"X" v University of Western Sydney (No 3)
[2013] NSWSC 1329
•11 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: "X" v University of Western Sydney (No 3) [2013] NSWSC 1329 Hearing dates: 10 and 11 September 2013 Decision date: 11 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. The Court declares that the purported determination made under clause 40 of the University's Student Non-Academic Misconduct Policy on or about 29 August 2013 that the Plaintiff be denied access to all of the Defendant's campuses and associated facilities with immediate effect, and that he not communicate with any member of staff of the Defendant, was not validly made and is of no effect.
2. The Court orders that the Defendant be restrained from denying the Plaintiff access to the University's campus and associated facilities or be otherwise impeded in the pursuit of any course of study in which he is enrolled based on the purported determination made under clause 40 of the University's Student Non-Academic Misconduct Policy on or about 29 August 2013 that the plaintiff be denied access to all of the Defendant's campuses and associated facilities with immediate effect and that he not communicate with any member of staff of the Defendant.
3. The proceedings are stood over to 16 September 2013 at 10.00am before Beech-Jones J.
Catchwords: PROCEDURAL FAIRNESS - University student - allegation of serious misconduct - University policy dealing with misconduct includes express obligation to afford procedural fairness - jurisdiction of Court to review University's decisions - whether decision to review allegation to committee for hearing attracts procedural fairness - whether decision to suspend student pending hearing attracts procedural fairness - discretion to refuse to intervene - form of relief - declaration - injunction. Legislation Cited: - Court Suppression and Non-publication Orders Act 2010 Cases Cited: - Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1
- Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88
- Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546
- Cornall v AB (A Solicitor) [1995] 1 VR 372
- Griffith University v Tang [2005] HCA 7; 221 CLR 99
- Kioa v West [1985] HCA 81; 159 CLR 550
- Minister for Immigration and Multicultural and Indigenous Affairs, Re; ex parte Lam [2003] HCA 6; 214 CLR 1
- Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162; 52 NSWLR 242
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- State of South Australia v Slipper [2004] FCAFC 164; 136 FCR 259
- Stead [v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
- SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609
- "X" v University of Western Sydney [2013] NSWSC 1280
- Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; 17 VR 492
- Wilde v University of Sydney [2002] NSWSC 954Category: Principal judgment Parties: "X" (Plaintiff)
University of Western Sydney (Defendant)Representation: Counsel:
J.S. Drummond (Plaintiff)
Ms R. Graycar (Defendant)
Solicitors:
Bateman Battersby (Plaintiff)
Bartier Perry (Defendant)
File Number(s): 2013/272522 Publication restriction: Nil
EX TEMPORE Judgment
The plaintiff is a student at the University of Western Sydney (the "University"). He seeks to challenge two decisions made by the University. The first decision was made on or about 29 August 2013 under sub-clause 39(a) of the Student Non-Academic Misconduct Policy (the "Policy") to forward a complaint against him to the Non-Academic Misconduct Investigation Committee (the "Committee"). The second is a decision made at the same time under clause 40 of the Policy to suspend him from the University pending the outcome of the hearing of the complaint against him. Since those decisions were made the hearing of the complaint has not progressed, principally because there is a police investigation into the allegation against him.
The nature of the challenge being made in this proceeding needs to be firmly borne in mind. The plaintiff attacks the decisions of the University on the basis that he was not afforded procedural fairness. Nothing in this case has involved any assessment of the merits of the underlying complaint of misconduct that was made against the plaintiff, nor has it involved any assessment of the merits of the decision to suspend him. Instead, the proceedings involve a consideration by the Court of whether, in making the decisions that are challenged, the plaintiff was denied any right to be heard that was owed to him by the University and, if so, whether any relief should be granted.
The expectation of a young person to continue with their University education is an important interest even if it may not amount to a legal right. Depending upon the legal framework governing a student's relations with a University and the exigencies of the particular case, this expectation should not be defeated for reasons related to an allegation of misconduct unless a fair opportunity to be heard is afforded.
Two constraints have been imposed on the Court in the preparation of these reasons. First, this judgment has been prepared in circumstances of urgency. The plaintiff's affidavit indicates that, at least absent some intervention by the University in his favour, an ongoing suspension is likely to have the result that he will fail because he will not be able to meet his course attendance requirements. That circumstance is said to occur very soon if he remains restrained from attending classes.
Second, there is a need to preserve the confidentiality of the identity of the complainant as well as the plaintiff and the details of the complaint so far as is possible. When this matter was first listed before the Court I made an interim suppression order under the Court Suppression and Non-publication Orders Act 2010 suppressing the publication of the evidence and submissions in the proceedings and directing that the plaintiff henceforth be referred to as "X" pending further order ("X" v University of Western Sydney [2013] NSWSC 1280). As I will explain, the Policy seeks to preserve the confidentiality of the complaint process. More significantly, as stated, there is an ongoing police investigation. The interests of the complainant and the plaintiff, as well as the need to preserve the integrity of that investigation and any possible hearing or trial if charges are laid, warranted the making of a suppression order.
It is expected that these reasons will, in whole or in large part, become publicly available after the parties have had a short opportunity to consider them. Thus, the reasons have been drafted bearing in mind the need to protect the interests that I have referred to, but nevertheless seeking to respect the principle of open justice.
Background
The plaintiff enrolled in the University in 2011. He studied for two years before transferring to the department in question and enrolling in a different course. At the time of his enrolment for the 2013 year he provided a signed declaration which included the following:
"I agree to abide by the University of Western Sydney Act, the University of Western Sydney By-Law and the Rules and Policies of the University, as amended from time to time. I also agree that it is my responsibility to ensure that I review the By-Law, Rules and Policies of the University during my period of study as the most current rules are applied and may differ from the time of my initial enrolment. I understand I have access to these documents through the University website."
On the evening of 16 August 2013 the plaintiff and another student from the department in which he studied (the "Department"), Ms Y, found themselves together in a room at a student residence on the University campus. On the following day there was an exchange on the social media site, Facebook, between the plaintiff and Ms Y about what took place the evening before.
On 19 August 2013 the head of the Department, Professor Z, became aware that Ms Y was making a complaint about the conduct of the plaintiff on the evening of 16 August 2013. She met with Ms Y and a friend of hers at around 2:00pm. They discussed how the complaint should proceed. Ms Y did not provide Professor Z with the details of the incident involving the plaintiff.
Later that afternoon Ms Y met with the Director of Campus Safety and Security, Mr Adam Byrne. She disclosed a number of details of her complaint. It is unnecessary to describe them. It is sufficient to state that if the sexual contact Ms Y described as having occurred was non-consensual, as Ms Y states it was, then it was clearly very serious misconduct and potentially a criminal offence.
At some point Mr Byrne also spoke to a number of potential witnesses. On 20 August 2013 Ms Y made a complaint to the NSW police force. Mr Byrne accompanied her to the police station, but was not present when she provided her statement. Her father also attended the police station.
On 28 August 2013 Mr Byrne spoke to an officer from the NSW Police Force who was investigating Ms Y's complaint. Mr Byrne told the officer that the University was considering initiating disciplinary action and suspending the plaintiff. The officer requested the University not to investigate the matter or to "go into the nature of the allegations". Mr Byrne stated in his affidavit that he was told that the police investigation would not be lengthy.
Mr Byrne also states that, at around this time, he conducted a "risk assessment" on whether to suspend the plaintiff. His conclusion was that he:
"... formed the view on my risk assessment that suspension was necessary to protect the health and welfare of the complainant and others. I considered the risk to the complainant to be a real risk for up to the next six months while the matter was being investigated externally and internally by UWS. I consider that suspension would be a control measure that would result in a major reduction of the risk to the complainant. I did not arrive at this view lightly. I then made my assessment of the complaint and made some recommendations as set out in my report at annexure 'A'."
Annexure A to Mr Byrne's affidavit was a note setting out some details of what was disclosed to him by Ms Y concerning the complaint. Under the heading "Recommendation" he stated as follows:
"The following recommendations are made:
1. That a notice of suspension under clause 40 of the Student Non-Academic Misconduct Policy be considered.
2. That any subsequent Non-Academic Misconduct hearing be deferred until after the conclusion of any Police investigation.
3. This report be forwarded to the Deputy Vice-Chancellor, Corporate Strategy & Services for consideration and approval."
Sometime around 28 or 29 August 2013 Mr Byrne had discussions with Professor Z and the Deputy Vice-Chancellor, Corporate Strategy and Services of the University, Ms Rhonda Hawkins.
In her affidavit Professor Z explained her reasons for supporting the suspension recommendation. She described the nature of the course that the plaintiff and Ms Y were undertaking and how, in her view, further contact between them would be unavoidable if he was not suspended. She described her concerns about the effect of the continuing presence of the plaintiff at the University on Ms Y and other students.
She also stated that the placement of the plaintiff in workplaces outside the University could not occur as it would be necessary to notify them of the allegation, and her expectation or understanding was that they would not engage him. It seems that participation in those placements is a necessary component of the plaintiff's course. This is a matter to which I will return.
On 29 August 2013 a file note was prepared. It was signed by Ms Hawkins and recorded her "approval to issue the attached letter in accordance with clause 40 of the Student Non-Academic Misconduct Policy". The attached letter was dated 29 August 2013 and was addressed to the plaintiff. It was signed by the Director of Governance Services but, as stated, it was issued with the approval of Ms Hawkins. The letter stated, inter alia:
"I am writing to advise you that details of alleged misconduct by you have been received by the acting head of Division of Corporate Strategy and Services and that these have been considered under the University's Student Non-Academic Misconduct Policy ('Misconduct Policy').
The allegations broadly are that you have engaged in an act of sexual assault which took place in a student residence on ... Campus on or about 16 August 2013.
The Deputy Vice-Chancellor (Corporate Strategy and Services) has determined to forward these matters to a Student Non-Academic Misconduct Investigation Committee in accordance with clause (39) of the Misconduct Policy. A copy of the Policy is attached for your reference. You will receive the formal details of the allegations and information about the misconduct process in due course.
The University understands that the matter is under investigation by the NSW police and in these circumstances the University's misconduct processes will be held in abeyance while that is underway.
Suspension Notice
In view of the serious nature of the allegations, the Deputy Vice-Chancellor (Corporate Strategy and Services) has determined under clause (40) of the Misconduct Policy to deny you access to all UWS campuses and associated facilities with immediate effect. Further, you are directed not to communicate with any member of staff of the University other than the University contact officer whose details are given below. Should you have any need to attend a UWS campus or facility you will need prior approval for that and, if approved, arrangements will be put in place for your attendance.
This suspension takes immediate effect and will remain in force until the conclusion of the University's misconduct process. Any variation to these arrangements will require the specific approval of the Deputy Vice-Chancellor (Corporate Strategy and Services).
Should you have any questions about this process or should you wish to seek advice from University Student Support Services Staff you should, in the first instance, contact the University Contact Officer."
There was then set out the details of the University officer to contact.
Either on 29 August 2013 or the next day the plaintiff was contacted and told that he was required to attend a meeting at Professor Z's office. He did so. Professor Z and Mr Byrne were present. There was some dispute in the affidavits about the detail of what was stated and in what order it was stated but those discrepancies are immaterial.
For the purposes of determining the issues in this case the relevant points arise from Mr Byrne's version of events which was as follows. He recites that after introducing himself he said to the plaintiff:
" we are having a serious meeting with you. The University has received a complaint that you have engaged in an act of sexual assault which took place in a student residence on ... campus on about 16 August 2013."
Mr Byrne said the plaintiff replied, "I would not have done that."
Mr Byrne said: "We are not here to discuss the details of the matter as the matter has gone outside the University to be investigated."
Plaintiff: "Has it gone to the police?"
Mr Byrne: "Yes."
Mr Byrne recalled the plaintiff started to cry. Some tissues were provided. Mr Byrne says that he told the plaintiff that he had a letter with him which he was going to read. He says he then read the letter of 29 August 2013. He then gave the plaintiff a copy of the signed letter and told him that it had already been posted to his residential address. Mr Byrne states that he told the plaintiff the suspension was immediate. He then recounts a further discussion which is unnecessary to describe. Mr Byrne states that he referred the plaintiff to the name and number of the person referred to at the end of the letter who, it was said, would give him "advice on moving forward".
In his affidavit the plaintiff stated that after this meeting he telephoned the person who he had been referred to at the end of the letter. That person indicated that he had been waiting for the call. The plaintiff states that he asked him: "How long will this process take?"
The response was: "I don't know. Each case is different".
The plaintiff said: "I refute this claim. If it is dismissed by the Police, what happens next?"
The response was: "We have our own committee that looks at these complaints".
The plaintiff said: "How long does that take?"
The response was: "I don't know."
The plaintiff asked him: "What should I do about the Police?"
The response was: "I don't know."
The plaintiff then enquired as to whether he should obtain his own legal advice. The response was he should look outside the University for help, "whether that be legal or something else".
This aspect of the plaintiff's evidence was not contradicted. I accept it.
Two matters should be noted to this point. First, at no time up to the point at which the plaintiff had been suspended and the allegation against him had been referred to a Committee was the plaintiff ever given any notice of the details of the allegation made against him. Counsel for the University, Ms Graycar, submitted that the details of the allegation of misconduct would have been apparent to the plaintiff from the Facebook exchange that I have referred to earlier. It is not necessary for me to set out the details of that exchange. It is suffice to state that at no point during that exchange was there a clear statement to the plaintiff as to what was the precise conduct that he is said to have engaged in.
Second, at no point prior to these decisions was the plaintiff given any opportunity to be heard before the making of a decision to suspend him from his course and exclude him from the University altogether. The decision to suspend him had already been made prior to his meeting with Professor Z and Mr Byrne. In any event, they did not provide him with any opportunity to be heard. The letter that was handed to him did not suggest that he could request the suspension be revoked.
Events after 30 August 2013
It seems that the plaintiff sought legal assistance and was able to obtain it from a relative. On 31 August 2013 his solicitor wrote to Ms Hawkins denying the allegation on behalf of his client and seeking further particulars. Two points should be noted about that letter.
First, the plaintiff's solicitor pointed out that it was a pre-requisite to the plaintiff passing a number of his courses that he attend a particular percentage of classes. The effect of a two week suspension was said by his solicitor to be that he would "fail the current semester". There has been some variation in the precise length of time that is suggested by the plaintiff would have that result. However, his evidence that, if he remains suspended even for a limited period, then it is likely or will inevitably lead to his failing has not been contradicted by any evidence from the University. The only matter that has been put against it is that it is open to him to apply to the University for some form of exemption from the course attendance requirements. Apparently that has now been done and is being considered. The possibility of doing so was not adverted to in either the letter of 29 August 2013 or by Professor Z or Mr Byrne in their subsequent meeting with the plaintiff.
Second, the plaintiff's solicitor's letter requested that the suspension be immediately revoked. In so requesting the letter stated:
"In making this application, and subject to [the plaintiff] being provided with proper particulars and information regarding the allegation requested earlier in this letter, [the plaintiff] is prepared to discuss and consider appropriate arrangements and undertakings regarding his attendances at the University facilities.
I seek your urgent consideration in response to this application and the matters raised in this letter."
The plaintiff's solicitor followed up this letter on 2 September 2013. By 5 September 2013 he still had not received a response. On that date he sent a further letter enclosing a draft summons and affidavit. He adverted to the possibility of approaching the Court. He then received a response from the defendant's solicitors. It included an invitation to make a submission as to why suspension was not appropriate and reasonable in all the circumstances.
On 6 September 2013 the plaintiff approached the Court seeking injunctive relief. After some discussion I set the matter down for final hearing on Tuesday, 10 September 2013, with orders made for the exchange of affidavits in the meantime.
Ms Hawkins' Reasons for Suspension
I have already referred to the reasons given by Mr Byrne and Professor Z in their respective affidavits for recommending the suspension of the plaintiff from the University. It is necessary to describe the reasons given by Ms Hawkins in her affidavit for suspending the plaintiff. It was Ms Hawkins who made the decision.
Ms Hawkins identified eleven matters as informing her decision to suspend the plaintiff, namely: (a) the seriousness of the allegation; (b) the Facebook conversation that I referred to; (c) the prospect of a false allegation; (d) the effect of the alleged incident on Ms Y; (e) the trepidation Ms Y can be expected to experience if she returned to her studies and the plaintiff was still at the University; (f) the effect of the incident on other students; (g) the need to act in serious matters of the kind alleged by Ms Y; (h) the inability of the plaintiff to undertake practical work and the need to inform such work providers of the allegation against him; (i) Mr Byrne's assessment; (j) Professor Z's assessment; and (k) the reputational impact upon the University if it did not take action.
Ms Hawkins summarised her reasons for suspension and not seeking the plaintiff's response on whether he should be suspended as follows:
"26. I did not consider it was necessary to obtain the plaintiff's response on whether he should be suspended. It would not have changed my view given the seriousness of the matter and the Facebook conversations. The plaintiff acknowledged the need for space between the complainant and him, and given the nature of their ... studies, the best way to eliminate any risk to health, safety and welfare was to suspend the plaintiff while the matter was being investigated.
27. Balancing all of the above matters against the impact on the plaintiff in not being able to complete his studies, I formed the view that suspension was necessary and was required to secure the health, safety and welfare of the complainant and others, to protect the reputation of UWS and to respond promptly to such a very serious matter. I believed I had to err on the side of caution to secure the attainment of those matters of safety, reputation and responsiveness.
28. I was also mindful the matter would be referred to the Non-Academic Misconduct Investigation Committee and the plaintiff would be given every opportunity to defend the allegations." (emphasis added)
The following matters should be noted about these reasons. First, as emphasised at the outset, it is not part of the Court's function to assess the merits of Ms Hawkins' assessment.
Second, it is noteworthy that the reason given by Ms Hawkins for not seeking the plaintiff's response to the proposal to suspend him was that, in effect, she did not consider that anything he could say could change her view as to whether suspension was required. Most significantly, she did not seek to justify that failure by reason of any matters of urgency or similar exigency so as to suggest that he represented an immediate threat which made it impractical to afford him an opportunity to be heard.
Third, it is apparent from factors (b) and (c), which are reinforced by the reference to the "Facebook conversations" in [26] of the above extract, that Ms Hawkins made an assessment, albeit limited, of the apparent evidentiary strength of the allegations against the plaintiff.
In particular, her discussion of factor (b) involved her engaging in a process of interpreting the Facebook exchange on the day after the alleged incident and construing it as involving some form of admission by the plaintiff. Counsel for the plaintiff, Mr Drummond, noted the specifics of the allegation against the plaintiff by Ms Y were not raised with him in that exchange. He also submitted that one statement made by Ms Y in that exchange is capable of being taken as an admission by her that nothing in her behaviour would have indicated a lack of consent to what occurred.
Again, it is not my function to weigh these matters but the points made by Mr Drummond are not without substance. If the plaintiff, and in particular his solicitor, had been aware that Ms Hawkins was proposing to place reliance upon the Facebook exchange as a part of some limited assessment of the apparent strength of the evidentiary case against him, then there were points in rebuttal that could have been made on the plaintiff's behalf.
It is to be recalled that, according to Mr Byrne, when he handed the suspension notice to the plaintiff on either 29 or 30 August 2013 the plaintiff denied the allegation of sexual assault but was told that the matter was not to be discussed. Thus, in determining whether to suspend the plaintiff Ms Hawkins has made her own assessment of the strength of the case against the plaintiff, but he was denied any opportunity whatsoever to say anything on this topic.
Fourth, although the passage from [27] of Ms Hawkins' affidavit extracted above refers to the "impact on the plaintiff in not being able to complete his studies", Ms Hawkins' affidavit does not identify or develop what that impact was. There is nothing to suggest that the point made later on his behalf by his solicitor about his need to meet course attendance requirements was ever considered by Ms Hawkins or pointed out to her by Professor Z.
The Decision to Refer the Allegation to a Committee for a Hearing
The other decision of Ms Hawkins recorded in the letter of 29 August 2013 was a determination to forward the complaint against him to a committee in accordance with clause 39 of the Policy. Ms Hawkins explained the reasons for this in her affidavit as follows:
"I also made the decision to refer the allegation to the Non-Academic Misconduct Investigation Committee for the following reasons:
(a) The seriousness of the allegation;
(b) The plaintiff appeared to have a case to answer;
(c) To give the plaintiff an opportunity to respond to the allegation;
(d) It is appropriate for the Committee rather than Mr Byrne or Professor [Z] to investigate the matter; and
(e) The Committee comprises three members whose role is to carefully consider the matter."
The Misconduct - Student Non-Academic Misconduct Policy
Section 5 of the University of Western Sydney Act 1997 provides that the University is established by that Act although Schedule 4 clarifies that the University is a continuation of the University established by the University of Western Sydney Act 1988. By section 5 the University is said to consist of, inter alia, its students. Nothing in the body of the Act expressly governs the admission and exclusion of students from the University. Both the By-Laws made under s 40(1) and the Rules which are capable of being made under s 41(1) can deal with those topics. Nevertheless the University of Western Sydney By-Law 2005 does not address any topic concerning student inclusion, exclusion or misconduct. The Court was not provided with the Rules of the University but there is nothing to suggest that they do either.
Instead, the parties conducted the matter on the basis that the relationship between the University and the plaintiff was governed by some form of contract or agreement between them (cf Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [17] per Gleeson CJ and [57] per Gummow, Callinan and Heydon JJ). In particular, the common assumption of both parties was that there was a legal relationship which was governed by, inter alia, the Policy. For the University's part, it traced its legal effect to the declaration completed by the plaintiff noted above (at [7]) which incorporates the "Policies" of the University. That reference appears to have included the Policy as well as a Code of Conduct and the University Sexual Harassment Prevention Policy. Further, in March 2013 the University issued a tax invoice to the plaintiff, thus giving some further contractual flavour to their relationship.
It is unfortunate that something so important as the legal relationship between the University and its students is unclear. The judgment of Macready AsJ in Wilde v University of Sydney [2002] NSWSC 954 reveals that the By-Laws of the University considered in that case dealt extensively with matters of student discipline. That is not the case here.
A further common assumption of the parties was that the rules of procedural fairness were generally applicable to decisions of the University insofar as they affected a student's individual interests. These rules are commonly extended to private associations at least in circumstances where a person's livelihood or similar interest is jeopardised (see Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162; 52 NSWLR 242 at [246] to [248] per Ipp JA). Regardless of that common assumption the Policy incorporates the requirements of procedural fairness by providing as follows:
"16. The respondent student is entitled to fairness in the handling of any allegation in accordance with this policy including any appeal. A Fairness in Proceedings Guideline is contained in this policy and those principles should be applied where it is reasonably practical to do so.
...
Fairness in Proceedings Guidelines
...
110. The University is committed to ensuring the elements of procedural fairness are followed. These include:
a The opportunity to be heard - a person should be given the opportunity to be heard before a decision that could adversely affect him or her in an individual way is made.
b Adequate prior notice of hearing - the person will normally be given adequate notice of the hearing.
c Absence of bias - the decision maker will normally not be biased. Bias may be actual or perceived.
d Disclosure of relevant material before the decision - the person about whom the decision is to be made is entitled to know what case is to be met.
e Reasonable opportunity to respond - the person about whom a decision is to be made should have a reasonable opportunity to respond before a decision is made.
f Relevance - decision makers will normally take account of relevant considerations and ignore irrelevant ones."
I have already adverted at [5] to the terms of clause 17 of the Policy. For completeness, I note that it provides:
"The misconduct investigation and all information and/or documents in relation to it, are considered confidential, details of which will normally not be disclosed to any persons other than for authorised or lawful purposes."
The relevant part of the Policy for this case is section 4 which is entitled "Procedures". Part A of section 4 is entitled: "Temporary Removal from Activities, Facilities or University". It addresses situations of urgency arising from a student's misbehaviour. Part B of section 4 is entitled "Matters Dealt With by a Unit Head". It addresses various types of complaints that can be dealt with by a so called "Unit Head", which can include a departmental head or a person in the position of Mr Byrne and other University officers. Clause 28, which is found in Part B, provides:
"A Unit Head is responsible for assessing an allegation of non-academic misconduct that has been received. The Unit Head may then deal with the matter under this Part or refer the matter to the Non-Academic Misconduct Investigation Committee, via the Deputy Vice Chancellor, Corporate Strategy and Services, under Part C."
In this case, both Mr Byrne and Professor Z were unit heads. It seems that Mr Byrne assessed the allegation and referred it to the Deputy Vice Chancellor, Corporate Strategy and Services, that is, Ms Hawkins.
Part C is entitled: "Matters Referred to the Non-academic Misconduct Investigation Committee". It is necessary to set out clauses 38 to 43 as they are central to the resolution of these proceedings.
"(38) When a Unit Head refers an allegation of misconduct under this Part the role of the Unit Head is to:
a. ensure that the allegation is clearly stated and that all supporting material is provided, this includes, where necessary, a covering submission outlining the chronology of events and referencing of relevant documents being submitted;
b. advise any persons bringing forward the allegation that the allegation and supporting material will be made available to the Committee and the respondent student;
c. advise the parties of any interim arrangements that are to be put in place pending the formal consideration and processing of the allegation. Such arrangements are not intended to be punitive; they are aimed at keeping the peace and may involve obtaining undertakings from the parties, requirements for reporting and avoidance of parties or particular precincts of the University. As far as possible the arrangements should not affect a student's ability to continue to pursue their studies, attend classes, visit the library and the like;
d. consider whether the matter should initially proceed in accordance with the University's complaints or other formal procedures;
e. consider whether the Work Health and Safety Unit should be advised where a matter may affect the health and/or safety of members of the University community. (Refer to SN-AM Associated Document).
(39) The Deputy Vice-Chancellor, Corporate Strategy and Services on receiving such an allegation should determine within five working days of its receipt, whether to:
a. forward the matter to the Non-Academic Misconduct Investigation Committee; or
b. determine the matter should be handled more appropriately under another University procedure or process; or
c. dismiss the matter if the Deputy Vice-Chancellor, Corporate Strategy and Services is of the view that the allegation is unfounded or does not constitute non-academic misconduct; or
d. determine that the matter requires further investigation. Any such investigation should normally be conducted within 30 working days of receipt by the Deputy Vice-Chancellor, Corporate Strategy and Services. Where this is not practicable the Deputy Vice-Chancellor, Corporate Strategy and Services should advise parties of the reasons for the delay and the likely time frame; or
e. determine that the matter should be managed by a Unit Head in accordance with Part B and refer the matter accordingly.
(40) Where a matter is proceeding to a hearing and the circumstances of the allegations are of such seriousness that some immediate action is warranted, particularly in the interests of health and safety, the Deputy Vice-Chancellor, Corporate Strategy and Services may temporarily suspend the student from the University precincts or restrict the respondent student from attendance or use of particular activities, facilities or services at the University. Such a suspension or restriction may be limited in time but otherwise shall remain in force until the completion of the disciplinary proceedings including any appeal period unless revoked by the Deputy Vice-Chancellor, Corporate Strategy and Services at an earlier time.
(41) The University contact officer will notify the respondent student of the Deputy Vice-Chancellor, Corporate Strategy and Services' decision under clause (39) within five working days of the decision being made.
(42) Where the matter is deemed to be referrable to the Non-Academic Misconduct Investigation Committee the initial notification to a respondent student concerning the allegation will normally:
a. provide the respondent student with the precise terms of the allegation;
b. provide the respondent student with a copy of this policy and any guidelines;
c. provide advice to the respondent student on options available within the University for independent advisory services and student associations, including relevant contact details;
d. provide the respondent student with advice of any action taken, or statutory obligation on the University, to report the matter to an external agency;
e. advise the respondent student of the option to admit the allegation and have the matter dealt with summarily in which case there is no right of appeal;
f. notify the respondent student of any immediate and temporary suspension or restrictions that have been imposed; and
g. ask the respondent student whether he or she wishes to admit the allegation and if so to make a submission with regard to any penalty that might be imposed or any mitigating circumstances that the student feels should be taken into account.
(43) Such a notice is to be sent to the respondent student by mail and the respondent student is to be provided with no less than five working days from the date of delivery to respond."
Part D of section 4 of the Policy deals with the proceedings of the Committee. It is unnecessary to describe its provisions in detail. It suffices to note that they incorporate the means by which a student the subject of a complaint can be represented and adequately put their case.
Challenge to the Referral Decision
As stated, the plaintiff's case involved a challenge to the two decisions taken by Ms Hawkins, one being the referral to the Committee pursuant to sub-clause 39(a) and the other being the suspension decision under clause 40. I will deal with each in turn.
Mr Drummond submitted that the determination of Ms Hawkins to forward the allegation against his client to the Committee could have only been exercised if his client was given a proper opportunity to be heard. In that regard, it is to be recalled that sub-clause 110(a) requires the person to be given the opportunity to be heard before a decision that could adversely affect them is made. It follows from the above recitation of the facts that there was no opportunity given to the plaintiff to be heard before Ms Hawkins made her decision under sub-clause 39(a).
Ms Graycar submitted that such a referral does not attract any obligation of procedural fairness and cited, inter alia, Cornall v AB (A Solicitor) [1995] 1 VR 372, especially at 402. She contended that a decision to investigate a complaint or refer it to a body which would proffer procedural fairness does not of itself attract an obligation of procedural fairness. A good example of this is said to be the judgment in Wilde, where Macready AsJ held that procedural fairness did not apply to the findings of a preliminary report concerning a student's conduct in circumstances where the report was private and had no immediate and adverse consequences for her. His Honour stated (at [37] to [38]):
"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.
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."
Mr Drummond accepted the force of these submissions but identified what he said were two differentiating circumstances relevant to this case. The first was the terms of clause 16 to which I have referred. The second was the potential adverse consequences for a person that would follow if a referral to a committee under sub-clause 39(a) is made. In particular, he submitted that such a referral would give rise to a consideration of the power to suspend in clause 40 as it opens with the words "[w]here a matter is proceeding to a hearing".
The reference to clause 16 in this context does not advance the matter. Clause 16 in turn refers to clause 110 which in turn begs the question of whether, in substance, a decision to refer an allegation to a Committee is in and of itself a decision that adversely affects a student in an individual way. In my view, it does not. A decision merely to refer an allegation to a Committee does not have any immediate effect on the student's interests or expectations or even their reputation given that the matter should be conducted in private. The relevant effect will only arise from the Committee's decision in respect of the complaint. Its deliberations are to be undertaken by affording the plaintiff procedural fairness in accordance with the regime set out in the Policy.
Of the other options referred to in clause 39, sub-clause (c) involves the dismissal of the matter which obviously does not adversely affect the student's interests. The other three options listed in clause 39 will only adversely affect a student's interests if some further power is exercised. It will be at the point of the exercise of that further power that procedural fairness will be required to be observed.
As for the second matter raised by Mr Drummond, namely that referral to a Committee gives rise to the potential for the exercise of the power conferred by clause 40, in my view, that only directs attention to the question of whether procedural fairness is required to be afforded at the point of considering the decision to suspend. For reasons that I will give, in my view, natural justice must be afforded at that point. However, that does not warrant a conclusion that procedural fairness is required to be afforded at the point of consideration of a referral under sub-clause 39(a). If that were so, the entire process contemplated by section 4 of the Policy would be at risk of unravelling as opportunity after opportunity would have to be afforded at every point that a complaint was referred to another body for consideration. In my view, that is clearly not required.
In his written submissions, Mr Drummond also contended that clauses 42 and 43 make it clear that where a determination is likely to be made to refer a matter to the Committee, then the procedural fairness must be complied with before the determination is made. I do not agree. The requirement of notification referred to in clause 42 only arises "where the matter is deemed to be referable to the Committee". This is a reference to a decision that has already been made under sub-clause 39(a), that is, the obligation under clause 42 only arises once the determination has been made under sub-clause 39(a). It is not an obligation that arises at any time prior to the making of the determination under sub-clause 39(a).
It follows that I reject the challenge to the decision of Ms Hawkins to forward the complaint against the plaintiff to the Committee under sub-clause 39(a) of the Policy.
The Decision to Suspend
Mr Drummond submitted that the decision to suspend under clause 40 was invalidated because the referral to the Committee under sub-clause 39(a) was itself invalid. This submission falls with the failure of the challenge to the validity of the referral. Nevertheless, Mr Drummond also submitted that the decision to suspend the plaintiff attracted a right to be heard in its own right and that this was not afforded.
In relation to the decision to suspend, Ms Graycar's written submissions state:
"The decision to suspend a student in accordance with Clause 40 of the [Policy] would generally attract the rules of procedural fairness. However, the existence of the power of suspension pending a hearing by the [Committee] is predicated on the fact that the 'circumstances of the allegation are of such seriousness that some immediate action is warranted, particularly in the interests of health and safety'. In such circumstances, the content of what is required by the rules of procedural fairness may need to be modified to accommodate the need for immediate action 'in the interests of health and safety' of the University community."
The first sentence is undoubtedly well founded both as a matter of procedural fairness generally and under the Policy having regard to clause 110 of the Policy. As the facts of this case graphically illustrate, a decision to suspend could adversely affect a student in an individual way.
The balance of the submission is also, undoubtedly, correct as a matter of theory (see State of South Australia v Slipper ([2004] FCAFC 164; 136 FCR 259 at [113] per Finn J) but it has no particular relevance in this case. The decision to suspend was made eight days after the receipt of Ms Y's complaint. As stated, Ms Hawkins did not assert that the exigencies were such that it was not practical to afford the plaintiff the opportunity to be heard before he was suspended. Further, as a matter of construction, it is difficult to envisage the exigencies exception to the hearing rule of natural justice being reconciled with the express words of sub-clause 110(a). Finally, even if a failure to give the plaintiff an opportunity to be heard before a decision is made was justified by the exigencies of this situation, then the plaintiff would still need to have been given an opportunity to be heard on whether the suspension should be revoked and that in turn would require him to have been apprised of why the decision was made in the first place. That did not occur. He was only provided with an opportunity to argue the revocation after the persistent efforts of his solicitor. He was never advised of the details of the complaint and the various factors that were considered material to the decision to suspend. That was only revealed by the affidavits filed in these proceedings.
In my view, there was a clear failure to afford procedural fairness to the plaintiff before he was suspended. First and foremost, the plaintiff was simply not told that his suspension from the University was even being considered. He was thus denied the most basic of opportunities to be heard before the power was exercised adversely to him.
Secondly, the plaintiff was not apprised of the factors or criteria that were proposed to be relied on or considered before the power was exercised (see sub-clause 110(d); Kioa v West [1985] HCA 81; 159 CLR 550 at 587 per Mason J and 628 to 629 per Brennan J, and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [16] to [17]). As I have stated, those factors included Ms Hawkins' own assessment of the relative strength of the evidence against him, a limited assessment of the hardship that would be occasioned to him by suspension as well as her assessment of the risk he posed.
There were a number of matters that the plaintiff, no doubt with assistance, could reasonably have expected to have been able to put forward in opposition to a suggestion that he be suspended, if proper notice had been given. Without being exhaustive, they include the following. First, he could have reasonably been expected to point out the hardship to him from failing his course attendance requirements if he was suspended even for a short period.
Secondly, if he had been aware that Ms Hawkins proposed to consider the apparent strength of the evidence against him he could be expected to have made submissions to the effect that the case was not that strong bearing in mind the content of the Facebook messages.
Thirdly, and most significantly, the plaintiff could, as his solicitor later suggested, reasonably have been expected to put forward alternative proposals to outright suspension, which carried with it inevitable course failure, and which might have still met the University's concerns. These were all matters of substance which a decision maker acting reasonably could have been expected to consider before exercising the power of suspension.
At this point I will address a number of submissions made by Ms Graycar concerning the decision to suspend. Ms Graycar submitted that the plaintiff has not demonstrated how he has been occasioned "practical injustice", citing Re Minister for Immigration and Multicultural and indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] per Gleeson CJ. In particular she contended that the plaintiff did not identify any critical issue of which he was not on notice and which could have led to an adverse decision against him and to which he was entitled to respond but not given an opportunity to do so.
I reject this submission for two reasons. First, because it was not until Ms Hawkins' affidavit was served that the plaintiff was ever apprised of the factors relied on by Ms Hawkins to make her decision. How, in those circumstances, could the plaintiff have pointed to what he would have said on the critical issues on which the decision had turned when he did not know what those issues were? The reference by Gleeson CJ to "practical injustice" in Lam was in circumstances where a decision maker had made a "representation" about a matter of procedure which was not complied with. In those circumstances, the party that said they were affected did not show how the departure from that representation caused them any unfairness. That is completely different to this case. This case involves a complete failure to provide any opportunity to be heard on the exercise of the power adverse to the plaintiff. In and of itself that failure constitutes a relevant "practical injustice", if that is what is required (see Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1 at [72] to [76] per Kirby J).
Secondly, in any event, it follows from the above discussion that there are matters that could have been put on behalf of the plaintiff which were material to the decision to suspend and which he did not have the opportunity to put forward. If "practical injustice" is required to be shown, then that would suffice.
Ms Graycar also submitted that the decision to suspend was, in fact, made by reference to material of which the plaintiff was aware and to an extent the author. This is a reference to the Facebook material. I do not accept that submission. As I have stated, the Facebook exchange did not disclose to the plaintiff the details of the complaint made against him. It certainly would not have brought home to him the factors or criteria being adopted by Ms Hawkins in making her decision to suspend.
It was also submitted that, by reason of the plaintiffs acknowledgement that he was bound by the University's policies (see [7]), he should have been taken to have been on notice of the possibility that he might be suspended. Even if the plaintiff could be imputed to have knowledge of the existence of a Policy containing a power to suspend, that is a long way short of finding that he was on notice that it was being actively considered. To the contrary, there is absolutely no evidence to suggest that the plaintiff was apprised that a consideration of his suspension was under consideration.
In the period between the incident on 16 August 2013 and the notification to the plaintiff that he was suspended on either 29 or 30 August 2013 contact was made with him by a University counsellor. An email exchange between the plaintiff and the counsellor reveals that the plaintiff did not understand why contact was being made. If anything, however, the fact that he was contacted by a counsellor, whom he might have thought to be some representative of the University, would not have triggered any foreboding on the part of the plaintiff that there was a possibility that he would be suspended.
Finally, reasoning by analogy with the decision in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91] to [92], Ms Graycar submitted that a failure to comply with procedural fairness did not warrant a conclusion that the decision to suspend was invalid. Again I do not agree. The repeated emphasis of considerations of fairness that are to be found throughout the Policy, confirm, if confirmation is required, that in circumstances where the obligation of fairness is engaged, a failure to comply will mean that the relevant decision has not been validly taken under the Policy.
Accordingly, I am satisfied that the decision to suspend under clause 40 involves a failure to afford the obligation of procedural fairness embodied by clause 110.
Discretionary Refusal to Grant Relief
Ms Graycar further submitted that relief should be refused to the plaintiff on discretionary grounds. The submissions assumed that the discretion to refuse relief in these circumstances is enlivened by the principles that operate in relation to applications for judicial review of decisions made under statute. I will do likewise.
In Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; 17 VR 492 at [75], Redlich JA identified two circumstances in which relief for a breach of procedural fairness may be refused on the basis of utility:
"In my view, the principle laid down in Stead [v State Government Insurance Commission [1986] HCA 54; 161 CLR 141] contemplates two circumstances in which relief may be refused. It will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Second, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same."
The discussion in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [29] confirms the correctness of the first aspect of Redlich JA's analysis. In relation to the second aspect, in NAFF, Kirby J stated at [84]:
"It is not the function of judicial review to retry the merits or, as such, to reassess the merits of the case and excuse an established departure from fair procedures because the merits seems strongly one way. If the departure from procedural fairness might have affected the outcome, the function of judicial review is to say so."
Thus in Ucar at [79] Redlich JA stated:
"The degree of causal connection between the alleged breach and the reasons for decision is not a relevant inquiry. The first way in which relief may be refused calls for an assessment of whether the matter to which the procedural fairness relates could possibly have affected the decision. It will have done so where the procedural unfairness went to an issue that was in controversy that was material to the decision. If such a connection is identified, it is immaterial what, if any, actual effect the procedural unfairness had upon the decision maker.
Neither of the circumstances identified by Redlich JA in Ucar at [75] for refusing relief have been established here. The decision to suspend did not turn upon some uncontroversial fact or point of law. Further, the defendant has not demonstrated that it would be futile for the matter to be reconsidered because the result would inevitably be the same. To the contrary, what has occurred is that there was a complete absence of any opportunity to be heard in circumstances where it could reasonably have been expected that the plaintiff would have put forward matters of substance relevant to the decision to suspend especially if he had been apprised of the relevant factors or criteria to be considered. That is sufficient. Consistent with the observations of Redlich JA, no further causal inquiry is warranted.
In support of her contention that relief should be refused as a matter of discretion, Ms Graycar pointed to the alleged absence of any matter relied on by Ms Hawkins that the plaintiff was not aware of and the absence of any matters he could have put had he had the opportunity to do so. I have already addressed and rejected those contentions.
Ms Graycar also pointed to the evidence of Professor Z which was said to suggest that the existence of the complaint against the plaintiff meant that he could not obtain work placements even if he was not suspended and thus he would inevitably fail.
Professor Z stated that, if the plaintiff was not suspended, then at the point where work placement was being considered she would feel obliged to inform the external body providing the work of the existence of the complaint. So much can be accepted. However, I remain unconvinced that it has been established that all of the potential bodies who could be the source of such work placements would invariably refuse to accept the plaintiff. That was not established by the evidence. It was certainly not demonstrated by the making of any actual enquiry of those institutions. Unless and until genuine attempts are made to those institutions to obtain work placements for the plaintiff the position speculated on by Professor Z will not be known. In the end result, the University has not satisfied me that it is inevitable that, if the plaintiff is not suspended, no such work placement is possible.
Ms Graycar also submitted that it was inevitable that a further suspension would be imposed. She pointed to evidence of Ms Hawkins that indicated that, had the plaintiff asserted that Ms Y had consented to whatever sexual acts took place on the evening of 16 August 2013, it would have made no difference to her decision.
Two matters should be noted about that evidence. First, there is a potential danger to the defendant in making a submission to the effect that, if the matter was to be reconsidered, it is inevitable that the same decision maker would reach the same result. All this may indicate is that the relevant decision maker has closed their minds against a party and that they will not reconsider whatever matters might be put forward by that party with an open mind.
It must be remembered that the decision to be made is one that must be made by an unbiased person (sub-clause 110(d)). The decision maker must undertake the task honestly and in good faith. This requires genuine consideration of the points that are to be raised (see Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 at 552, and Mitchell at 247).
In any event, I do not read Ms Hawkins' affidavits as conveying the suggestion that, even if all of the matters that have been canvassed on behalf of the plaintiff in the hearing before me had been raised with her, then the decision would have been the same. Instead, as I understand it, the relevant paragraph of her affidavit was only directed to a suggestion raised by the plaintiff's counsel, when the matter was first before the Court on 6 September 2013, who indicated in relation to the allegation against his client that "consent was a live issue". All that Ms Hawkins said was that, if she had been told of that bare contention, that would not have made any difference to her decision.
In her affidavit Ms Hawkins did not purport to express any opinion upon such matters that the plaintiff may wish to put about the strength of the allegation, bearing in mind that that is a factor which she considered. She has not purported to express any view upon the relevance or weight to be attached to the suggestion that if the suspension simply continues the plaintiff must inevitably fail. I add that if she had purported to address those matters then the likely consequence might not be the refusal of relief of the kind sought by the plaintiff, but further relief that would require someone else to undertake any reconsideration.
Ms Graycar's submissions also pointed to parts of Professor Z's evidence which suggested that it was not practical for the plaintiff to resume classes while the investigation against him is still proceeding, especially bearing in mind the interests of Ms Y. These are matters that may have to be considered, but I am not persuaded that it is inevitable that suspension must occur. In particular, I am not persuaded that some reduced level of academic participation by the plaintiff is impossible pending the outcome of the investigation of the complaint against him.
I reject the submission that relief should be refused as a matter of discretion.
Form of Relief
The remaining issue that arises is the form of relief that should be granted. In respect of the decision to suspend the plaintiff, I consider it is appropriate to grant declaratory relief reflecting the invalidity of the decision to suspend. Further, I consider it appropriate to grant a limited form of injunctive relief that prevents the University from further acting on or giving effect to that decision to suspend. In a sense I will grant a form of relief analogous to prohibition.
I will shortly hand to counsel draft forms of order. Before that, I note the following.
The relief sought in the summons appears to accept, as it must, that following these proceedings it will be open to the defendant to reconsider the power to suspend provided for in clause 40 of the Policy. However, the summons seeks orders that this only occur on condition that procedural fairness be afforded. The terms of this judgment have found that that must be so. However, it is not appropriate to restrain the University from exercising the power conferred by clause 40 without according procedural fairness under threat of contempt if it fails to do so, even allowing for the terms of clause 110.
The rules of procedural fairness have a flexible quality. A Court order which is drafted in terms of requiring a party to afford procedural fairness is simply not specific enough. Contempt hearings are not the appropriate forum for determining the content of the obligation of procedural fairness in a particular case. Conversely, any attempt to specify with precision in advance what procedural fairness requires is legally impossible.
A further aspect of the relief sought by the plaintiff in the summons is that some of the orders sought are expressed to be "until further order". They appear to contemplate the Court supervising the defendant in any consideration of the decision to suspend. Again this is not appropriate. The issues raised in this Court were the validity of the decision to refer the complaint to a Committee and the decision to suspend. Those matters have now been determined. The parties must take their own course. Whether that may lead to some form of consensual arrangement that protects the various competing interests or further disputation is a matter for them.
(His Honour handed down the orders to counsel. Discussion ensued.)
Orders
(1) The Court declares that the purported determination made under clause 40 of the University's Student Non-Academic Misconduct Policy on or about 29 August 2013 that the Plaintiff be denied access to all of the Defendant's campuses and associated facilities with immediate effect, and that he not communicate with any member of staff of the Defendant, was not validly made and is of no effect.
(2) The Court orders that the Defendant be restrained from denying the Plaintiff access to the University's campus and associated facilities or be otherwise impeded in the pursuit of any course of study in which he is enrolled based on the purported determination made under clause 40 of the University's Student Non-Academic Misconduct Policy on or about 29 August 2013 that the plaintiff be denied access to all of the Defendant's campuses and associated facilities with immediate effect and that he not communicate with any member of staff of the Defendant.
(3) The proceedings are stood over to 16 September 2013 at 10.00am before Beech-Jones J.
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Decision last updated: 16 September 2013
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