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
Keep reading for free
Create a free CaseChat account to read Western Sydney University v Thiab and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] NSWCA 57
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the views expressed by the student constituted "political" views or beliefs within the meaning of section 35 of the Act, and whether the adverse actions taken by the university were motivated by those views. Additionally, the court considered whether the university had afforded the student procedural fairness in relation to disciplinary sanctions imposed after the commencement of proceedings, particularly given that the primary judge had made a declaration concerning their lawfulness without the student having explicitly argued this point.
The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court reasoned that the student's scepticism about COVID-19 vaccination, in the context of his academic progression and the university's policies, did not amount to "political" views or beliefs as contemplated by section 35 of the Act. The court found that the university's actions were not taken "because of" political affiliations, views, or beliefs. Furthermore, the court determined that the university had not been fairly put on notice that the lawfulness of the later disciplinary sanctions would be a central issue, and therefore, the primary judge's declaration on that point constituted a denial of procedural fairness to the university. Consequently, leave to appeal was granted, the appeal was allowed with costs, and the primary judge's orders were set aside, with the student's amended summons being dismissed with costs.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.