directed to her appeal on the ground that the penalty imposed was too severe. She did not suggest that the Appeals Committee lacked jurisdiction to hear her appeal against the severity of the penalty imposed.

25 The Appeals Committee may uphold, vary or quash the decision of the DVC (Ac) (cl.6.2.2). In varying the penalty the Committee is to take the action which it considered should have been taken from the range of options (a) to (h) in cl 5.5.1.

26 Under cl 6.2.3.4 of the Policy a Committee is required to adhere to the principles of natural justice but it was not bound to follow legal procedures nor to observe the rules of evidence.

27 In conducting an appeal a Committee is to follow the “Academic Appeals Committee – Hearings” procedures. The procedures have the stated object “to ensure that the principles of natural justice shall apply to hearings conducted by a Committee" and are unexceptional. Clause 4.1 of the Hearing procedures reiterates that the Committee shall not be bound to follow legal procedures or observe the policies of law governing the admission of evidence.

28 Clause 6.2.5 of the Policy provides:

“The findings of the Academic Misconduct Appeals Committee shall be contained in a report signed by all members of the Committee. The report shall give reasons for its findings. Where the appellant has appealed against a decision or penalty on more than one ground the Committee shall give reasons for its findings on each ground.

The decision of the Academic Misconduct Appeals Committee shall be final …”

29 The material placed before the Committee by the University was somewhat more extensive than that placed before the DVC (Ac) in that it included:

(a) The affidavit of Lyndall Angel of 7 May 2008 in these proceedings deposing to a conversation she held with Mr Wassef on 29 April 2008 and subsequent telephone voice message which she had had transcribed. That message was based upon Mr. Wassef looking at faxed copies of two forms. The message is serious as it suggests that certain handwriting and a signature on the Externship Supervisors Assessment Form are not his. Great care would have to be exercised as to this, particularly, the suggestion that the signature purporting to be his is not his.

(b) The affidavit of Nicholas Drengenberg of 2 May 2008 in these proceedings setting out the history of the plaintiff at the University and the materials sent to and accessed by her, details of PHM315 and her externship, the history and substance of the complaint and investigation including its progress through the University, character references submitted by the plaintiff after the decision of the DVC (Ac) and associated documents. Some of the voluminous materials attached to this affidavit came into existence prior to the DVC (Ac) making his decision on 12 November 2007 although some came into existence subsequently.

(c) The affidavit of Nicholas Drengenberg of 13 May 2008. This refers to an additional matter, namely an application for special consideration by the plaintiff due to her ill health made in late November 2005 and granted. She later sat for a supplementary exam which she passed.

30 While there was additional material of consequence in some of the affidavits filed in the proceedings, copies of which were placed before the Appeals Committee, the affidavits gathered in an accessible form much of the material before the DVC (Ac).

The Committee’s Reasons

31 The Committee described its report as that of the Appeals Committee established to hear the plaintiff's appeal "against the severity of the penalty imposed upon her by the [DVC (Ac)] as a result of being found guilty of academic misconduct in the subject PHM315…".

32 The Committee set out what they regarded as the "substantiated facts". These included:

· "that the appellant (plaintiff) submitted for assessment in the subject PHM315 falsified documents relating to an externship which indicated that she had completed the externship when she hadn’t"; [it was not stated who had falsified the documents but it was clear that the plaintiff knew that they were false];

· that the appellant’s father fell ill on 8 September 2007;

· that a random audit of student externships in the subject PHM315 was conducted … on or about 22 October 2007;

· "that the appellant’s admission to having submitted falsified documents … was first made to Assoc. Prof. Maree Simpson on 24 October 2007 and that this admission was made after the appellant became aware that a random audit of student externships in the subject had been conducted and that the University had been advised by three members of staff at the pharmacy that the appellant had not completed the externship".

· that the Manual entitled “Bachelor of Pharmacy Course, Externship Program Year 3, 2007 at page 2 states, inter alia, that “any attempt to submit fraudulent log books will be dealt with severely”;

· that the appellant was aware of the University’s Special Consideration Regulations. (Reference was made to her November 2005 application).

33 The Committee also noted that “in deciding not to attend the hearing, the appellant had waived her right to respond or to clarify any facts raised during the presentation of the respondent’s case at the hearing". This statement was attacked by the plaintiff’s counsel on the basis that in the written submissions of her solicitors it had been submitted that if the Committee determined to make findings regarding the level of seriousness of the academic misconduct it would be incumbent upon the Committee to draw attention to those matters that the Committee considered to be adverse to the plaintiff and invite her to comment upon or contradict that material. The Committee gave both the plaintiff and the University the right to be present at the hearing. It sufficed for the University’s purposes that the falsified documents were submitted to it by the plaintiff and that she knew that they were false. The Appeals Committee was entitled to take the view that if the appellant (plaintiff) wanted to clarify or challenge any matter she would attend at the hearing either in person or by tele-conference and do so.

34 The Committee held:

“As a consequence of the hearing, the Committee decided that the decision of the Deputy Vice-Chancellor (Academic) to impose the penalty of failure in the subject PHM315 Pharmacy Practice, in which the academic misconduct occurred, and exclusion from enrolment in the University for a period of two years effective from 12 November 2007 be upheld.

It was the judgment of the Academic Misconduct Appeal Committee, noting the seriousness of the academic misconduct in this case and the fact that a two year period of exclusion is the minimum period of exclusion that may be imposed for academic misconduct, that the penalty recommended by the Head, School of Biomedical Sciences and the Dean, Faculty of Science and imposed by the Deputy Vice-Chancellor (Academic) was lenient rather than severe.

The reasons for this decision are:

* the seriousness of the academic misconduct in this case – taking into account the number and nature of the documents that were falsified, the period of time that elapsed between the appellant’s actions which comprise the academic misconduct and the appellant’s acknowledgement that she had committed academic misconduct, the fact that the admission was only made after she became aware that the matter had been detected by the University and the availability of information about what would happen if externship logbooks were falsified, and

* the experience of the student at University level – the Committee noted that the appellant is a third year full time student and that she has availed herself of the opportunity to apply for and receive special consideration in accordance with the University’s Special Consideration Regulations on a previous occasion during the period of her enrolment in the course and is therefore judged to have been aware of this option at the time that the circumstances, which led to the academic misconduct, occurred.

* The Committee considered the fact that this was the appellant’s first offence of academic misconduct but determined that the seriousness of the academic misconduct and the experience of the student at University level were of sufficient significance to overshadow this criteria.”

Plaintiff's Written Contentions (filed 6 August 2008)

35 Cl 1.4 of the Policy states that it "takes precedence over any other regulations or Policys (sic) dealing with academic misconduct by students made in pursuance of the Charles Sturt University Act 1989". After a detailed review of the extensive terms of the Policy the plaintiff submitted that the correct approach to cl 5.5.1 of the Policy is that the possible outcomes specified in subparagraphs (a) to (h) are in the nature of a hierarchy with the penalties rising according to the seriousness of the outcome. Sub-para (h) is the most serious outcome, the penalty being failure in the particular subject and exclusion from the University. Lesser penalties include failure and suspension for a specified period not exceeding 2 years.

36 The plaintiff submitted that in recommending action under cl 4.4.1(a) in accordance with cl 5.5 of the Policy Assoc. Prof. Angel's selection was not unconfined or unfettered. It was expressly controlled by the terms of the Policy, that is, the person making the recommendation must take into account:

37 The plaintiff submitted that an error common to all of the decisions made by the University to date (putting aside questions of procedural fairness) was that the fact that the student had not previously been found guilty of academic misconduct had not been considered or alternatively that the manner in which the Policy requires those matters to be taken into account in selecting the possible outcome could not reasonably have been considered so that it can fairly be said that each of the decision makers to date has misapplied cl 5.5.1 of the Policy and therefore exceeded the jurisdiction to make a decision in conformity with the Policy. The plaintiff relied upon, by analogy, House v The King (1936) 55 CLR 499 at 504-505.

38 The plaintiff submitted that on a proper reading of cl 5.5.1 only where there was a sufficiently high level of seriousness in the academic misconduct as prescribed by the terms of the policy could the most serious outcome can be reached. It was further submitted that the Policy must mean that before the most serious penalty in 5.5.1 (h) could be imposed the experience of the student at University level did not warrant leniency and the student should have previously been found guilty of academic misconduct.

39 The submissions of the plaintiff mentioned in the previous sentence are incorrect. The Policy requires that regard should be had to the three matters mentioned in cl 5.5.1. The Academic Misconduct Appeals Committee specifically had regard to the three matters mentioned. It was reasonably open to the DVC(Ac) and the Academic Misconduct Appeals Committee to take the view that the actions of the plaintiff in knowingly submitting falsified documents struck at the integrity of the University's assessment process and were so obviously wrongful that little weight should be attached to her experience at University level or not having previously been found guilty of academic misconduct or other mitigating features. Whether either or both of such views was or were taken was initially a matter for the DVC (Ac) and the Academic Misconduct Appeals Committee. It is not a matter for me.

40 The DVC (Ac) stated in his letter of 12 November 2007 that he found the plaintiff guilty of academic misconduct on the basis of the report of an investigation (Assoc. Prof. L. Angel) and the report of the Dean. The report of 29 October 2007 of Assoc. Prof. Angel referred to the plaintiff admitting the submission of falsified documents and not completing her clinical pharmacy placement.

41 Assoc. Prof. Angel then wrote that in view of this she recommended under cl 4.4.1 of the Policy that the Dean recommend to the DVC (Ac) that the student be failed in PHM 315 and be excluded from the University for 2 years. The Dean in his letter of 7 November 2007 found the plaintiff guilty of academic misconduct as specified in Assoc. Prof. Angel's report and made the same recommendation.

42 In none of the three letters ( 29 October, 7 and 12 November) is any reference made to the three matters referred to in cl 5.5.1 as to which regard should be had. The misconduct was self evidently serious. The Policy requires the person conducting the enquiries (cl 4.4.1) to recommend action in accordance with cl 5.5.1 and enables the Dean (cl 5.6.1) to recommend to the DVC (Ac) the penalty in cl 5.5.1(h).

43 Neither the person conducting the inquiries nor the Dean is bound to give reasons for the recommendation made. It is obvious from the terms of their respective letters that the seriousness of the academic misconduct loomed large. I would infer from the terms of the letters or memos of 29 October and 7 November that it was this that led to the respective recommendations made. The matters of the plaintiff's level of experience at University level and her not having previously been found guilty of academic misconduct at the University were not mentioned. The emphasis appeared to be on the serious misconduct. The other two matters may not have made any difference to the recommendations made. Consideration of the plaintiff's experience at University level would probably not assist her. As the evidence stands recommendations were made, by the person conducting the enquiries and the Dean. It does not appear that the DVC (Ac) made further enquiries. He was bound under cl 5.7.1 of the Policy to provide the plaintiff with a copy of the reports of any additional enquiries which he made. In her letter of 29 October 2007 Assoc. Prof. Angel refers to forwarding a statement by Assoc. Prof. Simpson. That sets out some of the circumstances explaining the plaintiff's conduct but they are not referred to by Assoc. Prof. Angel who concentrated on the misconduct.

44 The plaintiff alternatively submitted that on the correct construction of the Policy the University has held out to all people potentially affected by the Policy that it will not make a finding against a student under the Policy that the most serious of the possible outcomes will apply except in circumstances where each of the considerations mandated to be taken into account warrant that outcome being selected. This submission is not correct. Regard can be had to each of the three matters mentioned in cl 5.5.1 and elsewhere without giving them equal weight. Further the seriousness of the academic misconduct may be such that a penalty such as that outlined in sub-paragraph (h) is justified notwithstanding the experience of the student at University level or the student not having previously been found guilty of academic misconduct.

45 Based on the plaintiff's contention as to the correct construction of the Policy it was submitted that it was a denial of procedural fairness for the University in the present case to depart from that construction without first putting to her that it intended to depart from that construction and seeking her comment or critique: Haoucher v Minister for Immigration and Ethinc Affairs (1990) 169 CLR 648. This submission should be rejected. The construction of the Policy advanced on behalf of the plaintiff is incorrect as earlier explained. I have some reservations whether Haoucher should be applied to the present case as the Policy in Haoucher was in explanation of how a statutory power would be exercised. That case differs markedly from the present case where the Policy in cl 1.4 states its precedence. Regard may have to be had to the context in which 'Policy' is used and not just to the use of that word. As this point was not argued, further discussion would be otiose.

46 The plaintiff submitted that an error common to all of the decisions made by the University was that there had been a failure by the decision makers to take into account a relevant (though implied) mandatory consideration, namely that where a student admits to the academic misconduct at an early opportunity, the University is provided with a utilitarian benefit in not being put to the cost and effort of establishing an Academic Misconduct Panel where the student has denied the allegation of academic misconduct. Further, an early admission is likely to shorten and simplify the enquiries to be made. In the present case the enquiries and the report were short and simple. The plaintiff, it was submitted, had shown a willingness to aid and facilitate the University's investigations.

47 Counsel for the plaintiff submitted that the decision makers acting under the Policy were required, in the circumstances of the present case, to take into account that some leniency ought to be applied in the selection of a possible outcome under cl 5.5.1. She had admitted to the academic misconduct at an early opportunity under cl 4.4.1 of the Policy. Counsel further submitted that, in essence, the situation was analogous to an early plea of guilty to a criminal charge: see R v Thomson and Houlton (2000) 49 NSWLR 383, Cameron v The Queen (2002) 209 CLR 339. I doubt whether this principle of sentencing law should be incorporated into administrative law. The Policy envisages a simpler procedure and I doubt if its implementation would lead to the incurring of the expense and the effort involved in a committal hearing and a trial and the associated preparatory work.

48 While serious academic misconduct may involve the imposition of stern penalties, the criminal law involves sanctions of a different order. While it would be permissible for the decision makers to have regard to the utilitarian value of the plaintiff's admissions they were not bound to do so.

49 Counsel for the University pointed out that Assoc. Prof. Angel knew of the plaintiff's admissions and incorporated them in her report of 29 October 2007 as did the Dean and the DVC (Ac) who proceeded on the basis of her report. The Academic Misconduct Appeal Committee was also made aware of her admissions. That Committee noted that they were not made until after she became aware that the University had made enquiries and was aware of what she had done.

50 The University submitted that the plaintiff had not identified the legal basis for any entitlement to review a decision on the basis of an alleged failure to comply with (or take into account) an implied consideration. Hence it should not be taken into account. It is putting the matter too widely to suggest that there cannot be implied considerations. However, it is a different question to imply an obligation, analogous to sentencing law, that the utilitarian value of an admission must be taken into account.

51 It is one thing to be aware of the admission. It is another to appreciate its utilitarian value. This utilitarian value was pointed out in para 13 of the plaintiff's submissions to the Academic Misconduct Appeal Committee. That Committee in its finding and reasons did not advert to the utilitarian value of the admission but to it not having been made until after she became aware that her submission of falsified documents had been detected.

52 The plaintiff submitted that the decision of the Academic Misconduct Appeal Committee was made in jurisdictional error for the reason that the Committee (sitting to determine an appeal) made findings of fact which it was not permitted to do either under the Policy (see Mitchell v Royal New South Wales Crime Council Limited (2001) 52 NSWLR 242 or because it had not given the plaintiff a proper opportunity to comment upon or contradict the materials it intended to use (Kioa v West (1985) 159 CLR 550). I do not agree that the Academic Misconduct Appeals Committee was not permitted to make findings of fact under the Policy. It had to give reasons for its findings. An essential and often the first step in such a process is determining the facts. Further, I do not agree that a proper opportunity was not given to the plaintiff to comment on or contradict the materials on which the University relied. Most of them were forwarded to the plaintiff about 7 May 2008 and supplemented on one point on 15 May 2008. The plaintiff was also invited to attend the hearing. Her solicitors forwarded submissions on penalty on or shortly before 20 May 2008. These were supplied to the members of the Appeal Committee on that day.

53 The plaintiff placed reliance on:

Mitchell

Weinburger v Inglis [1919] AC 606

Etherton v Public Service Board [1983] 3 NSWLR 297

54 In evaluating the seriousness of the academic misconduct the Appeal Committee took into account "the number and nature of the documents that were falsified". The plaintiff contended that the documents were not identified in the Committee's reasons and it was not known which documents were considered. While it is true that the documents were not identified in the Committee's reasons there were three falsified documents before the Committee, that is, the Externship Site Form, the Externship Supervisor's Assessment Form and the Placement Workbook and they all pointed to the completion of the external placement. The information included in the transcribed telephone message referred to in the affidavit of Assoc. Prof. Angel is not included in the "substantiated facts" found by the Appeal Committee. It simply found that the plaintiff submitted for assessment in PHM315 falsified documents. That is the pivotal finding.

55 I do not regard the statement of the Committee that "the admission was only made after she became aware that the matter [submission of falsified documents] had been detected by the University as being relevantly ambiguous and unfair.

56 In Mitchell , Ipp AJA, with whom Mason P and Stein JA agreed, analysed the findings of the Committee of inquiry and held that they were materially ambiguous and defective. Ipp AJA followed R v General Medical Council, Exp Gee [1987] 1 WLR 564 and held that as the committee of inquiry did not make plain which of the allegations of fact it found proved it was not apparent whether the appellant was found guilty of dishonesty or discreditable conduct or both.

57 As to the submission of the falsified documents, the words "knowingly submitting" were not used but it is clear that that was meant from the time the plaintiff spoke with Assoc. Prof. Simpson on 24 October 2007. There was no question of the plaintiff not knowing or appreciating what she was doing and no question of accident or mistake or inadvertence.

58 The present case differs from Mitchell. The plaintiff admitted to submitting falsified documents as evidence of her completed task for the placement in PHM 315. Irrespective of whether she was aware that Mr Wassef had not signed the Supervisor's Assessment Form (as he suggests) she had submitted a falsified document in that it conveyed that she had attended the Kaleen Plaza Pharmacy carried out certain tasks and behaved commendably and diligently.

59 In his classic judgment in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 Tucker LJ, after pointing out that there are no words which are of universal application to every kind of inquiry and every kind of domestic tribunal, continued:

"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter, that is being dealt with and so forth".

60 The circumstances of this case include the plaintiff not attending the hearing and not answering or clarifying for the Committee any questions the Appeal Committee had on any of the evidence and admitting that she had submitted falsified documents, being the two Forms and the workbook, as evidence that she had completed her placement. The inquiry was as to the severity of the penalty imposed.

61 As to the complaint that the plaintiff was not on notice that her experience as a student might be used against her, the Policy required regard to be had to her experience at University level. Regard was had to such experience. This is not necessarily a mitigating factor.

62 The complaint that she was not on notice that any delay in making admissions might be used against her is covered later when dealing with the Appeal Committee's reasons.

63 I do not regard the decision of Etherton v Public Service Board [1983] 3 NSWLR 297 on which the plaintiff relied, as being of direct relevance except in so far as it refers to passages emphasising that what is to be done in order to comply with the requirements of natural justice will depend upon the circumstances. That was not a case where there was an admission of the kind here in question. It dealt with the supply of particulars where a disciplinary charge was preferred which could lead to dismissal and the Tribunal was quasi-judicial and to the necessity of making clear the case being made against the officer. It was not sufficient to supply a bundle of documents in advance.

64 The plaintiff submitted that the Appeal Committee misconceived the effect of the Policy in requiring expulsion for a minimum period of two years without considering whether this was the most appropriate outcome for selection. Reliance was placed, by analogy, on Dinsdale v The Queen (2000) 202 CLR 321. This submission does not adequately allow for what the Committee did. It set out its factual findings, noted the seriousness of the academic misconduct and held that the penalty recommended to and imposed by the DVC (Ac) should be upheld and was lenient rather than severe.

65 The Committee did not in its report go through each of the alternatives in cl 5.5.1 or discuss any other outcome mentioned in that provision. It should not be assumed that the Appeal Committee was unaware of them. The Appeal Committee was primarily influenced by what it was entitled to regard as the seriousness of the academic misconduct. Reliance was also placed on her experience at University level which revealed that she applied for special consideration in a subject in November 2005.

66 Having taken the view, after considering the facts, that the penalty recommended and imposed was lenient, the Appeal Committee was not required to do more. Pursuant to cl 6.2.2(a) of the Policy the Appeal Committee expressly upheld the decision of the DVC(Ac). I would not incorporate all the requirements and features of criminal sentencing law into the proceedings before an Appeal Committee.

67 The plaintiff further submitted that if the matters of which she complained were addressed in the Appeal Committee's decision making process this was not properly explained in the Appeal Committee's reasons. This constituted a denial of procedural fairness as the plaintiff was entitled to know that a decision to expel her was made rationally on the appropriate materials. Reliance was placed on Romeo v Asher (1991) 29 FCR 343 at 362; Yung v Adams (1997) 80 FCR 453.

68 The Appeal Committee's findings of fact and reasons make clear why it reached its decision upholding the decision of the DVC (Ac). It was not required to do more.

69 The plaintiff challenged the decision of the DVC (Ac) on the basis that the mandatory relevant considerations of the plaintiff's experiences as a student and that she had not previously been found guilty of academic misconduct were not obviously taken into account by him in the reasons given for his decision. The DVC (Ac) was not bound to give reasons. He acted on the basis of the reports and recommendations made by the Head of School and the Dean. The report of the Head of School revealed what the DVC (Ac) was entitled to regard as a serious case of academic misconduct. The Dean acted on what was stated in the report. He was not bound to give reasons for his recommendation. What could reasonably be regarded as the seriousness of the academic misconduct appeared to lead to the recommendations made by the Head of School and the Dean and the decision of the DVC (Ac).

The written Submission of the Defendants

70 The Defendants contended that the plaintiff's submissions appeared to be in support of a case that had not been pleaded and failed to address the case that had been pleaded. The Defendants' submissions were prepared on the stated assumption that the plaintiff sought judicial review of the University's decisions on the basis that the University lacked jurisdiction to make the decisions and that it did not afford procedural fairness to the plaintiff. I will not rehearse the defendants' submissions. However, in view of their contention as to the scope of the pleadings it is necessary to make reference to the issues raised, my conclusions and reasons. This involves some repetition.

The Amended Statement of Claim

71 The Amended Statement of Claim filed in Court pursuant to leave granted on 21 August 2008 ("ASC") relied on the Student Academic Misconduct Policy and alleged that the selection of an outcome for academic misconduct was to be made pursuant to cl 5.5.1 of the Policy. That applies to the person conducting the enquiries (Head of School). Similar provisions apply in respect of the Dean (cl 5.6.1) and the DVC (Ac) (cl. 5.7.1) with the addition that each is to have regard to the recommendation made to him or her.

72 The Amended Statement of Claim proceeded upon the basis of particular constructions of the terms of the Academic Misconduct Policy many of which I was not able to accept for the reasons earlier given.

73 I accept, as alleged, that the University in making a decision to exclude a student under cl 5.5.1 of the Policy had to take into account the experience of the student at University level and whether or not the student had previously been found guilty of academic misconduct. I do not agree that the experience of the student at University level was necessarily a matter of mitigation. That is unlikely to be so in the case of a student who had been at the University for a number of years and had made an application or applications for special consideration when difficulties had arisen or was aware that such applications could be made and would be granted if sufficient cause was shown. If a student had not previously been found guilty of academic misconduct that is a mitigating factor to be taken into account. How much weight is given to it is another matter.

74 I do not agree with the contention that it was a term of the Policy that the most serious outcome of exclusion under cl 5.5.1 of the Policy could not be determined to be the appropriate outcome unless the student had previously been found guilty of academic misconduct. That is not what the Policy says or implies. The only obligation is to take the matter into account. The seriousness of the academic misconduct must always be at the forefront of the mind of those making recommendations and of the decision makers.

75 The allegation in para 11 of the ASC that it was a term of the Policy that the University would advise a student of the reasons for selecting an appropriate outcome under c 5.5.1 of the Policy is too broadly stated. If the matter reaches an Appeal Committee it has the duty to make a report setting out its findings and its reasons for those findings (cl 6.2.5 of the Policy). It did so. The person conducting the enquiries (Head of School) has a duty to advise the student in writing of the nature of the information and/or evidence which led to the enquiry, the enquiries made and the findings and the recommendation made to the Dean. That was not done. Under clause 5.6.1 the Dean does not appear to be under a similar obligation where the academic misconduct is admitted.

76 In his letter of 12 November 2007 notifying his decision the DVC (Ac) forwarded to the plaintiff a copy of the letters of 29 October of Assoc. Prof. Angel and a copy of the letter of the Dean of 7 November 2007 and stated that it was on the basis of the reports that he found her guilty of academic misconduct advised her that he was acting under cl 5.7.1 (c) of the Rule (? Policy). While the DVC (Ac) was under no obligation to give reasons he made clear the basis of his decision.

77 Clause 5.7.1 is primarily directed to the case where the DVC (Ac) receives a report from the Dean pursuant to cl 5.6.1 ( c) and there has been a report from the Academic Misconduct Panel.

78 It would be of advantage to amend the Policy to make the procedure clearer where the academic misconduct has been admitted during or prior to the enquiries conducted by the person making the enquiries, in this case the Head of School. The provisions as to the procedure subsequent to the report of the person conducting the enquiries and making a report under cl 4.4.1 to the Dean and forwarding the documents to the student are less than explicit and apt and require a benign construction of clauses 5.6.1 and 5.7.1 of the Policy, that is, one making all necessary changes to accommodate the case where the academic misconduct is admitted.

79 The plaintiff alleged in para 13 of the ASC that it was an implied mandatory relevant consideration under the Policy for the University its servants or agents, in making a decision as to an outcome to be selected under cl 5.5.1 of the Policy to take into account:

80 Common fairness required that the University take into account that the student admitted the misconduct alleged. The weight to be attached to that admission is for the University to decide. As to items ii) and iii) which are matters arising, by analogy, under criminal sentencing law, I do not think that they can or should be incorporated into administrative law or arise under the Policy. It would be permissible to take them into account when considering the admission and the selection of an outcome but not mandatory.

81 In para 20 of the ASC the plaintiff claimed that as part of the obligation of the DVC (Ac) to afford her procedural fairness she had a legitimate expectation that the DVC (Ac) and the University would apply the Policy according to its express and implied terms or that she would receive notice if he or the University were to not apply the express or implied terms of the Policy in favour of taking an approach not otherwise within the express or implied terms of the Policy.

82 The ASC (para 21) alleged that in making his decision of 12 November 2007 the DVC (Ac), and thereby the University, denied the plaintiff procedural fairness. These particulars were supplied:

(There was no para (1))

(2) The DVC (Ac) failed to make enquiries under cl 5.7.1 of the Policy in failing to seek from the plaintiff any submission as to the appropriate penalty to be selected under cl 5.5.1 of the Policy;

(3) The DVC (Ac) failed to comply with the express terms of the Policy, being clauses 5.7.1 and 5.5.1 in that

sufficient reasons as to whether the matters in (a) had been taken into account or the manner in which those matters were taken into account.

83 I have earlier dealt with the matters raised in (3). As to (2) cl 5.7.1 provides that the DVC (Ac) may conduct further enquiries and within seven days of receiving a report from the Dean under cl 5.6.1 (c) take one of three courses. The DVC (Ac) is not bound to conduct further enquiries.

84 At no stage commencing with the inquiries by the Head of School up to the decision of the DVC (Ac) has the plaintiff given an opportunity to make submissions as to penalty or told of the recommendations of the Head of School or the Dean.

85 In the attack in the ASC on the Committee's decision the plaintiff relied on allegations of a denial of procedural fairness and in substance upon matters expressed in virtually the same substantive terms as those in paras 20 and 21 of the ASC summarised earlier, substituting the Appeal Committee for the DVC (Ac)-see paras 24 and 25 of the ASC.

86 The plaintiff asserted that the Committee failed to advise her with sufficient reasons whether her good experience at University level, not having previously been found guilty of academic misconduct and her early admission of academic misconduct, its utilitarian benefit etc had been taken into account as matters of mitigation. The Appeal Committee took her experience at University level into account and her not having been previously found guilty of academic misconduct. It held that this latter factor was overshadowed by the seriousness of the academic misconduct. The weight to be attached to the various factors and their evaluation was a matter for the Appeal Committee.

87 The plaintiff alleged that she did not receive notice that the Committee might not take the three matters into account as matters of mitigation. Her experience at University level was taken into account by the Committee as was her having not previously been found guilty of academic misconduct. The Committee was not bound to take into account the utilitarian benefit of her admission etc. The Committee was aware of the plaintiff's admission of misconduct.

88 The plaintiff alleged that the findings of the committee that the plaintiff had falsified documents and made admissions only after she had become aware of a random audit being conducted were ambiguous in the sense that they could have been made in order to judge the severity of the academic misconduct which was not a relevant issue for the Committee, which was a denial of procedural fairness meaning that no decision was made.

89 The ASC slightly mis-states and abbreviates the substantiated facts found by the Committee . They were that the plaintiff submitted for assessment in PHM 315 falsified documents and that this admission was made after the plaintiff "became aware that a random audit had been conducted and that the University had been advised….that the [plaintiff] had not completed the externship".

90 I do not agree that the severity (or seriousness) of the academic misconduct was not a relevant issue. The seriousness of the academic misconduct was a major issue when considering the question of penalty.

91 The plaintiff alleged that the University and Committee did not put to her for her comment or critique whether:

1. She had falsified documents; and

2. She had admitted to academic misconduct only after she had become aware that a random audit had been conducted; and

5. Whether the Tribunal was bound by the Policy to find that a minimum period of expulsion was for two years; and

92 The plaintiff alleged that the Appeal Committee thereby deprived the plaintiff of procedural fairness meaning that no decision had been made.

93 The plaintiff was invited to attend at the hearing on 21 May 2008 and given adequate notice. She was also given adequate notice of the materials on which the University proposed to rely. She had admitted academic misconduct as alleged. She was aware from the documents forwarded to her that she could clarify the facts and be questioned on the evidence given to the Committee. The Appeal Committee was not bound to adjourn its proceedings so she could comment on, explain or repel any of the matters listed.

94 The plaintiff further and alternatively alleged that the decision of the DVC (Ac) and that of the Committee were not made in accordance with the Student Academic Misconduct Policy and affected by jurisdictional error and are thereby invalid and incapable of enforcement of the University. The plaintiff relied on "the particulars of non compliance with the Policy"-see paras 20, 24 with respect to the terms of the Policy referred to at 8-12 of the ASC. These are referred to earlier.

Application for Disqualification,
Application for Amendment

95 The argument at the hearing on 21 August 2008 covered the matters raised in the written submissions of the parties and the pleadings and extended further. The validity of the decision of the DVC (Ac) was under challenge principally upon the basis that there had been a denial of procedural fairness. There was also argument whether the subsequent hearing of the appeal before the Appeal Committee "cured" any defect in the proceedings up to and including the decision of the DVC (Ac) on 12 November 20078 and its subsequent notification and also any defects prior to the hearing before the Appeals Committees. Reference was made to Calvin v Carr (1979) 1 NSWLR 1 and the judgment of McHugh J in Re MIMA and Anor; Exp Miah (2001) 206 CLR 57 at 98-102. The decision of the Appeal Committee and the reasons given were also under challenge.

96 On further considering the matter after hearing argument and reserving my decision on 21 August 2008 I doubted whether the Amended Statement of Claim filed in Court on 21 August 2008 sufficiently covered all the evidence that had been adduced and all the arguments advanced. The affidavit of the plaintiff of 16 April 2008 asserted that after her conversation with Assoc. Prof. Simpson on 24 October 2007 she received no further notice of any investigation by the University and was asked no further questions by anyone. She received no notice of any deliberation by the University. It appeared that she heard and received nothing from the University until she received the letter of 12 November 2007 from the DVC (Ac) and the attachments. Assoc. Prof. Angel did not depose to sending a copy of her letter of 29 October 2007 to the plaintiff.

97 On 2 September 2008 I caused a letter to be sent to the solicitors for the plaintiff and the solicitors for the defendant raising what appeared to be omissions.

98 The letter stated that there was no allegation in the Amended Statement of Claim that the DVC (Ac) had a duty to accord the plaintiff procedural fairness by giving her an opportunity to make submissions or be heard on the question of penalty having regard to the material and recommendations before him. The Amended Statement of Claim filed 21 August 2008 in sub para (2) of the Particulars to paragraph 21 stated:

"In making the Expulsion decision [DVC(Ac)] failed to make enquiries under cl 5.7.1 of the Policy in failing to seek from the plaintiff any submission as to the appropriate penalty to be selected under cl 5.5.1 of the Policy".

99 The plaintiff subsequently sought to amend by adding as sub paragraph (1) to the particulars in paragraph 21:

"In making the Expulsion Decision, the First and/or Second Defendant failed to provide to the plaintiff the report and/or recommendations of the Head of School and seek the comments of the Plaintiff which was a denial of procedural fairness".

100 There is a common allegation in both sub paras (1) and (2) of the particulars to paragraph 21, namely, failing to seek from the plaintiff any comments (as to the appropriate penalty). The allegation in para 21 was that the plaintiff had been denied procedural fairness.

101 At the hearing on 21 August 2008 I raised in argument with the parties the terms of the reasons of the Appeal Committee and whether it was permissible in considering the seriousness of the academic misconduct to take into account, if it did:

(a) the period of time that elapsed between the plaintiff's actions which comprised the academic misconduct and her acknowledgement that she had committed academic misconduct and

102 On 16 September 2008 the defendants asked me to disqualify myself on the basis that the letter of 2 September 2008 raised a reasonable apprehension of bias. It was submitted that it was not for the Court after it had received evidence, heard argument and reserved its decision to point to any perceived difficulties in the pleadings arising out of the terms of the evidence or the terms of argument. It was contended that the fair minded observer would reasonably suspect that this would alert the plaintiff to amend and that if she amended she had good prospects of success on the points raised. It was submitted that the case should be decided on the pleadings as they stood when the Court reserved judgment.

103 The letter was cast in provisional terms and accepted that what appeared to emerge may not reflect the true position.

104 In Bayliss v Lea & Anor (1961) SR (NSW) 247 Hardie J after a view and hearing evidence and addresses reserved his decision. It was a contest between adjacent landowners and concerned the construction of irrigation works as to cause water to flow upon the land of the plaintiff that would not otherwise flow thereon or to cause water to flow thereon in a more concentrated manner.

105 On 29 Jul 1959 Hardie J indicated the limitations which arguably arose because of the form of the amended statement of claim and on 4 August 1959 the plaintiff indicated the further amendments which he desired to make. The further amendment was allowed after argument. Further evidence was called and further addresses occurred. Judgment was finally reserved on 8 September 1959. It was delivered on 15 December 1959.

106 The further amendment allowed was made by introducing a new paragraph 4A alleging alternatively to paragraph 4 substantially the same matters as were set out in that paragraph without the introductory or qualifying words "by non natural user". See p 249.4-8 and p250.1-2. In substance the plaintiff's original claim depended on the establishment of a non-natural user and the further amendment allowed a claim on substantially the same facts based on the principles in Sedleigh-Denfield v O'Callaghan (1940) AC 880. There was a distinction between the concept of normal and reasonable user in contradistinction to unnatural and excessive user. The costs orders made by Hardie J only gave the plaintiff his costs up to 27 May 1959 and from 15 December 1959.

107 The appeal against the decision of Hardie J was dismissed bv the Full Court (Bayliss v Lea & Anor [1962] SR (NSW) 521). No application was made to Hardie J to disqualify himself nor was any point as to disqualification taken before the Full Court. The defendants were represented by eminent counsel. The history of the proceedings and the amendment is summarised in the judgment of Manning J on appeal at pp 531-532. Manning J observed at 532 that the further amendment substituted a complaint of "unreasonable" use by the defendants of their land for that of "non natural use".

108 The Defendants placed weight on there having been no challenge in Bayliss v Lea on the basis of a reasonable apprehension of bias.

109 The defendant relied on Galea v Galea (1990) 19 NSWLR 263 and the decisions referred to therein especially at 277-278 (Kirby A-CJ) and 283 (Meagher JA).

110 In my opinion, where the pleadings do not raise or there is doubt whether they raise all the issues emerging from the evidence or in argument a judge is entitled to point out the gaps and give either or both parties the opportunity to consider whether they wish to amend. That does not give rise to a reasonable apprehension of bias. In Bayliss v Lea the remarks of Hardie J as to the gaps led to him permitting amendments and allowing the plaintiff to advance a new basis for his claim.

111 The particular complaint made by the defendants centred upon the Court drawing attention to the gap which arguably appeared to exist in the particulars to paragraph 21 of the Amended Statement of Claim that is, the DVC (Ac) not giving the plaintiff the opportunity to put any submissions as to penalty before he notified her of his decision.

112 I rejected the application that I should disqualify myself from proceeding with the hearing.

113 The defendants opposed the further amendment sought by the plaintiff to paragraph 21 of the Amended Statement of Claim by the insertion in the Particulars to paragraph 21 of sub para (1) set out earlier. They relied on the late stage at which the further amendment was sought.

114 The Defendants submitted that if this complaint had been raised earlier they would have been able to consider whether the DVC (Ac) should re-consider the matter and invite the plaintiff to make submissions as to penalty. That was the prejudice, it was submitted, they suffered. As a result of the point not having been raised earlier they had become involved in a fully contested application. Any relevant prejudice can be met sufficiently by costs orders.

115 I thought that this amendment should be allowed, especially as there was a complaint in paragraph 21 (2) of the ASC of failing to seek from the plaintiff any submission as to the appropriate penalty. The amendment in clause 21 (1) advances the same complaint but on a less restrictive basis. These were particulars of an allegation that the plaintiff had been denied procedural fairness. It was not ultimately in issue that the Head of School had not forwarded a copy of her letter of 29 October 2007 to the plaintiff and that she did not know of the recommendation it contained.

116 The Defendants did not wish to be heard as to the addition to the Particulars under paragraph 26 of the following:

"In addition, without limiting the particulars provided, the University and/or Committee failed to apply the Policy, or asked itself the wrong question in relation to the application of cl 5.5.1 of the Policy, in that it took account of delay of the plaintiff in admitting to the academic misconduct and/or her motive in admitting to the academic misconduct after a random audit had been conducted".

117 After allowing the amendments both parties were given leave to adduce further evidence and make further submission. Neither the plaintiff nor the defendants wished to adduce further evidence but each made further submissions.

DVC (Ac) and Procedural Fairness

118 Counsel for the plaintiff submitted that the DVC (Ac) was bound to accord natural justice to the plaintiff and that included observing the rules of procedural fairness. It was submitted that he should have given her the opportunity to make submissions as to penalty. This was especially so when she had not been forwarded a copy of the report of 29 October 2007 of the Head of School and was not aware of the recommendation of the Head of School to exclude her from the University for 2 years.

119 While there may be some cases where all that would be required is to give the student an opportunity to make written submissions there may be other cases where an oral hearing is required, for example where there are challenges to the truthfulness or accuracy of the evidence of a witness. This is not an issue in the present case as no opportunity of any kind was given.

120 The terms of the policy provide that the person conducting the enquiries into an allegation of academic misconduct may consult with the student or students suspected (cl. 4.2). Such person is not bound to do so. Where an Academic Misconduct Panel is established it is to adhere to the principles of natural justice. Its functions include investigating and determining on the balance of probabilities whether academic misconduct has occurred, and if it has the seriousness of the academic misconduct and to recommend to the Dean on penalties, if any, to be imposed (cl. 5.2). The Panel reports to the Dean.

121 The Policy provides that after receiving a report from the Dean recommending that one of the heavier penalties specified in sub paras (e), (f), (g), or (h) in cl 5.5.1 be imposed the DVC (Ac) may conduct further enquiries and, amongst other things, declare the student guilty of academic misconduct and impose one of the heavier penalties. The student then has to be advised in writing of the finding by the DVC (Ac) and the penalty imposed and supplied with copies of the reports. These include a copy of the report of the Academic Misconduct Panel. As the Panel must comply with the principles of natural justice and make a recommendation as to penalty presumably that Panel would give the student an opportunity to make submissions as to penalty in the event that it finds that there has been academic misconduct and include at least a reference to these in its report to the Dean. Cl 5.5.1 requires the Convenor of the Academic Misconduct Panel to prepare a written report of the investigation which shall give the findings and the reason for the findings and shall recommend to the Dean one of the courses of action specified in sub-cls (a)-(h) of cl 5.5.1 having regard to the seriousness of the academic misconduct, the experience of the student at University level and whether or not the student has previously been found guilty of academic misconduct. It is arguable that the Policy envisages in the case where the Academic Misconduct Panel conducts an investigation and makes a report (including a recommendation as to penalty) that the matter will be dealt with by the Dean and the DVC (Ac) on the papers without a further hearing. It is not necessary to deal with the situation where the Dean or the DVC (Ac) makes further enquiries.

122 With an admission of academic misconduct and the procedure followed of transmission of the report of the person conducting the enquiries to the Dean including a recommendation as to penalty and the transmission to the DVC (Ac) of the report of the person conducting the enquiries and the report of the Dean including his recommendation as to penalty, no opportunity is given to the student to make submissions as to the penalty and she was given none in this case. She was not told of the recommendation prior to the imposition of the penalty.

123 In her submissions of 26 September 2008 counsel for the defendants pointed out that there was no requirement under cl 5.7.1 of the Policy for the DVC (Ac) to seek the comments of the plaintiff. There is no express requirement but that is not an end of the matter where a student has not been given an opportunity to make submissions on penalty, especially where she has not been told of the recommendation made. It is unnecessary for me to resolve whether the duty to accord natural justice derives from or is implied by the common law.

124 In my opinion there is nothing in the Policy which would, in the case of an admission of academic misconduct and the procedure to be followed and that followed in the present case which would displace or modify the duty to observe the principles of natural justice including the rules of procedural fairness derived from or implied by the common law prior to the DVC(Ac) imposing a penalty (or selecting an outcome).

125 Some of the cases to which I was referred deal with the impact of Federal legislation on the rules of natural justice, for example, Exp. Miah (2000) 206 CLR 57. At [90] Gaudron J referred to the debate whether the rules of natural justice derive from the common law or whether they are implied by the common law. She pointed out that whatever approach is adopted, "in the end, the question is whether the legislation, on its proper construction relevantly (and validly) limit(s) or extinguish(es) [the] obligation to accord procedural fairness". While the Policy differs from legislation it does not limit or extinguish the obligation to accord procedural fairness in the circumstance of the present case.

126 At [99] Gaudron J commented:

"The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her".

See also per McHugh J at [140] in Exp. Miah .

Alleged Curing of Defects

127 Does the subsequent hearing before the Appeal Committee "cure" any antecedent defects in the proceedings of the University before the DVC (Ac) and subsequently. In Exp. Miah at pp98-102 McHugh J undertakes a review of this area.

128 It is perhaps best to start with Calvin v Carr [1979] 1 NSWLR 1. Mr Calvin, a member of the Australian Jockey Club was disqualified by the Club and stewards for a breach of the Rules Racing of the Club on the basis that the jockey of a horse of which he (Calvin) was part owner deliberately caused the horse not to run on its merits, and that the member was a party to this. The Committee of the Club dismissed the member's appeal. Horse racing was regulated by the Rules of Racing of the Australian Jockey Club and the AJC Act. That club was an unincorporated association whose affairs were managed by the committee. Section 32(2) of the AJC Act provided that an appeal to the AJC Committee was to be in the nature of a re-hearing.

129 At p 10 Lord Wilberforce speaking for the Privy Council said:

“… no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing whether administrative or quasi judicial can be “cured” through appeal proceedings. The situations in which this issue arises are too diverse and the rules by which they are governed so various, that this must be so.”

130 Their Lordships held that the appeal remained an essentially domestic proceeding and that all those who partake in horse racing had accepted the Rules of Racing and to be bound by the decisions of the bodies set up under those rules so long as when the process of reaching these decisions has been terminated they can be said by an objective observer to have had fair treatment and consideration of their case on merits. Their Lordships had earlier (p 12) stated that the tendency in matters of domestic disputes, apart from flagrant cases of injustice, including corruption and bias, should be to leave these to be settled by the agreed methods without requiring the formalities of judicial process to be introduced.

131 In Exp Miah, (2001) 206 CLR 57 at 99 and following McHugh J pointed out that the insistence by the High Court of Australia of “plain words of necessary intendment” to exclude the rules of natural justice has led courts to reject the view that a right of appeal might provide an answer to a complaint that procedural fairness was denied in relation to an initial determination. He added, “The cases indicate, however, that the presence or absence of certain factors can often be relevant in determining whether such a right does exclude or limit the rules of natural justice".

132 Mc Hugh J then referred to a number of factors. He said, “The closer a decision is to having finality and having immediate consequences for the individual, however, the more likely it is that natural justice requirements apply.

133 In the present case the decision of the DVC (Ac) declaring the student guilty of academic misconduct and imposing a penalty was final subject to the student appealing to the Academic Misconduct Appeals Committee within 21 days or such further time as might be allowed. If there is no appeal the DVC (Ac) must ensure that the penalty imposed has been enforced.

134 McHugh J stated at 100:

“In some cases, whether or not the initial decision is made in public or private is relevant to determining whether the rules of natural justice apply to that decision. This is particularly so in preliminary decisions which would not otherwise call for natural justice. Thus, cases where a person’s reputation is likely to be affected may require a fair hearing at first instance.”

135 At 100 McHugh J pointed out that where there is no obligation to provide reasons and no formal procedures that supports the inference that the right of appeal excludes the rules of natural justice. In the present case there were formal procedures but the policy did not require the DVC (Ac) to provide reasons. He was required to advise of his finding in writing and when imposing a penalty under cl 5.7.1(c) he was required to have regard to the matters specified.

136 At 101 McHugh J said:

“In contrast to courts, appellate bodies internal to the same organisation as the original decision-maker are less likely to be independent. This is a factor requiring the rules of natural justice to be applied at all levels of decision-making. Some internal appellate processes, however, may indicate such independence on the part of the tribunal or have such statutory authority that it is proper to infer that the initial decision-maker was not required to accord natural justice even if the appellate body is a ‘domestic’ one. ‘Domestic’ means the processes are founded on consensual acceptance.”

137 Clause 6.2.1.1 provides that an Academic Misconduct Appeals Committee shall be appointed by either the DVC (Ac) or the Presiding Officer of the Academic Senate from a panel of eligible members. The Appeals Committee as constituted in the present case comprised two Associate Professors and a student member from a faculty other than that in which academic misconduct occurred appointed in consultation with the University Students’ Association. Such an Appeal Committee could fairly be regarded as independent.

138 At 101 McHugh J stated that perhaps one of the most important factors was the breadth of the appeal. He added:

de novo

139 I have earlier referred to the difficulties in interpreting cl 6.1 of the Policy. The provision 'Appeals shall only be made on procedural grounds' does not point to a complete de novo appeal. The right of appeal conferred under the Policy was probably restricted but the University of its own motion and volition, in effect, enlarged the right of appeal after the institution of these proceedings. As at 12 November 2007 cl 6.1 of the Policy governed the right of appeal and, on one view permitted but a very limited appeal. The position has to be evaluated as at that date. Cl 6.1 was given a very limited operation by the University on 4 December 2007. The advice as to the enlargement of the rights of appeal occurred about 22 April 2003.

140 Because of the provision arguably limiting the rights of appeal the decision of the DVC (Ac) of 12 November 2007 was of considerable importance; the plaintiff could not effectively take the question of penalty further. This was illustrated by the letter of 4 December 2007 of the Academic Secretary.

141 In Hill v Green (1999) 48 NSWLR 161 (referred to by McHugh J in Exp Miah at [146] note 88) both Spigelman CJ at [55] and Fitzgerald JA at 163 held that the suggestion sometimes made that an appeal "cures" a failure by the primary decision maker is not based on principle and that issue arises at the stage of the exercise by the Court of its discretion to grant relief. At [55] Spigelman CJ said, "The nature of the appeal and the circumstances of the case will all need to be considered in dealing with a submission that relief should be denied by reason of the availability of a right of appeal" (citation omitted).

142 I have previously discussed "the nature of the appeal and the circumstances of the case". Notwithstanding the essentially domestic nature of the dispute I am of the opinion that the arguably limited nature of the appeal from the important decision of the DVC (Ac) cannot be interpreted as abrogating the obligation to provide procedural fairness on the part of the DVC (Ac) in the circumstances of the present case. Applying the comment of McHugh J at 101-102 in Exp. Miah the nature of the interest of and consequences for the plaintiff as well as the subject matter under consideration, namely, the dishonesty and the resulting attack on the integrity and standing of the University's academic processes were important.

143 In my opinion there was a denial of procedural fairness in the DVC (Ac) imposing a penalty without giving the plaintiff an opportunity to make submissions, especially when she was not advised of the recommendations as to penalty made by the Head of School and the Dean. There is no sufficient reason to refuse declaratory relief.

Reasons of Appeal Committee

144 I have earlier set out the terms of the Particulars added to paragraph 26 of the Further Amended Statement of Claim.

145 In dealing with the seriousness of the academic misconduct the Committee has taken into account

(i) the number and nature of the documents that were falsified;

(ii) the period of time that elapsed between the appellant’s actions which comprise the academic misconduct and her acknowledgement that she had committed academic misconduct;

(iii) the fact that the admission was only made after she became aware that the matter had been detected by the University; and

(iv) the availability of information about what would happen if externship logbooks were falsified.

Items (i) and (iv) bear upon the seriousness of the academic misconduct.

146 In her submissions of 26 September 2008 counsel for the defendants contended that in considering an appeal Rule 6.2.2 does not limit the matters that can be taken into account by an Academic Misconduct Appeal Committee (AMAC) to the matters considered by a Dean or DVC (Ac) under rule 5.5.1. It was only in circumstances where having considered the matters before it, an AMAC decides to vary the penalty from that imposed by a Dean or DVC (Ac) that it must put itself in the position of the original decision maker and take the action it considers should have been taken under Rules 5.5.1 (a) to (h). In view of the substantial correspondence of the matters that the DVC (Ac) has to consider under cl 5.7.1 (c) with those under cl 5.5.1 I doubt if this point is of consequence. On a question of severity of penalty when the DVC (Ac) has not given the student an opportunity to make submissions and adduce materials on that point it is probably correct that an AMAC can receive materials and submissions relevant to penalty. Cl. 6.2.2 of the Policy does not specify the nature of the appeal. Is it a rehearing or a hearing de novo?

147 It was also submitted by counsel for the defendants that in para 13 of the plaintiff's submissions the AMAC was asked to consider "Ms Tadros had admitted her mistake at an early opportunity". Counsel submitted that Ms Tadros had been advised that the AMAC would have before it the email of I. Reed to L.Angel of 24 October 2007 and of R. Wassef to Mr Reed of the same date and that the AMAC was entitled to take these maters into account in reaching its decision.

148 It was not suggested that all the circumstances surrounding the admissions could not be taken into account. What was in issue was the manner in which they had been taken into account.

149 The matters raised by items (ii) and (iii) are general considerations and not necessarily tied closely to the terms of the Policy. Admissions of misconduct are mitigating factors even when made after discovery of the misconduct. They do not contribute to the seriousness of the academic misconduct.

150 I have in mind the caution of Lord Wilberforce in Calvin v Carr at p 12 not to introduce too great a measure of formal judicialisation into disputes which are essentially of a domestic nature. This was not the case of a public official exercising a statutory power. I also bear in mind that the Committee members are not lawyers and should not be expected to approach the matter as lawyers. The words which they used should not be read over critically or too finely . It was for the Committee to consider the seriousness of the offence and decide the weight to be attached to any mitigating factor when considering the penalty. Nevertheless, after making all due allowances and resisting over-judicialisation of the process, it seems that the Committee members have treated items (ii) and (iii) mentioned earlier as being part of, or contributing to, the seriousness of the academic misconduct. That involves a mis-direction on their part and is incorrect. It would be implied that the Appeal Committee would not misdirect itself.

Relief

151 Any relief granted should be confined to declaratory relief as to the decision of the DVC (Ac) of 12 November 2007 and the decision of the Appeal Committee. The relief should not have the effect of preventing the University dealing further with the matter. There is no obstacle to the DVC (Ac) dealing with the matter further. If he does so, he should give the plaintiff the opportunity to make submissions as to penalty and then consider the whole matter afresh and determine which of the outcomes permitted should be selected. It will be a matter for him on considering the matter afresh whether he imposes the same penalty or a lesser penalty. If there is to be any widening of the allegations of misconduct ( and I make no comment in that regard) that may lead to the matter originating with the person conducting the enquiries, and being transmitted through the Dean with his report including recommendation as to penalty. It should be made clear to the plaintiff on what material the DVC (Ac) is acting and the precise allegations that the plaintiff has to meet.

152 Counsel stated that the plaintiff was anxious to return to the University and resume her studies. Counsel sought an injunction to prevent the University implementing its decisions. Counsel relied on cl 1.5 of the Policy which entitled the student to remain enrolled at the University during the enquiries, the investigation and an appeal to the Academic Misconduct Appeals Committee.

153 I do not propose to grant an injunction. Academic Misconduct of some seriousness was admitted. The University is entitled to a reasonable time to consider its position and take whatever action it considers appropriate. The present academic year is drawing to a close and the new academic year will start in the early months of 2009.

154 I am prepared to hear counsel as to the relief which should be granted but my present view is that the following relief should be granted:

(a) Declare that the decision of Charles Sturt University (via the Deputy Vice Chancellor Academic made on or about 12 November 2007) whereby the penalty imposed was that the plaintiff be failed in the subject PHM 315 and be excluded from the University for a period of 2 years from that date is void.

(b) Declare that the decision of Charles Sturt University (via the Academic Misconduct Appeal Committee thereof) made on or about 21 May 2008 upholding a penalty upon the plaintiff of being failed in the subject PHM 315 and of being excluded from the University for a period of 2 years from 12 November 2007 is void.

155 I reserve all questions of costs. Costs and the form of relief may be argued on a date to be arranged with my Associate.

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03/11/2008 - publish judgment reasons - Paragraph(s) judgment

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Citations

Tadros v Charles Sturt University and 2 Ors [2008] NSWSC 1140

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CITATION:	Tadros v Charles Sturt University and 2 Ors [2008] NSWSC 1140 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21 August 2008, 16, 26 and 29 September 2008
JUDGMENT DATE :	30 October 2008
JUDGMENT OF:	Smart AJ at 1
DECISION:	See paras 154 and 155.
CATCHWORDS:	Correct Construction of Student Academic Misconduct Policy - Requirements of Natural Justice - Duty of Procedural Fairness - Whether required by primary decision maker - Meaning of Internal Appeal Provision - University withdrawing refusal to hear appeal - Whether subsequent hearing of appeal "cures" any prior defects or should lead to refusal of relief on discretionary grounds - Academic Misconduct capable of being regarded as serious - Appeal Committee erroneously including certain factors as bearing upon the seriousness of the offence - Relief limited to declarations.
LEGISLATION CITED:	Nil.
CATEGORY:	Principal judgment
CASES CITED:	Bayliss v Lea & Anor (1961) SR (NSW) 247 Calvin v Carr (1979) 1 NSWLR 1 Dinsdale v The Queen (2000) 202 CLR 321 Etherton v Public Service Board [1983] 3 NSWLR 297 Galea v Galea (1990) 19 NSWLR 263 Haoucher v Minister for Immigration and Ethinc Affairs (1990) 169 CLR 648 Hill v Green (1999) 48 NSWLR 161 House v The King (1936) 55 CLR 499 Kioa v West (1985) 159 CLR 550 Mitchell v Royal New South Wales Crime Council Limited (2001) 52 NSWLR 242 R v General Medical Council, Exp Gee [1987] 1 WLR 564 R v Thomson and Houlton (2000) 49 NSWLR 383, Cameron v The Queen (2002) 209 CLR 339 Re MIMA and Anor; Exp Miah (2001) 206 CLR 57 Romeo v Asher (1991) 29 FCR 343 Russell v Duke of Norfolk [1949] 1 All ER 109 Sedleigh-Denfield v O'Callaghan (1940) AC 880 Weinburger v Inglis [1919] AC 606 Yung v Adams (1997) 80 FCR 453
TEXTS CITED:	Nil.
PARTIES:	Sherrie Maria Tadros v Charles Sturt University Deputy Vice Chancellor (Academic) of Charles Sturt University and Academic Secretary of Charles Sturt University
FILE NUMBER(S):	SC 30018/2008
COUNSEL:	M. Seymour (P) C. Simpson S.C. and J. Oakley (D's)
SOLICITORS:	Trump Spader (P) Eakin, McCaffery & Cox (D's)