Sharifi v University of Auckland
[2021] NZHC 1955
•30 July 2021
THIS IS A REDACTED VERSION OF THE JUDGMENT FOR PUBLICATION. AN UNREDACTED VERSION HAS BEEN DELIVERED TO THE PARTIES. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000396
[2021] NZHC 1955
UNDER Judicial Review Procedure Act 2016 Part 30 of the High Court Rules 2016 IN THE MATTER
of an application for review of decisions made under the University of Auckland’s Statute and Guidelines for the Degree of Doctor of Philosophy 2016
BETWEEN
SEYED MORTEZA SHARIFI
Applicant
AND
UNIVERSITY OF AUCKLAND
Respondent
Hearing: 29 June 2021 Appearances:
N Pender for Applicants
I Rosic and Z Brentnall for Respondent
Judgment:
30 July 2021
JUDGMENT OF VENNING J
PRODUCTION AND CONFIDENTIALITY
This judgment was delivered by me on 30 July 2021 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Robinson Legal, Wellington
Gilbert Walker, Auckland
SHARIFI v UNIVERSITY OF AUCKLAND [2021] NZHC 1955 [30 July 2021]
Introduction
[1] Seyed Sharifi was registered and enrolled for over four years with the University of Auckland (the University) as a Doctor of Philosophy (PhD) candidate in education.
[2] On 6 March 2020 Mr Sharifi submitted his PhD thesis for examination. After considering the examiners’ reports, the University’s Board of Graduate Studies accepted a recommendation from Mr Sharifi’s examination committee that he should proceed to an oral examination. Following the oral examination the Board of Graduate Studies informed Mr Sharifi that it had resolved not to award a degree.
Judicial review
[3] Mr Sharifi has issued judicial review proceedings against the University. He accepts that his thesis does not yet meet the requisite standard for the award of a PhD. However, he says that usually a PhD student will be given an opportunity to amend their thesis before final examination and rejection. Mr Sharifi currently challenges two decisions of the University:
(a)first, the decision to proceed to oral examination. On this ground he alleges error of law and unfairness; and
(b)second, the decision not to permit him to revise and resubmit his thesis for examination on another occasion. On this ground he alleges failure to take account of relevant considerations and irrationality.
This application
[4] During the course of the proceedings the University has discovered certain materials relating to the supervision of Mr Sharifi’s thesis and the examination process. It has claimed confidentiality in relation to 22 of those discovered documents. While claiming confidentiality it has disclosed those documents to Mr Sharifi’s counsel.
[5] Mr Sharifi now seeks orders for the production of those 22 documents to him under s 14(2)(h) of the Judicial Review Procedure Act 2016 on the basis they are:
(a)relevant;
(b)not confidential as they contain Mr Sharifi’s personal information; and
(c)even if they were confidential any harm in disclosing them is outweighed by public interest in disclosure.1
[6] Some of the 22 documents in issue disclose the identity of the examiners of Mr Sharifi’s thesis. The remainder consist of sections of the examiners’ reports which were withheld, communications between internal staff members of the University concerning Mr Sharifi, comments by Mr Sharifi’s supervisors, communications between the examiners and the examining committee, discussions between members of the examining committee, communications between the examining committee and the Board of Graduate Studies, and a record of the discussions between members of the oral examination committee.
Preliminary matters
[7] While discovery and production of documents is discretionary in judicial review proceedings (as opposed to the general rules that apply to discovery in ordinary proceedings), the University has discovered the documents in issue and has produced copies of them to Ms Pender as counsel for Mr Sharifi. As the documents have been discovered it follows that the University considered them to be relevant.2
[8] As noted, Mr Sharifi also relies on the fact the documents contain personal information concerning him. Ms Pender submitted that Mr Sharifi would be entitled to the documents under the Privacy Act 2000.
1 Evidence Act 2006, s 69.
2 For the reasons that follow, while the emails relate to Mr Sharifi’s case a number of them are inconsequential and so are not directly relevant to the matters in issue in the proceeding.
[9] This is not an application for orders under the Privacy Act. The Privacy Act provides specific procedures under Part 4 to enable a person to obtain their information and Part 5 sets out the process for complaints, investigation and proceedings before the Human Rights Review Tribunal in the event an application is declined. This Court has no role to play in that process. Section 50 of the Privacy Act may however be relevant as a general consideration under s 69(4) of the Evidence Act 2006 to the extent that section confirms that if the information is in the nature of evaluative material that may provide grounds for refusing to disclose it.
[10] The principal issue in this case is whether the University can make out its claim to confidentiality in the documents under s 69 of the Evidence Act 2006 to prevent further disclosure and particularly disclosure to Mr Sharifi.
The examination process
[11] To set the context, more detail of the examination process adopted in Mr Sharifi’s case is required. As noted, Mr Sharifi submitted his PhD thesis for examination on 6 March 2020. The Board of Graduate Studies appointed two examiners on 12 March 2020 (one an overseas academic, the other a New Zealand academic) and sent copies of his thesis to those examiners.
[12] Examiner 1 considered the thesis was an original contribution to knowledge or understanding in its field and met internationally recognised standards for such work, recommended minor corrections and revisions and provided a list of questions for the oral examination. Examiner 1 recommended the degree be awarded after revisions. Examiner 2 considered the thesis was not an original contribution to knowledge or understanding in its field and did not meet internationally recognised standards for such work. Examiner 2 declined to list any corrections or revisions and considered an oral examination was not warranted. Examiner 2 recommended not to award any degree.
[13] On 12 June 2020 the Board of Graduate Studies noted the reports of the two examiners were in serious conflict and appointed an additional examiner (Examiner 3). Examiner 3 considered the thesis did not explicitly make a compelling argument as to how it was an original contribution to knowledge and should be revised
so that the original contribution – theoretical and/or methodological was explicitly stated at least in the abstract and the conclusions. Examiner 3 considered the thesis met internationally recognised standards for such work to some extent but still needed substantial revision to meet international standards for a PhD thesis. Examiner 3 recommended the degree be awarded after revision.
[14] On or about 1 September 2020 the Board of Graduate Studies received and approved a recommendation from Mr Sharifi’s examination committee that he should proceed to an oral examination. The examination committee comprised the Associate Dean, Professor Gavin Brown (as Chair); the Head of Department, Professor John Morgan; and [redacted], nominated by the Head of Department.
[15] On 24 September 2020 Mr Sharifi appeared at the oral examination. The oral examiners were [redacted]. Mr Sharifi’s supervisor also appeared by zoom.
[16] On completion of the oral examination the oral examination panel was required to provide a written report to the Board of Graduate Studies including its recommendation. The recommendations available to it were:
(a)to award the degree; or
(b)to award the degree after specified minor corrections had been made to the thesis, to the satisfaction of the Oral Examiner or nominee; or
(c)to award the degree subject to revising part of parts of the thesis to the satisfaction of the Oral Examiner or Head of Department; or
(d)to permit the candidate to revise the thesis and resubmit it for examination on one further occasion only, but only if the candidate had not already been permitted to revise and resubmit; or
(e)to refer the thesis to the appropriate authority within the University for consideration of the award of another degree; or
(f)not to award the degree.
[17] On 28 September 2020 the oral examination panel recommended not to award the degree.
[18] On 30 September 2020 the Board of Graduate Studies informed Mr Sharifi that it had resolved not to award the degree. On 6 October written reasons were provided for the decision.
[19] On 8 October 2020 Mr Sharifi appealed to the Board of Graduate Studies. The Deputy Dean, who was deputed to the position by the Chair of the Board of Graduate Studies, undertook a preliminary investigation and on 13 November 2020 determined there were no grounds for the appeal to be taken to a further stage.
[20]Mr Sharifi subsequently issued the judicial review proceedings.
Applicant’s case for disclosure
[21] Ms Pender submits that the information disclosed in the documents will support further causes of action in the review proceedings, including bias, pre- determination, breach of natural justice, taking account of irrelevant considerations, and the improper input and influence of Mr Sharifi’s supervisor, [redacted]. She argues that it would not be practical to replead Mr Sharifi’s case and to present it without Mr Sharifi being aware of the relevant documents.
[22] Ms Pender submitted that the public interest in disclosing the documents in the proceeding to enable Mr Sharifi to vindicate his rights to information concerning him and to fully understand the basis of any repleaded claim on his behalf was not outweighed by the public interest issues claimed by the University as:
(a)the material all constituted Mr Sharifi’s personal information;
(b)the documents shine light on the decision-making process and are materially relevant to the decisions under review and support additional grounds of review;
(c)the existing statement of claim will need to be amended and further evidence gathered which cannot realistically be undertaken without Mr Sharifi being shown the documents and aware of the information;
(d)the following passage from the decision of the Court of Appeal in Norrie v Senate of the University of Auckland supported disclosure to Mr Sharifi:3
[he] should be entitled on personal grounds to know that an end to his potential career has been decided upon by the University for reasons that are entirely justified and by methods that are demonstrably fair and appropriate. As well there is the very distinct public interest in seeing that the very large investment of public money in taking him so far will not be thrown away except for good and substantial reasons.
The University’s case for confidentiality
[23] The University resists the application for disclosure on the basis the documents are confidential and that the public interest in disclosing the documents to Mr Sharifi for the purpose of this proceeding is outweighed by a countervailing public interest.
[24] In support of the opposition the University filed an affidavit from Dr Caroline Daley, the Dean of Graduate Studies at the University.
[25] Dr Daley says she would be concerned about the harm that could result if the information sought was disclosed to Mr Sharifi, both to the individuals who authored the communications, to the University’s relationship with external examiners, and the University’s supervision and examination processes generally. Disclosure would demonstrate the University could not be assured the communications it believed were made in confidence would be kept confidential.
Section 69, Evidence Act 2006
[26] The focus in this case is on the University’s claim to confidentiality under s 69 of the Evidence Act. That section provides:
69 Overriding discretion as to confidential information
3 Norrie v Senate of the University of Auckland [1984] 1 NZLR 129 at 135.
(1)A direction under this section is a direction that any 1 or more of the following not be disclosed in a proceeding:
(a)a confidential communication:
(b)any confidential information:
(c)any information that would or might reveal a confidential source of information.
(2)A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—
(a)preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or
(b)preventing harm to—
(i)the particular relationship in the course of which the confidential communication or confidential information was made, obtained, recorded, or prepared; or
(ii)relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or
(c)maintaining activities that contribute to or rely on the free flow of information.
(3)When considering whether to give a direction under this section, the Judge must have regard to—
(a)the likely extent of harm that may result from the disclosure of the communication or information; and
(b)the nature of the communication or information and its likely importance in the proceeding; and
(c)the nature of the proceeding; and
(d)the availability or possible availability of other means of obtaining evidence of the communication or information; and
(e)the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and
(f)the sensitivity of the evidence, having regard to—
(i)the time that has elapsed since the communication was made or the information was compiled or prepared; and
(ii)the extent to which the information has already been disclosed to other persons; and
(g)society’s interest in protecting the privacy of victims of offences and, in particular, victims of sexual offences.
(4)The Judge may, in addition to the matters stated in subsection (3), have regard to any other matters that the Judge considers relevant.
(5)A Judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.
Reasonable expectation of confidentiality
[27] The Evidence Act does not provide a definition of confidential communication or confidential information. The Court of Appeal has confirmed that information will be confidential for the purposes of s 69 if the party claiming confidentiality could have a reasonable expectation of confidentiality.4 Dr Daley’s affidavit establishes that the University, its employees and the external examiners would have a reasonable expectation of confidentiality given the relationships between them and the tasks they were undertaking.
[28] The current application concerns both confidential information and confidential communications. The identity of the examiners, particularly identifying them as the authors of their particular examination reports is confidential information,5 and the communications between the University, the examiners, the supervisors, and the Board of Graduate Studies are confidential communications.6
[29] It is relevant that Mr Sharifi seeks the documents for the purpose of legal proceedings. The Court of Appeal have also confirmed that there is a public interest in all relevant information, confidential or not, being disclosed in a legal proceeding. All concerned, not least the Court, should have and be able to refer to all relevant information when litigating disputes. This public interest in disclosure prevails and a direction for non-disclosure will be refused unless another public interest of the nature
R v X (CA553/2009) [2009] NZCA 531 at [48]; and Greenbaum v Southern Cross Hospitals Ltd
[2019] NZCA 438 at [28].
Evidence Act 2006, s 69(1)(b).
Evidence Act 2006, s 69(1)(a).
identified in s 69(2) exists and outweighs the public interest in disclosure having regard to the matters in s 69(3) and any other matters considered relevant (s 69(4)).7
Confidential information
[30]I deal first with the information concerning the examiners’ identities.
[31] I discount the very general suggestion in Dr Daley’s affidavit that there is a risk of personal harm to the examiners and supervisors if the information is disclosed. There is no ground for that concern on the basis of the material before the Court. The suggestion is speculative and at best, overly cautious.
[32] Dr Daley also says that the doctoral examination process relies on a free flow of information between the University and its examiners. To help ensure that free flow of information the University will only disclose an examiner’s identity to the candidate if the examiner has agreed to waive confidentiality over their identities and then only after the examination process has concluded. If the University is unable to honour the promise it has made of confidentiality to examiners it will encounter greater difficulty in securing examiners and those it does secure may not feel able to be frank in their assessments.
[33] In the present case Examiner 1 did agree to allow their name to be released to Mr Sharifi. Examiners 2 and 3 did not agree to have their names released to Mr Sharifi.
[34] I accept there is a public interest in preventing harm to the relationship between the University and external examiners of doctoral theses. However, while acknowledging that general proposition, the situation is rather more nuanced than that. Where the examination process has been completed the argument for confidentiality is more difficult to support.
[35] The University’s practice of maintaining the anonymity of examiners is not followed by all universities in New Zealand. For example, the University of Otago website records that while the identities of the examiners are not initially released to
7 Greenbaum v Southern Cross Hospitals Ltd, above n 4, at [29].
the candidate, if an oral examination is held the examiners’ identities are divulged at that time, and after the examination result is made known to the Doctoral Office, the examiners’ identities are disclosed in any event. Victoria University of Wellington keeps the identity of examiners confidential until such time as the examiners’ reports are released. There is no suggestion that practice has caused any difficulty for those Universities.
[36] The identity of the examiners is directly relevant and important to the proposed pleading of bias and predetermination. It is at least potentially relevant that Examiner 2, who recommended that no degree be awarded, was the Oral Examiner. In making that observation, I say nothing about the merits of that proposed pleading.
[37] Ms Rosic submitted it was relevant that the University had undertaken it would keep the examiners’ identity confidential. That is a factor but it is not determinative. As Lord Diplock said in D v National Society for the Prevention of Cruelty to Children:8
The fact that information has been communicated by one person to another in confidence, however, is not of itself a sufficient ground for protecting from disclosure in a court of law the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are relevant to an issue upon which it is adjudicating. The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law.
[38] Ms Rosic also suggested that it was unnecessary for Mr Sharifi to be provided with details of the examiners’ names for his case to be repleaded. She referred to the observation of Asher J as to how confidential information could be dealt with in the case of Intercity Group (NZ) Ltd v Naked Bus (NZ) Ltd.9 I do not consider this is an appropriate case for the sort of approach discussed in the Naked Bus case. The interests of Mr Sharifi are personal. He has a prima facie right to be fully appraised of relevant information concerning him. His interest is personal and is quite different
8 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 (HL) at 218 (footnote omitted) (emphasis added).
9 Intercity Group (NZ) Ltd v Naked Bus (NZ) Ltd [2013] NZHC 2261.
to the interests of parties to commercial litigation where the issue is how to deal with confidential commercial information.
[39] Ms Rosic also relied on the decision in Greenbaum v Southern Cross Hospitals Ltd, where the Court of Appeal accepted that the identity of the referees and references given by clinicians in a private hospital during a credentialing process should remain confidential.10 The Court concluded significant harm would be caused to the relationship between the private hospitals and those providing references for that process if the communication or information was disclosed (in the absence of malice or other improper purpose).
[40] The case of Greenbaum can be distinguished. While the references addressed matters personal to the subjects of those reports they went to their suitability as a clinician at a private hospital. Patients’ safety was a key consideration. In this case the comments about the personal attributes or skills of a particular student are of no relevance in the doctoral examination process – the examiner is only sent the text of the student’s thesis to assess it objectively. The safety of members of the public is obviously not a consideration.
[41] The University, the examiners (and for that matter the supervisors) need not be embarrassed or concerned by the prospect of public disclosure of their identity. If their identities are disclosed, the disclosure can be restricted to Mr Sharifi and his counsel solely for the purposes of these judicial review proceedings. The Court will be in a position to manage any further dissemination of their identity during the hearing.
[42] On balance, for the above reasons, I do not consider that the important public interest in the disclosure of the examiners’ identity for the limited purpose of enabling Mr Sharifi to replead his case is outweighed by the public interest considerations of preventing harm to the relationship under s 69(2)(b).
[43] The examiners’ reports are in three parts. Part 1 is the recommendation and confidentiality waiver. Part 2 is the evaluation. Part 3 contains the examiners’ confidential comments. For the purposes of disclosing the examiners’ identities, Part
10 Greenbaum v Southern Cross Hospitals Ltd, above n 4.
1 of the reports are to be disclosed to Mr Sharifi. As I understand it, the substance of the evaluation in Part 2 has already been disclosed. If not, it should be disclosed. However, Part 3 deals with potentially extremely personal comments and is not to be disclosed. I accept that the public interest considerations against disclosure of the confidential communications in Part 3 outweigh the public interest in disclosure of those comments to Mr Sharifi.
Confidential communications
[44]Dr Daley deposed that:
(a)the University does not expect communications between the supervisors [redacted] and the Associate Dean (Professor Brown), the Board of Graduate Studies or any other third party about a candidate to be disclosed to the candidate. If the supervisor’s communications were to be disclosed to candidates, supervisors would become more cautious about who they agreed to supervise. They may only be willing to supervise candidates they had taught before. That would be particularly detrimental to international candidates who generally had no existing relationship with the University. Disclosure would also inhibit the frankness with which supervisors discussed matters concerning candidates when seeking advice;
(b)the University does not expect the Associate Dean’s communications about specific candidates to be disclosed to the candidate. The Associate Dean is in regular communication with supervisors about issues or matters facing candidates. The Associate Dean needs to be able to discuss matters brought to his or her attention frankly. If the Associate Dean’s communications could be disclosed to candidates that would inhibit the frankness of those communications and lead to poorer outcomes for specific candidates;
(c)the University expects the examination committee’s internal deliberations and communications with examiners, supervisors and the Board of Graduate Studies will be kept confidential vis-à-vis the
candidate. It is crucial the examination committee be frank in its internal deliberations and communications with examiners, supervisors and the Board of Graduate Studies;
(d)it is important that the Dean of Graduate Studies can be frank in communications with her team and other staff members. She does not expect the communications to be disclosed to candidates;
(e)it is crucial that deliberations among the members of the oral examination committee be conducted frankly and that the committee speak frankly in its report to the Board of Graduate Studies.
[45] I accept that the nature of the communications as internal communications within the University supports an expectation of privacy.
[46] A number of the internal University emails simply attach other more relevant documents or discuss matters of process generally. While they refer to Mr Sharifi or his case, they have little relevance to the proceedings. Ms Pender accepted that some at least were inconsequential and not relevant. I accept that, given that lack of relevance to the matters in issue the public interest in maintaining confidentiality in such internal emails outweighs the public interest in them being provided. Their disclosure is unnecessary for Mr Sharifi to be fully advised of the basis for his proposed amended claim.
[47] The same however cannot be said for at least aspects of the communications involving [redacted], the examination reports, the text of the recommendation of the examination committee to proceed to oral examination, the record of the oral examination and the report by the Oral Examination Committee. Those documents or parts of them are potentially all relevant to the decisions under challenge.
[48] It is relevant that the deliberative process has concluded in this case. But I acknowledge that the harm Dr Daley relies on also includes harm to the relationships in the future. In the case of AQJ v University of New South Wales,11 while accepting
11 AQJ v University of New South Wales [2013] NSWADT 306.
the deliberative process was completed, the Tribunal considered that academics might be reluctant to express views if they were aware the views would be made public. However, that case can also be distinguished. The applicant had been provided with a summary of the content of the emails. The Tribunal was satisfied that the content of them would not assist the applicant in ascertaining how his work was assessed.
[49] In Mr Sharifi’s case, the emails generally will not assist him in his case either, but the other information will inform him about the process of assessment of his work and it is relevant to his proposed amended pleading.
[50] Ms Rosic sought to distinguish the case of Norrie on the basis that, unlike Mr Norrie, Mr Sharifi knows why he was not awarded a degree.12 I accept the central issue in Norrie was whether the decision of the University Visitor was reviewable, but the statement of principle referred to in that case has general application.
[51] It is also arguable that disclosure of relevant communications after the deliberative process is complete will enhance rather than harm the public interest in relationships central to the University’s doctoral examination process by enhancing confidence in the process. Further, disclosure of the communications to Mr Sharifi might assist him to accept that the University had undertaken a careful and thorough examination process.
[52] It is also relevant that the information would not be publicly disclosed. The information has already been disclosed to Mr Sharifi’s counsel. Any further disclosure would be limited to Mr Sharifi and the use it could be put to would also be limited in accordance with r 8.30(4) of the High Court Rules. The information could only be used for the purposes of this proceeding and on condition it was not to be made available to any other person.13 To the extent that the University’s concerns concerning disclosure are about inconvenience and embarrassment such considerations can be of little, if any significance in weighing the relevant public interests.
12 Norrie v Senate of the University of Auckland, above n 3.
13 High Court Rules 2016, r 8.30(4).
[53] Mr Sharifi’s rights to seek his private information under the Privacy Act could be a relevant consideration under s 69(4). I consider the fact that Mr Sharifi could seek part, if not all of the information, under the Privacy Act to be a relatively evenly balanced factor. As the Court observed in Greenbaum, the fact an agency can withhold evaluative material supplied in confidence raises similar considerations to those under s 69(2) of the Evidence Act.14 Counsel referred the Court to Westwood v University of Auckland, a decision of the Complaints Review Tribunal, which considered the application of s 29 of the former Privacy Act 1993.15 The University had resolved not to award Ms Westwood a PhD. She sought copies of various documents, including a report of the oral examination from the supervisor, and the supervisor’s report.
[54] Initially she had also sought copies of the examiners’ reports but she accepted the University’s argument they were evaluative material and did not need to be disclosed under the provisions of the Privacy Act.
[55] The issue in the case was whether the internal reports of the supervisors could be said to have been supplied to the University. However the Tribunal accepted that the supervisors’ reports and the supervisors’ examiners’ reports were evaluative material. The Tribunal was influenced by the promise of confidentiality. As noted, in legal proceedings such as these, such a promise is relevant but is not determinative. Further, it is also relevant that a court can control the use of the information it permits disclosure of. In Ms Westwood’s case the Court did direct provision of certain other information held by the supervisors.
[56] In the present case the fact the evaluative or deliberative stage of the current process has passed is also a relevant factor.
[57] While the information and communications could not be said to be critical to the likely success or otherwise of Mr Sharifi’s proceedings they could enable him to plead further causes of action. The information has already been disclosed to Mr Sharifi’s counsel and reasonably they seek his input for the purpose of completing amended pleadings.
14 Greenbaum v Southern Cross Hospitals Ltd, above n 4.
15 Westwood v University of Auckland 4 HRNZ 107.
[58] Overall, the public interest in a litigant having sufficient information to understand and participate in their own case, and to enable the Court to openly consider the same information the parties have, to enable it to deal properly with the issues is high. The harm that may be caused to the University’s relationships in the future by limited further disclosure of the information to Mr Sharifi restricted solely for the purposes of the hearing, does not outweigh it, particularly when the examination process is completed, and when the disclosure can be appropriately limited to relevant documents (or excerpts from them).
The documents in issue
[59] I apply the above reasoning to the documents in issue. There is a large degree of overlap in that several of the categories of documents contain repetitive chains of emails and attach copies of the same documents.
C1
[60] C1 contains a chain of email communications originating with an email to Mr Sharifi on 5 February at 12.35 pm. The emails were ultimately passed by Leigh Beever, the Doctoral and Postgraduate Research co-ordinator, to the supervisors. Obviously the applicant has copies of his emails. The only communication of any relevance is [redacted] response on behalf of himself and [redacted]. While in general terms the University and its staff will have an expectation of confidentiality in communications between a supervisor and the Associate Dean of the Postgraduate Research concerning a candidate, the following aspect of [redacted] response is potentially relevant to the substantive issue in the proceeding and is to be disclosed:
The date and confirmation of the email from [redacted] and the following content:
We are trying to manage Morteza’s clear anxiety about his PhD as sensitively as possible and to work with him to get his thesis to a standard at which it could be submitted……
He seems to believe that I am now holding him back from submitting. The fact is that his work is not up to standard, but could, I believe, get there with more work.
[61]The balance of [redacted] email is not to be disclosed.
C2 – C6
[62] C2 is an email from Professor Brown to Dr Daley commenting on the third examiner’s report and questioning the way forward. The nature of the communication and its limited relevance to the proceeding do not support its disclosure. The University and staff have a reasonable expectation of confidentiality in internal communications of this nature. The communication is contextual and of very limited importance and relevance to the proceeding.
C3
[63] The applicant accepts that the email in C3 is not significant. It is not to be disclosed.
C4, C5 and C6
[64] C4, C5 and C6 are all internal emails. C4 is a record of the examiners’ positions, but the examiners’ reports are to be disclosed for the reasons given so the summary of their position in the email adds nothing of substance. I agree with the University’s submission that initial reactions to the examiners’ reports are not relevant as that is not in issue. The emails have some limited relevance to how the decision- making process evolved but the more formal documents that are to be disclosed record it more fully. The emails are not to be disclosed.
C7
[65] C7 is an email from Professor Brown to John Morgan confirming the arrangements for the establishment of the examination committee. The applicant accepts the email itself is inconsequential but seeks to rely on the draft examination committee report and supervisors’ comments on the examiners’ reports attached to it.
[66] The draft examination committee report and the supervisors’ comments on the examiners’ reports are potentially relevant. However, the draft report was replaced by a final report in identical terms on 1 September. Further, the supervisor’s comments are recorded elsewhere as well. It is not necessary to produce C7.
C8
[67] C8 is an email from Professor Brown to [redacted] confirming that she is the Heads of Department nominee for the oral examination. The applicant accepts it is inconsequential, but seeks disclosure of the draft examination committee report attached. Again, as the final examination committee report signed by all members is to be disclosed there is no need for disclosure of C8.
C9
[68] C9 is an email from Professor Brown to [redacted] providing her with the three examiners’ reports plus a supervisor’s report. The email confirms that [redacted] was made aware of the supervisor’s report which, for the reasons given above, I agree is possibly relevant to the claims of bias, pre-determination, breach of natural justice without in any way suggesting such claims have any merit. The supervisor’s report is also relevant to the pleading. At this stage the more personal comments about Mr Sharifi are relevant to the proposed amendments to the pleading as they are incorporated into the supervisors’ comments on the examiners’ reports, as opposed to the earlier response by [redacted] as to the relationship. Subject to the redaction of the summary of confidential comments from Part 3 of the examiners’ report, the material in C9 is to be disclosed.
C10 – C14
[69] C10 to C14 are emails between [redacted] and Professor Brown and others confirming [redacted] position as a member of the oral examination committee. The email chain has little relevance to Mr Sharifi’s claim. The applicant submits one email includes a veiled criticism that Mr Sharifi may have been putting unreasonable pressure on the University members dealing with him. Ms Pender submitted that is relevant to the issue of bias and pre-determination. I do not read the email in that way. It could not be relevant to an allegation of bias and pre-determination. The emails are not to be disclosed.
C15
[70] C15 is an email of 31 August 2020 from Leigh Beever to the group mailing list entitled ‘SGS – Advisers’ attaching a draft PhD examination report for Mr Sharifi. The applicant accepts the email is inconsequential but seeks production of the examination committee report as it is relevant to understanding how the decision- making process evolved. The examination committee report is still a draft. It need not be disclosed.
C16
[71] C16 is an email attaching the final version of the examiners’ reports of 1 September with attachments of the examiners’ reports. It also includes the nominations to the Senate for the appointment of the Examiners. The University says that it and its staff have a reasonable expectation of confidentiality in examination committee reports as disclosure would cause harm to members of the committee and the examiners and the relationship between the University and the examiners, and the examination process which relies on the free-flow of information between the examination committee and the Board of Graduate Studies. It is said the relevance of the report is limited to providing context to the Board of Graduate Studies’ decision Mr Sharifi should proceed to oral examination. It argues the public interest in the report being disclosed is outweighed by the public interest in maintaining the examination process.
[72] However, for the reasons given above I accept the examination committee report of 1 September is directly relevant to the decision in issue in the proceeding and is to be produced. The examiners’ reports have already been produced under C9. There is no need for nomination forms to the Senate to be produced. They are largely administrative in nature.
C17
[73] C17 is an email from Dr Daley accepting the recommendation of the examination committee to proceed to an oral examination with [redacted] as their oral examiner. It is not in dispute that the University went to an oral examination. The
email, unlike the report, does not provide the reasons. It is not sufficiently relevant to overcome the University’s interest in maintaining confidentiality in such communications.
C18
[74] C18 is an email of 7 September 2020 from [redacted] to Professor Brown seeking guidance about the examination. The applicant submits it is relevant to the new claim of bias and predetermination, breach of natural justice and taking into account the relevant considerations. [Redacted] was seeking guidance from the Associate Dean Postgraduate Research and is entitled to expect a reasonable degree of confidentiality in such general communications. It would be speculative at best to suggest the email provides any basis for allegations of bias or pre-determination. It need not be produced.
C 19
[75]The email in C19 is inconsequential.
C20
[76] C20 is an email from [redacted] to Naomi Kelly [redacted]. The email is said to be relevant to the claims – bias and the decision-making. On balance I agree. Again without any comment as to the merit of such a claim. For transparency it should however be produced as the public interest in Mr Sharifi being properly informed in relation to his claim outweighs the public interest in the University relationships.
C21
[77] C21 is an email attaching the final oral exam report, the examiners’ reports, and the examination committee’s recommendation. The email is inconsequential. The only fresh material is the oral exam report which is to be produced.
C22
[78] C22 is an email from Dr Daley to Naomi Kelly and group mailing ‘SGS – Exams’ said to be relevant as evidence of the Board of Graduate Studies’ decision not
to award the degree. The attachments have all been considered already. It is an email in which the Dean communicates her decision that Mr Sharifi will not be awarded the degree. It is an internal email which discusses a matter which is not in issue. It need not be produced.
Result
[79] For the above reasons I uphold the claims to confidentiality for the internal communications in the University with the exception of the principal documents noted above. In the case of those documents, I accept that the public interest in Mr Sharifi’s fully informed participation in his legal proceedings outweighs the public interest in maintaining the confidentiality in the documents. It is relevant that Mr Sharifi will only be able to use the documents for the purpose of these proceedings.
Timetable
[80]The following timetable is to apply:
(a)Mr Sharifi is to file and serve an amended statement of claim within five working days of receiving a copy of the confidential material;
(b)the University is to file and serve a statement of defence to any amended statement of claim and any supplementary disclosure arising from the amended statement of claim within 15 working days of receiving the amended statement of claim;
(c)Mr Sharifi is to file and serve supplementary affidavit evidence within 10 working days of receiving the amended defence;
(d)the University is to file and serve its affidavit evidence in response to the applicant’s evidence within 20 working days of receiving Mr Sharifi’s supplementary evidence;
(e)Mr Sharifi is to provide any affidavit evidence in reply within five working days of receiving the respondent’s evidence;
(f)the matter is to be allocated a two day hearing on the first available date after 4 October 2021;
(g)the applicant to file and serve written submissions, common bundle and any authorities relied on 10 working days prior to the hearing;
(h)the respondent to file and serve written submissions and any additional authorities relied upon five working days prior to the hearing.
[81] Although I have fixed the above timetable at the request of counsel I observe that it should be possible for the relevant documents to be put before the Court either as agreed or attached to a pro forma affidavit. There should be no need for any further substantive affidavits in this case, bearing in mind the nature of the case and the issues. Further, I consider two days to be extremely generous for a judicial review fixture. If counsel were able to agree a process for the production of relevant documents and also accept that a one day hearing would be sufficient they can file an amended timetable which will facilitate the allocation of an earlier fixture.
Costs
[82] At the request of counsel costs are reserved. Any application for costs is to be by memorandum filed and served within 10 working days of this judgment. Any response is to be filed and served within 5 working days. I will then deal with the issue of costs on the papers.
Venning J
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