Wilde v University of Sydney

[2002] NSWSC 954

CITATION:	Wilde v University of Sydney [2002] NSWSC 954
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20550 of 2001
HEARING DATE(S):	25/09/02, 10/10/02
JUDGMENT DATE:	15 October 2002
PARTIES :	Taragh Wilde v University of Sydney
JUDGMENT OF:	Acting Justice Macready at 1

COUNSEL :	Plaintiff appeared in person Miss J. Oakley for defendant
SOLICITORS:	Eakin McCaffery Cox for defendant
CATCHWORDS:	Administrative law - whether compliance with procedures under bylaws a condition of jurisdiction - legislative purpose - investigation - no denial of natural justice.
DECISION:	Paragaraph 39

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Acting Justice Macready

Tuesday 15 October 2002

20550/2001 Taragh Wilde v The University of Sydney

JUDGMENT

1 His Honour: These are proceedings which the plaintiff brings in which she seeks certain declarations that steps which the defendant University has taken in respect of certain charges of student misconduct were in breach of the bylaws of the University and that in the commencement of such proceedings she was not accorded natural justice.

A history of the events in question

2 During the year 2000 and up until approximately 12 December of that year the plaintiff was enrolled as a postgraduate student in the department of history. She was completing her Master of Arts degree at the time.

3 On 23 September 2000 while walking through the grounds of the University at about 1.00 am the plaintiff had an altercation with three University patrol officers. The police were called and they took the plaintiff to a police station where she was charged with assault.

4 On 11 October 2000 the plaintiff pleaded guilty to the charge of assault. After finding the charge proved the magistrate dismissed the charge with no conviction recorded as the plaintiff had an unblemished record.

5 On 16 October the plaintiff says that while she was walking along Lawson Street, Darlington an unidentified patrol officer in a University security service vehicle used offensive and threatening language to her.

6 On 6 November 2000 University patrol officer Fergusson entered the flat that the plaintiff occupied on the University grounds. This was at about 11:30 pm in the evening and he did so because of reports of loud music coming from the flat. The plaintiff had fallen asleep and she awoke to find the patrol officer in her room. She alleges that he had disturbed various of her possessions and refused to identify himself.

7 On 10 November 2000 the plaintiff wrote a four-page letter that she gave to the University in which she described in detail each of these three incidents to which I have referred. In the letter she described herself as having been the centre of a campaign of harassment by the younger and aggressive members of the security staff. On receipt of the letter the University asked a Dr Tillett to inquire into and report on the three matters.

8 Dr Tillett’s first report concerned the September incident and the executive summary of the report was forwarded to the plaintiff under cover of the letter of 12 December 2000. In his report Dr Tillett found that the allegations made by the plaintiff could not be substantiated and he also found that the patrol officers had conducted themselves reasonably under the circumstances and had reasonable cause to require the plaintiff to provide evidence of her identity, which she failed to do. In the letter the Vice-Chancellor indicated that in the light of the findings of Dr Tillett he would have to consider whether it would be appropriate to instigate misconduct proceedings against the plaintiff under Chapter 8 of the University of Sydney Bylaws 1999, which deals with misconduct of students enrolled at the University.

9 On 26 January 2001 Dr Tillett completed his reports in respect of the other two incidents. In respect of the October incident he found the allegations not substantiated and in respect of the November incident he found that the patrol officer had failed to identify himself to the plaintiff, as he was required to do. The other allegations he found not substantiated.

10 In the letter of 12 February 2001 which enclosed copies of Dr Tillett’s findings the Vice-Chancellor said that he had determined that it would be appropriate to commence misconduct proceedings but as the plaintiff had not re-enrolled he was unable to commence such proceedings. The plaintiff in due course enrolled again in the year 2001 and as a result on 10 April 2001 the Vice-Chancellor wrote and notified the plaintiff under clause 63 (1) of the by-laws of three instances of alleged misconduct. The three instances were: --

“1. That you repeatedly failed, without reasonable cause, to respond to patrol officers Evan’s and Day’s reasonable and lawful requests to provide them with a means of identification and inform them of your purpose for being on the Camperdown campus in the early morning of 23 September 2000.
2. That you, without reasonable cause, physically assaulted patrol officer Day in the early morning of 23 September 2000 by kicking him.
3. That you, without reasonable cause, continued to attempt to physically assault patrol officers Day and Evans while seeking to free yourself from their physical restraint of you including spitting on officer Day's face and upper body.”

The letter went on to require, in accordance with the bylaw, that the plaintiff notify whether the alleged misconduct was denied and enclosed a copy of the relevant bylaws. The letter also indicated a proposed penalty in the event that the plaintiff did not deny the allegations. The plaintiff denied the allegations on 24 April 2001.

11 In the meantime the processes required under the bylaws had apparently been put in place and a report by Mr David Norrie who was a Manager, Harassment & Discrimination Resolution, which investigated the misconduct was produced.

12 Following the plaintiff denying the allegations, the Vice-Chancellor directed that a Student Proctorial Board be established to hear the allegations of misconduct. Notification was given to the plaintiff on 28 May that the board was tentatively scheduled to meet on Wednesday 13 on Thursday 14 June 2001. On 30 May the Registrar wrote and advised that there would be a directions hearing on Wednesday 6 June.

13 These proceedings came before Dowd J on 13 and 14 June. His Honour ordered that the Sydney University Proctorial Board be restrained from further proceeding with the hearing up until 25 June 2001. The injunction was not continued beyond that date as the plaintiff apparently ceased to be a student after the end of the semester on 30 June 2001.

The relevant provisions of the University by-laws

14 In Chapter 8 which deals with student discipline, “misconduct” is defined as including:

“(a) conduct on the part of the student which is prejudicial to the good order and government of the University or impairs a reasonable freedom of other persons to pursue their studies or research in the University or to participate in the life of the University, and
(b) refusal by a student to give satisfactory particulars of the student’s identity in response to a direction to do so by a prescribed officer and any other form of wilful disobedience to a reasonable direction of a prescribed officer.”

15 Division three of the bylaws deal with complaints, investigations and summary proceedings. The relevant provisions are as follows: --

Division 3: Complaints, investigations and summary proceedings

62. Procedure for investigating complaints
(1) Any member of the University staff or any student may, by written complaint, inform the Registrar of any conduct by a student which the member or student considers to be misconduct.
(2) The Registrar:
(a) must, upon receipt of a complaint referred to in subclause (1), make a recommendation to the Vice-Chancellor as to whether, in the Registrar's opinion, the conduct which is the subject of the complaint warrants investigation, and
(b) may, without having received any such complaint, make a recommendation to the Vice-Chancellor that conduct by a student which the Registrar alleges to be misconduct warrants investigation.
(3) Upon receipt of a recommendation referred to in subclause (2) in respect of conduct by a student, the Vice-Chancellor may, whether or not the Registrar has recommended an investigation of the conduct:
(a) determine that no investigation is to be made, or
(b) direct the Registrar to cause a full investigation of the conduct to be made.
(4)In making the investigation referred to in subclause (3)(b), the Registrar has power to require any member of the University staff or any student to appear before the Registrar with a view to assisting the investigation, but no person appearing is obliged to answer any question.
(5) Upon completion of an investigation in relation to an allegation of misconduct by a student, the Registrar is to make a recommendation to the Vice-Chancellor:
(a) that no further action should be taken, or
(b) that the student be given a notice in the form specified in clause 63(1), or
(c) that the allegation of misconduct be heard and determined by the Vice-Chancellor or a Student Proctorial Board.
(6) Upon receipt of a recommendation referred to in subclause (5) in relation to action to be taken in respect of an allegation of misconduct by a student, the Vice-Chancellor may, whether or not it is in accordance with the recommendation:
(a) decide that no further action should be taken, or
(b) cause the student to be given a notice in the form specified in clause 63(1), or
(c) refer the allegation of misconduct to the Chair of the Panel or, unless the Registrar recommended that no action should be taken with respect to the allegation, hear and determine the allegation in person.

63. Notifying students of allegations of misconduct
(1)A notice given under clause 62(5)(b) is to inform the student to whom it is addressed of the allegation of misconduct made against that student and that:
(a) if, within the period of 14 days immediately following the date upon which the notice is given, the student notifies the Vice-Chancellor that the allegation of misconduct specified in the notice is denied - the allegation of misconduct will be formally heard and determined, and
(b) if, within the period of 14 days immediately following the date upon which the notice is given., the student does not notify the Vice-Chancellor that the allegation of misconduct is denied - the Vice-Chancellor will, at the expiration of that period, impose on the student a specified penalty unless:
(i) the student has given to the Vice-Chancellor an explanation concerning the alleged misconduct which the Vice-Chancellor considers adequate, in which case no penalty is to be imposed on the student, or
(ii) the student has satisfied the Vice-Chancellor that, for any reason, a lesser or different penalty from that specified should be imposed, in which case the Vice-Chancellor will impose the lesser or different penalty on the student.
(2) If a student to whom a notice is given under subclause (1) does not, within the period of 14 days immediately following the date upon which the notice is given, notify the Vice-Chancellor that the allegation of misconduct specified in the notice is denied, the Vice-Chancellor must, at the expiration of that period, impose on the student the penalty in the notice unless:
(a) the student has given to the Vice-Chancellor an explanation concerning the alleged misconduct which the Vice-Chancellor considers adequate, in which case no penalty is to be imposed on the student in relation to the alleged misconduct, or
(b) the student has satisfied the Vice-Chancellor that, for any reason, a lesser or different penalty from that specified should be imposed, in which case the Vice-Chancellor is to impose that lesser or different penalty on the student,
and must lay a report of any penalty so imposed upon the table of the Senate and of the Academic Board.
(3) Clause 76(4) applies to a report referred to in subclause (2) in the same way as it applies to a report referred to in clause 76(3).
(4) If a student to whom a notice is given under subclause (1) denies the allegation of misconduct specified in the notice, the Vice-Chancellor is to refer the allegation to the Chair of the Panel or, unless the Registrar recommended that no action should be taken with respect to the allegation, hear and determine the allegation in person.

16 At the hearing before me the plaintiff was not represented and accordingly I did not initially have the benefit of any submissions from her on the law. Her submissions in respect of the procedures concentrated upon the fact that under bylaw 62 (1) there had been no complaint by a member of the staff or any student. It will be seen that under subclause (2) the Registrar is obliged in circumstances where there has been a complaint to make a recommendation to the Vice-Chancellor. The defendant did not suggest that there had been any such complaint and there does not appear to be in evidence before me any such complaint. The defendant's submissions were that there was adequate power for the Registrar without having received a complaint to make a recommendation under 62 (2) (b).

17 This is no doubt correct but the difficulty is that there is no evidence of such a recommendation being made to the Vice-Chancellor. It is apparent that the Vice-Chancellor has directed the Registrar to cause a full investigation of the conduct to be made under clause 62 (3) (b) of the by-laws. This appears from the overview of the report of Mr Norrie, which is Exhibit 4. It also appears from Exhibit 8, the letter of 10 April 2001.

18 Following upon the completion of the investigation, clause 62 (5) requires the Registrar to make a recommendation to the Vice-Chancellor. At the conclusion of the original hearing there was no evidence of such a recommendation. Because this point had not been raised in submissions I afforded the parties an opportunity to make any application or submission in respect of this matter. This led to the tender by the defendant of the recommendation by the Registrar to the Vice-Chancellor. Under clause 62 (6) the Vice-Chancellor is given a number of choices of action. Plainly in this case he has caused the notice under clause 63 (1) to be given to the student. Following upon the plaintiff's denial of the allegations the Vice-Chancellor has referred the allegations pursuant to clause 63 (4) and clause 68 (3) to a Student Proctorial Board to hear and determine the matter of the misconduct.

19 The fact that there is no evidence of the recommendation that is required under clause 62 (2) (b) is not surprising because it is apparent that it was not the registrar who was considering the matter. The letters of 12 December 2000, and 12 February 2001 are both signed by the Vice-Chancellor and in them he refers to Dr Tillett's findings that were before him. No doubt that was so because of a proper interest in allegations of harassment by university employees, which had been made by the plaintiff. In the letter of 10 April 2001 the registrar refers to the Vice-Chancellor directing an investigation to be conducted into alleged misconduct by the plaintiff arising from Dr Tillett’s findings.

20 The question that arises is what is the effect of non-compliance with the procedures that are set out in clause 62. Recently in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court set our what is the proper approach of a court in deciding whether or not the failure to comply with a condition regulating the exercise of a statutory power would make the exercise invalid and of no effect. At page 388 and following the court described the appropriate approach in these terms: --

“An act done in breach of a condition regulating the exercise of a
statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied (63) ; there is not even a ranking of relevant factors or categories to give guidance on the issue.

Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority (64) . Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition (65) . Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice (66) , Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale (-67) , Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity (68) . However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power (69). But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville (70) when discussing the statutory provision in that case: "substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not."

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood (71) See also Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 161-162, per Gibbs J. in criticising the continued use of the "elusive distinction between directory and mandatory requirements" (72) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning (73). That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales (74). In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" (75).

21 Chapter 8 are the bylaws dealing generally with student discipline. It is divided into divisions that deal with different aspects of that matter. Division 2 deals with suspension of students and contains a number of provisions allowing suspension. Different clauses provide for suspension by people such as academic staff, librarians, the Registrar and indeed the Vice-Chancellor. Division 3, I have mentioned beforehand, deals with complaints and the procedure for investigating complaints. Division 4 deals with the composition of Student Proctorial Panels and Student Proctorial Boards. Division 5 contains the substantive provisions for the hearing and determination of allegations of misconduct. Division 6 deals with penalties and Division 7 with appeals. Div 3 with which I am concerned is part of a process that may culminate in the imposition of penalties. These penalties include expulsion from the University and would have a substantial effect on the student concerned.

22 In general terms the procedure for the hearing and the composition of the body hearing the complaint are directed to giving rights to the student to have a fair hearing on a full and informed the basis. Where there has been complaint about a student’s conduct Division 3 provides a number of methods of resolution. The most serious method of resolution is reference to a full hearing of the complaint. One of the apparent purposes of the procedure laid down in rule 62 is to have either complaints or matters coming to the attention of the Registrar investigated. It is only after there has been an investigation that the Vice-Chancellor may decide to move to the next step by giving notice to the student or referring the matter for a hearing. He does of course have the power to take no further action.

23 The investigative process is thus an important filter before the more serious powers are enlivened. The provisions of clause 62 (2) (b) are extremely wide. They are permissive, not mandatory and accordingly there is no obligation on the Registrar on receipt of information to do anything about it. In particular there is nothing in the subclause that in anyway restricts the way in which matters may come to the attention of the Registrar. The exercise of the powers of the Vice-Chancellor which appear in clause 62 (3) allows him or her to terminate the process by determining no investigation is to be made. It is only if he or she directs the Registrar to cause a full investigation of the conduct to be made that any further step is taken towards action upon the information available. There are in effect two filters in this step. The first is the Vice-Chancellor's decision whether to have an investigation and the next filter is the process of the investigation and the recommendation in clause 62 (5).

24 In the present case the Vice-Chancellor, having information before him, has clearly decided on the course of an investigation and he directed one to occur. In coming to that decision he must have considered whether or not an investigation was to be carried out. He has thus done all required of him in the first investigative process. In the circumstances there seems to be little point in the Registrar considering whether the conduct was misconduct warranting investigation, upon which he might have, in such a case made a recommendation to the Vice-Chancellor in order that the Vice-Chancellor could decide what he has decided.

25 The Registrar's role in this process in clause 62 (2) (b) is only a preliminary one and in any event is subsumed by the decision that the Vice-Chancellor must make under clause 62 (3). In these circumstances the correct interpretation would be that it is not a condition of jurisdiction that there be a recommendation by the Registrar under clause 62 (2) (b).

26 The action that the Vice-Chancellor may take under clause 62 (6) gives him discretion in some respects and no discretion in others. If the Registrar had recommended that no further action should be taken he cannot hear and determine the allegation in person. In the factual circumstances of this case this restriction cannot arise because the Vice-Chancellor has caused the student to be given notice in the form specified in clause 63 (1). In the circumstances of this case there is now evidence that there was the recommendation called for by clause 62 (5). The Vice-Chancellor thus, when considering what action to take, had the benefit of the Registrar's recommendation. In its terms the clause allows the Vice-Chancellor to make a decision whether or not it is in accordance with a recommendation. The recommendation is thus not binding upon him except in the one circumstance I have identified above.

Denial of natural justice

27 It can be seen from paragraph 6 of the relief claimed that the plaintiff alleges that there was a denial of natural justice. The essence of the complaint is that the University allowed allegations of harassment made against the patrol officers to be turned against the plaintiff and used as a starting point for the process that eventually led to the giving of the notice under clause 63(1).

28 As I have already mentioned, on 23 September 2000 the plaintiff had an altercation with two security patrol officers on University grounds. The plaintiff allegedly assaulted one of the patrol officers and was subsequently arrested. She entered a plea of guilty and although the charge was found proven, no conviction was recorded.

29 On 7 November 2000 the Disability Services Officer, Ms Miller, who had been informed that complaints had been received alleging excessive noise in the plaintiff’s flat, met with the Head of University Security, Mr Wessells, and the Director of Equal Opportunity, Ms Heesom. During that meeting, Mr Wessells informed those present of the incident of 23 September. Ms Miller subsequently met with the plaintiff to advise her of the concerns regarding noise in her flat, and during that meeting the plaintiff informed Ms Miller that she wished to lodge complaints against the patrol officers in relation to the incident of 23 September. Ms Miller informed Ms Heesom of the complaints and asked her to make contact with the plaintiff. On 9 November Ms Heesom contacted Ms Miller and was informed of the details of the complaints.

30 On 10 November, the plaintiff, accompanied by Mr Taylor, met with Ms Heesom to discuss her complaints regarding the patrol officers. The plaintiff gave Ms Heesom a copy of a written statement addressed to the Vice-Chancellor. At that meeting the plaintiff threatened physical violence against the patrol officers should they approach her again, and said she would carry a can of mace with her on campus. It is apparent that Ms Heesom was concerned and gave thought to the possibility that the facts might lead to misconduct proceedings under Chapter 8. She apparently did not mention these thoughts to the plaintiff. On 10 November, Ms Heesom requested Dr Tillett to undertake an inquiry into the complaints lodged by the plaintiff.

31 Dr Tillett made his report, and in it records that the plaintiff refused to provide a response to the evidence of the patrol officers, a summary of which was communicated to her by telephone on 11 November, and copies of which were faxed to her the same day. His report also records an interview with the plaintiff on 13 November in the presence of Mr Taylor, however the plaintiff claims that the meeting lasted only five minutes. On 14 and 15 November Dr Tillett interviewed the patrol officers involved in the 23 September incident. The report records the purpose of the inquiry as being to determine whether the allegations made by the plaintiff against the patrol officers could be substantiated.

32 The nature of the plaintiff’s complaint seems to be that in the process of Dr Tillett’s inquiry, the University failed to accord her natural justice because they did not inform her of the possibility that it might lead to allegations of student misconduct.

33 The High Court decision in Annetts v McCann (1990) 170 CLR 596 makes it clear that the rules of natural justice will generally apply to investigations where there is a statutory duty to conduct such investigations. Mason CJ, Deane and McHugh JJ state at 598 that the rules of natural justice apply when a statute confers power to “destroy, defeat or prejudice a person’s rights, interests or legitimate expectations”, unless they are clearly excluded.

34 In South Australia v O’Shea (1987) 163 CLR 378, Mason CJ states that where a decision-making process involves a number of stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness” (at 389).

35 In Bond Corporation Holdings v Sulan (1990) 26 FCR 580, the Ministerial Council for Companies and Securities directed the National Companies and Securities Commission to arrange for an investigation into the affairs of a particular company. The company directors sought a right to be heard in relation to any adverse conclusions or inferences concerning them before they were set down in a report to the Ministerial Council. The Court dismissed the application and held that the content of the requirements of procedural fairness must depend upon the nature and circumstances of the inquiry, including the subject matter that is being dealt with and the consequences, in a legal and practical sense, of any adverse conclusions reached in the inquiry. Given the serious consequences that may flow from a Pt VII investigation under the Companies Act 1981, questions of procedural fairness would be answered more favourably in relation to the party under investigation than would be the case if the investigation may have less serious consequences.

36 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 concerned a report published following an inquiry and investigation pursuant to the Criminal Justice Act 1989 (Qld). The report dealt with the introduction of poker machines into Queensland, and ascribed certain conduct to the appellants, was critical of that conduct and recommended that the appellant companies not be permitted to participate in the gaming industry in Queensland. The applicants were not made aware of the matters which were to be put against them in the report, nor were they given an opportunity to answer them or to be heard in opposition to the recommendation. The High Court held that the report adversely affected a legal right or interest such that the Commission was required to proceed in a manner that was fair to the applicants. The Court stated (at 576-577):

“It was held in Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 that procedural fairness was not required in an investigation conducted by an inspector under the Companies Act 1961 (Vic), because it was not “in the nature of a judicial proceeding in which the rights of the company … being investigated may be prejudicially affected by a report made to the Minister” (at 363). However, it was said in Annetts that the view of the majority in that case would not prevail today.

It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may “destroy, defeat or prejudice a person’s rights, interests or legitimate expectations”. Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise. That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness. However, Testro Bros was not concerned with provisions of that kind, and thus, so far as the decision in that case was based on the character of the proceeding, it is inconsistent with the law as it has developed since the decision in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 and since the decision of this court in Kioa v West (1985) 159 CLR 550. In this regard, it is sufficient to note that it was held in Re Pergamon Press Ltd [1971] Ch 388 and in Mahon v Air New Zealand Ltd [1984] AC 308 that the investigative powers considered in those cases attracted a duty to act fairly. And the decision of this court in National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 proceeds on the same basis. However, that case was concerned with the content of a statutory duty, rather than whether there was a duty of fairness under the general law.”

37 Ainsworth and Bond v Sulan are concerned with large-scale investigations where there is a statutory duty to conduct such investigations, the results of which were made public in a report. The decision in Annetts is in the context of a coronial inquiry. The case with which I am concerned differs in that it arises out of a private investigation conducted by a University to see whether allegations made against its officers had substance. The investigation was conducted in the course of the proper governance of the University, which no doubt wished to ascertain whether the conduct of its officers had been appropriate. There is no evidence before me to suggest that the internal report was published elsewhere than to the plaintiff. The report cannot lead to anything adverse to the plaintiff because nothing flows from it. The findings made in the report do not have any binding effect on the plaintiff. Both the report and the plaintiff’s statement of 10 November refer to the factual material the existence of which is used to set in train a proper investigative process to consider that factual material. In that subsequent investigative process under Chapter 8 there is adequate provision for the rules of natural justice to apply. The plaintiff is given appropriate notice of the charges and the chance to refute them.

38 I cannot see how in any way the University, in deciding whether or not to put in train such a process, is first obliged to give notice of the fact that it is considering doing so to the plaintiff. One wonders for what purpose notice should have been given. The withdrawal by the plaintiff of her allegations of harassment would have done nothing as the University was properly and lawfully in possession of her allegations, reports from its patrol officers and the results of the investigation, which they quite properly put in hand when the allegations were made. The fact that one University Officer, after the allegations were made and before Dr Tillett made his report, considered that there might be student misconduct takes the matter no further. In the proper performance of its functions faced with such allegations it had to take some steps to investigate the claims. In my view there is no substance in this point.

39 Accordingly I dismiss the plaintiff’s claim and order the plaintiff to pay the defendant’s costs except the hearing before me on 10 October 2002.

Last Modified: 10/16/2002