Western Sydney University v Thiab

[2023] NSWCA 57

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Western Sydney University v Thiab [2023] NSWCA 57

Hearing dates:

28 February 2023

Date of orders:

29 March 2023

Decision date:

29 March 2023

Before:

Bell CJ, Meagher JA, Leeming JA

Decision:

1.       Grant leave to appeal.

2.       Appeal allowed with costs.

3.       Set aside the orders of the primary judge made on 21 June 2022 and, in lieu thereof, order that the Amended Summons be dismissed with costs.

Catchwords:

EDUCATION – universities – discrimination on the basis of political affiliations, views or beliefs – challenge to internal university disciplinary decisions – s 35 of Western Sydney University Act 1977 (NSW) prohibits denial of progression within the university on the basis of political affiliations, views or beliefs – where university cancelled clinical placements of nursing student who expressed scepticism about the safety and efficacy of COVID-19 vaccination while attending placements – where university subsequently imposed disciplinary sanctions – whether views or beliefs expressed by student were “political” within meaning of s 35 – whether the adverse action taken by the university was taken “because of” student’s views

HUMAN RIGHTS – discrimination – grounds – political discrimination – challenge to internal university disciplinary decisions – s 35 of Western Sydney University Act 1977 (NSW) prohibits denial of progression within the university on the basis of political affiliations, views or beliefs – where university cancelled clinical placements of nursing student who expressed scepticism about the safety and efficacy of COVID-19 vaccination while attending placements – where university subsequently imposed disciplinary sanctions – whether views or beliefs expressed by student were “political” within meaning of s 35 – whether the adverse action taken by the university was taken “because of” student’s views

CIVIL PROCEDURE – hearings – procedural fairness – where university cancelled clinical placements of nursing student who expressed scepticism about the safety and efficacy of COVID-19 vaccination while attending placements – where student sought declaratory and interlocutory relief – where university imposed further disciplinary sanctions on student after commencement of proceedings – primary judge made declaration that the disciplinary sanctions were unlawful notwithstanding that student had not advanced an argument to that effect – whether university was fairly put on notice that the lawfulness of the later disciplinary sanctions would be in issue – whether there was a denial of procedural fairness

Legislation Cited:

Anti-Discrimination Act 1991 (Qld) s 7(j)

Anti-Discrimination Act 1992 (NT) s 19(n)

Anti-Discrimination Act 1998 (Tas) s 16(m)

Australian Catholic University Act 1990 (NSW) s 7

Australian William E. Simon University Act 1988 (NSW) s 8

Bond University Act 1989 (Qld) s 6

Charles Sturt University Act 1989 (NSW) s 27

Discrimination Act 1991 (ACT) s 7(n)

Equal Opportunity Act 1984 (WA) s 53

Equal Opportunity Act 2010 (Vic) s 6(k)

Extradition Act 1988 (Cth) s 7(a)

Fair Work Act 2009 (Cth) s 351

Government Sector Employment Act 2013 (NSW) s 7

Higher Education Act 1969 (NSW) s 27

Macquarie University Act 1964 (NSW) s 29

Macquarie University Act 1989 (NSW) s 24

Southern Cross University Act 1993 (NSW) s 25

Supreme Court Act 1970 (NSW) s 101(2)(r)

University Legislation Amendment Act 1994 (NSW) Sch 1

University of New England Act 1993 (NSW) s 24

University of New South Wales Act 1989 (NSW) s 23

University of Newcastle Act 1964 (NSW) s 30

University of Newcastle Act 1989 (NSW) s 24

University of Sydney Act 1989 (NSW) s 31

University of Technology Sydney Act 1987 (NSW) s 32

University of Technology Sydney Act 1989 (NSW) s 24

University of Western Sydney Act 1988 (NSW) ss 27, 29

University of Wollongong Act 1972 (NSW) s 35

University of Wollongong Act 1989 (NSW) s 24

Western Sydney University Act 1997 (NSW) ss 19, 35, 36

Cases Cited:

Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42

Australian Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56

Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32

Browne v Dunn (1893) 6 R 67

Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72

Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7

Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587

Re Macquarie University; Ex Parte Ong (1989) 17 NSWLR 113

Ridd v James Cook University [2021] HCA 32; (2021) 95 ALJR 878

Rumble v Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423; [2020] FCAFC 37

Scott v Scott [2022] NSWCA 182

State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46

Thomas v University of Bradford [1987] AC 795

Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137

Victoria v Commonwealth (1975) 134 CLR 81; [1975] HCA 39

Texts Cited:

B Mansfield and M Hutchinson, Liberality of Opportunity: A History of Macquarie University 1964-1989 (Hale & Iremonger Pty Ltd, 1992)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 April 1964

P Kamvounias and S Varnham, “Legal Challenges to University Decisions Affecting Students in Australian Courts and Tribunals” (2010) 34 Melbourne University Law Review 140

Category:

Principal judgment

Parties:

Western Sydney University (First Applicant)
Leanne Hunt (Second Applicant)
Nera Thiab (Respondent)

Representation:

Counsel:

S Lloyd SC with S J Walsh (Applicants)
P Braham SC with B Necovski (Respondent)

Solicitors:

Thomson Cooper Lawyers (Applicants)
Kanzi Lawyers (Respondent)

File Number(s):

2022/211356

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 760

Date of Decision:

10 June 2022

Before:

Parker J

File Number(s):

2021/332456

HEADNOTE

[This headnote is not to be read as part of the judgment]

In late 2021, Western Sydney University (the University) cancelled certain clinical placements which had been allocated to a nursing student, Ms Thiab, and ultimately imposed disciplinary sanctions on her. In August 2021, when about to commence a clinical placement at a hospital, Ms Thiab disclosed that she was not vaccinated against the COVID-19 virus and declined to undergo screening swabs for the virus, saying that regular swabbing would cause cancer. She was also reported to have said that she was not going to comply with Public Health Orders and that “Dr Kerry Chant was wrong”. The supervising staff member of the hospital told her she could not attend the clinical placement, and the University formally cancelled that placement.

Ms Thiab was subsequently vaccinated against COVID-19 and presented for a further clinical placement at a vaccination hub in October 2021. At the beginning of that placement, she expressed doubts to other healthcare staff about the safety and efficacy of COVID-19 vaccinations. She was reported to have said that she had heard or read that “people would die five years after [being given] the vaccine”; that “in Israel the vaccine wasn’t working”; and that her sister was working in a cardiac ward and had seen patients with heart problems after receiving the vaccine. Concerns about Ms Thiab’s statements were relayed by the medical facility to the University. The student’s placement was cancelled (the cancellation decision), and a disciplinary process initiated against her.

Before the disciplinary process was completed, Ms Thiab commenced proceedings seeking a declaration that the cancellation of her placement contravened s 35 of the Western Sydney University Act 1997 (NSW) (WSU Act). She also sought to restrain the continuation of the disciplinary process but no interlocutory relief was granted.

Section 35 of the WSU Act provides:

“No religious or political discrimination

A person must not, because of his or her religious or political affiliations, views or beliefs, be denied admission as a student of the University or progression within the University or be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of, the University.”

By the time of the hearing at first instance, the University had completed the disciplinary process, in which Ms Thiab elected not to participate. That resulted in the imposition of certain disciplinary sanctions (the disciplinary sanctions).

Although Ms Thiab did not amend her Summons to seek declaratory relief in respect of the imposition of the disciplinary sanctions, the primary judge held that both the cancellation decision and the imposition of disciplinary sanctions were unlawful for breach of s 35 of the WSU Act. His Honour ultimately only made a declaration in respect of the disciplinary sanctions. The primary judge held that Ms Thiab’s views or beliefs about COVID-19 vaccinations and their safety and efficacy were “political” within the meaning of s 35 of the WSU Act, and were the cause of the cancellation decision and the disciplinary sanctions. His Honour rejected an argument that the cause of those two decisions was a concern that Ms Thiab’s anti-vaccination views would result in misinformation being disseminated to patients about the safety and efficacy of vaccination against the COVID-19 virus.

In relation to the primary judge’s conclusion about the cause of the disciplinary sanctions, the University complained on appeal that it had been denied procedural fairness, in that this was not an issue raised by Ms Thiab although she had been given the opportunity to do so by amending the Summons. Further, although the relevant university decision-maker gave evidence in the proceedings, she did not address her reasons for imposing the disciplinary sanctions (as their legality had not been challenged), nor was she cross-examined about those reasons.

The appeal raised three issues for determination: first, whether Ms Thiab’s views or beliefs were “political” within the meaning of s 35 of the WSU Act (the political belief issue); second, whether the cancellation decision and disciplinary sanctions were imposed “because of” Ms Thiab’s relevant views or beliefs (the causation issue); and third, whether, in the circumstances, the making of a declaration that the disciplinary sanctions contravened s 35 of the WSU Act involved a denial of procedural fairness (the procedural fairness issue).

The Court (Bell CJ, Meagher and Leeming JJA) held, granting leave to appeal, allowing the appeal with costs, setting aside the orders of the primary judge and dismissing the Amended Summons with costs:

As to the political belief issue

1. The meaning of the word “political” in the compound expression “political affiliations, views or beliefs” must be divined from the immediate context of s 35, its legislative history and from the broader context of the statute as a whole. Great care must be taken in having regard to the many different uses of the term “political” and cognate terms in different legal and statutory contexts: [110]–[113].

Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42; Victoria v Commonwealth (1975) 134 CLR 81; [1975] HCA 39; Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11; Australian Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46, considered.

2. Whatever the precise metes and bounds of the term “political” in s 35 of the WSU Act, the word at least describes an affiliation, view or belief associated with (including in opposition to) a political party, organisation or sufficiently identifiable political movement, that is to say a body of persons unified and agitating for a change or changes to or implementation of government policy in a particular area or areas: [118].

3. The scope of the word “political” as used in s 35 is not so broad as to apply to all views or beliefs connected with public debate about affairs of government, or the conduct of public affairs: [114].

4. Section 35 is not a guarantor of free speech, and certainly not a guarantor of free speech at large so as to protect, for example, the expression of views or beliefs about scientific or medical matters. Having regard to the text and legislative history of the section, it is wrong to impute to Parliament an intention to treat any conscientiously held “moral” or “ethical” belief as “political” for the purposes of s 35: [121]–[123].

Ridd v James Cook University (2021) 95 ALJR 878; [2021] HCA 32, considered.

5. While a person’s anti-vaccination views may in some circumstances be “political”, the nature of Ms Thiab’s opposition to vaccination was medical and scientific and not political, even on a broad understanding of the term: [124]–[129], [133]–[136].

Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, referred to.

6. To the extent that Ms Thiab had referred to then Premier Gladys Berejiklian and Chief Medical Officer Kerry Chant, those references related to scientific views which they had expressed. In this context, not every statement made by a politician or a public servant constitutes a political view or belief: [130]–[132].

As to the causation issue

7. The causation question presented by s 35 requires identification and characterisation of the true basis, reason or ground for the impugned decision(s). The reason for an adverse action may not be entirely dissociated from a person’s views or beliefs, but that does not mean that the action was taken because of those views or beliefs: [140]–[141].

Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137; Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, considered.

8. There may be situations where adverse action by the University is not taken “because of” a political view or belief per se but rather because of the manner or context in which that view was expressed and the perceived consequences of its expression. In such circumstances, s 35 will not necessarily have been contravened. In each case it is a matter of determining whether the adverse action was actuated by the political affiliation, view or belief itself, or by some other legitimate and bona fide concern: [142].

Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587; Rumble v Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423; [2020] FCAFC 37, considered.

9. The primary judge erred in holding that the cancellation decision was made because of Ms Thiab’s views and beliefs. The cancellation decision was made because of an apprehension that there was a risk that Ms Thiab would share misinformation with patients about vaccination against COVID-19: [146]–[151].

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, considered.

10. The disciplinary sanctions were similarly not imposed because of Ms Thiab’s views or beliefs, but because of a well-founded concern that Ms Thiab would express those views and beliefs in a manner that would result in danger to patient health: [154]–[159].

As to the procedural fairness issue

11. The making of a declaration that the disciplinary sanctions contravened s 35 involved a denial of procedural fairness, in circumstances where Ms Thiab had not advanced an argument to that effect either orally or in written submissions; she had not included such an allegation in her Amended Summons despite the matter having been raised at pre-trial directions; and the relevant university decision-maker was not cross-examined about her reasons for imposing the disciplinary sanctions: [160]–[166].

12. As a general but important rule, judges should refrain from making comments seriously critical of witnesses where at least the gist of any adverse criticism has not been put to the witness and where they have not been given an opportunity fairly to respond to the criticism: [170].

Browne v Dunn (1893) 6 R 67; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11; DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72; Scott v Scott [2022] NSWCA 182; Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226; State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47, referred to.

JUDGMENT

1. THE COURT:  This is an application for leave to appeal in respect of a declaration made by Parker J (the primary judge) on 21 June 2022, to the effect that certain disciplinary sanctions imposed by Western Sydney University (the University) on Ms Thiab, a nursing student at the University, were in contravention of s 35 of the Western Sydney University Act 1997 (NSW) (WSU Act) and were therefore invalid. That declaration was made following the publication of his Honour’s reasons for judgment on 10 June 2022: Thiab v Western Sydney University [2022] NSWSC 760 (primary judgment or PJ).

2. Section 35 of the WSU Act provides:

“No religious or political discrimination

A person must not, because of his or her religious or political affiliations, views or beliefs, be denied admission as a student of the University or progression within the University or be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of, the University.”

3. In strongly expressed reasons for judgment, the primary judge found that two actions taken by staff of the University were in contravention of s 35 of the WSU Act.

4. The first was a decision by Ms Leanne Hunt (Ms Hunt) on 25 October 2021 to cancel a number of clinical placements to which Ms Thiab had been allocated, and which she was required to complete in order to graduate in her Bachelor of Nursing and Midwifery degree (the cancellation decision). Ms Hunt held the position of Deputy Director of Clinical Education (Nursing) within the School of Nursing and Midwifery.

5. The cancellation decision, which it was accepted amounted to a denial of “progression within the University” within the meaning of s 35 of the WSU Act, followed the making of certain statements by Ms Thiab about the safety and efficacy of COVID-19 vaccinations. Ms Thiab contended, and the primary judge accepted, that these statements reflected political views or beliefs within the meaning of s 35 of the WSU Act, and were the cause of the cancellation decision.

6. The second act which was found to have involved a contravention of s 35 of the WSU Act was the imposition of one of four disciplinary sanctions on Ms Thiab by Associate Professor Leeanne Heaton on 22 March 2022 (the disciplinary sanctions). Associate Professor Heaton was the Deputy Dean of the School of Nursing and Midwifery. Following internal university disciplinary proceedings, the Professor made a finding of student misconduct against Ms Thiab and subsequently imposed four disciplinary sanctions. One of those sanctions required Ms Thiab to write a reflection statement of 1,500 words on, among other things, how she had demonstrated unprofessional behaviour whilst on placement and what she would do if she were placed in the same situation again (the fourth disciplinary sanction). Compliance with this sanction was expressed to be a precondition to Ms Thiab becoming eligible to be reallocated to a clinical placement.

3. The primary judge found the imposition of this sanction also to have contravened s 35 of the WSU Act, again because he considered it to be based upon a response to Ms Thiab’s beliefs about vaccination against COVID-19, which the primary judge characterised as “political” within the meaning of s 35 of the WSU Act. His Honour did not make any findings about the other three sanctions although, as will be seen, the declaration he ultimately made was directed to all of the sanctions imposed by Associate Professor Heaton.

4. Although the primary judge found that both the cancellation decision and the fourth disciplinary sanction were unlawful, the terms of the declaration which was ultimately made on 21 June 2022 extended only to the disciplinary sanctions. The form of the declaration was as follows:

“Declare that the sanctions contained in the decision and report of Associate Professor Heaton dated 22 March 2022 in the disciplinary proceedings against the plaintiff were imposed in contravention of the Western Sydney University Act, s 35, and are thereby invalid.”

9. By way of Summons filed on 19 July 2022, the University and Ms Hunt sought leave to appeal from the declaration made by the primary judge. Leave to appeal is required because the relief sought by Ms Thiab, and awarded by the primary judge, is not capable of valuation for the purposes of the monetary threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW).

10. The key arguments raised in the draft Notice of Appeal concerned three issues: first, whether Ms Thiab’s views or beliefs about vaccination could properly be characterised as political; second, whether it was those beliefs that caused the cancellation decision and the disciplinary sanctions; and third, whether the primary judge’s finding that the imposition of disciplinary sanctions was a breach of s 35 of the WSU Act involved a denial of procedural fairness.

11. Leave to appeal should be granted and the appeal allowed. The views or beliefs that were expressed by Ms Thiab were not “political” and were not the cause of the cancellation decision or the disciplinary sanctions on the proper construction of s 35 of the WSU Act. Further, the making of the declaration in relation to the imposition of disciplinary sanctions involved a denial of procedural fairness because the University was not given proper notice that the disciplinary sanctions were being challenged by reference to s 35 of the WSU Act.

Factual and procedural background

12. The factual background to the dispute was discussed by the primary judge at PJ [47]–[68]. Due to the nature of the arguments agitated on appeal, it is necessary to refer both to this background and the procedural history of the proceedings at first instance in some detail.

Overview of factual background

13. Ms Thiab was enrolled in a Bachelor of Nursing and Midwifery at the University. At the time of the hearing before the primary judge, she had completed the coursework component of her degree, but was required to complete a certain number of hours of clinical placements in order to graduate and be accredited as a Registered Nurse.

14. The University and different health districts enter into what are styled “facility agreements” in relation to training student nurses. Under these agreements, the facility has the right to remove a student at any time. Universities compete with each other for the number of student placements allocated in any one year at particular facilities.

15. The peak professional and regulatory body for nurses is the Nursing and Midwifery Board of Australia (NMBA). Three publications of the NMBA were in evidence before the primary judge, namely, its Code of Conduct for Nurses (the Code of Conduct), a Standard of Practice dated June 2016, and a position statement on Nurses, Midwives and Vaccination dated October 2016.

16. In late 2021, Ms Thiab was scheduled to undertake clinical placements at St George Hospital, Westmead Children’s Hospital and Liverpool Hospital. On the first day of her placement at St George Hospital, on 30 August 2021, she had a conversation with Ms Reardon, a staff member engaged by the Hospital to co-ordinate clinical nursing placements. During that conversation, Ms Thiab broadly expressed doubts about the safety and efficacy of vaccination against COVID-19. At that time, Ms Thiab was not vaccinated against COVID-19 and was reluctant to be vaccinated. She also declined to undergo rapid testing for COVID-19. According to Ms Reardon, Ms Thiab said that she “was not going to comply with [the] Public Health Orders”, as a result of which Ms Reardon decided that she could not attend the clinical placement.

17. Later that day, Ms Reardon reported the incident in an email to a member of staff at the School of Nursing and Midwifery, which was forwarded to Ms Hunt. Soon after, Ms Hunt sent an email to Ms Thiab, advising her that she had cancelled the remaining clinical placements that had been scheduled for her. A series of emails was then exchanged between Ms Thiab, Ms Hunt, the Clinical Placement Team within the School of Nursing and Midwifery, and Associate Professor Heaton, which will be referred to in due course.

18. On 10 September 2021, Ms Thiab sent an email to the School of Nursing and Midwifery, providing evidence that she was, by then, vaccinated against COVID-19. She was allocated to a new clinical placement at the Macquarie Fields Vaccination Hub (the Vaccination Hub), which was to begin on 25 October 2021.

19. On the first day of that placement, Ms Thiab had a discussion with a registered nurse working at the Vaccination Hub during which she again expressed doubt about the safety and efficacy of vaccination against COVID-19. That nurse reported the discussion to the facilitator of the clinical placement, Ms Maria Almeida, who in turn reported the incident to Ms Hunt. When Ms Hunt became aware of the report, she instructed the staff at the Vaccination Hub to send Ms Thiab home. Shortly thereafter, she sent Ms Thiab an email to advise her that she had decided to terminate her placement, and indicated that she would refer the incident to the Deputy Dean of the School of Nursing and Midwifery, Associate Professor Heaton. She did so the following day, and a disciplinary investigation was initiated, conducted by Associate Professor Heaton.

20. On 22 November 2021, Ms Thiab filed a Summons in the Equity Division of the Supreme Court naming the University and Ms Hunt as defendants, together with an affidavit which had been sworn on 19 November 2021.

21. The Summons sought a declaration that the termination of Ms Thiab’s clinical placement was unlawful, “including being unlawful for being in breach of s 35 of the WSU Act.” Injunctive relief was also sought, including to restrain the hearing of the disciplinary proceedings.

22. Ms Thiab attended a preliminary meeting with Associate Professor Heaton relating to the internal disciplinary proceedings. She then declined to engage any further in the disciplinary process on the basis that she would address the complaint in her evidence in the Supreme Court proceedings. The disciplinary proceedings continued nonetheless, and a hearing was held in Ms Thiab’s absence on 8 March 2022, resulting in a report and decision on 22 March 2022 concerning the allegation of student misconduct (the disciplinary report).

23. Ms Thiab lodged an internal appeal against the imposition of disciplinary sanctions on 22 April 2022.

24. The Summons was amended on 28 April 2022. Although the form of the declaration sought remained unchanged from that which had originally been sought, two of the prayers for injunctive relief were relevantly amended.

25. By the Amended Summons, Ms Thiab sought (among other things) an order requiring the University and Ms Hunt to take all steps to reinstate her in her clinical placement, and an order restraining the University and Ms Hunt from taking any further steps to terminate her clinical placement.

26. The proceedings came on for hearing on 16 May 2022 following directions hearings on 7, 14 and 20 April 2022. It will also be necessary to refer to these directions hearings in greater detail below, as what occurred at them was relevant to the denial of procedural fairness aspect of the appeal.

27. Against this broad overview of the background to the dispute and proceedings, it is necessary to set out in closer detail the circumstances which led to the cancellation decision and the disciplinary sanctions, and, in particular, the interactions between Ms Thiab and other health staff on 30 August and 25 October 2021 and the events which followed.

Evidence about the cancellation of Ms Thiab’s clinical placements

28. The evidence concerning the cancellation of Ms Thiab’s clinical placements included:

1. a number of emails between Ms Hunt, Ms Thiab, the University’s Clinical Placement Team and Associate Professor Heaton;

2. a “Clinical ‘At Risk’ Report” completed by a clinical placement facilitator, Ms Almeida, on 25 October 2021;

3. a referral form sent by Ms Hunt to Associate Professor Heaton on 26 October pursuant to the University’s internal Misconduct Rule, containing an allegation of general misconduct against Ms Thiab;

4. an affidavit sworn by Ms Thiab on 19 November 2021; and

5. an affidavit sworn by Ms Hunt on 3 February 2022.

The events on and following 30 August 2021

29. Shortly after Ms Thiab’s conversation with Ms Reardon at St George Hospital on 30 August 2021 referred to in [16] above, Ms Reardon sent an email to Ms Hunt which included the following:

“[Ms Thiab] … did arrive but she said that she was not going to comply with our Public Health Orders. I had to say that she therefore could not attend this clinical placement. I will send you another email with the latest directions I have received with regards to vaccination requirements. Whilst I was not able to talk to [Ms Thiab] at length it became apparent that she was vaccine hesitant, espousing misinformation that has been circulating and stating that Dr Kerry Chant was wrong. She was not even agreeable to screening swabs citing that regular swabbing would eventually cause cancer. Before she left I cautioned her that her decision will impact her future career.” (emphasis added)

30. At 2.55pm that day, Ms Hunt sent an email to Ms Thiab, in which, drawing upon Ms Reardon’s earlier email, she wrote:

“I have been advised by St George Education that your placement was today terminated.

They have also advised that you are refusing to comply with the Public Health Orders and were espousing misinformation that has been circulating and stated that Dr Kerry Chant was wrong. You were also not agreeable to screening swabs citing that regular swabbing would eventually cause cancer.

…

[Ms Thiab] based on this information I am going to cancel the remainder of your placements …

[Ms Thiab] if you are not going to follow the public health orders then you cannot go to clinical placement and cannot complete this program or become a registered nurse. Being a registered nurse means that you are registered 24/7 and that you uphold the standards of nursing 24/7. Anti-vaccination messaging and spreading misinformation is not in line with what is expected in the profession and as if you were a RN this would be reported to Aphra [sic: AHPRA]. You are in a respected position in the community and your opinion is not what is required, we are here to provide evidence-based facts from well sourced areas to the community.

I have provided the NMBA position statement on vaccinations and the Public Health Order mandating all staff, including students, are to be vaccinated, please also refer to our Code of Conduct, Code of Ethics and Standards of Practice.

I have also cc’d in your academic course advisor into this email who may be able to offer some assistance.” (emphasis added)

31. At 3.30pm, Ms Thiab sent an email to the Clinical Placement Team at the School of Nursing and Midwifery, in which she wrote:

“I attended today’s orientation for my placement but was turned away because I have not received the COVID-19 vaccine.

I was told that I will not be able to complete my placements without the vaccine.

I completed my studies in 2020, and now I have several weeks of placement remaining before I am able to graduate. However, it appears that my opportunity to graduate is being threatened due to my vaccine hesitancy.

So, I write with regard to the matter of potential COVID 19 vaccine and my desire to be fully informed and appraised of all facts before going ahead. I would be most grateful if you could please provide the following information in accordance with statutory legal requirements.

1. Can you please advise the approved legal status of any vaccine for the current Delta variant, and, if it is experimental?

2. Can you please provide details and insurances that the vaccine has been fully, independent and rigorously test against control groups and the subsequent outcomes of those tests.

3. Can you please advise the entire list of contents of the vaccine I am to receive and, if any are toxic to the body?

4. Can you please fully advise of all the adverse reactions associated with this vaccine since its introduction?

5. Can you please advise of the safety and efficacy of the vaccine in pregnant women, and the effects of the vaccine in breastfed infants.

6. Please advise of the effects of the vaccine on fertility?

7. Can you please confirm that the vaccine you are advocating is NOT ‘experimental mRNA gene altering therapy’?

8. Can you please confirm that I will not be under any duress from yourself as my school of education, in compliance with the Nuremberg Code?

9. Can you please advise me of the likely risks of fatality should I be unfortunate to contract COVID-19 and the likelihood of recovery?

Once I have received the above information in full, and I am satisfied that there is NO threat to my health, I will be happy to accept your offer to receive the treatment but with certain conditions – namely that:

1. You confirm in writing that I will suffer no harm.

2. Following acceptance of this, the offer must be signed by a fully qualified Doctor who will take full legal and financial responsibility for any injuries occurring to myself, and/or from any interactions by authorised personnel regarding these procedures.

3. In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my opportunity to graduate.

I would also advise that my inalienable rights are reserved.” (bold in original, other emphasis added)

32. At 6.33pm that evening, Ms Thiab sent an email to Ms Hunt in which she wrote:

“I explained my vaccine hesitancy to the Educator [Ms Reardon] based on the information provided in the FDA briefing document for the Pfizer vaccine (see attached document).

I was stating that we currently have insufficient data on the safety and efficacy of the vaccine in certain groups eg pregnant women.

The educator told me that the vaccine is safe and approved, and that I am spreading misinformation.

Please see the following from the FDA document.

‘8.4 Unknown Risks/Data Gaps Safety in certain subpopulations

There are currently insufficient data to make conclusions about the safety of the vaccine in subpopulations such as children less than 16 years of age, pregnant and lactating individuals, and immunocompromised individuals.’

According to the above statement, in my opinion it is not I who engaged spreading of misinformation.

Additionally, when I raised the concern of possible vaccine-induced myocarditis, the Educator dismissed the danger and severity of stating ‘that is only mild and will easily resolve.’

Considering the heart’s unique physiology, inflammation can lead to the development of scar tissue, and, as we know, the cells of this vital organ can not regenerate. Therefore, this poses serious risks of chronic cardiac issues.

Another concerning issue is that, when I asked the educator what is the benefit of the vaccine regarding the Delta variant, she responded that ‘I’ll be protecting myself and others, prevent hospitalisations by stopping infection and transmission’.

As advised by Gladys Berejiklian and Dr Chant, as well as the Director of CDC, Rochelle P Walensky – those who are vaccinated are as infectious as the unvaccinated. ... A study conducted by Bloomberg School of Public Health concluded that, among the 469 cases identified, 74% were among those fully vaccinated and 79% experienced symptoms of COVID. Genomic sequencing conducted in 133 cases revealed that 89% had the Delta variant – (no significant difference between vaccinated and unvaccinated). Additionally, 4/5 hospitalised cases were among the vaccinated individuals.

I am deeply shocked and concerned about the statements the Educator made and asked her to provide me with evidence of her sources to which she replied ‘I don’t have time for this’.

I highlighted that as nurses we are taught and encouraged to think critically, vet literature, evaluate data and make informed decisions based on that. My statement was met with contempt, I was instructed to just follow the health orders.

This is a very concerning issue that someone in her position can make such unverified claims especially to students due to their lack of experience.

The sources provided, one can arguably rely upon and should not be considered misinformation as you term it.

University students are encouraged to objectively weigh sources in arriving at their own conclusion. From my perspective, I have investigated all possible sources. Accordingly, misinformation would imply that my sources relied upon are not credible, which is incorrect.

Last not but least, I have already email[ed the] clinical placement team, requesting that they kindly provide me with information regarding the vaccine I am forced to take in order to complete my degree.

So, I have attached a copy of the questions in this email, as well.” (emphasis added)

33. The above email was forwarded to Associate Professor Heaton, who sent an email to Ms Thiab several days later, on 2 September 2021, in which she wrote:

“I recognise that you have every right to have questions about vaccination for COVID-19, however it is important that you understand that a NSW Public Health Order is not a WSU policy. ... You have already been turned away from a clinical placement due to not being vaccinated. As you remain unvaccinated, you are unable to be verified with NSW Health, therefore you are not eligible for clinical placement.

… Therefore if you are not able to attend clinical placement, you will not be able to meet the requirements of the course or, be deemed eligible for registration as a nurse …

I am advising you that if you continue to remain opposed to vaccination, that is absolutely your right, however I would strongly encourage you to reconsider a career in nursing or any other health related role in the future.” (emphasis added)

34. In Ms Thiab’s affidavit of 19 November 2021, she described the events of 30 August. The relevant parts of that affidavit, which were not the subject of any cross-examination, were set out at PJ [48]–[49]:

“In her affidavit, Ms Thiab gave an account of the conversation which took place between her and Ms Reardon at St George Hospital on 30 August. According to her affidavit, she told Ms Reardon that she was not vaccinated against Covid-19. Ms Reardon responded that she would have to undergo ‘repeated’ (presumably daily) rapid testing. Ms Thiab expressed a concern about safety. The nasal swabs used for rapid testing were sterilised with ethylene oxide. Ms Thiab told Ms Reardon that according to the Environmental Protection Agency, ethylene oxide can be carcinogenic and there is no safe dose. Ms Reardon was not prepared to engage in a debate about this and asked Ms Thiab to wait outside in a hallway.

According to Ms Thiab, a further conversation about the merits of the Covid-19 vaccine followed in a ‘private area’:

Ms Thiab: There currently is insufficient data on the safety and efficacy of the vaccine against the delta strain. [Ms Thiab referred to a paper from the British Medical Journal which she said showed that the data being relied upon predated the delta strain of the virus.]

Ms Reardon: Look Nera, the vaccine is safe and approved and by you following this line of questioning the vaccine, you’re spreading misinformation.

Ms Reardon: You have no idea how many people end up in ICU because they refused to get vaccinated, when all that could have been prevented.

Ms Thiab: What about the people who end up in ICU because they did get vaccinated and suffered vaccine-induced myocarditis? Isn’t that worse?

Ms Reardon: That is only mild and will easily resolve.

Ms Thiab: Any inflammation to the heart can lead to the development of scar tissue, and, as you know, the cells of this vital organ cannot regenerate. Therefore, this poses serious risks of chronic cardiac issues, and it’s not mild and will not resolve as you put it.

Ms Reardon: Look Nera, I don’t have time to argue with you. If you don’t want to comply, then I’ll be reporting you to the University and you’ll be sent home, because ICU is full of vulnerable patients, and I’ll be putting them at risk.

Ms Thiab: Could I then be assigned to any other ward or area other than ICU?

Ms Reardon: No.

Ms Thiab: Could you please explain to me the benefit of the vaccine against the delta variant. And would you please point me to your sources. And how exactly do I pose a greater risk than the vaccinated?

Ms Reardon: You’ll be protecting yourself and others and prevent hospitalisations by stopping infection and transmission.

Ms Thiab: If we look at the Israeli data, a country that is ahead of us, the majority of hospitalisations are happening among the vaccinated. [Ms Thiab showed the Educator some statistics on her phone]

Ms Reardon: That is incorrect.

Ms Thiab: Are you saying that the government is reporting false data?

Ms Reardon: I’m not concerned with what’s going on in other countries.

Ms Thiab. According to healthcare officials in our country and in America, the vaccinated are as infectious and can also transmit the virus. Therefore, if anything they pose greater risk to the vulnerable because they’ll be asymptotic and spread the virus unknowingly.

Ms Reardon: This is incorrect. We have a brilliant Chief Health Officer who we should listen to.

Ms Thiab: Dr Kerry Chant has made numerous contradictory statements and no matter how brilliant one thinks she is, she is not infallible and has been wrong in the past.

Ms Thiab: Would you please provide me with the evidence of your source because you’re dismissing my concerns and your arguments so far were clearly based on personal incredulity and not on scientific fact?

Ms Reardon: I don’t have time for this.

Ms Reardon: Dr Robert Malone (the man who invented the mRNA technology) took the vaccine himself. Why would he do that if it’s so dangerous?

Ms Thiab: Although he did, he has publicly spoken about the danger of, what he terms it, ‘the experimental gene therapy’, and that it should only be used in the vulnerable population.

Ms Thiab: He also warned about Antibody Dependent Enhancement which led to the demise of all animals in previous mRNA vaccine trials, and this is why I am hesitant and if I could, and if it were not obligatory, I would like to wait a little longer before getting vaccinated.

Ms Thiab: As Nurses, we are taught and encouraged to think critically. Vet literature, evaluate data and make informed decisions based on facts.

Ms Reardon: We should all just listen to our health experts, and you’d do best to just follow the health order.

Following this exchange Ms Reardon asked Ms Thiab whether she would submit to the rapid testing. Ms Thiab declined and was sent home.”

35. The account contained in Ms Thiab’s affidavit was of course not available to Associate Professor Heaton at the time of the disciplinary proceedings nor to Ms Hunt at the time of the cancellation decision.

The events of 25 October 2021

36. As noted above, Ms Thiab resumed her clinical placements on 25 October 2021 at the Vaccination Hub, having been vaccinated for COVID-19 in the interim. Following Ms Thiab’s discussion with a nurse working at the Vaccination Hub (see [19] above), the facilitator of the clinical placement, Ms Almeida, completed a form entitled “Clinical ‘At Risk’ Report”. That form records that the discussion occurred at 8.35am, and that the form was completed at 9.20am. The form was as follows (noting that RN was shorthand for Registered Nurse and NUM shorthand for Nursing Unit Manager):

“Student allocated with RN/ANI, started to talk about research regarding vaccines and mentioned that she heard/read that people would die 5 years after the vaccine. Mentioned that in Israel the vaccine wasn’t working. Said that her sister? works in a cardiac ward and had patients with heart problems after the vaccine.

Based on student views and conversation, ANI raised her concerns to the NUM’s and Facilitators regarding student ability to provide safe information and education to clients. NUM’s agreed that student could continue placement under close supervision. NUM [illegible] notified and NE.

Leanne Hunt informed and placement cancelled. Student spoken to about staff concerns and the decision to cancel her placement and complete an at risk form.” (emphasis added)

37. At 9.28am, Ms Hunt sent an email to Ms Thiab, in which she wrote:

“I was contacted by your facilitator this morning. Your facilitator received information from the RN that you were AGAIN [e]spousing anti-vaccination dialogue. It is clear to me that you have yet to understand your position as a future RN and have not taken on board the incident from St George Hospital documented below [referring to the email of 30 August].

Based on this I have decided to terminate your placement. This incident will be escalated as a misconduct, and you will meet with the Deputy Dean regarding this matter.” (emphasis added)

Ms Hunt’s reference to “anti-vaccination dialogue” in this email must be understood in the context of the report she had received earlier that morning in the “Clinical ‘At Risk’ Report”. That document reported that Ms Thiab had expressed views as to the safety and efficacy of the vaccine.

38. At 2.57pm that afternoon, Ms Thiab replied:

“I feel I have been repeatedly bullied by you, wrongfully accused without you investigating the matter efficiently and simply based on ‘incomplete information and hearsay’, and your remarks have been disparaging.

I also feel your abuse of power has caused me grief, anxiety, fear to speak up in any situation, and most importantly - fear to advocate for patients’ rights.

It has also affected all my upcoming placements which you cancelled, and in turn, my ability to graduate next year.

You have a duty of care towards your students and frankly, I have not been heard but rather accused and dismissed on two different occasions, and have been discouraged from asking any sort of questions, no matter how important, if they may somehow affect vaccine uptake.

Additionally, based on your comments, I feel they directly imply that asking healthcare workers questions and questioning the validity of their answers, constitutes ‘spreading of misinformation’ or ‘engaging in spousing anti vaccination dialogue’ as evidenced by your repeated accusations towards me for ‘spreading misinformation’.

I feel as if you are basically instructing me, indirectly, not to ask questions and you punish me with placement cancellations if I do not comply, as you have previously done so and now, again.

This is evidenced by the fact that the vaccination hub was happy for me to continue my placement because they conceded that I was simply asking my RN important questions regarding side effects and Ethics surrounding informed consent as opposed to your accusation of ‘engaging in spousing anti vaccination dialogue’. However, once again, you used your position of power to override their decision and cancelled my placement.”

39. Ms Thiab’s affidavit of 19 November 2021 again contains her account of the events at the Vaccination Hub on 25 October 2021. As reproduced (with minor revisions) by the primary judge at PJ [51], her account (again unchallenged) was as follows:

“The nurse I was buddied up with and I sat down in the common area and had a private conversation to the following effect:

Ms Thiab: I am fully vaccinated and pro-vaccination, but what should I do in different situations if asked about adverse reactions (common and rare side effects) of the vaccine?

… what do I do or say in the event I was asked a similar question by someone (who is seeking to get a COVID-19 vaccination) and has recently been vaccinated with a vaccine (not necessarily a COVID-related vaccine) in less than 7 days apart.

Nurse: If that happens, just call on one of the nurses.

Ms Thiab: What do I do in the event a patient enquires about all the side effects of the COVID-19 vaccine?

Nurse: Only mention the common ones. You can also use the computer in front of you to guide you.

Ms Thiab: I understand that a patient has a right to informed consent, meaning their right to know all the side effects including the rare ones, so wouldn’t it be unethical to deliberately leave out potential side effects no matter how rare, such as myocarditis, pericarditis, Antibody Dependent Enhancement?

Nurse: The answer is No, as this sort of information may deter an individual from vaccinating and our job is to promote the vaccines.

There’s no evidence for ADE.

Ms Thiab: The literature is contrary to what you believe.

Nurse: OK I’ll look into it.

Ms Thiab: Dr. Robert Malone who invented the mRNA technology was used in 2002 SARS trials and that the animals died once confronted with the wild virus.

The RN digressed from the vaccines topic and spoke about her long history as a nurse and working in research, etc… leading to the topics of AIDS and HIV.

The RN then went onto explain how all the patients whom she had seen with AIDS and HIV.

She went on to explain about some parasite embedding itself into the spine, and she was trying to somehow make a point relating to the COVID virus.

Ms Thiab: As far as I know, according to literature published e.g., in the British Medical Journal, HIV does not cause AIDS.

Nurse: According to my information and knowledge, it did, but I will need to look into it more.

Ms Thiab: What of the possibility of hitting a vessel and causing heavy bleeding and what would result if the vaccine was injected into the vessel.

I didn’t receive any clear answer.

Nurse: It’s really good that you’re asking such important questions.

Subsequently, I observed a person, whom I believe to be another nurse or worker at the centre who kept walking past us eavesdropping on our conversation and I was called away.

Another RN whom I believed to be the facilitator came to me and said, words to the effect:

Facilitator: Look Nera, it appears that you are engaging in a dialogue which seems negative, and you should go and wait in the waiting area.

Ms Thiab: I am only asking scientific questions to learn from you. I would never say anything to a patient which may cause vaccine hesitancy. I myself, am vaccinated.

The facilitator on the other hand however informed me that she had spoken with Leanne Hunt to which Leanne Hunt instructed the facilitator to send me home.

Facilitator: Sorry Nera, but there’s nothing I can do, Leanne Hunt said to cancel your placement and send you home.” (emphasis added)

The allegation of misconduct and the disciplinary process

40. The following day, on 26 October 2021, Ms Hunt made a report in accordance with the University’s internal Student Misconduct Rule, containing an allegation of student misconduct against Ms Thiab. The Student Misconduct Rule contemplates three categories of misconduct, being academic, research and general misconduct. The allegation against Ms Thiab was one of general misconduct. Ms Hunt’s report identified the “details of incident” as follows:

“I received a call from Maria [Almeida] who had been approached by the RN that [Ms Thiab] was buddied with. The RN raised concerns regarding the content of the student[’]s conversation regarding vaccinations, the information she was relaying was incorrect and not evidence based. The RN was concerned that [Ms Thiab] would convey these ideas to people coming in to get the vaccination. (Please see At Risk).

The facility were happy to keep [Ms Thiab] on placement and ‘watch’ her. However, based on her previous termination of placement on the 30th August from St George Hospital due to ‘that you are refusing to comply with the Public Health Orders and were espousing misinformation that has been circulating and stated that Dr Kerry Chant was wrong. You were also not agreeable to screening swabs citing that regular swabbing would eventually cause cancer’ I terminated her placement.” (emphasis added)

41. As has been noted, Ms Thiab commenced proceedings in the Supreme Court several weeks later, on 22 November 2021. The nature of these proceedings and the relief sought will be discussed shortly but it is relevant to note that, by prayer 4 of the Summons, Ms Thiab sought to have the disciplinary proceedings restrained.

42. On 17 January 2022, Ms Thiab was notified by the University that a preliminary investigation would be undertaken by Associate Professor Heaton in accordance with the University’s Student Misconduct Rule. A letter from Associate Professor Heaton was enclosed, which contained details of the allegation made against Ms Thiab (the notice of preliminary investigation). In that notice, Associate Professor Heaton invited Ms Thiab to a meeting on 25 January 2021 to discuss the allegation, “so that you have an opportunity to respond and provide your version of events.”

43. Ms Thiab replied on 19 January 2022, requesting that the meeting be rescheduled to February to “allow… a sufficient amount of time to analyse the evidence”.

44. The preliminary meeting was then rescheduled to 9.00am on 8 February 2022. Ms Thiab attended that meeting via audiovisual link. In her affidavit dated 18 February 2022, Ms Thiab gave evidence that at that meeting, she told the panel that she was not in a position to comment on issues before the Supreme Court, that she would provide her responses in her affidavits to the Court, and that she wanted the disciplinary proceedings to be deferred until the matter before the Court was finalised. This account is corroborated by Associate Professor Heaton’s final disciplinary report.

45. At 9.43am that morning, Ms Thiab’s solicitors sent an email to the solicitors for the University, which included the following:

“We note that your client has required our client to attend a disciplinary hearing today at 9:30 am.

As we are seeking an injunction against this disciplinary proceeding as part of our proceedings in the Supreme Court, we suggest that such disciplinary proceedings be deferred until the Supreme Court proceedings are finalized.

Accordingly, our client will not be able to participate in your client’s disciplinary hearing today.”

46. On 11 February 2022, the University contacted Ms Thiab, enclosing a letter from Associate Professor Heaton dated 8 February 2022. In that letter, Associate Professor Heaton rejected a suggestion that she had a conflict of interest because she had affirmed an affidavit in the Supreme Court proceedings (that affidavit had been filed on 1 February). In this context, Associate Professor Heaton said:

“I wish to point out that I am not a party to, and have no interest in, the Supreme Court Proceedings. My role is to investigate and determine the misconduct complaint that has been referred to me.

My understanding is that the University was ordered by the Court on 13 December 2021 to serve evidence on which it relied in the Supreme Court proceedings. The evidence includes evidence of the present status of the complaint that is before me in my role as authorised officer. The evidence given in my affidavit is limited to the misconduct process, the Misconduct Rule itself, and the timeframe within which I expect the complainant to be resolved. It does not concern the substance or merits of the complaint, about which I have reached no view. I have had no other involvement in the Supreme Court proceedings.”

47. An exchange of correspondence then took place between Associate Professor Heaton and Ms Thiab. In this exchange, Ms Thiab again indicated that she would not engage with the disciplinary process by reason of the Supreme Court proceedings, and requested that the disciplinary process be deferred until those proceedings were finalised. Associate Professor Heaton declined to delay the disciplinary process.

48. On 22 February 2022, Ms Thiab was given notice that a Misconduct Hearing would take place on 8 March 2022. She provided a written reply reiterating that she would not engage in the disciplinary process while the Supreme Court proceedings were pending. On 3 March 2022, the University advised her that if she did not attend the Misconduct Hearing, it would proceed in her absence. Ms Thiab did not attend the hearing on 8 March, and Associate Professor Heaton determined the allegation in her absence in accordance with the University’s Student Misconduct Rule.

49. As has been noted, Associate Professor Heaton issued her disciplinary report on 22 March 2022. It is necessary to reproduce several key passages of that report.

50. Under the heading “Details of allegation(s)”, the report set out the allegations against Ms Thiab as follows:

“… It is alleged that you engaged in general misconduct within the meaning of the [Student Misconduct] Rule in that you:

(a)    Demonstrated unprofessional behaviour whilst undertaking a practicum or placement as part of the student's course

(b)    Failed to comply and practice according to relevant legislation and local policy whilst in the clinical setting

(c)    Failed to engage in therapeutic professional relationships whilst on placement

(d)    Were unable to demonstrate effective communication whilst on placement

(e)    Didn't follow reasonable direction from WSU staff

(f)    Engaged in conduct that was in breach of University policies in relation to acceptable standards of behaviour, including but not limited to, the WSU Student Code of Conduct”

These allegations were identical to those which had been set out in the notice of preliminary investigation (see [42] above).

51. The report then set out some six pages of factual particulars of the allegations against Ms Thiab, encompassing events from May 2020 to October 2021. It also included a lengthy list of documents that were considered in the course of the disciplinary process. These relevantly included the email correspondence between Ms Thiab, Ms Hunt, the School of Nursing and Midwifery and Associate Professor Heaton on 30 August and 2 September 2021 (see [29]–[33] above); the “Clinical ‘At Risk’ Report” dated 25 October 2021 (see [36] above); and the exchange of emails between Ms Hunt and Ms Thiab on 25 October 2021 (see [37]–[38] above). Elsewhere, referring to Ms Thiab’s email to Ms Hunt on 25 October 2021, the report stated, “[Ms Thiab] provided a written response to Ms Hunt [that] has been taken into consideration in this matter”.

52. Under the heading “Summary of analysis of evidence and submissions”, the disciplinary report recorded that “the following was noted” at the hearing:

“(c)    The student engaged in communication with WSU and facility staff deemed inappropriate and unprofessional and failed to engage in therapeutic professional relationships whilst on placement:

… 1    On two separate occasions it has been reported to the SoNM Clinical Directorate that the student made inappropriate statements whilst on clinical placement, at both St George Hospital and the Macquarie Fields Vaccination Hub, that contained anti-vaccination messaging and mis-information about CoVID-19 vaccine safety and efficacy, raising concerns about her ability to provide safe patient care and education to NSW Health clients

… 2    The student requested the University provide responses to questions to address her CoVID-19 vaccine hesitancy; in doing so, she requested unreasonable assurances and guarantees from the University about the vaccine safety

(d)    When students are attending clinical placement, in WSU SoNM Uniform, they are representing the University and the School to the public and the School's industry partners (LHDs, private health facilities)

… 1    This student engaged in unprofessional conduct whilst on placement at St George Hospital which was repeated in her next placement at the Macquarie Fields Vaccination Hub

… 2    The Australian Nursing and Midwifery Accreditation Council (ANMAC) Registered Nurse Accreditation Standards (2019) deem that the program's guiding principle is safety of the public with only students who have demonstrated the requisite knowledge and skills required for safe practice eligible for Professional Experience Placement (PEP). The education provider is ultimately accountable for the assessment of students in relation to their PEP meaning that the School has the responsibility to ensure that students are safe practitioners and must address matters when a student's behaviour on placement poses a risk to public safety which has been the case at two placements this student attended; the student's placements were terminated due to the student's unsafe practice” (emphasis added)

It may be noted that the primary judge described these remarks as “allegations” which were ultimately sustained (see PJ [56]–[60]), however they were not expressed as such in the disciplinary report.

53. Under the heading “Decision”, the report recorded Associate Professor Heaton’s conclusion that “the allegations are sustained”.

54. Associate Professor Heaton ultimately imposed four sanctions on Ms Thiab. These were, first, a reprimand, second, a “direction to apologise”, third, a direction to provide a written undertaking “to not repeat or continue the behaviour that is the subject of the misconduct finding”, and fourth, a direction to undertake a short course or instructive program and to write a 1,500 word reflection. It was the imposition of this fourth sanction that the primary judge found to have contravened s 35 of the WSU Act. The sanction was as follows:

“DIRECTION TO UNDERTAKE A SHORT COURSE OR INSTRUCTIVE PROGRAM THAT ADDRESSES THE CONDUCT THAT WAS THE SUBJECT OF THE ALLEGATIONS, INCLUDING BUT NOT LIMITED TO AN ACADEMIC INTEGRITY MODULE OR A RESPECTFUL RELATIONSHIPS MODULE OR OTHER TRAINING CONSIDERED APPROPRIATE (SEE BELOW):

●    Student must provide a 1500 word reflection on how she: demonstrated unprofessional behaviour whilst on placement; failed to comply and practice according to relevant legislation and local policy whilst in the clinical setting, thereby putting patient safety at risk; failed to engage in therapeutic and professional relationships whilst on placement including being unable to demonstrate effective communication; failed to follow reasonable direction from LHD or WSU staff; engaged in behaviour that was a breach of University policies in relation to acceptable standards of behaviour including the WSU Student Code of Conduct

●    Student must answer the question ‘What would you do if you were placed in the same situation again?’

●    Student must ensure her reflection is written with specific reference to the following three NMBA/ICN policy and guideline documents

[References were provided to the NMBA Registered Nurse Standards of Practice; the NMBA Code of Practice for Nurses; and the International College of Nurses Code of Ethics for Nurses.]

●    The Student should complete and return the Reflective Practice Journal Entry to the SoNM Integrity Unit … by Monday, 11th April 2022

●    Upon completion and submission of a satisfactory Reflective Practice Journal Entry, and upon confirming that the student continues to meet compliance requirements, the student will be eligible for clinical placement allocation.”

55. As has been noted, Ms Thiab lodged an internal appeal against the disciplinary sanctions on 22 April 2022. According to the University’s Student Misconduct Rule, an internal appeal lies to a three-member appeals committee, and may be brought on grounds including that the finding of misconduct was made in breach of the requirements of procedural fairness or of a material requirement of the Student Misconduct Rule. At the time of the hearing before the primary judge, that internal appeal had not yet been heard.

Relevant aspects of procedural history

56. It is convenient at this stage to set out several key elements of the proceedings before the primary judge, together with relevant communications between the parties, which were relied upon by the University in support of its ground of appeal asserting a denial of procedural fairness. The matters of context discussed in this section broadly relate to the question of whether the University was fairly put on notice that the lawfulness of the disciplinary sanctions would be in issue.

57. At the pre-trial directions hearing on 7 April 2022, some two weeks after the imposition of the disciplinary sanctions, a discussion took place about the way in which Ms Thiab’s case addressed the disciplinary sanctions. The primary judge asked a number of questions of Mr Walsh, who appeared for the University and Ms Hunt, about the nature of the disciplinary sanctions and the internal appeal process. After this exchange, Mr Walsh agreed with his Honour’s summary of the University’s position, which was as follows:

“HIS HONOUR: I can dare say that you told me that the university's attitude is that unless the plaintiff complies with what you describe [as] the sanction there isn't going to be anything organised for her, so that's clear … the university's position is it won't go any further until she either [internally ap]peals successfully against the sanction or the Court declares there's something wrong with the sanction.” (emphasis added)

58. The primary judge then asked Mr Mando, who appeared for Ms Thiab, why, in light of the University’s position concerning the disciplinary sanctions, Ms Thiab’s case concerned “what’s happened in the past”. Mr Mando’s response was that “this sanction [that is, the fourth disciplinary sanction] emanated from the cancellation in particular of the second placement that was totally unjustified.” The following exchange then took place:

“MANDO: … Your Honour, what I'm simply saying is if we focus on the cancellation, the second cancellation that was by the university [on 25 October 2021] our submission is that it was unjustified because there was nothing wrong with what [Ms Thiab] said.

HIS HONOUR: I understand that's going to be your submission. I'm questioning what's next. Let's suppose I agree with you and say that there was nothing wrong with what she said. That isn't going to get her any closer to the university allocating her a placement. Based on what Mr Walsh has told me, the road block now is the disciplinary proceedings that the university has taken. They've taken this in the disciplinary proceedings and having imposed this sanction, that presumably stops everything in its tracks.” (emphasis added)

59. Shortly afterwards, the primary judge questioned Mr Mando about the practical utility of a declaration that the cancellation decision was unlawful:

“HIS HONOUR: … the point is that [declaration] isn't going to get the plaintiff graduation, is it?

MANDO: Your Honour, but if that declaration is granted or is made it means that the university's cancellation was unlawful.

HIS HONOUR: What follows from that?

MANDO: So the whole disciplinary proceeding is invalid.

HIS HONOUR: Does the disciplinary proceeding depend upon the validity of the placement or the university decision [to] cancel the placement.

HIS HONOUR: It's based on her alleged misconduct--

HIS HONOUR: Exactly. You're much better off challenging this or challenging what was done through the disciplinary process, aren't you?

MANDO: That's an alternative. I would say that's an alternative way. It doesn't mean there is no jurisdiction of the Supreme Court to deal with it.

[HIS HONOUR]: But the Court is not going to do anything futile. At the moment it seems it me that making a declaration about the rights and wrongs of the cancellation of the earlier placement is futile because the fact is it's been cancelled and your client needs another one.

You've got a reasonable start because hearing from Mr Walsh the university has in effect told the plaintiff to write something out doesn't seem to me particularly consistent with academic freedom. I suppose it depends on what it is she's said. Anyway, the point is you want to challenge that [–] fine. I'm just saying to you if you want to challenge it that's the thing to challenge because at the moment if I don't knock that over or if that sanction isn't removed, then the plaintiff is not going anywhere and there's nothing anyone can do about it.

MANDO: … What I'm simply saying is that the main prayer [is for] the declaration and that I would submit would affect when the plaintiff ultimately does graduate because that will mean … either the disciplinary proceedings continue or they don't, because if it's the case that the university's conduct in cancelling her placement was unlawful, then there is no basis for the disciplinary proceedings to continue and so she can graduate at the next available opportunity.

HIS HONOUR: I'm not sure that's correct.

…

HIS HONOUR: … Presumably disciplinary proceedings are commenced by the university and they focus on some sort of conduct and they impose some sort of sanction.

MANDO: It's the same conduct.

HIS HONOUR: I know that's the same conduct. That's why it's frustrating. We're talking at cross purposes. It's the same conduct. I'm saying the way you challenge the university's attitude to that conduct [is by] challenging the university proceedings or sanction. It's only if you can knock over the sanction, presumably if you can knock over the sanction your client can write to the university and say I've completed everything's else please organise a placement for me. That's what she wants to do, isn't it?

MANDO: Your Honour ultimately the question--

HIS HONOUR: Is that what she wants to do or not?

MANDO: Well, I don't know at this stage. I only just received knowledge of that sanction just in this hearing your Honour so I haven't had a chance--

HIS HONOUR: Then you'd better go and think about it because based on what Mr Walsh has told me it's a critical issue in the case and it means that the case may be premature unless you can get the [internal] appeal on and dealt with before the hearing.” (emphasis added)

60. Soon after, in response to questioning from the primary judge, Mr Walsh said that the University’s position was that the internal appeal process should be completed before the matter proceeded before the primary judge. His Honour then said to Mr Mando:

“HIS HONOUR: All right. Mr Mando, I think you had better look at that.

MANDO: Yes, your Honour, I will get some instructions.

HIS HONOUR: I think you had better come back to me soon and tell me what is going to happen because it seems to me to be a significant change and a significant issue alteration on the scope of this case. There will need to be evidence on both sides, I would assume?

MANDO: Yes, your Honour, I would suggest that.” (emphasis added)

61. When asked to clarify the nature of instructions that should be sought, the primary judge said the following:

“HIS HONOUR: … I want you to get instructions from your client about what to do, what she is going to do, if anything, about these disciplinary proceedings. It will be a matter for you to advise her on the difficulties that may or may not create for her success in the proceedings.

Mando: Yes, your Honour.

HIS HONOUR: If the instructions are that she wants to pursue an internal appeal or she wants to challenge the decision, or she wants to challenge more directly what has been done, you are going to have to amend the summons. First of all, she might say, ‘Well, I just want to challenge that disciplinary action’, but to do that you will need to amend the summons and you will need more evidence. If she goes down that line she might find herself for practical purposes wanting her [internal] appeal first. I can't tell you what to do because it is going to depend on you looking up the Act and finding out what the Act says about this disciplinary process.” (emphasis added).

62. Just under one week later, on 13 April 2022, Ms Thiab filed supplementary written submissions. Those submissions broadly addressed the Supreme Court’s jurisdiction to review disciplinary decisions of public universities, and, relevantly for present purposes, raised a challenge to Associate Professor Heaton’s disciplinary decision on the ground of bias. No challenge was, however, mounted or formulated to the disciplinary sanctions or Associate Professor Heaton’s decision by reference to s 35 of the WSU Act.

63. The matter returned before the primary judge the following day, on 14 April 2022, for a further directions hearing. At this stage, the matter was listed for final hearing the following week, on 21 April 2022. Shortly after the matter was called, Mr Walsh raised an objection to those parts of Ms Thiab’s supplementary submissions which challenged the disciplinary decision. In this context, he said the following:

“I understood that the purpose of today was for my learned friend to indicate what the plaintiff proposes to do about the disciplinary process, namely whether they propose to appeal or not. The present position, on my instructions, is, at least that as at two days ago, she hadn't appealed against the disciplinary position, nor had she complied with it.

The case that the defendant has prepared, and which the evidence is directed to, is based on what is in the fund [sic: summons], and the evidence that was served in chief which the defendant was responding to, since the defendant's evidence – can I say this as well, that none of that evidence includes the decision which the submissions now seem to put in issue, and that is, because the evidence was prepared before the decision was made and before any hearing had taken place between the university and the plaintiff.

HIS HONOUR: When you say ‘the decision’, you are referring to the decision of the [Disciplinary] Tribunal?

WALSH: Yes, your Honour. So, at the moment that decision is not in evidence. It is not, as far as we can tell, I haven't personally seen a court book, but my instructing solicitors received a draft at about 8.54 this morning, and from what I am told it doesn't contain the decision, it doesn't contain what further affidavits that I understand the plaintiff will be asking your Honour to receive. None of the evidence … contain[s] any of the exhibits, the documents, the source documents which are referred to in the affidavits, but that is something we can fix.

The real problem is that we are a week out from the final hearing of the summons and we still don't know what the case is that we are expected to meet.

…

So the difficulty which the university has is that it seems from the further submissions that the plaintiff seeks to rely upon that were served yesterday, that the plaintiff now wants to challenge the decision which wasn't in evidence which the university's evidence doesn't address.

…

So the concluding submission is that the university can't meet these matters, but, taking a step back, these are matters that should be pleaded and would we have never seen any proposed amended pleading, these are matters which need evidence and we haven't seen the evidence from the plaintiff, which the plaintiff relies upon, and we are not in a position to respond to it, our evidence, and this is all being sought at the 12th hour, a week before the final hearing in this matter and, your Honour, I submit your Honour it is too late for the plaintiff to be raising these matters. We have spent months preparing a case that seems to be about to change at the door of the final hearing, and I submit it would be manifestly unfair to the defendants to be put to dealing with such an altered case and I submit the Court shouldn't entertain it.”

64. An exchange then took place between Mr Mando and the primary judge about the form of the orders sought by Ms Thiab, and whether it would be necessary to challenge the disciplinary sanctions. The primary judge expressed the view that a declaration in itself would be futile, and the appropriate order to be sought by Ms Thiab was an order of mandamus requiring the University to reallocate her to a clinical placement. His Honour then said:

“You may be able to simply seek a Mandamus, which ignores the internal disciplinary proceeding, and leave it to Mr Walsh to try to prove that, either as a matter of law or a matter of discretion, I shouldn't make an order in that form.

So you may not have to challenge the internal disciplinary proceeding. What you do have to show is that the university is refusing to do what needs to be done. The easiest way of proving that, I would have thought, would be to produce the disciplinary proceedings and which, no doubt, at the end of which it seems that the university [has] said that … it is not going to do anything to reinstate the placement or strictly to provide a new placement until your client does something. So it's probably a critical part of your evidence anyway; and I think Mr Walsh is right; if you want to have the Court actually declare, it would be more logical, one would have thought, to ask the Court to declare that indeed the internal procedure is either irrelevant or is miscarried, but, if you want me to find that even as an alternative, even as a fall back that the disciplinary proceedings have miscarried, then you need to challenge them in your summons, and you will need to seek a declaration.” (emphasis added)

65. The primary judge directed Mr Mando to formulate a proposed amended summons, and then formally seek leave to amend the summons. His Honour also relisted the final hearing from 21 April to 16 May 2022, so as to allow the University time to prepare to meet Ms Thiab’s amended summons.

66. Ms Thiab’s proposed Amended Summons appears to have been served on the solicitors for the University on 19 April 2022. It did not however formulate any amendment of the kind the primary judge had indicated would be appropriate, namely framing an alternate declaration in relation to the disciplinary sanctions. Later that day, the University’s solicitors sent a letter to Ms Thiab’s solicitors, noting that the proposed Amended Summons did not seek to challenge the lawfulness of the disciplinary decision. That letter was as follows:

“1.    We refer to the proposed Amended Summons served on 19 April 2022 and to the Directions hearing before his Honour Justice Parker on 14 April 2022.

2.    We will seek instructions in relation to the filing of the proposed Amended Summons.

3.    However we wish to make clear that we will seek those instructions (and our client will prepare its case) based on the assumption that the proposed Amended Summons identifies fully and completely the plaintiff’s case for relief against the defendants.

4.    We wish to make that clear because:

a.    the Plaintiff has previously served evidence which relates to matters which occurred after the cancellation of the Plaintiff’s clinical practice placements;

b.    the Plaintiff’s Further Supplementary Submissions dated 13 April 2022 appear to cover matters that occurred after the cancellation of the clinical practice placements (for example, a submission to the effect that the University’s internal disciplinary process was tarnished by bias) and matters which do not appear to relate to the relief sought in the proposed Amended Summons (for example, submissions as to the effect of anti-discrimination legislation and the Supreme Court’s power to undertake judicial review of administrative action generally); and

c.    at the directions hearing on 14 April 2022 his Honour raised with your counsel the need to identify clearly in the Summons the decision the Plaintiff seeks to challenge or overturn and identify clearly the relief sought.

138. It is not difficult to conceive of other situations where an action taken by a university is not taken “because of” the holding or expression of a political view or belief per se, but rather because of the manner or context in which that view was expressed and the perceived consequences of its expression. For example, racially offensive or inflammatory comments may often be couched in ostensibly political terms, if they are made in the context of statements about a political party’s policies about, say, immigration or social welfare. If such comments were to lead to disciplinary proceedings (for example, on the basis of a breach of a university’s internal policies on harassment), it would not necessarily follow that the University was acting in contravention of s 35 of the WSU Act merely because the course of conduct which led to the disciplinary action also involved the expression of a political view or belief. In each case, it would be a matter of determining whether the adverse action taken by the University was actuated by the political affiliation, view or belief itself, or by some other legitimate and bona fide concern: cf, in the context of s 351 of the Fair Work Act 2009 (Cth), Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 at [279]; Rumble v Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423; [2020] FCAFC 37 at [40]–[42]

The cause of the cancellation decision

143. Notwithstanding that it was not the subject of declaratory relief, the primary judge found that the cancellation decision was made by Ms Hunt because of Ms Thiab’s political views or beliefs. However, that decision on the causation question was not supported by a consideration of Ms Hunt’s reasoning process, as revealed in the language she employed to give effect to the cancellation decision. It was also contrary to the affidavit evidence given by Ms Hunt as to her reasoning process, which was not challenged in cross examination nor referred to by the primary judge. Such evidence, whilst not necessarily conclusive, is undoubtedly relevant: cf Bendigo Institute at [43]–[45], [65]. It is convenient to refer to Ms Hunt’s affidavit evidence first.

144. After recounting what had occurred at Ms Thiab’s placement at St George Hospital in August 2021 and referring to the correspondence which has been set out at [29]–[33] above, Ms Hunt said in her unchallenged affidavit evidence (omitting documentary references):

“On 30 September 2021, I received an email from the Clinical Placement Team asking whether the plaintiff could be allocated a placement at a vaccination clinic. The Clinical Placement Officer, Ms Johnston, noted that the plaintiff appeared to have changed her position in that she had now provided evidence that she had received a first dose of COVID vaccine. Ms Johnston also noted the recent ‘issue’ at St George Hospital, which I understood to mean the plaintiff[’]s conduct in espousing anti-vaccination opinions. It appeared to me that the plaintiff had changed her position and I therefore approved the placement. …

The Clinical Placement Team allocated the plaintiff a placement at the Macquarie Fields Vaccination Hub commencing 25 October 2021. … On the morning of 25 October 2021, the first day of the Macquarie Fields Vaccination Hub placement, I was contacted by Maria Almeida, the facilitator at the Macquarie Fields Vaccination Hub, who advised that the plaintiff that the Plaintiff had been making statements to the effect that ‘people would die 5 years after the vaccine’, that, ‘in Israel the vaccine isn't working’ and ‘patients with heart problems after the vaccine’ to the Registered Nurse to whom she had been allocated. The complaint was such that there were concerns ‘regarding student ability to provide safe information and education to clients.’

I did not consider the views expressed by the plaintiff to be evidence-based. I was concerned that the plaintiff was again engaging in conduct that was inconsistent with the professional obligations of a member of the nursing profession to promote health, disease prevention and vaccination under the Code of Conduct, and was inconsistent with the Nursing & Midwifery Board's Position Statement on vaccination. As noted in paragraph 12 of this affidavit, nurses hold a position of trust and influence in the community. I was concerned that the conduct had occurred at a vaccination hub during a pandemic and that there was a risk members of the public may be influenced to refuse vaccination if the plaintiff were permitted to continue with the placement. I therefore made the decision to terminate the placement.” (emphasis added)

145. This unchallenged evidence was consistent with what Ms Hunt had written both to Ms Thiab at 9.28am on 25 October 2021 (see [37] above) and in her misconduct report to Associate Professor Heaton: see [40] above. Ms Hunt’s action in initiating a complaint that Ms Thiab had engaged in misconduct itself was revealing of her reasons for the cancellation decision. In this context, the fact that the primary judge did not consider that the Code of Conduct had been breached or was engaged (see [84] above) was not to the point. Whether or not Ms Hunt was correct in her understanding or interpretation of the Code, she was reacting to her perceptions of Ms Thiab’s conduct whilst on or about to commence a clinical placement.

146. What actuated the cancellation decision was not the fact that Ms Thiab held particular views but, rather, an apprehension on the part of Ms Hunt, on the basis of information relayed to her by Ms Almeida, that the expression of those views in a clinical setting was anathema to what was required of a nurse in the public health system. The cancellation had a strong degree of prophylaxis about it. In this respect, Ms Hunt’s concern about Ms Thiab’s ongoing participation in this environment may or may not have been overly conservative. It is not for this Court, however, nor was it for the primary judge to form or express a view about that.

147. What is clear is that the cancellation decision was actuated by the perceived consequences of permitting Ms Thiab to remain in an environment where the facilitator at the Vaccination Hub had herself articulated concerns about Ms Thiab’s “ability to provide safe information and education to clients” and where Ms Hunt, rightly or wrongly, saw what had been reported to her as a continuation of a pattern of behaviour that had earlier manifested itself at St George hospital, where it was reported that Ms Thiab had said that she was not going to comply with Public Health Orders: see [29]–[30] above.

148. Ms Thiab’s views or beliefs as to the efficacy and safety of vaccination against COVID-19 no doubt underpinned the cancellation decision and formed part of the background to it. But the cancellation decision was made on the basis of a practical assessment that a person who had twice expressed those views in clinical settings (albeit to other healthcare staff) posed a risk of being unable to provide safe information and education as to the benefits of vaccination to patients. In other words, and contrary to the primary judge’s conclusion at PJ [128], it was not Ms Thiab’s views or beliefs per se that caused the cancellation decision but an assessment of what those views, combined with past conduct, implied in relation to Ms Thiab’s ability to complete the placement satisfactorily and interact safely with patients. The fact that Ms Almeida had indicated that Ms Thiab could continue but only under “close supervision” (see [36] above) only highlighted the fact that it was Ms Thiab’s prospective interactions with patients that were the cause of concern.

149. In this context, it should be remembered that in late 2021, Sydney (together with the rest of the world) was in the midst of a pandemic which had caused much death and serious illness, with large parts of the nation subjected to extended lockdowns and movement restrictions. It is unsurprising that the provision of safe and accurate information about vaccination against COVID-19 to hospital patients and members of the public obtaining a vaccination would be at the forefront of Ms Hunt’s mind.

150. The cancellation decision rested on practical concerns in light of information and anecdotal “evidence” raised by Ms Thiab that neither Ms Reardon, Ms Almeida nor Ms Hunt considered to be accurate. There was a clear apprehension that Ms Thiab would share what was considered to be misinformation about vaccination with patients, or that there was a non-trivial risk that she would do so.

151. The primary judge erred, in our view, in holding that the cancellation decision was made because of Ms Thiab’s beliefs.

The cause of the imposition of disciplinary sanctions

152. Unlike Ms Hunt, Associate Professor Heaton did not advance reasons in her affidavit for her decision to impose the disciplinary sanctions. It was submitted on behalf of the University that it may readily be inferred that the reason this was not done was because Ms Thiab had nowhere identified that she sought to challenge the disciplinary proceedings in the Supreme Court (other than seeking to restrain their continuance by prayer 4 of the Summons). We agree with this submission.

153. True it is that the University filed an affidavit by Associate Professor Heaton but this was filed on 31 January 2022, well prior to the misconduct hearing, and simply explained the background to and nature of the disciplinary proceedings in the context of Ms Thiab’s attempt to have those proceedings restrained. It may readily be inferred that, had the University been on notice of an attempt to challenge the disciplinary sanctions by reference to s 35 of the WSU Act, Associate Professor Heaton’s evidence would have addressed her reasons for imposing the disciplinary sanctions in the same way that Ms Hunt’s affidavit addressed her reasons for making the cancellation decision. This is therefore not a case where any adverse inference may be drawn as to the Associate Professor’s reasons: cf Ferrcom at 418.

154. Even without direct evidence from Associate Professor Heaton, her reasons for imposing the disciplinary sanction may be discerned from her report and, in particular, the following passage (also extracted at [52] above):

“The education provider is ultimately accountable for the assessment of students in relation to their PEP meaning that the School has the responsibility to ensure that students are safe practitioners and must address matters when a student's behaviour on placement poses a risk to public safety which has been the case at two placements this student attended; the student's placements were terminated due to the student's unsafe practice” (emphasis added)

155. The primary judge referred to and placed emphasis upon the Associate Professor’s references in her report to Ms Thiab’s “anti-vaccination views and misinformation about COVID-19 vaccine safety and efficacy” but abstracted these words from the context Associate Professor Heaton immediately supplied, namely “raising concerns about [Ms Thiab’s] ability to provide safe patient care and education to NSW Health clients”. This, coupled with the passage extracted at [154] above, highlights the reasons for Associate Professor Heaton’s decision to impose disciplinary sanctions. The Associate Professor’s decision was entirely consistent with what had been stated by Ms Almeida in the “Clinical ‘At Risk’ Report” referred to at [36] above. The decision was a response to the risk identified in that form. The risk was one in relation to patient safety. It was not about or caused by the fact that Ms Thiab simply held certain views, whether “political” or not: cf PJ [128].

156. To the extent that the primary judge expressed the opinion that the Associate Professor had misunderstood or erred in her interpretation of the Code of Conduct, or had insufficiently investigated the facts, neither of these matters was before the primary judge and were for the internal appeal panel.

157. In relation both to the cancellation decision and the disciplinary sanctions, Ms Thiab contended that, in both August and October, all that had occurred had been the expression of views – which she labelled as political – and no relevant conduct. On both occasions, the evidence did not suggest that any of Ms Thiab’s views had been conveyed to members of the public; rather in the first hour of each placement she had expressed views to the nursing staff who had been training her. She submitted that the University therefore had acted merely upon her political views, as opposed to any conduct by her. But a fair reading of the documents reflects the University acting on the basis of a perceived risk, in light of the views communicated to the nursing staff, that Ms Thiab might not be able safely to provide information and education to patients or, as they were referred to, “clients”.

158. Of the material before Associate Professor Heaton, the best evidence of the views expressed by Ms Thiab on 25 October 2021 was the “Clinical ‘At Risk’ Report”, prepared within an hour of the conversation between Ms Thiab and the nurse. That document identified three points: (a) she had heard or read that “people would die five years after [being given] the vaccine”, (b) “in Israel the vaccine wasn’t working” and (c) her sister was working in a cardiac ward and had seen patients with heart problems after receiving the vaccine.

159. There was ample reason for concern to be held that Ms Thiab would communicate those views to patients (whether spontaneously or in response to questions does not matter). Nor is it to the point that Ms Thiab gave unchallenged evidence that she told another registered nurse, whom she believed to be the facilitator, that she would never say anything to a patient that would cause vaccine hesitancy: see [39] above. The concern as to patient health which motivated the actions taken by the University was not because of Ms Thiab’s affiliations, views or beliefs (whether political or not). Rather it was because of a well-founded concern that Ms Thiab would express those views and beliefs in a manner that would result in danger to patient health. That conclusion does not turn on the metes and bounds of “political”. Instead it turns on the decision being made because of a perceived risk of conduct, rather than Ms Thiab’s affiliations, views or beliefs.

Consideration: the procedural fairness issue

160. We now turn to the question of whether the making of the declaration by reference to the disciplinary sanctions as set out at [8] above involved a denial of procedural fairness. The University’s contention is that it was not fairly put on notice that Ms Thiab would seek to impugn Associate Professor Heaton’s reasons for imposing the disciplinary sanctions, or that she would seek declaratory relief in relation to those sanctions.

161. In support of this contention, the University relied upon the following matters:

1. that neither the Summons nor the Amended Summons sought a declaration that the disciplinary sanctions contravened s 35 of the WSU Act, nor was Associate Professor Heaton a defendant in the proceedings;

2. that Ms Thiab’s written submissions, which were served before the hearing, raised no challenge to the disciplinary sanctions on the basis that they contravened s 35 of the WSU Act;

3. that, at two pre-trial directions hearings, the question of whether Ms Thiab sought to challenge the disciplinary sanctions was raised either by the primary judge or by counsel for the University, with the primary judge indicating that the Summons would need to be amended if such relief was sought (see [58]–[61] and [63]–[64] above);

4. that solicitors for the University raised the absence of any challenge to the disciplinary sanctions expressly in a letter to Ms Thiab’s solicitors dated 19 April 2022 to which there was no apparent response (see [66] above);

5. that Associate Professor Heaton’s affidavit evidence pre-dated the misconduct decision and thus did not address it, highlighting the fact that the University did not understand any challenge was being made to that decision other than to the extent of a submission that, if the cancellation decision was set aside, the disciplinary sanctions should fall away;

6. that both Ms Thiab’s and the University’s opening written submissions proceeded on the basis that there was no challenge brought by Ms Thiab to the misconduct decision;

7. it was not put to Associate Professor Heaton in cross-examination that she had imposed sanctions because of “anti-vaxxer” beliefs she imputed to Ms Thiab.

162. Although not referred to by the University, the contention that it was not fairly on notice of the challenge to the disciplinary sanctions also finds support in the letter from Associate Professor Heaton to Ms Thiab dated 8 February 2022 and extracted in part at [46] above. In that letter, the Associate Professor indicated that her understanding of the purpose of her affidavit was to give “evidence of the present status of the complaint that is before me in my role as authorised officer”. She stated that her evidence was “limited to the misconduct process, the Misconduct Rule itself, and the timeframe within which I expect the complainant to be resolved”, and “does not concern the substance or merits of the complaint”.

163. Mr Braham was not in a position to gainsay any of these matters, all of which strongly support the University’s argument that it was denied procedural fairness in the way alleged. Rather, he placed almost complete reliance upon the observations by the primary judge in the course of his ruling on the evidentiary objection that had been made to the relevance of some of Ms Thiab’s evidence, and which has been extracted at [69] above. It will be recalled that his Honour said: “I think it is open to the plaintiff, if she can, to make a case that the disciplinary proceedings involve a reflection [scil. infraction] of s 35 …”

164. The primary judge’s observations in this passage were somewhat surprising in light of his earlier insistence that, were Ms Thiab to challenge the disciplinary sanctions imposed as a result of Associate Professor Heaton’s misconduct inquiry and report of 22 March 2022, she would need to amend the Summons formally to seek such relief and the University be given a proper opportunity to respond to that new case: see at [59], [61], [64], [65].

165. Even so, it is important to attend precisely to what the primary judge said in ruling on the objection to certain parts of Ms Thiab’s evidence, namely, “I think it is open to the plaintiff, if she can, to make a case that the disciplinary proceedings involve [an infraction] of s 35” (emphasis added). The difficulty for Mr Braham’s reliance on this passage is that, at first instance, Ms Thiab, through her then counsel, did not seek to make out any direct attack on the disciplinary sanctions by reference to s 35 of the WSU Act. The attack was made by the judge, and without notice to the University. This was no doubt motivated by his Honour’s view, which he had expressed in the course of directions hearings (see [57]–[61], [63]–[65] above) that, in order to secure a practical result, Associate Professor Heaton’s decision and disciplinary sanctions needed to be impugned. It was not for his Honour, however, to become the author of such an attack, still less without putting the University on notice of that possibility.

166. We accept the University’s submission that it was entirely taken by surprise when it received his Honour’s reasons for judgment, and that it was denied procedural fairness in respect of the subject matter of the declaration ultimately made. Because of the conclusions reached in relation to the other grounds of appeal, the usual consequence of a denial of procedural fairness, namely the need for a re-hearing, does not arise. It is for this reason that the issues raised by this appeal have been dealt with in the sequence they have cf Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2], [117]; Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 at [36]–[37].

162. Mr Braham advanced a fall back argument that it was open to the University to raise its complaint with the primary judge in the short period between the publication of reasons and the making of final orders. Whilst it may be accepted that it was open to it do so, the failure to have done so did not, in the circumstances of this particular case, mean that there was no procedural unfairness nor did it preclude the University from raising its complaint on appeal.

Other matters

168. The nature of the proceedings before the primary judge and on appeal did not concern the merits or otherwise of the cancellation decision or the subsequent disciplinary process and sanctions. As to the latter, as recorded at [23] above, Ms Thiab initiated an internal appeal process. Whether that process has run its course or was in abeyance as a result of these proceedings was not before the Court.

169. What was also not before the Court, either at first instance or on appeal, was any consideration of the procedural propriety of the University’s disciplinary process conducted by Associate Professor Heaton which led to the disciplinary sanctions imposed on Ms Thiab. In that context, it was most regrettable that the trial judge saw fit to characterise the disciplinary proceedings as being, “[a]s an independent investigation, … a travesty”, as he did at PJ [118], and to express his doubts as to whether Ms Hunt and Associate Professor Heaton “even read the relevant provisions of the Code”: see PJ [126]. These observations, adverse to the reputation of Associate Professor Heaton in particular insofar as her investigation was described as a “travesty”, were all the more regrettable as it was never put to Associate Professor Heaton either by way of cross-examination or by the primary judge that the disciplinary process had that character.

170. As a general but important rule, judges should refrain from making comments seriously critical of witnesses where at least the gist of any adverse criticism has not been put to them and where they have not been given an opportunity fairly to respond. This is for similar reasons as underpin the rule in Browne v Dunn (1893) 6 R 67 at 70-71 in which Lord Herschell LC famously said:

“... if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.” (emphasis added)

171. As was observed in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [72] (Kuhl), “if it was not open to counsel for the first respondent to make the postulated allegation, how can it have been open to the trial judge, without warning, to incorporate into his reasons for judgment a finding to the same effect as the allegation?”; see also DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72 at [172].

172. In Kuhl, Heydon, Crennan and Bell JJ continued at [75]:

“There was no point in the trial judge mentioning his conclusion that the plaintiff's evidence was not frank and complete unless it played a role in his decision adverse to the plaintiff. In the absence of any challenge from the cross-examiner to the frankness and completeness of the plaintiff's evidence, it was incumbent on the trial judge, if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff, to make the challenge himself. Perhaps the criticism in the judgment did not occur to the trial judge until after the plaintiff had left the box, or until after the hearing had concluded and before the judge's reserved judgment was given. It remained necessary either to recall the plaintiff or to have no regard to that aspect of the plaintiff's evidence.”

173. The rule applies as between parties and irrespective of whether the witness is a party: Scott v Scott [2022] NSWCA 182 at [64].

174. In Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [66]–[67], this Court said:

“Fairness in the administration of justice extends not only to ensuring a fair trial for the actual parties but also to ensuring that a witness who is not a party is treated fairly. It is especially important in circumstances such as the present, where a witness such as Mr Schipp had himself no right to object to his credit being impugned with respect to the Centrelink representation and where he was not given the opportunity to respond to what was clearly an extremely serious allegation not only going to his credit as a witness but also, as the primary judge was at pains to emphasise, to his honesty as a person and to his probity as a solicitor and an officer of the court. Further, the unfairness consequential upon the breach struck directly at the entitlement of the appellants to a fair hearing and procedural fairness in the making of findings by the District Court.

Here, fairness dictated that, in the absence of any cross-examination on the subject of the Centrelink correspondence, the primary judge refrain from making findings about dishonesty arising from that correspondence.”

These passages were in turn cited with approval in State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [39].

175. The primary judge’s remarks about the misconduct inquiry, and the strength of the language used to characterise it, should not have been made. Mr Braham candidly accepted that he could not support those remarks but observed that he did not need to, because the procedural propriety of the hearing was not relevant to his argument.

176. The primary judge’s remarks on this topic also overlooked the fact that Ms Thiab had been given multiple opportunities to participate in the disciplinary hearing but declined to do so, citing the existence of the Supreme Court proceedings. In circumstances where she had unsuccessfully sought interlocutory relief restraining the continuation of the internal University proceedings, Ms Thiab took the risk that these proceedings would be resolved in her absence. This was scarcely the fault of Associate Professor Heaton or the University.

Conclusion

177. In our opinion, leave to appeal should be granted and the appeal allowed with costs. The orders of the primary judge should be set aside and in lieu thereof, the Amended Summons should be dismissed with costs.

**********

Endnotes

Amendments

29 March 2023 - Under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) the following corrections were made:

At paragraph [136], second sentence the word “dismissed” should be replaced with “allowed” so the sentence should read: “This conclusion is sufficient to require that the appeal be allowed.”; and

at paragraph [137], again second sentence, the word “dismissing” should be replaced with “allowing” so the sentence should read: “This provides a further ground for allowing the appeal.”

Decision last updated: 29 March 2023