Supreme Court New South Wales

• Medium Neutral Citation: X v University of Western Sydney [2014] NSWSC 82
• Hearing dates: 20 December 2013; 30 January 2014; 3, 6 & 10 February 2014
• Decision date: 17 February 2014
• Jurisdiction: Common Law
• Before: Hall J

Decision

(1) The Court declares that the whole of the determination made on 1 October 2013 by Dr Paul Rowland, the defendant's authorised delegate, pursuant to clause 40 of the Student Non-Academic Misconduct Policy ("the Misconduct Policy"), that the plaintiff be suspended from the University including:

(a) any lands or buildings (including student residences) owned or operated by and on behalf of the University, and

(b) any activities associated with the Plaintiff's course, including attending lectures, tutorials or clinical placements.

was not validly made and is of no force and effect.

(2) The proceedings to be re-listed for the purposes of determining any ancillary orders including any order in relation to costs of the proceedings.

(3) I grant liberty to the parties to apply for the appointment of a date and time for the re-listing of the proceedings.

• Catchwords: ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURAL FAIRNESS - allegation of serious misconduct - plaintiff was suspended under a university policy - express obligation to afford procedural fairness - decision-maker's interview of complainant prior to the decision to suspend the plaintiff - statements made in interview not disclosed to the plaintiff before the decision to suspend was made - whether decision was made in breach of the obligation to afford procedural fairness to the plaintiff - whether interview material was required to be disclosed for the plaintiff to have an opportunity to respond on the issue of any risk to health and safety of the complainant and on the issue of measures to minimise any risk alternative to outright suspension - whether there existed apprehended bias in the decision-maker having made an earlier decision in favour of suspension - whether decision affected by error as to jurisdictional facts or jurisdictional error or improper purpose or Wednesbury unreasonableness - form of relief - declaration - leave to parties in respect of injunctive relief claimed
• Legislation Cited: Coroners Act 1980; Court Suppression and Non-Publication Orders Act 2010; Migration Act 1958 (Cth); Migration Regulations 1995 (Cth); University of Western Sydney Act 1997; Work Health and Safety Act 2011
• Cases Cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; Australian Football League v Carlton Football Club Ltd (1998) 2 VR 546; Aye v Minister for Immigration and Citizenship (2010) 187 FCR 449; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Griffiths University v Tang (2005) 221 CLR 99; Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649; Kioa v West (1985) 159 CLR 550; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288; Maksimovich v Walsh (1985) 4 NSWLR 318; McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; 161 LGERA 170; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24; Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; Musumeci v Attorney-General of NSW (2003) 57 NSWLR 193; Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; Riverwood International Australia Limited v McCormick (2000) 177 ALR 193; Russell v Duke of Norfolk [1949] 1 All ER 109; Sydney Municipal Council v Campbell [1925] AC 338; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; "X" v University of Western Sydney (No 3) [2013] NSWSC 1329
• Texts Cited: Judicial Review of Administrative Action, Aronson &, Groves (Law Book, 5th ed, 2013)
• Category: Principal judgment
• Parties: X (Plaintiff); University of Western Sydney (Defendant)
• Representation: Counsel: JS Drummond (Plaintiff); GR Kennett SC; R Graycar (Defendant); Solicitors: Bateman Battersby Lawyers (Plaintiff); Bartier Perry (Defendant)
• File Number(s): 2013/332625
• Publication restriction: Order made pursuant to s 7(a) of the Court Suppression and Non-Publication Orders Act 2010, prohibiting the publication or other disclosure of information tending to reveal the identity of the plaintiff

Judgment

PART A

Introduction

1 The plaintiff is enrolled as a student of the University of Western Sydney ("the University") in the Bachelor of Medicine/Bachelor of Surgery course. He completed his first year of his studies in November 2013.

2 On 1 October 2013, Dr Paul Rowland, the authorised delegate of the Deputy Vice-Chancellor, Corporate Strategy and Services of the University ("the decision-maker"), determined under clause 40 of the University's Student Non-Academic Misconduct (SNAM) Policy ("the Misconduct Policy"), that the plaintiff should be suspended from the University, (that is, from its lands or buildings) and from any activities associated with the plaintiff's course, including lectures, tutorials or clinical placements.

3 By an Amended Summons filed on 22 November 2013, the plaintiff sought an order of this Court that the whole of the above determination ("the Determination") was not validly made and is of no force and effect on a number of specified grounds.

4 At the hearing of the proceedings, Mr J Drummond of counsel appeared on behalf of the plaintiff and Mr G Kennett SC with Ms Graycar appeared on behalf of the defendant University.

Background

5 A female student to whom I shall refer as "the complainant" was also a student at the University and enrolled in the same degree course as the plaintiff.

6 On the evening of 16 August 2013, the plaintiff and the complainant, following a social event at a student residential college, found themselves together in a room at the residence on the University campus. The following day there was a Facebook exchange between the plaintiff and the complainant about what had taken place the evening before.

7 On 19 August 2013, Professor Hennessy, Dean of Medicine, became aware that the complainant was making a complaint about the conduct of the plaintiff on the evening of 16 August 2013. Professor Hennessy met with the complainant and a friend of hers at about 2.00pm that day. They discussed how the complaint should proceed. The complainant did not provide Professor Hennessy with the details of the incident involving the plaintiff.

8 Later that same day the complainant met with the Director of Campus Safety and Security, Mr Adam Byrne. She disclosed to him a number of details as to her complaint. It is not necessary for the purposes of these proceedings to refer to the complaint in any detail. It is sufficient to state that the complaint related to alleged sexual contact the complainant described as having occurred, which she alleged occurred on a non-consensual basis.

9 On 20 August 2013, the complainant made a complaint to the NSW Police Force.

10 On either 29 August 2013 or the next day, the plaintiff was contacted and attended a meeting at Professor Hennessy's office. At that meeting Mr Byrne read a letter dated 29 August 2013 which stated that the plaintiff had been suspended from his course.

11 The plaintiff subsequently commenced proceedings in this Court which were heard on 10 and 11 September 2013.

12 The plaintiff in those proceedings challenged two decisions made by the University on 29 August 2013. One of those decisions was purportedly made under clause 40 of the Misconduct Policy related to the plaintiff's suspension pending the outcome of a hearing of the complaint made against him.

13 His Honour, Beech-Jones J, held that the University had failed to afford procedural fairness to the plaintiff before he was suspended: at [64]. That conclusion was based upon two findings. First, the plaintiff had not been told that his suspension was being considered. Second, he was not apprised of the factors or criteria that were proposed to be relied on or considered before the power was exercised: at [64] and [65].

14 Judgment was delivered in the previous proceedings on 11 September 2013 by his Honour: "X" v University of Western Sydney (No 3) [2013] NSWSC 1329. His Honour Beech-Jones J made a declaration 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 the University's campus and associated facilities with immediate effect and that he was not to communicate with any staff of the University - was not validly made and was of no effect.

15 The present proceedings in which judicial review is sought does not of course involve any assessment of the merits of the complaint of misconduct that has been made against the plaintiff nor an assessment of the merits of the decision to suspend him.

16 There is a need to preserve the confidentiality of the identity of both the complainant as well as the plaintiff and the details of the complaint so far as practicable. Accordingly, orders have been made under the Court Suppression and Non-Publication Orders Act 2010 suppressing the identity of the complainant and the plaintiff and I note in this context that the plaintiff is presently subject to a charge which will in due course be dealt with in another court.

The Challenged Decision to Suspend the Plaintiff

17 On 12 September 2013, Ms Rhonda Hawkins, Deputy Vice-Chancellor, Corporate Strategy and Services, executed a Delegation Instrument (Exhibit B) under clause 8 of the Misconduct Policy whereby Dr Rowland, Interim Pro-Vice-Chancellor, Engagement, Strategy & Quality was delegated the function of making a decision for the purposes of clause 40 of that Policy in relation to the plaintiff.

18 In performing that function, Dr Rowland was provided with documents identified in paragraph 4.1 of his Reasons for Decision dated 1 October 2013. These included the affidavit of Adam Byrne affirmed on 9 September 2013 (in a redacted form) and the affidavit of Professor Annemarie Hennessy also affirmed on 9 September 2013 (also in a redacted form). Both of these affidavits had been utilised in the proceedings concerning the first suspension determination made on 29 August 2013. The two deponents both recommended that the plaintiff be suspended pending the outcome of the investigation by the Non-Academic Misconduct Investigation Committee.

19 In addition to considering the documents identified in paragraph 4.1 of the Reasons for Decision, Dr Rowland had a meeting with the plaintiff and his legal representatives on two occasions, 13 September 2013 and 19 September 2013. Particular matters raised at each of the meetings (discussed below) are relevant to the procedural fairness issues in the proceedings.

20 On 1 October 2013, Dr Rowland made a determination to suspend the plaintiff.

The Present Proceedings

21 The plaintiff filed a Summons in this Court on 4 November 2013 in which he sought declaratory relief in relation to the decision made on 1 October 2013. The Summons was subsequently twice amended.

22 The Amended Summons in the present proceedings pleaded a number of grounds in support of the relief claimed. In order to facilitate an understanding of the issues arising in the proceedings, I set out below a summary of the grounds and the particulars relied upon. References to paragraph numbers are references to the paragraphs of the Further Amended Summons.

Grounds

23 The plaintiff initially challenged the validity of the determination on five grounds. On 6 February 2014, Mr Drummond of counsel sought and obtained leave to amend the Amended Summons by way of a Further Amended Summons raising an additional allegation of apprehended bias in support of the procedural fairness ground.

Ground 1: Procedural Fairness

24 Paragraphs 1.1 to 1.1.4 of the Further Amended Summons alleged that the decision-maker failed to provide the plaintiff with procedural fairness as required by general law principles and the provisions of the University's Misconduct Policy, in particular, the University's Fairness in Procedures Guidelines. The particulars in support of that allegation include the following:

(a) A failure to disclose to the plaintiff information prior to the making of the determination to suspend. This included the failure to disclose to him matters conveyed by the complainant to the decision-maker on 30 September 2013.

(b) A failure to give notice of the matters to be relied upon by the decision-maker (including the perceived risk and the test to be applied).

(c) A failure to disclose, before making the determination, the case that the plaintiff had to meet contrary to the provisions of the University's Misconduct Policy.

(d) A failure to provide the plaintiff with any reasonable opportunity to respond to the material referred to in (a) above.

Ground 2: Jurisdictional Facts

25 In support of this ground a number of allegations were raised in paragraphs 1.2 to 1.2.3 of the Further Amended Summons. They assert a failure to determine jurisdictional facts that were said to be necessary to found the exercise of the power conferred by clause 40 of the Misconduct Policy. These include: (a) "the existence of a risk to health and safety that was real, substantial and one which was supported by relevant and probative evidence": at 1.2.1 and (b) that elimination of such a risk was "reasonably practicable" in accordance with the University's Work Health and Safety Policy and clause 40 of the Misconduct Policy.

Ground 3: Jurisdictional Error

26 There is a degree of overlap between this ground and Ground 2, Jurisdictional Facts. In particular, it is alleged that the decision-maker misconstrued clause 40 of the Misconduct Policy to mean that the perceived risk to health and safety "must" be eliminated regardless of whether or not the elimination of the risk was "reasonably practicable".

27 In relation to the claimed misconstruction of clause 40, it was contended that the wrong issue was identified, the wrong question was asked, relevant material was ignored and there was a failure to take into account the impact that suspension of the plaintiff would have upon him by determining that any risk must be eliminated: at 1.3 to 1.3.3.

Ground 4: Improper Purpose

28 This ground was essentially constructed upon the basis of a contention that the determination to suspend the plaintiff was made having regard to "improper purpose(s)", namely:

(a) Taking into account the University's reputation "to protect the reputation of the defendant contrary to clause 40 of the Misconduct Policy": at 1.6.1.

(b) By refraining from giving effect to procedural and statutory requirements "that a risk to health and safety could only be eliminated once it had been determined that it was reasonably practicable to do so": at 1.6.2.

(c) By "failing to consider and take into account the adverse impact that suspension would impose on the plaintiff" as against the fact that elimination of the risk by suspension was not reasonably practicable: at 1.6.3.

(d) By failing to take into account or consider the nature of the risk as identified in 1.3.3(vi) and (vii) of the Further Amended Summons, including:

• Alternative arrangements that had been put in place as and from 16 September 2013.

• Any alternative or additional arrangements.

Ground 5: Determination Was Unreasonable (Wednesbury Unreasonableness)

29 The plaintiff relied upon specified matters in the Further Amended Summons (see 1.7.1) in support of the contention that the determination to suspend the plaintiff pursuant to clause 40 of the Misconduct Policy was "manifestly unreasonable, unjust and/or illogical": at 1.7.

30 In the alternative to prayer 1 of the Further Amended Summons, the plaintiff relied upon a claim in contract in seeking declaratory relief. Firstly, that the alleged contract between the plaintiff and the defendant contained, inter alia, an express or implied term that the defendant would permit the plaintiff to attend the University as specified in paragraph 2(i) and that the defendant would abide by and properly apply all by-laws, rules, policies etc specified in paragraph 2(iv). Secondly, a declaration that the defendant by its authorised agent, the decision-maker, failed to comply with and/or properly apply the specified policies, procedures and guidelines of the University: at 4 and 4.1 to 4.6.

31 Finally, on the above basis, a declaration was sought that by reason of the alleged breaches of contract, the Determination was not validly made and is of no force and effect: at 5.

32 A restraining order is also sought in terms of paragraph 6 of the Further Amended Summons.

33 On 5 December 2013, the University filed a Response in which it denied that the Determination made on 1 October 2013 was not validly made and is of no force and effect.

34 In particular, the University denied that it failed to provide procedural fairness to the plaintiff in making the Determination, particulars of which are set out in the Response: at paragraphs 1.1(a) to (q).

35 In relation to paragraphs 1.2 to 1.67 of the Further Amended Summons, the University denied that matters contained in those paragraphs identify proper grounds of review. The Response additionally disputed the "jurisdictional facts" which the plaintiff relied upon in relation to clause 40 of the Misconduct Policy (1.2.2) and relied upon the specific matters otherwise pleaded (1.2.3 to 1.2.5). Particular matters relevant to the Response are pleaded in paragraphs 1.3 to 1.7.

36 The university disputed the claim in contract upon grounds set out in paragraphs 2 and 4 of the Response.

Evidence

(a) Affidavits

37 The plaintiff and the University relied upon affidavit evidence. None of the deponents of those affidavits were required for cross-examination. Copies of the affidavits and materials annexed thereto were placed in volumes 1, 2 and 3 of the Court Book.

38 The following affidavits were read in the proceedings:

• Affidavit of the plaintiff sworn 31 October 2013 together with Exhibit CZ1.

• Affidavit of the plaintiff sworn 4 November 2013 together with Exhibit CZ2.

• Affidavit of the plaintiff sworn 11 November 2013.

• Affidavit of the plaintiff sworn 10 December 2013 together with Exhibit CZ4.

• Affidavit of Michael William Battersby sworn 31 October 2013 together with Exhibit MWB1.

• Affidavit of Michael William Battersby sworn 10 December 2013 together with Exhibit MWB2.

• Affidavit of Vivien Botsikas sworn 16 December 2013 together with Exhibit VPB-1.

• Affidavit of Vivien Botsikas sworn 17 December 2013.

• Affidavit of Shaneen Veronica McGlinchey affirmed 17 December 2013.

(b) Exhibits

39 The following documents were tendered in evidence:

Exhibit "A" - Copy of Results Notice of the plaintiff from the University of Western Sydney.

Exhibit "B" - Copy of Delegation Instrument dated 12 September 2013.

Exhibit "C" - Two pages being copies of documents produced by the defendant pursuant to a Notice to Produce issued on behalf of the plaintiff, the first page dealing with text messages, and the second page setting out various dates in relation to the text messages.

Exhibit "C" - A further document was added to Exhibit "C" being: an email sent 15 December 2013 from Helen Fleming to Vivien Botsikas concerning text messages between Jan Reid, Rhonda Hawkins and Dr Rowland.

Exhibit "D" - University Hazard Identification Risk Assessment Procedure document.

PART B

The Procedural Fairness Ground: Factual Context and Summary

40 An overview of factual matters to which the parties' submissions have been directed may at this point assist in identifying facts of potential significance.

41 The complainant, as noted above, reported the alleged incident to the University on 19 August 2013.

42 As the complainant and the plaintiff were both enrolled students in the first year of their medical course at the University, the issues considered by the decision-maker included, inter alia, the question as to whether the plaintiff's attendance at the University would have an adverse impact upon the complainant.

43 As discussed below, alternative arrangements for the complainant and the plaintiff were established to permit them to attend separate tutorials on campus. They were also members of separate groups that attended different tutorials at Blacktown Hospital at different times. Dr Rowland ultimately concluded in his Reasons for Decision that whilst such alternative study arrangements existed there remained a chance or a possibility that there could be some form of chance encounter at the University somewhere on campus. He concluded that this was sufficient to constitute a risk to the health and safety of the complainant which had to be eliminated. He further concluded that there was a real adverse risk to the complainant's "mental wellbeing": Reasons for Decision at 6.7.

44 The only direct statement of the complainant, following the date of the alleged incident, concerning her studies contained in the documentary materials the University provided to Dr Rowland for the purposes of his determination under clause 40, was a text message she had sent to Professor Hennessy on 20 August 2013 (referred to in paragraph [55] below). There was no other direct information from the complainant after 20 August 2013 and before 30 September 2013 that she was experiencing any difficulty at University arising either from the plaintiff's attendance or her having sighted him on campus.

45 The evidence in these proceedings suggests that at some stage the complainant had consulted a University Counsellor. The materials provided to the decision-maker, however, did not include any counselling records, medical records, nor any staff reports or other records concerning the complainant's attendance or academic performance subsequent to 20 August 2013 in relation to assignments, examinations or other aspects of her course.

46 The plaintiff's legal representatives prepared written submissions for a meeting with Dr Rowland to be held on Friday, 13 September 2013, the first of two meetings with him. In these submissions it was noted by his solicitor, Mr Battersby, that:

• The plaintiff had not received disclosure of all relevant material: at paragraph 3(a).

• The University had yet to disclose to the plaintiff all relevant material: at paragraph 5.

47 In the judgment in relation to the first suspension decision, his Honour Beech-Jones J observed at [68], that there were a number of matters that the plaintiff could reasonably have been expected to have been able to put forward in opposition to a suggestion that he be suspended had he been afforded the opportunity to be heard. These included:

"68 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."

48 For the decision-maker to assess the issue of risk to the complainant's health and safety and to evaluate alternatives to suspension it would have been necessary for him to bring into account, inter alia: (i) the changes that had been made to tutorials (initiated on 16 September 2013) with the result that the complainant and the plaintiff attended separate tutorials; (ii) the availability of on-line lectures in place of physical attendance by the plaintiff at lectures, (iii) the complainant's attendance at Introductory Clinical Medicine tutorials held at Blacktown Hospital were at different times to the plaintiff; (iv) the availability of any other possible modifications to study course procedures, and (v) any material, including the report of Dr Samuels (referred to below).

49 Dr Rowland was provided with little by way of information by the University on the subject of possible modifications or alternative arrangements for course study (eg, on-line lectures). The detailed information on an alternative to outright suspension was provided to Dr Rowland by the plaintiff's legal representatives.

50 In Professor Hennessy's affidavit sworn 9 September 2013 in the first proceedings, a copy of which was made available to Dr Rowland, the possibility of rearranging classes was discussed by her in somewhat unenthusiastic terms. In paragraphs 28 and 29, Professor Hennessy said:

"It is difficult, given the nature of the course, to rearrange and swap classes for clinical and practical work so that other students are not in the same classes as the plaintiff.

For example, the tutorials, practicals, clinical skills training and patient contact sessions involve students in smaller groups which are generally not the same students in each of the groups. The students are mixed up into different groups for each component of their learning so that they work closely together." (Court Book vol 1 at 273)

51 On the evidence in the present proceedings there is no indication that Professor Hennessy, upon receipt of the complainant's text message on 20 August 2013, initiated action with a view to swapping or changing tutorials, a matter raised by the complainant.

52 Subsequently on 16 September 2013, the plaintiff attended on Ms Joanne Lind, Course Co-ordinator for Foundation of Medicine 1 at Campbelltown Campus of the University. In his affidavit sworn 31 October 2013, at paragraph 29, the plaintiff stated that he had discussions with Ms Lind on 16 September following which she, firstly, provided him with an action plan to remediate his absences and, secondly, confirmed that she had moved him from Prac Tutorial Group 2 to Prac Tutorial Group 1 and from PPD Tutorial Group B to PPD Tutorial Group H.

53 The change in tutorials meant that the complainant and the plaintiff no longer attended the same practice group tutorials from 19 September 2013.

54 On the question of the plaintiff's attendance at lectures (which comprised 120 students), the plaintiff, through his legal representatives, put forward the possibility of him undertaking lectures "on-line". In the submissions for the plaintiff it was stated that "all attempts to reach agreement on suitable alternative arrangements to eliminate the possibility of suspension were (apart from the changes to classes see paragraph 15 above) rejected by the Defendant ...": Plaintiff's Outline of Submissions at [45].

55 Included in the material provided to Dr Rowland were the redacted copies of affidavits of Professor Hennessy and Mr Adam Byrne. Those affidavits, as earlier noted, had been filed in the proceedings between the parties concerned with the first suspension decision determined by his Honour, Beech-Jones J. Professor Hennessy in her affidavit stated that she had recommended that the plaintiff be suspended (at paragraph 42). Mr Byrne stated in his affidavit that he formed the view that the plaintiff's suspension was necessary (at paragraph 23).

56 Professor Hennessy's affidavit set out the complainant's text message of 20 August 2013 as follows:

"Hi Annemarie, I was wondering if I could switch prac groups on Wednesday. I won't feel comfortable being with certain people in prac group 2": at [16].

57 Professor Hennessy also stated that she was aware that the complainant had had about two weeks off her studies since the incident, including a week immediately after the incident: at [15]. She also referred in her affidavits to a hearsay account she said she received on 19 August 2013, to the effect that the complainant's Year Co-ordinator had told her that the complainant said she could not attend the University as she was fearful of seeing or crossing paths with the plaintiff: at [15]. There was no direct or indirect evidence of any such fear being expressed after that date or before Dr Rowland spoke to her on 30 September, as discussed below.

58 Mr Drummond noted in his submissions that the complainant in her text message to Professor Hennessy of 20 August 2013 had not said she would not attend the University. Rather, her request related only to the subject of possibly switching tutorials as she would not "feel comfortable" being with certain "people" (this has been accepted in the proceedings as a reference to the plaintiff) in Prac Group 2.

59 At the meetings of 13 September and 19 September 2013 between Dr Rowland and the plaintiff and his solicitor, referred to above, very detailed written submissions prepared by the plaintiff's legal representatives were presented to Dr Rowland. They are discussed below.

60 In those submissions, Mr Battersby sought from Dr Rowland information concerning both the issues and the evidence that the decision-maker would be relying upon. In particular, the submissions were to the effect that disclosure of the issues and the material to be considered by the decision-maker in making his decision was necessary so that the plaintiff would have an opportunity to respond.

61 At the meeting on 19 September 2013 Mr Battersby made it known to Dr Rowland that the plaintiff had been examined by a consultant psychiatrist, Dr Samuels, and that a report would be forthcoming.

62 However, the evidence in these proceedings revealed that the next day, 20 September 2013, Dr Rowland sent a text message to the University's Vice-Chancellor in which he informed her that he had made his decision. He wrote that he had decided that the plaintiff should be suspended. Exhibit "C" records his advice in a text message to her in the following terms:

"Dear Jan Have made my decision to suspend and we are finalizing the advice over the weekend, Regards Paul."

63 As discussed below, at this point the material available to Dr Rowland up to this stage contained no direct communication by way of notification or complaint by the complainant of her experiencing any adverse reaction to seeing the plaintiff on campus. As discussed, this was subsequently to form the basis for his decision to suspend the plaintiff (on 1 October 2013).

64 Shortly after 20 September 2013, two events occurred. First, on 27 September 2013, the plaintiff's solicitor provided Dr Rowland with a copy of a report from Dr Samuels. Second, on or before 30 September 2013, Dr Rowland, in circumstances not disclosed in the evidence in the proceedings, made arrangements to interview the complainant. The interview took place three days after he received Dr Samuels' report, namely, on 30 September 2013, and the day before his decision of 1 October 2013 to suspend the plaintiff challenged in these proceedings.

65 Prior to 30 September 2013, the complainant had resumed her course attendance at the University campus, as had the plaintiff. There is no precise evidence of the period they both attended the University before and after the first suspension decision. As earlier indicated, the arrangements for the complainant and the plaintiff to participate in separate tutorial groups had been in operation for about two weeks (between 16 and 30 September 2013). That, of course, was in line with what the complainant had earlier requested of Professor Hennessy in her text message of 20 August 2013. Such reservations as Professor Hennessy had as to whether it was practical to arrange separate tutorials (see Professor Hennessy's affidavit at [28] and [29]), on the evidence in these proceedings, had not presented any difficulties for Ms Lind.

66 As also noted above, up to the time of Dr Rowland's interview with the complainant on 30 September 2013, the only direct communication by the complainant to Professor Hennessy concerning her attendance at the University related to her abovementioned text message request concerning the possibility of changing tutorial Prac Group 2.

67 Dr Rowland did not inform the plaintiff or his legal representatives that he had decided to meet with the complainant before making his decision on 1 October 2013. Nor before making his decision did he provide any information to the plaintiff on the matters that had been raised by the complainant with him and provide an opportunity to respond.

68 It is clear from the Reasons for Decision that the information Dr Rowland obtained from the complainant on 30 September 2013 was central to his decision to suspend the plaintiff.

69 In relation to Dr Rowland's earlier decision on 20 September 2013 to suspend the plaintiff as referred to in [62], there was no evidence as to the basis of it. Without any direct information provided by the complainant beyond her text message to Professor Hennessy of 20 August 2013, it is reasonable to infer that the affidavit evidence of Professor Hennessy and Mr Byrne at least formed part of the material he took into account in making that decision.

70 In final submissions for the plaintiff, Mr Drummond submitted that it may be inferred that it was after Dr Rowland's receipt of the copy of Dr Samuels' report on 27 September 2013 that he then decided to respond to it by contacting the complainant and interviewing her. Dr Samuels is a consultant psychiatrist. It is not necessary at this point to refer to the particular considerations, assessments and opinions contained and expressed in Dr Samuels' report: Court Book vol 2 at 456-465. It was a very detailed report, over 10 pages, dealing with a number of issues, including an assessment of the plaintiff following a mental status examination, a review of his academic course requirements and attendance for specific course requirements and his evaluation of any current or future risk to the plaintiff with the plaintiff's continued attendance.

71 As will also be discussed below, Dr Rowland's reference in his Reasons for Decision to Dr Samuels' report dated 20 September 2013 was limited to one observation made by Dr Samuels at p 10 of the report - to the effect that it was conceivable that the complainant might feel uncomfortable in the same environment. There was otherwise no discussion or analysis by Dr Rowland in his Reasons for Decision of the matters the subject of Dr Samuels' evaluation, assessments or of his opinions on the issues of "risk" and as to the adequacy of available alternative study arrangements appearing in his report.

72 Mr Drummond submitted that, on the evidence, it is clear that Dr Rowland had made his decision on 20 September 2013 without waiting for Dr Samuels' report: T 80:35-36, but that it may be inferred that once he saw it he "...realises that in the circumstances where Dr [Samuels] says there is no risk, Dr Paul Rowland has to find or have material of a risk ...": T 80:37-39.

73 The original record of Dr Rowland's interview of the complainant on 30 September is confined to a page of his handwritten notes: Court Book vol 3, at 1055. A somewhat more detailed account of what Dr Rowland said the complainant said to him in the interview is set out at paragraph 6.6(b) of his Reasons for Decision: Court Book vol 1, at 30. Dr Rowland did not obtain a signed statement or affidavit from the complainant nor was there a narrative statement created or a written question and answer interview record.

The Possibility for Alternative Study/Course Arrangements

74 The plaintiff's solicitors wrote to the University's solicitors on the subject of alternative arrangements under which the plaintiff would continue attendance at separate tutorials to those the complainant attended, as well as his preparedness to undertake lectures "on-line" rather than attend lectures in person.

75 On 10 September 2013, prior to the first decision to suspend made on 20 September 2013, the plaintiff's solicitors wrote to the University's solicitors in which it proposed:

"... as an alternative to suspension that workable arrangements to allow him to continue his studies and to attend the University facilities can be put in place. To that end we set out below suggested alternate arrangements for your client's consideration": (Court Book vol 2, at 635-637).

76 The letter then proposed a rearrangement of tutorials along the lines Ms Lind implemented which were effective from 19 September 2013. The issue of the plaintiff's restricting himself to lectures on line was noted: Court Book vol 2, p 636 at [4],.

77 The proposals also included the plaintiff's preparedness to restrict his physical presence at the University: Court Book vol 2, p 637 at [16].

78 The proposals put forward in the letter of 10 September 2013 were not accepted by the defendant: Court Book, vol 2 at 665-666: (letter from the solicitor for the University).

PART C

Requests to the Decision-Maker for Information

79 The plaintiff's solicitors, as noted above, sought from Dr Rowland particulars of the basis for any issue based upon health and safety of the complainant and any evidence that he would be considering or would be relying upon in relation to that issue. The details of requests are referred to below.

80 Dr Samuels obtained a detailed history and considered details of the proposals for alternative arrangements. In the Opinion portion of his report, he stated:

"a) the complainant

I can find absolutely no evidence that [the plaintiff] poses any current or future risk to the complainant. It is also clear that numerous measures are in place which should allow both the complainant and [the plaintiff] to undertake their medical studies without risk of interaction with one another. ...

a) the complainant

It certainly is conceivable that the complainant might feel uncomfortable being in the same environment as [the plaintiff] at the present time. I am satisfied that there are sufficient measures in place to ensure that they have little or no contact with one another. There certainly is an option that [the plaintiff] could not attend lectures and access the lecture material online. There is also capacity for [the plaintiff] to change his hospital day to a Thursday minimising any possibility of an encounter with the complainant. The only potential problem area relates to the workshops but, as described by [the plaintiff] there are 120 people attending these workshops, they are well supervised and it should be possible for the complainant and [the plaintiff] to keep a considerable distance from one another. If this proves to be an insoluble problem I did wonder if some other measures using technology might be applicable. For example, [the plaintiff] could attend the workshop from an adjacent room using video technology and a tutor could periodically check in with him to make sure that he was following the material appropriately. The university of course may have other suitable approaches to dealing with the situation if it is a major problem.": Court Book vol 2, at 464-465.

81 Following the meeting on 13 September 2013 between Dr Rowland and the plaintiff and his solicitor, Dr Rowland wrote a letter on 16 September 2013 to the plaintiff's solicitors in which he provided the following information.

"Further to our meeting at 4:30pm on Friday, 13 September 2013, I undertook to respond to you on three matters:

1. What material I will rely on in considering whether to make a decision under clause (40) of the SN-AM Policy;

2. Whether [the plaintiff] can have a further opportunity to make any submissions to me; and

3. What are the factors and risks I am considering in making a decision to suspend? Court Book vol 2 at 681.

82 He also identified the "factors" that he would be considering:

The factors and risks I am considering

The details of the allegation are attached to the affidavit of Mr Byrne, annexure A. That report outlines what is alleged to have occurred. I understand further material was produced under the Notice to Produce to [the plaintiff's] legal representatives.

The factors I will be presently considering (and in respect of which I have formed no concluded views) are:

1. The seriousness of the allegation;

2. The Facebook conversation;

3. Health, safety and welfare considerations including:

a. The impact of [the plaintiff's] continued attendance at UWS on the complainant and her continued studies;

b. The impact of [the plaintiff's] continued at attendance at UWS on other students; and

c. The need for UWS to eliminate, so far as is reasonably practicable, any risks to health, safety and welfare of its students;

4. The impact of the allegation and pending NAMIC process on the ability for [the plaintiff] to continue his studies, particularly with regard to clinical placements;

5. The recommendations of Mr Byrne and Professor Hennessy;

6. The reputational impact on the University if it does not take appropriate action, particularly to eliminate any of the health, safety and welfare risks identified above; and

7. The ability to accommodate [the plaintiff] continuing his studies and at the same time address any of the concerns and risks identified above": Court Book vol 2 at 681-2.

83 On 19 September 2013, the plaintiff's solicitors wrote to Dr Rowland. The letter noted advice that there were no statements from the complainant. The letter also noted the fact that new tutorial arrangements instituted by Ms Lind had been implemented.

84 The letter stated:

"Joanne Lind, the course co-ordinator for Foundations of Medicine 1, has already implemented a relocation of [the plaintiff] from tutorial Prac Group 2 to Tutorial Prac Group 1 and from PPD Tutorial Group B to PPD Tutorial Group H. The effect of this is that [the plaintiff] is not in any class with the Complainant other than the lectures for all students, and he also will not be attending classes at the same as the Complainant is attending her separate classes. Attendance at lectures is not compulsory for [the plaintiff] and he can access them online. Having regard to this, please identify the evidence and facts that give rise to any risk to the Complainant. Please identify the risk, and the reasons why suspension is necessary in relation to that risk": Court Book vol 2 at 689.

85 It can be seen here that the focus of the letter of 19 September 2013 was upon course attendance by the complainant and the plaintiff and measures available to separate their attendances.

86 In the plaintiff's written Outline Submissions to Dr Rowland on 19 September 2013, it was noted:

• That the plaintiff had not received disclosure of all relevant materials: at paragraph 1(a).

• Whilst Dr Rowland had advised in his letter of 18 September 2013 that the University had not taken written statements from the complainant or other students, that no particulars of, or evidence of the facts relied upon to establish health risks, safety risks or threats had been provided, nor had the reasons why those particulars or evidence give rise to a risk of threat to health and safety been provided: at paragraph 1(b).

• That the absence of the requested materials, particulars, evidence and reasons did not allow the plaintiff to know the entire case to be met by him or give him a reasonable opportunity to prepare a response and to respond: at paragraph 1(d).

• That a review of Mr Byrne's dated 28 August 2013 affidavit did not provide particulars of, nor evidence of the facts relied upon him to establish health risks, safety risks or threats, nor had he provided reasons why those particulars or evidence of facts give rise to a risk or threat to health and safety: at paragraph 3(b).

• That Mr Byrne's report did not provide consideration of alternate arrangements that could be put in place under which the plaintiff could continue to pursue his studies, attend classes and the like: at paragraph 3(c).

87 On the question of alternative arrangements the plaintiff's written Outline of Submissions to Dr Rowland addressed a number of matters.

88 In relation to health, welfare and safety considerations and the recommendations of Mr Byrne and Professor Hennessy, it was noted in the Outline of Submissions to Dr Rowland:

"As will be referred to later in these Submissions, satisfactory and workable arrangements not only are possible, but have been implemented by the University and in particular, the course co-ordinator, Joanne Lind so as to result in the only activity that [the plaintiff] and the Complainant are present together in lectures, which are supervised and attended by 118 students and at which the Complainant is at no risk. [The plaintiff's] attendance at these lectures is not compulsory and he can access the lectures on line: paragraph 5(m).

...

"Accordingly, [the plaintiff] and the Complainant are no longer in the same tutorials or practical classes. Whilst they may be together in the large lecture groups of 118 students as referred to earlier, there is no compulsory requirement for [the plaintiff] to attend these lectures and he can avail himself of them on line. It is apparent that what Joanne Lind has implemented is what Professor Hennessy concluded in her Affidavit could not be done": Court Book vol 2 at 696-7 at [6].

89 In the "summary" included in the written Outline of Submissions to Dr Rowland, the plaintiff's legal representatives noted the absence of "evidence" observing:

"(d) No evidence of any actual or perceived threats to health and safety have been identified nor have any reasons been identified why that evidence properly supports the conclusions made by Adam Byrne and Professor Hennessy that such threats exist or are perceived to exist ...": Court Book vol 2 at 697.

90 In the plaintiff's written and oral submissions in the present proceedings, it was noted that, prior to the Reasons for Decision dated 1 October 2013, the decision-maker had not provided particulars or evidence as had been requested (other than the particulars set out in his letter of 16 September 2013 extracted above).

91 It was further submitted that Dr Rowland did not, after the meeting with the plaintiff on 19 September 2013, provide any indication that he was going to be addressing the matters that were discussed in the interview with the complainant on 30 September 2013. In those circumstances, it was contended, there had been no opportunity provided to the plaintiff to address such additional issues: T 74:30-35.

What Material was Available to the Decision-Maker for the Purposes of Clause 40?

92 It is apparent from the plaintiff's Facebook message to the complainant on 17 August 2013, that he appreciated that given the complaint made by the complainant, she would need "space" from him. Accordingly, his solicitors focussed in correspondence upon the possibilities for changing their course attendances.

93 Both the correspondence between the plaintiff's and defendant's legal representatives and the written submissions for the plaintiff to Dr Rowland proceeded on that basis and directly focussed upon the issue of available measures firstly for tutorials and secondly for lectures.

94 Whilst Dr Rowland did not raise any doubts or misgivings as to the effectiveness of such measures in his decision of 1 October 2013, he based his decision on what he perceived to be the residual possibility of a chance encounter occurring between the plaintiff and the complainant, which he considered to be an "unacceptable" risk to the health and safety of the complainant. That possibility accordingly formed the basis of Dr Rowland's decision for outright suspension.

95 In order for the decision-maker to be able to conclude that the possibility of such a "chance encounter" was capable of giving rise to a risk to the complainant's "mental wellbeing", he, of course, would require probative material capable of supporting such a conclusion.

96 As earlier noted, up to 30 September 2013 the only direct evidence from the complainant was her statement on 20 September 2013 that she would not feel "comfortable" attending the same tutorials. It did not go beyond that. Up to that date, there were no references made by her to Professor Hennessy as to a fear or anxiety based on or arising out of any particular circumstance. Nor had there been any direct evidence from her prior to 30 September 2013 that the possibility of seeing the plaintiff elsewhere on campus, would create risk or a possibility of a risk to her health or "mental wellbeing".

97 On the evidence in these present proceedings, the interview with the complainant on 30 September 2013 was the first occasion on which she had made known to the University, via her interview with Dr Rowland, that sighting the plaintiff on campus affected her in any of the respects Dr Rowland recorded in his Reasons for Decision at 6.6(b).

PART d - SUBMISSIONS IN THESE PROCEEDINGS

Plaintiff's Submissions on Procedural Fairness

(a) Policies

98 In the plaintiff's Outline of Submissions in relation to procedural fairness in these proceedings, it was noted that the University of Western Sydney Act 1997 empowers the Board to make By-laws (s 40), to make rules (s 41) and "to establish policies and procedural principles for the University consistent with legal requirements and community expectations": s 22(1B)(h).

99 Reference was made to clause 2b, section 2 of the University's Policy Framework Policy which defines "policy" to include, inter alia, "a statement that sets out the University's official position in relation to a particular issue and any mandatory requirements" and procedure to include "a statement that sets out the University's standard and required practice for implementation of a University policy" (emphasis added).

100 Clause 3, section 3 of the Policy Framework Policy provides that the University-wide policies, procedures and guidelines provide the framework by which the University requires its operation to be conducted. They are the basis, it was submitted, on which members of the University community are expected to manage the affairs of the University.

101 Further, reference was made to the University's Policy Template Structure, clause 5, section 4 of which refers to the fact that "procedures should be written by and large as mandatory requirements".

102 Finally, it was noted, in relation to the University's policies, clause 16 of the Misconduct Policy provides that:

"The respondent student is entitled to fairness in handling of any allegation in accordance with this policy including any appeal. A Fairness in [procedures] Guideline is contained in this policy and these principles should be applied where it is reasonably practicable to do so."

(b) Duty of Disclosure

103 It was observed that no evidence had been led by the defendant that it was not reasonably practicable to provide "fairness" or to apply the Fairness in Procedures Guidelines. Clause 110 of the Fairness in Procedures Guidelines required the disclosure of relevant material to enable the person to know what case is to be met: clause 110(d). Further, there was a requirement to provide an opportunity to be heard and respond before a decision is made: clause 110(a).

104 It was further submitted that the obligation to ensure procedural fairness required the disclosure of "all material that has substantive relevance" or which bears upon or may bear upon the issue to be determined: Plaintiff's Outline of Submissions at [38]. In this respect the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at 357 (Offshore Processing Case) was cited.

105 The requirement for disclosure applied, it was submitted, in respect of all material relevant to the case and additionally, what the decision-maker may deduce from the material rather than simply the material itself. In this regard, a hearing, it was submitted, is unlikely to be fair where relevant material obtained from a third party source is not disclosed. For the latter proposition, reference was made to the discussion in Judicial Review of Administrative Action, Aronson &, Groves (Law Book, 5th ed, 2013) pp 526-527 at para [8.180].

(c) Information Requested of the Decision-Maker

106 In the Plaintiff's Outline of Submissions it was observed that on 13 September 2013 and 19 September 2013 the plaintiff and his legal representatives conferred with Dr Rowland. On each occasion the plaintiff, through his legal representatives, requested, both in writing and orally, that the reasons for and all particulars and materials to be relied upon should be provided to him. None of the material referred to in paragraph 38 of the Plaintiff's Outline of Submissions, it was submitted, had been supplied by the defendant prior to the Determination made on 1 October 2013: Plaintiff's Outline of Submissions at [39].

(d) Submission as to the Scope of the Complainant's Request for Intervention

107 The position before 30 September 2013, it was noted, was that the material provided by the University regarding the psychological state of the complainant and the risk being considered was limited to that which had been provided to Professor Hennessy in the complainant's text message of 20 August 2013. It was noted that the complainant had not told Professor Hennessy that she may not attend university if the plaintiff attended the University. Mr Drummond noted that Professor Hennessy did not suggest in her affidavit that she undertook any assessment of the complainant. Professor Hennessy also stated that she had not read the report of Mr Adam Byrne who claimed that he had performed a risk assessment (although no formal risk assessment was produced in the present proceedings).

(e) Submission as to Undisclosed Expanded Material

108 Mr Drummond submitted that the material obtained by Dr Rowland from the complainant when he met her on 30 September 2013 altered the previously available material by expanding it in terms of both its nature and extent. The extended material included statements attributed to the complainant as to anxiety, inability to concentrate, being distracted and withdrawn, attending counselling, and it being less likely that the complainant would attend university if the plaintiff was to be seen or even perceived to be at the University: Plaintiff's Outline of Submissions at [41].

109 Mr Drummond submitted that the complainant's non-attendance for two weeks in August 2013 is to be seen in the context of her inquiry of Professor Hennessy as to the possibility of changing prac groups which did not result in any changes being made. No change occurred in relation to her tutorial attendance (until Ms Lind made the changes on 16 September 2013). Dr Hennessy's affidavit, as earlier noted, indicated that she considered there were difficulties in accommodating such a change. Accordingly, the submission was that it may well have been the case that the complainant's absence from the University for at least a period of a week after the alleged incident was related to her inquiry or request as to changing prac groups: T 73:30-36.

110 The submissions further noted that it was after arrangements were put in place for the plaintiff and the complainant to participate in different prac groups effective from 19 September 2013, that on 30 September 2013 that the complainant is said to have raised an issue concerning the "mere chance of observing the plaintiff or merely knowing that the presence of the Plaintiff at the University ...": Plaintiff's Outline of Submissions at [41].

111 The plaintiff's case accordingly was that by relying upon material that had not been disclosed to him before the suspension decision on 1 October 2013, the defendant failed to comply with clause 110(a) and 110(d) of the Fairness in Procedures Guidelines. The submission was that the plaintiff had been denied procedural fairness: Plaintiff's Outline of Submission at [42].

112 It was submitted that it was not in doubt that the complainant and the plaintiff were attending lectures at the University from 11 or 12 September 2013 following the lifting of the suspension on 11 September 2013 by order of Beech-Jones J on that date up until 30 September 2013. (It being noted that there had been one week's University vacation from 23 September 2013.)

113 Prior to 30 September 2013 there had been no direct evidence from the complainant of her not wanting to attend university or being distracted at university or any of the other statements attributed to her by Dr Rowland as having been made to him in his interview: T 74:9-15.

114 The failure to disclose that material to the plaintiff, it was submitted, is to be considered against the background of correspondence and written submissions on behalf of the plaintiff in which requests were made to Dr Rowland for material to be relied upon by him to be identified so that the plaintiff could respond.

115 On analysis of the evidence, and the matters that were raised in the written submissions by the plaintiff's legal representatives to Dr Rowland on 13 September and 19 September 2013, the assumption as to the issues, and material in relation to them upon which the plaintiff proceeded, was said to have been "fair and reasonable": T 74:24-26.

116 It was additionally submitted that despite making extensive submissions in support of the proposition that suspension was inappropriate, Dr Rowland had steadfastly refused to provide the plaintiff with any indication of the reasons to be relied upon before he exercised the power under clause 40: Plaintiff's Outline of Submissions at [43].

117 All attempts by the plaintiff's solicitor to reach agreement on suitable alternative arrangements to eliminate the possibility of suspension (apart from the changes to the tutorial classes initiated by Ms Lind), Mr Drummond noted, had been rejected by the University. It was further contended that the plaintiff had been "left in the dark as to why the alternative arrangements would not eliminate or sufficiently reduce the perceived risk so that suspension of the Plaintiff in all the circumstances was not reasonably practicable": Plaintiff's Outline of Submissions at [45].

118 There was no evidence that the complainant had raised any issue or difficulties associated with the plaintiff attending lectures or as to his presence on campus between 20 August 2013 and 11 September 2013 (the date of the plaintiff's first suspension).

The 20 September Decision

119 In oral submissions attention was drawn to the text message sent by Dr Rowland to the Vice-Chancellor on 20 September 2013, the day after the second meeting between Dr Rowland and the plaintiff and his legal advisors, in which Dr Rowland advised her that he had reached his decision, being a decision to suspend the plaintiff. The Vice-Chancellor, it was noted, had originally been requested to undertake the clause 40 determination concerning the plaintiff but, following correspondence from the plaintiff's solicitors in which objection was raised on the basis of apprehended bias, the matter was delegated to Dr Rowland.

120 Further attention was drawn in the plaintiff's submissions to the fact that whilst Dr Rowland had reached his decision to suspend on 20 September 2013, on 13 September 2013 the plaintiff's legal representatives had requested that that meeting be adjourned for the purpose of obtaining a report from Dr Samuels and that that had again been raised at the meeting of 19 September 2013. Although an adjournment was not granted by Dr Rowland, he indicated that he would reconsider the decision he was to make if he received the report from Dr Samuels.

121 The submissions placed some reliance upon the matters dealt with in Dr Samuels' report, including the conclusions he expressed in it. A copy of this report had been sent to Dr Rowland three days before his interview with the complainant: T 76:1-25.

122 Mr Drummond submitted that once Dr Rowland received additional material from the complainant in his interview, he was under an obligation to notify the plaintiff or his legal representatives and provide him with notice that he should not proceed on the previously limited basis or material with which he had been briefed or provided, but that he was going to consider and take into account the additional information he said he had obtained from the complainant. Failure to do so led to an absence of procedural fairness. The plaintiff, it was submitted, simply had no opportunity to deal with that material.

123 There is no evidence as to the basis for that decision.

Defendant's Submissions

124 In the defendant's Response to the Amended Summons dated 5 December 2013, the defendant pleaded specific grounds of defence corresponding to the paragraphs in the Amended Summons. The Response specifically pleaded:

(i) A denial that the Determination or Decision made by Dr Rowland on 1 October 2013 was not validly made and is of no force and effect as contended for by the plaintiff.

(ii) A denial that the defendant failed to provide procedural fairness to the plaintiff before making the Decision. Reliance was placed upon particulars of this denial as set out in paragraphs 1.1(b) to (o).

125 The defendant provided a written Outline of Submissions for the Defendant (revised 28 January 2013). This outline was developed in oral submissions by Mr Kennett SC on 3, 6 and 10 February 2014 (being part rather than full hearing days).

126 The University emphasised the distinction to be observed in a review of administrative action between the legality and the merits of the decision or action. The latter is, and remains, a matter to be determined by the repository of the relevant power: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [160] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

127 A number of limitations, it was observed, exist on the "hearing rule". These include the proposition that what procedural fairness requires to be disclosed to the person to whom a decision is to be made is material of which the plaintiff is not on notice, is adverse to the plaintiff and is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 at 629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [96].

128 The defendant in the present proceedings accepted that its power to suspend a student is subject to the general law principles of procedural fairness: Outline of Submissions for the Defendant: revised 28 January 2014 at [8].

129 The defendant, however, submitted that the plaintiff was afforded "numerous and comprehensive opportunities to be heard in opposition to any possible suspension that was under consideration prior to the making of the decision on 1 October 2013": Outline of Submissions for the Defendant: Revised 28 January 2014 at [8].

130 The submissions for the defendant in support of that proposition set out the following sequence of events as having occurred prior to the making of the decision of 1 October 2013: at [10.1] to [10.9] of its written submissions.

(1) On 12 September 2013, the plaintiff was notified via his legal representatives that the defendant was considering whether to make a decision under clause 40 of the Misconduct Policy to suspend him from his studies. He was provided on that date with the material that had been provided to the decision-maker and informed that he would have a chance to be heard and to make oral submissions.

(2) On 12 September 2013, the plaintiff's legal representatives were notified that the decision-maker would be Dr Rowland and that the plaintiff would have a chance to be heard on 13 September 2013.

(3) The plaintiff attended a meeting on that date with his legal representative and his parents. Written submissions on behalf of the plaintiff were provided to the decision-maker. A copy of those submissions is at Court Book vol 1 at 291-293.

Oral submissions were also made on the plaintiff's behalf and his legal representative put questions to Dr Rowland. An adjournment was sought for five days.

(4) On 16 September 2013, Dr Rowland wrote to the plaintiff's legal representatives in response to questions raised on 13 September 2013. Dr Rowland informed the plaintiff:

(a) of the material he would be relying on in making a decision under clause 40 of the Misconduct Policy. The "material" referred to was;

(i) the redacted affidavits of Mr Byrne and Professor Hennessy;

(ii) The Misconduct Policy;

(iii) Letters written to the plaintiff's legal representatives dated 12 September 2013 arranging the meeting; and

(iv) The plaintiff's written submissions to Dr Rowland dated 13 September 2013.

(b) That the plaintiff would have a further opportunity to make submissions at a meeting on 18 September 2013.

(c) The factors and risks he was considering. These included:

"Health, safety and welfare considerations including:

(a) The impact of [the plaintiff's] continued attendance at UWS on the complainant and her continued studies.

(b) The impact of [the plaintiff's] continued attendance at UWS on other students; and

(c) The need for UWS to eliminate, so far as is reasonably practicable, any risks to health, safety and welfare of its students.": Court Book vol 2, at 500.

(5) On 17 September 2013, the plaintiff's legal representatives wrote to Dr Rowland making submissions on what was required, in their view, to afford procedural fairness to the plaintiff.

(6) On 18 September 2013, Dr Rowland responded: Court Book vol 2, pp 501-503. In this letter he advised:

• The plaintiff would be given another opportunity to respond on 19 September 2013.

• That "the allegations" were detailed in Mr Byrne's report.

• The "concerns and risks" were identified in Mr Byrne's and Professor Hennessy's affidavits, "and further identified in my letter of 16 September 2013. I believe that [the plaintiff] is in a position to respond, if he wishes to do so": Court Book vol 2, at 502.

• The risk to health and safety was said to have been created by the plaintiff's presence at the University with the complainant and other students impacted by the alleged incident. The concern was the impact on the welfare of the complainant and other students: at [5].

(7) On 19 September 2013 the plaintiff's solicitors wrote to Dr Rowland.

(8) The second meeting took place on 19 September 2013. The plaintiff relied upon further written submissions dated that date and upon documentation produced. The plaintiff's legal representatives made oral submissions to Dr Rowland. Dr Rowland stated that if after making his decision additional information was provided, he would review his decision. (Express reference was made in this regard to "the medical report": T 141:15-16, 3 February 2014.)

(9) On 27 September 2013, the plaintiff provided further material to Dr Rowland including:

• Further written submissions;
• Two character references; and
• The medical report of Dr Samuels.

(10) On 1 October 2013, Dr Rowland released his Reasons for Decision in relation to his decision.

131 The Outline of Submissions for the Defendant then set out events following the decision to suspend. These included, in particular, correspondence between the plaintiff's legal representatives and Dr Rowland between 15 October 2013 and 28 October 2013: at [12].

132 The submission for the defendant was that the above sequence of events make apparent "... that the plaintiff had multiple opportunities to make oral and written submissions, prior to the making of the decision ...": at [15].

133 In relation to the "claims" in paras 1.1.1.(a) and 1.1.1.(b) of the Further Amended Summons, it was submitted for the defendant that the issues critical to the decision were apparent from their nature and that the decision was open on the known material: at [18]. In this regard it was submitted that it was clear from the evidence that the issue of "the impact" upon the complainant of the plaintiff's continued attendance at the University was well-known to the plaintiff having, it was argued, been:

• Disclosed in Professor Hennessy's affidavit;
• Identified in Dr Rowland's letters of 16 September 2013 and 18 September 2013; and
• Acknowledged in Dr Samuel's report of 20 September 2013.

134 It was submitted that procedural fairness did not require Dr Rowland to go further and inform the plaintiff of his "impressions upon the evidence or his proposed reasoning process". Reference in this respect was made to the decision of the High Court in SZBEL, supra, at 66.

135 In relation to events following the making of the decision to suspend the plaintiff and the notification of the same to him, the Outline of Submissions for the Defendant set out communications between Dr Rowland and the plaintiff's legal representatives by which Dr Rowland was said to have provided opportunities to the plaintiff to be heard in relation to any "additional" material obtained by him when he met with the complainant on 30 September 2013. This was in response to the plaintiff's legal representatives' letter of 15 October 2013 to Dr Rowland asserting that the plaintiff had been denied procedural fairness.

136 The Outline of Submissions for the Defendant noted that on 18 October 2013 Dr Rowland provided the plaintiff with his notes of his 30 September 2013 meeting with the complainant and notified him that he was prepared to give him the opportunity to make further written submissions.

137 It was noted that on 24 October 2013 the plaintiff, via his legal representatives, wrote to Dr Rowland acknowledging that he had been advised of that opportunity with a view to the decision-maker considering whether to revoke the decision, and sought from the decision-maker his response to "confirm that you revoke your decision to suspend [the plaintiff] so that he can thereafter make submissions ...": Outline of Submissions for the Defendant at [12.4].

138 On 28 October 2013, Dr Rowland wrote to the plaintiff's solicitors indicating he was not revoking his decision but again invited further submissions and that if the plaintiff wished to make such further submissions "I will consider the submissions and consider whether it is appropriate to revoke my Decision": Outline of Submissions for the Defendant at [12.5].

139 It was observed that no further information or submissions were provided by the plaintiff, in particular in relation to his meeting with the complainant on 30 September 2013.

140 On 31 October 2013, the plaintiff's legal representatives wrote to the defendant and to the defendant's solicitors informing them that they intended to file a Summons in the present proceedings. The plaintiff's legal advisers also advised that they would seek a variation in the suspension Determination so that the plaintiff would be able to complete his assessments for the year.

141 On 1 November 2013, Dr Rowland, as authorised delegate of the University, made a decision to vary the suspension decision so as to permit the plaintiff to sit for his final examinations for Foundations of Medicine 1: Outline of Submissions for the Defendant at [14].

142 On that occasion Dr Rowland noted that he had not received any further submissions from the plaintiff as to why he should revoke the suspension order, but again stated that the plaintiff was welcome to place before him any further submissions if he wished to do so. Unless and until that occurred, he considered that there were no grounds for him to revoke or vary the suspension order: Outline of Submissions for the Defendant at [14].

143 It was again submitted for the defendant that it was apparent from this sequence of events that the plaintiff had "... multiple opportunities to make oral and written submissions, prior to the making of the decision": Outline of Submissions tor the Defendant at [15]. It was observed that the plaintiff also sought and obtained the postponement of the making of the decision until the end of the non-teaching week commencing 23 September 2013 and until the medical report from Dr Samuels had been provided to the decision-maker.

144 As earlier indicated, there is a significant issue in the present proceedings as to whether Dr Rowland was under an obligation to disclose to the plaintiff or his legal representatives the material that he had elicited in the interview that he conducted with the complainant on 30 September 2013. The defendant maintained:

(1) That a decision-maker is only required to identify to the person affected any issue critical to the decision which is not apparent from its nature. The defendant argued that "it is clear from the evidence that the issue of the impact upon the complainant of the plaintiff's continued attendance at the University was well known to the plaintiff": Outline of Submissions for the Defendant at [18].

(2) The plaintiff was clearly on notice of the case that he had to meet, all the material that was available to the decision-maker having been provided to him.

145 The defendant further submitted that it was clear from the evidence that the issue of the impact upon the complainant of the plaintiff's continued attendance at the University was well known to him. It was further submitted that "concern" was disclosed in the affidavit of Professor Hennessy and that that had been identified to the plaintiff in Dr Rowland's letters of 16 September 2013 and 18 September 2013. Further, the issue of an impact upon the complainant of the plaintiff's continued attendance was acknowledged, it was submitted, by Dr Samuels in his report of 20 September 2013: Outline of Submissions for the Defendant at [18.4]. In this respect, Dr Samuels' statement was that it was conceivable that the complainant may feel "uncomfortable" being in the same environment, but he considered there to be sufficient measures in place to ensure they had little or no contact with one another: Report of Dr Samuels, 20 September 2013: Court Book vol 2, p 456.

146 It was submitted for the defendant that all material available to the decision-maker had been provided to the plaintiff:

"... the mere confirmation by the complainant to the decision maker of the matters that had previously been before him by way of hearsay did not constitute material of which the plaintiff was not on notice, or raise any issue not identified to him and which would not have been apparent from the material that he had. Thus there is no basis upon which it could be said that Dr Rowland was required to put the matters disclosed to him by the complainant to the plaintiff before his decision": Outline of Submissions for the Defendant at [22].

147 The defendant alternatively submitted that even if the plaintiff was entitled, as a matter of procedural fairness, to be notified of what was said to Dr Rowland by the complainant on 30 September, or of his proposed reasoning, it did not follow that the failure to do so before the making of the decision vitiated it.

148 In support, reference was made to fact that the decision-maker had said more than once that he was prepared to review his decision if provided with further material, that he provided notes of the meeting that he had with the complainant and that he repeated his offer to reconsider the decision on 28 October 2013 and that he had noted in his variation decision that the plaintiff had not availed himself of that opportunity: Outline of Submissions for the Defendant at [23.1] to [23.4].

149 The defendant relied upon the decision of the Full Court of the Federal Court in Aye v Minister for Immigration and Citizenship (2010) 187 FCR 449 and contended "By parity of reasoning" that in the present case any denial of procedural fairness caused by a failure to inform the plaintiff about the interview on 30 September 2013, or by a failure to provide an opportunity to comment on the reasons, had been remedied by the provision of those reasons and all relevant records to the plaintiff and Dr Rowland's continued preparedness to revisit his decision if further material was presented to him: Outline of Submissions for the Defendant at [25].

150 In his oral submissions on 3 February 2014, Mr Kennett addressed nine points in relation to the procedural fairness ground:

(i) Disclosure of Documents

151 At the time the decision to suspend the plaintiff was made, it was submitted the plaintiff had in his possession, or at least had access through his legal representatives, to all of the documents that the decision-maker had. Reference was made to the following matters in relation to disclosure:

• The transcript of the meeting of 13 September 2013 records Dr Rowland raising a question as to whether the plaintiff had been provided with all relevant documentation in order to clarify documents he did not have: Court Book vol 2 at 677 to 6.80.

• On 16 September 2013, Dr Rowland wrote to the plaintiff's solicitors in respect of a number of matters. First, as to the material that he would rely on, it being noted that at that stage he had the redacted affidavits of Mr Byrne and Professor Hennessy before him. He had also said that he read the Misconduct Policy. He noted that he also had letters sent to the plaintiff's solicitors dated 12 September 2013 in relation to arranging the meeting. He recorded that he also had the plaintiffs' written submissions handed to him on 13 September 2013.

152 As to the factors that he said he would be "presently considering" he noted:

"(1) The seriousness of the allegation;

(2) The Facebook conversation;

(3) Health, safety and welfare considerations including:

(a) the impact of [the plaintiff's] continued attendance at UWS on the complainant and her continued studies;

(b) the impact of [the plaintiff's] continued attendance at UWS on other students; and

(c) the need for UWS to eliminate, so far as is reasonably practicable, any risks to health, safety and welfare of its students" Court Book vol 2, p 500.

• In a letter dated 18 September 2013 to the plaintiff's solicitors, Dr Rowland indicated that he understood the plaintiff would have documents produced by the University in answer to a Notice to Produce, and that he had told the plaintiff the material that he would be considering. He also noted that he understood the University had not taken statements at that time. The submission was that Dr Rowland did not at that time have anything, or was proposing to look at anything, that was not already available to the plaintiff and his representatives: T 124.

• The transcript of the meeting between Dr Rowland and the plaintiff and his legal representatives on 19 September 2013, records the plaintiff's solicitor, Mr Battersby, seeking clarification to which Dr Rowland replied "well, the information that I am going to take is the two (2) Affidavits plus any information that you want to provide me with. That is where it stands.": Court Book vol 2 at 764.

• The scope of the documentary material was also confirmed in the Reasons for Decision: Court Book vol 1 at 251-252.

153 Accordingly, it was submitted that it was clear that, so far as documentary material was concerned there was nothing the decision-maker had that was not disclosed: T 124:44-46.

(ii) No Conclusion Drawn From Material that was Not Open

154 The University submitted that no conclusion was drawn from that material that was not obviously open to be drawn from it: T 124:48-50. Reference in this respect was made to the decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592.

(iii) Issues

155 As to issues, the plaintiff had received Dr Rowland's letter dated 16 September 2013, (extracted above): Court Book vol 2 at 500. In that respect it was noted the issue of health, safety and welfare considerations included the impact of the plaintiff's continued attendance upon the complainant and her continuing studies. In that context there was a need to eliminate, so far as was reasonably practicable, any risks of health, safety and welfare. Additionally, Dr Rowland had noted in his letter the impact of the allegation and the pending process on the ability of the plaintiff to continue his studies as well as the ability to accommodate the plaintiff continuing his studies and at the same time address the concern as to the risks identified.

156 It was submitted that Dr Rowland in his Decision did not go outside those issues and did not rely on any consideration that was not clearly foreshadowed in the list of issues: T 126:1-3.

(iv) Issues Defined Broadly

157 It was further noted that Dr Rowland had defined the issues fairly broadly in terms of impact and that this really told the plaintiff that that consideration may be quite wide-ranging, depending upon what the evidence threw up and that he should not discount anything: at T 127:40-45.

158 The issue of the impact on the plaintiff, it was said, was within a relatively narrow compass and, in that context, the affidavits of Professor Hennessy and Mr Byrne were referred to. These, it was submitted, would have indicated the impact or the potential impacts about which there was evidence: T 128:1-5.

159 It was submitted that in identifying the "impact", the defendant submitted that the same would have been relatively clear from the scope of the written material including the statement of issues: T 128:20-25.

160 Additionally, that the reasoning in Dr Rowland's Determination did not go beyond the considerations that he set out in his letter of 16 September 2013: T 128:40-45.

(v) Limitations of Procedural Fairness: No Requirement for a Commentary from the Decision-Maker

161 In this point it was submitted that procedural fairness did not require more than production of documents or obtaining documents or identifying issues. It did not require Dr Rowland to provide a commentary on his own reactions to the evidence or a preview of his reasons. A decision-maker does not have to give a running commentary on what he or she thinks about the evidence. It is sufficient if the substance of the evidence is disclosed and any surprising potential conclusions are disclosed, and the issues to be considered are apparent: T 129:4-15.

(vi) The Significance of the Interview on 30 September 2013

162 The defendant disputed the contention that the interview expanded the scope of concerns from something that was quite narrow (not wanting to be in the same prac group) to something quite broad (not wanting the plaintiff on campus at all): T 130:16-25.

163 In developing this submission reference was, firstly, made to the affidavit of Mr Byrne. In this respect the following points were raised:

• Although the discussion between Mr Byrne and the plaintiff on 19 August 2013 was confined to the question of what allegedly occurred in the incident in question (said to have occurred on 16 August 2013) and there had been no discussion about any consequences of it, nonetheless Mr Byrne did speak to the complainant and another witness: T 130:30-40.

• Mr Byrne attended at the police station with the complainant.

• Mr Byrne expressed the view that the complainant was extremely vulnerable. Although he did not identify what that opinion was based upon, it was nonetheless submitted on behalf of the defendant that it was based on him having spoken with her (about the alleged incident). This was relied upon as "a piece of evidence" that was available to the plaintiff from which he could see the issues he had to meet.

• Mr Byrne formed the view following a risk assessment (which assessment was not the subject of evidence in the present proceedings) that suspension was necessary to protect the health and welfare of the complainant and others. Whilst it was acknowledged that Mr Byrne had not identified the basis for his opinion, it was nonetheless said to be significant as it indicated "the scope of the concerns that were being exposed": T 132:25-26.

• Dr Rowland also had the affidavit of Professor Hennessy. It was another piece of material before the decision-maker and the plaintiff had that material.

• Whilst Professor Hennessy only spoke to the complainant once, which was when she reported the incident, and did not have any other discussions with her, it was said nonetheless to have provided some basis for her later conclusion.

• Reliance was placed upon the hearsay statement attributed to the complainant made on 29 August 2013 as to a fear of seeing or crossing paths with the plaintiff on 29 August 2013, though there is no evidence of any such fear being raised thereafter. This material was said to be relevant to the scope of the complainant's problem or concern as it emerged from the known material: T 135:20-25. It was submitted that the scope of such material was broader than the complainant's concern to be moved to a different tutorial group: T 135:25-30.

164 The defendant also placed reliance in its submissions on correspondence from the plaintiff's solicitors as supporting the proposition that the plaintiff understood the scope of the issues being examined by the decision-maker. In a letter of 19 September 2013 from the plaintiff's solicitors it was noted that Dr Rowland's letter of 18 September 2013 had suggested there was some urgency as to why he should make his decision that week. Mr Battersby recorded that it was important that Dr Rowland identify "... what the risk is that warrants consideration of immediate suspension, and the evidence and facts that give rise to that risk so that [the plaintiff] can consider them and respond to them ...": Court Book vol 1 at 302. On the second page of that letter it was noted in respect of the "perceived urgency", "You appear to suggest that [the plaintiff's] mere presence at the University creates a health and safety risk ...": Court Book vol 1 at 303.

165 I note that the statement resonates some uncertainty in Mr Battersby's mind of what was in fact being "suggested". There had been no particulars or factual material provided that supported a contention or allegation to that effect. The defendant, however, placed reliance upon it. There was no further correspondence on the matter.

(vii) Understanding of the Issues

166 The scope of the material and Mr Battersby's understanding, it was submitted, established the case which the plaintiff was on notice he had to meet: T 138:5-10.

167 It was submitted that the interview between Dr Rowland and the complainant did not "... add any new issue or claim that the plaintiff needed to deal with ...": T 138:30-33. It was submitted that all that it did was to confirm "... the documents sent Dr Rowland, without the problem of it being hearsay and without the problem of it possibly being out of date. So if it did anything, it addressed those evidentiary problems": T 138:33-35.

(viii) The Content of Procedural Fairness: An Interim Decision

168 Mr Kennett relied upon the proposition that the content of procedural fairness depends on the nature of the decision and the circumstances in which it is being made. In the present case the policy document contains a procedural guideline. It is no more than a guideline: T 138:40-45.

169 The present case, it was submitted, does not involve a curial or quasi-curial proceeding where procedural fairness would be understood as necessarily requiring everybody to be present when the evidence was heard or to require a verbatim account of such evidence. It was a relatively informal process not defined by any set of procedures: T 139:15-20.

170 It was further submitted that the plaintiff knew the substance or gravamen of the case that he had to meet: T 139:20-25.

171 The meeting with the complainant on 30 September 2013, it was submitted, did not add anything to the substance or gravamen. All it did was to meet possible criticisms of the strength of the evidence: T 139:25-30.

172 The defendant additionally submitted that the suspension procedure under clause 40 of the Misconduct Policy was essentially interlocutory or interim in nature. It is not always the case on an interim decision in a court that there will be a full measure of disclosure and the full measure of opportunity to put questions and test evidence: T 139:35-40.

173 It was submitted in the present case that the interim nature of the proceedings was relevant. Dr Rowland was entitled to take the view that the power needed to be exercised quickly, and he was not making findings of a final nature: T 141:15-35. It was submitted that the interim nature of the whole exercise was such that the obligation to accord procedural fairness should not be taken to require the plaintiff to test or challenge every piece of evidence, including that of the complainant; it was sufficient that he knew the substance of her concerns: T 141:35-45.

(ix) Offers by the Decision-Maker to Reconsider

174 Any failure to afford procedural fairness was remedied by reason of Dr Rowland's subsequent offer to reconsider his decision should the plaintiff wish to be further heard: T 141:45-50.

175 Reliance was again placed in this respect upon the decision in Aye v Minister for Immigration and Citizenship.

PART E - CONSIDERATION

Principles

176 The principles constituting the "hearing rule" are well established.

177 A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters that are adverse to his or her interests which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West, supra, at 628 per Brennan J.

178 In the ordinary case, where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is information that is credible, relevant and significant to the decision to be made: Kioa v West, supra, at 629 per Brennan J.

179 Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, supra, at 592 per Northrop, Miles and French JJ.

180 A hearing is unlikely to be fair when a decision-maker receives material or representations in the absence of one party, or does not disclose relevant material obtained from another source. A fair hearing is not possible if disclosure is inadequate: Judicial Review of Administrative Action, Aronson &, Groves (Law Book, 5th ed, 2013) pp 526-527 at para [8.180].

181 Paragraphs (110)(a) and (d) of the University's Fairness in Procedures Guidelines apply to the procedure and function to be performed under clause 40 of the Misconduct Policy. Where a party is not given a sufficient opportunity to give evidence or make submissions on what turns out to be a determinative issue or issues, that party has not been accorded procedural fairness: SZBEL at [44].

182 In the present proceedings, it may be inferred from the evidence that Dr Rowland, having made his decision on 20 September 2013 pursuant clause 40 to suspend the plaintiff, and having so advised the Vice-Chancellor, subsequently determined that the information upon which he had based that decision was inadequate, insufficient or deficient.

183 Having received a copy of Dr Samuels' report on 27 September 2013, Dr Rowland took up an investigative role pursuant to which he arranged and conducted the interview with the complainant on 30 September 2013. The information that he obtained during the interview formed the basis for his (second) decision to suspend, made on 1 October 2013. It is clear that Dr Rowland up to that point had no direct information from the complainant that was capable of supporting a decision to suspend the plaintiff. As noted above (at [86]), it was the plaintiff's legal representative who in their written submissions on 19 September 2013 pointed out to Dr Rowland that there was no written statement from the complainant available and no particulars or evidence of the facts relied upon.

184 It was accepted by the defendant for the purposes of these proceedings that clause 40 of the Misconduct Policy required the decision-maker to consider the interests of both the complainant and the plaintiff. In making a decision under that clause, the possible options or alternatives for consideration included (a) outright suspension; (b) available measures as an alternative to outright suspension. The authorised delegate, Dr Rowland, recognised such in his Reasons for Decision: "The ability to accommodate [the plaintiff] continuing his studies and at the same time to address any of the concerns and risks identified above": 3.3(h).

185 Before turning to the decision made on 1 October 2013, I note the following as the terms in which it is expressed. The challenged decision has been referred to in submissions as a decision to "suspend". However, its nature and effect in this case is properly ascertained by the particular terms of clause 40 which refer to actions that "suspend" or "restrict".

186 Clause 40 provides that the specified person:

"... 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 ..."

187 In the present case, by the terms of the decision the plaintiff was "suspended" from both the precincts of the University and from "any activities associated with [the plaintiff's] course, including attending lectures, tutorials or clinical placements": Reasons for Decision at 5.6. Although the terms of the Determination in paragraph 5.6(b), do not strictly reflect or accord with the provisions of clause 40, no point is taken in that respect.

188 A decision under clause 40, although one that may be characterised as interim in nature as submitted by Mr Kennett, is nonetheless a decision that is capable of carrying significant adverse consequences for the student of such a decision. It is not in contention in the present proceedings that the decision in question under clause 40 to suspend the plaintiff carries with it potentially serious consequences for him.

189 Mr Drummond noted in his submissions that if the Notice of Suspension dated 1 October 2013 is not revoked or varied the plaintiff will be excluded from the University and its facilities through possibly the whole of 2014 and possibly 2015: Plaintiff's Outline of Submissions at [32]. Mr Drummond additionally submitted that an exclusion will have a catastrophic effect upon the plaintiff's studies and future as a medical practitioner. Whilst it is difficult to precisely evaluate the latter submission with any degree of certainty, it is reasonable to accept that the suspension carries with it serious adverse consequences for the plaintiff.

190 In determining the issues between the parties to which I have referred, there is a general principle that can operate upon the requirement to accord procedural fairness. It is the principle that holds that the content of the "hearing rule" is flexible. It is to be determined by what is fair in all the circumstances of the particular case. The "circumstances" include the nature of the inquiry, the rules under which the decision-maker is acting, and the subject-matter that is being dealt with: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker LJ and discussion in Judicial Review of Administrative Action, Aronson & Groves (Law Book, 5th ed, 2013) at [8.50].

191 Central matters for consideration in the present case include the duty of disclosure of information available to a decision-maker and whether the plaintiff was entitled to be given notice of, and provided with, the material that the decision-maker had and proposed to consider in making his decision to suspend. Those issues are to be determined as at the date of the Determination (1 October 2013).

192 As earlier noted, the University has established a procedural policy and guidelines with respect to decision-making under its Misconduct Policy. I have earlier noted that such policies and procedural principles that are to be given effect in operation. Specifically on the issue of disclosure, the University's Fairness in Procedures Guidelines provide at clause 100 that the University is committed to ensuring, inter alia, both "the opportunity to be heard" (clause 110(a)) and "Disclosure of relevant material before the decision - the person about whom the decision is to be made is entitled to know what the case is to be met" (clause 110(d)). Finally, clause 110(e) provides that "... the person about whom a decision is to be made should have a reasonable opportunity to respond before a decision is made". (emphasis added)

193 The above "guidelines" are, of course, consistent with general law principles concerned with the duty of disclosure. As stated by the learned authors of Judicial Review of Administrative Action, supra,

"... Although the duty is often said to require disclosure of material received from other sources, the key issues appear to be whether the material will be considered by the decision-maker, and if so whether the person affected has had an opportunity to address it": pp 528 at [8.190].

194 In the present proceedings, on the evidence, it may be inferred that the decision-maker, Dr Rowland, determined at a late stage and towards the end of the clause 40 decision-making process to obtain information from the complainant that up until that stage had not been available to him.

195 Six matters may be noted at this stage:

(i) First, it is reasonable to infer that Dr Rowland considered that it was necessary, at a late stage in the process, and following meetings with the plaintiff and his legal representative, to interview the complainant.

(ii) Second, the information which Dr Rowland obtained from the complainant was clearly, in his assessment, important and relevant information and utilised in making his decision and it was material of particular importance to the plaintiff's interests.

(iii) Third, on the evidence, there was no necessity borne of any extreme urgency that would have prevented Dr Rowland from disclosing the information to the plaintiff. In not doing so the plaintiff did not have an opportunity to consider and respond to the interview statements, with Dr Rowland's decision being made the next day.

(iv) Fourth, the information obtained by Dr Rowland on 30 September 2013 was used as a basis for his decision.

(v) Fifth, the information obtained by Dr Rowland in the interview with the complainant on that date was specific to the matters arising under clause 40 which required consideration. It was not material of a general nature: Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at 358 ("Offshore Processing Case").

(vi) Sixth, the interview of 30 September 2013 was the first occasion that the complainant provided information on the specific matters noted by Dr Rowland at [6.6(b)] of his Reasons for Decision.

196 It is well accepted that the duty of disclosure comprehends both a duty to disclose the issues to be considered, as well as the materials to be relied upon. In relation to the latter, there is a minimum requirement for there to be disclosure of material that is adverse to the relevant person's interests. However, it will also include all material that has substantive relevance to the matter in issue.

197 In the Fairness in Procedures Guidelines, contained in "Section 5 - Guidelines" forming part of the Misconduct Policy, clause 110 is in the following terms:

"(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.

198 In addition, clause (111) of the Fairness in Procedures Guidelines provides, in part, that:

"111 The University is committed to ensuring that all procedures and policies are implemented according to the principles of procedural fairness ..."

199 It is of significance to the issues in the present case to observe that the information which Dr Rowland stated he obtained from the complainant was used by him in resolving two fundamental issues. The first related to whether there was a health and safety issue, in particular, the existence of a risk of a kind and at a level capable of adversely affecting "health" and "safety". Second, whether any "risk" could be managed by establishing specific measures or arrangements as an alternative to outright suspension (risk management).

200 In determining the issue of a risk to "health" and "safety" to the complainant, the particular factual matters that may be said to constitute or give rise to a risk, the nature and level of any such risk, the circumstances giving rise to such a risk, and the likely consequences (whether "health" issues or issues of a lesser or different kind) are relevant matters for consideration.

201 Similarly, in determining the scope for and the viability of managing risk by appropriate control or mitigation measures, the particular factual matters referred to in the preceding paragraph are relevant considerations in determining the availability and prospects for an alternative control and management approach to outright suspension.

202 The rationale for the duty of disclosure is to provide an affected person with an opportunity to respond. In this case the opportunity to respond concerned factual issues subjacent to the two general issues referred to in the paragraph [199] above. The duty of disclosure provides a potentially affected person with an opportunity to correct, elucidate or add to the materials to be considered. In this respect, reference may be made to the discussion by Brennan J of natural justice principles that govern the procedure for ascertaining facts for consideration in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 at 59-60 per Brennan J.

203 It has been observed that:

"Disclosure can act as an important safeguard against the use of inaccurate material or untested theories. It can also contribute to the efficiency of the hearing by directing argument and information to the relevant issues and materials." Judicial Review of Administrative Action, supra, at [8.180].

204 In the present case in which there was no disclosure to the plaintiff of the matters raised in the interview before 1 October 2013, factual misstatements or misunderstanding appear in relation to certain matters upon which Dr Rowland said he formed his view. These are identified here to illustrate in this case the importance of disclosure referred to in the above quoted extract and the purpose to be served in requiring it.

205 The Reasons for Decision record six matters said to have been raised by the complainant at 6.6(b). Three of these referred to issues for the complainant concerning "lectures". In paragraph 6.8 Dr Rowland, in forming his view said he, inter alia, relied upon:

"(c) [the plaintiff] and [the complainant] need to attend the same lectures and workshops."

206 Mr Kennett, in submissions, properly acknowledged that was not a correct statement as the plaintiff had available to him the on-line facility for lectures: T 205:20-25.

207 The plaintiff's attendance at lectures had been the subject of attention in correspondence and written submissions by the plaintiff's solicitor on 19 September 2013: Court Book at 309-310 as discussed above. In those submissions it was observed that the plaintiff and the complainant no longer attended the same tutorials (and accordingly it is not surprising that there was no reference made by the complainant to such tutorials in her interview).

208 On the subject of lectures, the written submissions for the plaintiff further observed:

"... there is no compulsory requirement for [the plaintiff] to attend these lectures and he can avail himself of them on line ..."

209 The latter statement as to the availability of the facility for on-line lectures has been accepted in these proceedings as a correct one. It is a point available to have been raised and/or emphasised with Dr Rowland by the plaintiff had there been an opportunity provide to him following the interview.

210 Accordingly, Dr Rowland's statement and reliance on a need for the plaintiff to attend the same lectures as the complainant is incorrect.

211 Dr Rowland also stated that he relied upon the fact that it was not possible to remove "with any certainty" any threat of the plaintiff having contact or encountering the complainant, as:

"6.8(a) The nature of University is such that it allows students the freedom to attend and move about the premises even when not studying."

212 Any ongoing concern the complainant had with the plaintiff's presence on campus as a separate issue to his coursework attendance at tutorials or lectures, was first made known by the complainant to Dr Rowland on 30 September 2013. Had it been disclosed to the plaintiff that it was a matter Dr Rowland would rely upon as relevant to a "risk" ("the freedom to attend and move about") disclosure would have provided, an opportunity for consideration by both the plaintiff and the University of appropriate restrictions, undertakings or other measures directed at confining or limiting the plaintiff's "freedom" as referred to by Dr Rowland. Any such measures would then require close consideration by the decision-maker on the issue of controlling or minimising risk by measures and precautions designed to limit and curtail the plaintiff's attendance and movements.

213 The position as at the time of Dr Rowland's decision was therefore that coursework, tutorials, lectures and sessions at Blacktown Hospital, were capable of proceeding without the simultaneous presence of both the complainant and the plaintiff. The issue then identified by the decision-maker was the residual circumstance - the "possibility of contract or encounter" on campus: (Reasons for Decision at 6.9, 6.10). This became the issue on which Dr Rowland proceeded to deal with the issue of "risk".

214 The possibilities of limiting the time the plaintiff spent on campus with a view to reducing or minimising any perceived risk was not raised with the plaintiff following the interview. That matter having become in Dr Rowland's view a matter of importance, a full and proper inquiry and consideration into those possibilities included the plaintiff's opportunity to respond to the interview statements as an essential ingredient of a fair and independent process.

215 These, of course, are ultimately factual matters for the decision-maker to consider in relation to the merits of the decision which, of course, are not matters for judicial review. The point of the matter referred to in the preceding paragraphs is that disclosure of material that may be adverse is necessary.

216 In the present case, the information which Dr Rowland attributed to the complainant in the interview was relevant and significant to the decision required by clause 40 of the Misconduct Policy. It went to the issues referred to above. It was, as earlier noted, properly accepted in the course of the submissions for the defendant University that Dr Rowland was required to consider the interests of both students (the complainant and the plaintiff). The decision to be made requires genuine consideration of the points that are to be raised: Australian Football League v Carlton Football Club Ltd (1998) 2 VR 546 at 552. This, of course, was essential in determining whether those interests could be served by action other than outright suspension.

217 His Honour Beech-Jones J, as I have earlier noted, observed in his judgment delivered on 11 September 2013 the relevant factors in the proceedings he was required to determine included the fact that if proper notice had been given there were a number of matters that the plaintiff could reasonably be expected to have been able to put forward in opposition to a suggestion that he be suspended. These included alternative proposals to outright suspension: at [66]-[68]. The same observation, of course, may be made in the present proceedings. Those issues, his Honour observed, were all matters of substance. They were, it was noted, what a decision-maker acting reasonably could have been expected to consider before exercising the power of suspension: at [68].

218 There can be little doubt that the information provided by the complainant to Dr Rowland on 30 September 2013 went well beyond the subject of her inquiry by text message on 20 August 2013 to Professor Hennessy over a month earlier, as to a possible change of tutorials. On 30 September 2013 the statements which Dr Rowland attributed to her in the interview addressed matters and events said to have arisen over a period of a number of weeks, namely:

(i) Anxiety all the time about the possibility of seeing the plaintiff in lectures and on campus.

(ii) Her ability to concentrate in lectures was affected if the plaintiff attended the same lecture.

(iii) Distraction by the prospect of seeing the plaintiff which was affecting her studies.

(iv) She was withdrawn and less inclined to attend other university events for fear of seeing the plaintiff on campus.

219 There was no reference and certainly no direct information from the complainant contained in the materials provided to either Dr Rowland or the plaintiff before 30 September 2013 as to any of the matters in (i) to (iv), a fact that presumably is related to Dr Rowland's decision to interview the complainant on 30 September 2013. The matters (i) to (iv) were all incorporated into Dr Rowland's Reasons for Decision: at 6.6(b). Dr Rowland, in proceeding to make his decision known on 1 October 2013 left the plaintiff in the position where there was no opportunity for any other or independent inquiry or assessment to be made into any information available on the nature and level or significance of the matters raised by the complainant. This might include any known impact upon her ability to satisfactorily undertake course assignments, examinations, attendance at tutorials, lectures or clinical workshops, and further, whether any matters that were raised by the complainant could be addressed other than by outright suspension.

220 The issue presently, of course, is not what inquiry, by or on behalf of the plaintiff, into such matters would or would not reveal. The issue on judicial review concerns the requirement for procedural justice to the plaintiff in having an opportunity to address or deal with the information Dr Rowland used and relied upon in making his decision.

221 It has been recognised that the provision of material, as distinct from knowledge of issues may be essential for an affected person to have the opportunity of properly defend his or her interests by responding and/or seeking to call other evidence or otherwise to rebut an assertion. By way of illustration, Maksimovich v Walsh (1985) 4 NSWLR 318 at 328 per Kirby P (proceedings under the Coroners Act 1980), referred to an obligation to afford a person under suspicion the chance to respond to matters that are in the mind of the decision-maker: Musumeci v Attorney-General of NSW (2003) 57 NSWLR 193 at 198-200, per Ipp J, Beazley JA (as her Honour then was) agreeing. Whilst administrative decisions differ from the judicial process in important respects, where an administrative decision may have a substantial effect on a person or on his or her interests, disclosure of potential adverse material to be taken into account in the making of a decision will usually be essential.

222 The defendant referred in its written Outline of Submissions to statements of principle on what procedural fairness requires: at 9.4. The observations of Brennan J in Kioa v West at 629, therein referred to, dealt with the provision of "information" and the opportunity to deal with information. The defendant relied upon the correspondence from Dr Rowland and the meetings of 13 September 2013 and 19 September as sufficiently conveying the issues or "factors" that he said he would examine and consider.

223 However, an important distinction invariably exists between "issues" or "factors" and "materials" or information that may be considered in determining whether critical issues or factors are established. In judicial, quasi-judicial, and administrative decision-making, the resolution of general issues for ultimate determination will usually depend upon subjacent factual matters or factual issues arising from the evidence or the materials relied upon by the "parties". In Kioa v West Brennan J focussed upon the opportunity that should be given to deal with "adverse information" that is credible, relevant and significant to the decision to be made: at 629. It was the failure to give Mr Kioa the opportunity to deal with the "information" that contravened the principles of natural justice (ie, failure to disclose the information contained in the material before the delegate which he proposed to consider in coming to a decision): Kioa at 628).

224 As to the obligation to disclose "information" that is "credible, relevant and significant", see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 96. The obligation to reveal "information" exists for the purpose of giving the affected party an opportunity to respond before a decision is made: Kioa v West, supra, at 96.

225 I have earlier referred to the principle that determines unfairness in a case of non-disclosure: see [180] above. That principle is fully expressed in Judicial Review of Administrative Action, supra, at [8.180] as follows:

"A hearing is unlikely to be fair when a decision-maker receives material or representations in the absence of one party, or does not disclose relevant material obtained from another source. A fair hearing presumes that the parties to it are fully informed of, and able to respond to, the relevant issues. That is not possible if disclosure is inadequate. Inadequate disclosure can also reduce the accountability, acceptability and quality of decision-making ..."

226 The learned authors proceed to advert to the proper approach by judicial decision-makers, and then add:

"Where a decision-maker is authorised to conduct an investigation or inquiry, evidence that is proposed to be used should be disclosed ..."

227 This observation is followed by references to circumstances which may modify the timing of disclosure and that, at the less adjudicative end of the spectrum, whilst disclosure is still required, it will not normally extend to all materials considered or received from other sources. Material that may be adverse to a person should be disclosed. The limitation referred to by the learned authors of the above text does not, in my assessment, qualify the obligation of Dr Rowland to have disclosed to the plaintiff the material he received from another source (the complainant) and which he proposed to rely upon.

228 The defendant, as earlier noted, submitted that after the Determination of 1 October 2013 the plaintiff's solicitor wrote to Dr Rowland asserting that he had been denied procedural fairness by not having been given an opportunity to be heard in relation to the "additional" material obtained by Dr Rowland. After the plaintiff's solicitors initially indicated that the plaintiff wished to have an opportunity to make further submissions, Dr Rowland replied stating that he was prepared to give him that opportunity.

229 In these circumstances, the defendant relied upon the decision in Aye v Minister for Immigration and Citizenship (supra), where in the particular circumstances of that case the relevant Minister remedied his earlier failure to accord the appellant procedural fairness.

230 There are difficulties in accepting the submission for the defendant that "by parity of reasoning" the same may be concluded in this case.

231 In Aye, a delegate of the Minister for Foreign Affairs cancelled the appellant's visa under s 116(1) of the Migration Act 1958 (Cth). This was based upon an earlier determination of the Minister made on 14 July 2008 that the appellant was a person whose presence in Australia is or would be contrary to Australia's foreign policy interests. That determination was made under the Migration Regulations 1994 (Cth). The appellant, a citizen of Myanmar, held a student (subclass 573) visa. Her father was a Brigadier General in the Myanmar Air Force and was included in a list of sanctioned individuals.

232 The Migration Review Tribunal affirmed the decision of the delegate on the same ground - the determination of the Minister made on 14 July 2008.

233 Separate from the determination made by the Minister, and as part of the process concerning her visa, the appellant was invited, before a decision was made in relation to her visa, to show why the ground for cancellation of her visa did not exist and to give reasons why the visa should not be cancelled.

234 In his judgment, Lander J said that there were two reasons why the appeal should be dismissed:

[117] First, because after the decision was made the Minister for Foreign Affairs allowed the appellant to make representations in respect to that decision and on 19 September 2008 decided that his decision should remain in place. He also allowed the appellant to make further submissions after that date before deciding on 29 January 2009 that there was no basis to revoke his decision. By considering the appellant's arguments and submissions on those two later dates, the Minister for Foreign Affairs remedied his earlier failure to accord the appellant procedural fairness.

[118] Second, if I am wrong about that, the limited content of the duty meant that the Minister for Foreign Affairs needed only to consider whether the appellant is Brigadier General Zin Yaw's daughter and therefore a close family member, and a member of the Burmese regime. There is no argument about that. The failure therefore of the Minister for Foreign Affairs to accord the appellant natural justice could not have led to the Minister making any other decision apart from the one made. In those circumstances, even if there has been a breach by the Minister for Foreign Affairs of his obligations to accord the appellant natural justice, there is no point in quashing the decision to allow the appellant to make representations which could not affect any future decision.

235 Counsel were unable to refer to any other judgment of a court that has applied the approach taken by Lander J in Aye. That case was one very much dependent upon the different decision-making stages, firstly in relation to the determination, and secondly in relation to the visa. The content of the obligation to provide procedural fairness was very much determined by the circumstances of that case, including the structure and levels of decision-making involved. It is to be noted that when given an opportunity to make submissions the Minister for Foreign Affairs was only required to consider one question, namely, whether the appellant was the Brigadier General's daughter, and therefore a close family member and a member of the Burmese regime. As noted in the judgment at [118], there was no argument about that issue (and it can be seen that none could have been made).

236 I do not consider that the decision in Aye can be taken as formulating a principle that is applicable to an administrative decision made under the Misconduct Policy. The decision-maker in this case had made two decisions in favour of suspending the plaintiff (on 20 September 2013 and 1 October 2013) and demonstrated that he, without any further inquiry, proceeded on the basis of the complainant's statements to him in the interview as affirmatively establishing what he considered to be a risk to the complainant's health and safety. In those circumstances, no principle is cited to support the proposition that an affected person who has been denied procedural fairness is required to engage in a further inquiry by the same decision-maker. The particular circumstances in Aye, including the statutory structure within which the decision-making was made, in my opinion, do not suggest that Lander J was intending to state any general principle of the kind contended for here.

Apprehended Bias

237 The plaintiff was granted leave to further amend the Amended Summons to raise an issue of apprehended bias. Paragraph 1.8 of the Further Amended Summons alleges that the decision of Dr Rowland dated 1 October 2013 involved a breach of procedural fairness in that there came into existence an apprehension of bias. The matters particularised and relied upon in support of the allegation were set out in that paragraph.

238 A fundamental matter in support of the allegation was the fact that, as evidenced by Exhibit C, on 20 September 2013 Dr Rowland had made a decision to suspend the plaintiff. A number of matters were specified and relied upon to support the allegation of apprehended bias in relation to that decision: at paragraph 1.8(i) and (ii). It is not necessary to reproduce the detail of the particulars therein pleaded.

239 Mr Drummond relied upon the "Plaintiff's Amended Outline of Submissions On Claim For Apprehended Bias" dated 6 February 2014. He there identified the relevant principles concerning apprehended bias, citing the well known decision of the High Court in Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288.

240 The contention for the plaintiff was that, having regard, inter alia, to the decision arrived at by Dr Rowland on 20 September 2013, he subsequently proceeded to make the further decision on 1 October 2013 in circumstances constituting what was alleged to have amounted to prejudgment. In his written submissions Mr Drummond observed:

"6 In the present case the question which Dr Rowland was required to decide was whether, notwithstanding an interpretation of the alternative arrangements, whether the allegation made against the Plaintiff gave rise to a risk to the health and safety of the Complainant and whether the elimination of that risk was reasonably practicable."

241 In paragraphs 9 to 19 under the heading "Undue and Unrestrained Haste" a number of matters were relied upon. I do not intend any disrespect in not here reproducing and analysing in detail the very detailed submissions of Mr Drummond. I have, however, given careful consideration to them as indeed I have to all submissions made on behalf of the plaintiff and the defendant on the issue of apprehended bias as on all the other issues in the proceedings.

242 In paragraph 18 of Mr Drummond's written submissions he identified particular reasons in support of the contention that an examination of the conduct of Dr Rowland, subsequent to 20 September 2013, leads to and supports the conclusion that the Determination made on 1 October 2013 was the result of prejudgment.

243 Mr Kennett in particular relied upon written submissions entitled "Defendant's Responses to the Submissions of the Plaintiff on Apprehended Bias" dated 10 February 2014.

244 Having considered the submissions, I have determined that no finding of apprehended bias can be made against Dr Rowland. In that respect I consider that Mr Kennett, with respect, is correct in submitting that the rule against bias requires an open mind rather than an empty one and that a predisposition (even a strong one) towards a particular view is not to be equated with a decision-maker who is not open to persuasion. In support of that proposition, Mr Kennett cited the observations in McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; 161 LGERA 170 at 179-180, [14]-[18], [22]-[23] per Spigelman CJ. Reference was also made to the decision of the High Court in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531 and 564. I accept, as Mr Kennett submitted, that it would be necessary for the plaintiff to show a basis for inferring that Dr Rowland may not have been capable of persuasion away from what might be characterised as a strong preliminary view.

245 Accordingly, in my opinion, the ground of apprehended bias has not been made out.

Claim in Contract

246 As has been noted in prayer 2 of the Further Amended Summons, the plaintiff seeks a declaration that the plaintiff and the defendant entered into a contract which included an express (or implied) term as follows:

(iv) That the defendant would abide by, comply with and properly apply all by-laws, rules, policies and guidelines passed by the Board of Trustees of the defendant in accordance with Sections 22(1B)(h), 40 and 41 of the University of Western Sydney Act 1997 ..."

247 The claim in contract is pleaded in the alternative to the order sought in prayer 1 of the Further Amended Summons.

248 I have determined that a claim in contract as pleaded and in the circumstances of this case is not available to the plaintiff. Given the need for this judgment to be delivered expeditiously, I will restrict discussion of the reasons for that decision.

249 In the plaintiff's submissions it was stated that an offer from the University Administration Centre, presumably as agents for the defendant, was provided to the plaintiff on 29 January 2013 and he subsequently accepted the offer.

250 In early 2013 the plaintiff signed a Student Declaration pursuant to which he agreed to abide by the University of Western Sydney Act 1997, by-laws, rules and polices as amended from time to time. It was argued that the rules and policies relied upon in the present case became express terms of the contract between the plaintiff and the defendant. However, if that were not so then it was argued that the terms relied upon were generally applied as being incorporated in fact, by law or upon the basis of business efficacy: Riverwood International Australia Limited v McCormick (2000) 177 ALR 193 per North J at [106] and Mansfield J at [150].

251 In paragraph 95 of the plaintiff's written Outline of Submissions it was contended:

"An essential or fundamental requirement for the proper exercise of the contractual right to suspend pursuant to clause 40 of the Misconduct Policy required the following:

(i) To establish the existence of a risk determined in accordance with clause 5 of the HIRACP;

(ii) That the risk identified in (i) was one to the health and safety;

(iii) That it was reasonably practicable to eliminate rather than to minimise that risk; and

(iv) That the Defendant had complied with clause 110 of the Fairness in Proceeding [sic] Guidelines."

252 It was submitted in respect of (i) and (ii) above that the defendant had failed to establish the existence of the alleged risk in accordance with clause 5 of the relevant Policy, or at all: Plaintiff's written Outline of Submissions at [96].

253 In his written submissions, Mr Kennett observed that a difficulty for the plaintiff was that the Board of Trustees of the University had not exercised the power of s 40 to make by-laws governing student inclusion, exclusion or misconduct. In particular, the Misconduct Policy did not have the status of a by-law or a rule made under a by-law.

254 It was submitted that the alleged non-compliance with the Policy did not avail the plaintiff. However, it was stated:

"... it is accepted, however, that (by necessary implication from the plaintiff's status under s 5) a decision to suspend or exclude him could not be made capriciously, for purposes foreign to those of the Act, or in breach of the rules of procedural fairness. For reasons outlined above, the decision under review in the present case does not transgress any of those limits": at [51].

255 It was further submitted by Mr Kennett in his written submissions that even if there had been an offer and acceptance arising in the completion of the enrolment process giving rise to a contract between the parties (which the defendant did not admit), the plaintiff still faced a difficulty: at [52]. That difficulty was to establish the terms of the contract.

256 It was submitted on behalf of the defendant that there was no evidence of any promise made by the University in the context of the formation of any contract relied upon by the plaintiff. In particular, there was no evidence of any contractual promise by the University to be bound by the Misconduct Policy. Further, it was submitted:

"... no such promise arises from the fact that the plaintiff himself agreed to be so bound. To the contrary, the fact that the Policy has not been given binding force through the available statutory process (enactment as a By-law under s 40) strongly indicates an intention not to be bound by it": at [52].

257 Accordingly, it was submitted that if the rights of the plaintiff were understood to be contractual, that did not take him any further than the rights conceded as arising from his statutory status as a member of the body corporate, ie, not to be excluded or suspended capriciously for improper purposes or without procedural fairness.

258 It was further submitted that even if compliance with the Misconduct Policy by the defendant was an implied term, there had been no failure to comply with the Misconduct Policy for the reasons outlined above.

259 The question as to whether and if so the terms of a contractual relationship between a university and a student has not arisen for final determination on the authorities to which I have been taken. Reference was made in Griffiths University v Tang (2005) 221 CLR 99 to the fact that the nature of the relationship between the university and the student in that case was not an issue that had been dealt with below, although Gleeson CJ appears to have left open the possibility that a contractual relationship between such parties may exist. His Honour observed:

"... there was no evidence of a contract between the parties. There may well have been such a contract, but, if there was one, we were not told about it, and it was not relied upon by either party. The silence in the evidence about this matter, which bears upon the legal nature and incidents of the relationship between the parties, is curious...": at 108.

260 In the same case, Kirby J (dissenting) observed that Australian universities had been regarded as "public institutions" heavily dependent upon government funds: at p135. His Honour noted that in that case it had been agreed that there was no contractual arrangement between the respondent and the university pursuant to which the university provided education at the institution, although his Honour noted that, "...detailed evidence might have shaken this": at p 142.

261 I do not consider that on the evidence in the present proceedings there is any alleged basis for an express term, as pleaded in support of the relief sought in prayer 2. Furthermore, I do not consider that a basis has been established whereby such terms may be implied.

PART F - Other Grounds

Jurisdictional Error and 'Unreasonableness'

262 Several contentions and submissions in the plaintiff's written and oral submissions were directed to establishing legal error or error in determining jurisdictional facts in the decision-maker's exercise of power under clause 40 of the Misconduct Policy: Plaintiff's Outline of Submissions at [65].

263 In the plaintiff's submissions it was argued that a relevant jurisdictional fact is whether the "elimination of the risk is reasonably practicable". This jurisdictional fact, once established "enlivens the power of the decision maker to exercise the discretion" (quoting from Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148): Plaintiff's Outline of Submissions at [66]-[71].

264 The plaintiff's submissions detailed the basis for its contention that "clause 40 provided a binding statutory framework": Plaintiff's Outline of Submissions in Reply at [13]. It is not necessary here to set out the detailed submissions made in that respect.

265 However, as Mr Kennett submitted, Clause 40 does not have statutory force, it not having been enacted as a by-law or rule of the University (see University of Western Sydney Act 1997, ss 40 and 41).

266 I am not satisfied, having regard to the provisions of s 17 of the Work Health and Safety Act 2011, that that Act applies to the circumstances of this case. I have also concluded that the University's Work Health and Safety Policy and Hazard Identification Risk Assessment Control Procedure (HIRACP) is not incorporated into the Misconduct Policy. The consequence of the latter conclusion is that even if the decision-maker failed to comply with the latter policy, that would not constitute an error of law because there is no decision in excess of a legal authority or power conferred by statute.

267 This is a matter that goes to the alleged non-compliance with clause 40 (the issues raised as to jurisdictional fact, jurisdictional error or error of law.)

268 As to the plaintiff's submissions on the failure to comply with policy provisions (in particular as to risk assessment) to which I have earlier referred, much reliance was placed upon s 22(1B)(h) of the University of Western Sydney Act 1997 which confers power upon the Board in controlling and managing the affairs of the University to "establish policies and procedural principles".

269 The Framework Policy and the Policy Template Structure, in the plaintiff's submissions, make clear the importance of compliance with the policy statement and procedures, the latter being "by and large" mandatory: Plaintiff's Outline of Submissions in Reply at [12]. On this basis it was contended clause 40 provided "a binding statutory framework".

270 By reference to the terms of clause 40, which includes the phrase "in the interests of health and safety", Mr Kennett argued this did not support the plaintiff's contention that clause 40 required the risk assessment procedure under the HIRACP, or import the concept of "risk" to which the following relates. This latter argument, however, has to be considered in the context of the whole terms of clause 40. This clause speaks of "some immediate action is warranted" which carries with it the sense of taking reasonably prompt action to advantage or benefit the interests, health and safety against some form of risk arising, having regard to "the allegations" referred to in the clause.

271 This is how the decision-maker understood the clause when he spoke of "any risks to the health, safety and welfare of its students" in his Reasons for Decision: at 3.3(d), and elsewhere as to the need for the University to eliminate risk, eg at 6.3.

272 However, the failure to implement a risk assessment procedure does not, in my opinion, as the defendant argued, establish the basis for the submission made as to "jurisdictional facts" or an error of law.

273 My earlier stated conclusion that clause 40 does not import the standards established by the Work Health and Safety Act, undermines the submissions for the plaintiff regarding jurisdictional facts and error of law. That said, it does not, of course, potentially bear upon the procedural fairness or Wednesbury unreasonableness grounds. In other words, so far as the latter is concerned, clause 40, as broad as it may be, does not permit arbitrary or "unreasonable" decision-making.

Jurisdictional Error

274 The Amended Summons (and the Further Amended Summons), as earlier stated, formulated a number of additional grounds in support of the relief claimed. In essence, those grounds - jurisdictional error, improper purpose and Wednesbury unreasonableness - are each relied upon to support the contention that the Determination made on 1 October 2013 was invalid. For reasons set out below, those grounds would only arise, in my opinion, in the event that the plaintiff failed on the procedural fairness ground.

275 The 'jurisdictional error' ground was argued, in part, upon the basis of an alleged absence of probative evidence. The issue of 'unreasonableness' also proceeded upon the basis that the material available to the decision-maker did not enable him to reach the decision that he did.

276 As discussed in relation to the 'procedural fairness' ground, the material available to Dr Rowland as at 1 October 2013 included the additional information he had obtained from his interview of the complainant on 30 September 2013.

277 In relation to 'jurisdictional error' a contention was made on behalf of the plaintiff that the finding of a specific "risk" by the decision-maker was not a finding based on any logically probative or relevant material: Plaintiff's Outline of Submissions at [55]. The plaintiff's submissions proceeded upon the basis of the "absence of a valid finding" by the decision-maker: at [58].

278 Similarly, the ground of unreasonableness was, in part, put on the basis of an alleged failure to establish a real risk based upon logically probative and relevant material: at [75](i).

279 These two grounds accordingly would require consideration of what material was available to the decision-maker and what probative value, if any, such material possessed (that is by reference to all material available at the time of the decision or action in question).

280 The material held by the decision-maker at the time of his decision included, as I have noted) the information he obtained from the interview of 30 September 2013. However, given the determination I have made on Ground 1 (procedural fairness), that that material, though in a sense "available" to the decision-maker, was material that was used in breach of the obligation to afford procedural fairness to the plaintiff. That determination having been made, being one which impugns the decision-making process itself, and renders the decision invalid, means that there is no basis upon which the decision, (in particular its validity), on the grounds of jurisdictional error (as argued) or unreasonableness, can be determined in light of all relevant material. The reason for that conclusion is that a determination of those grounds would necessarily require all material in the hands of the decision-maker to be considered.

281 In summary, the grounds which have been pleaded and which seek to impugn the validity of the decision on the above additional grounds, would have only arisen for consideration in the event that the challenge to the decision-making process on procedural fairness grounds had been unsuccessful.

Three Matters

282 There are three further matters raised in the submissions for the plaintiff which require resolution. The first concerns the fact that, as one of two bases for his decision, Dr Rowland took into account the University's reputation. In 6.11(b) of his decision, Dr Rowland stated:

"Taking all these matters into account, I consider that the risks if the University does not suspend [the plaintiff] are unacceptable risks, and that these far outweigh the impact on him and his studies, in particular, the impacts on:

...

(b) the University's reputation in not taking (and in being seen not to have taken) all possible action to create an environment which [the complainant] can attend safely without risk to her safety (mental wellbeing) and to optimize her educational outcomes."

283 The first observation to be made is that this issue was not pleaded and argued as a separate ground, such as a ground that the University's reputation was an "irrelevant consideration". It was pleaded and relied upon as a matter going to support the "improper purpose" ground.

284 A serious question may, in my opinion, be said to arise as to whether introducing the interests of the University, in the terms referred to in Dr Rowland's determination, into the clause 40 determination (as an additional "interest" to the interests of the two students, the complainant and the plaintiff) was not only to introduce an extraneous issue, but in doing so there was thereby introduced a potential conflict of interests - the interest of the University in its reputation, or perception of its reputation, as against the interest of the plaintiff - a party whose interest had to be considered in an impartial and objective manner.

285 However, I have concluded that as the issue of the University's reputation arises as but one matter in support of the improper purpose ground neither it alone, nor in conjunction with the other matter argued at [74] of the Plaintiff's Outline of Submissions, is capable of establishing improper purpose.

286 As observed by the learned authors of Judicial Review of Administrative Action, supra, at [5.510], as is the position with a ground of "bad faith", the evidence of "improper purpose" is to be assessed subjectively, because it requires personal fault.

287 A person challenging the exercise of a power on the basis of improper purpose bears the onus of establishing that contention: Sydney Municipal Council v Campbell [1925] AC 338 at 343. Additionally, an improper purpose will not be lightly inferred: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 672 per Gaudron J.

288 I do not consider that the evidence relied upon to establish improper purpose as assessed subjectively in the present case, is capable of supporting a conclusion of personal fault in the decision-maker, in the sense that the exercise of power under clause 40 of the Misconduct Policy was motivated by an intention to advance the interests of the University over those of the plaintiff. Understandably and properly, neither the plaintiff himself, nor his legal representatives including counsel, raised any such allegation or contention.

289 I accordingly find that the plaintiff has not established the improper purpose ground.

290 The second matter raised in submissions for the plaintiff concerns an aspect of the "jurisdictional error" ground. This concerned the issue as to was whether Dr Rowland applied an incorrect test in arriving at his decision of 1 October 2013. In deference to Mr Drummond's submissions, I will deal with that matter in the paragraphs that follow.

291 Whilst clause 40, as I have earlier determined, does not have statutory force, a decision-matter is plainly required to determine the issue of risk to "health and safety" by adopting a test that is one capable of practical application. The test must also be applied having regard to the respective interests of the students in question. In the present case, Dr Rowland, in my opinion, with respect correctly identified for himself the test expressed as an obligation for the University to eliminate "any risk to health and safety, and if it cannot eliminate any such risk, it must look at taking steps to minimise the risk": (emphasis added) Reasons for Decision at 6.3. That test, I note, mirrors the provisions of s 17(a) of the Work Health and Safety Act 2011.

292 The criticism was that although Dr Rowland stated in his Reasons for Decision that this was the test to be applied, he in fact did not apply the test, but instead it was submitted he proceeded on the basis that the University needed to take steps to eliminate any risk, however slight. Attention was drawn to paragraphs 6.5 and 6.10 of the Reasons for Decision in this respect. This approach, it was submitted, impermissibly had the effect of precluding appropriate consideration as to whether a particular risk, if not capable of being eliminated entirely, was to be managed by taking action to minimise it.

293 In this case it was accepted by the defendant in the course of submissions that the alternative arrangements for separate tutorials, on-line lectures etc were viable measures to deal with any risk that would otherwise have arisen in relation to the complainant and the plaintiff pursuing or participating in their course studies by attending such classes or events.

294 The only other remaining risk Dr Rowland based his decision on, was the possibility or chance of the complainant seeing or encountering the plaintiff on campus.

295 In determining whether the power under clause 40 was validly exercised in this case, there clearly was a need for the decision-maker to identify and apply what was an appropriate test which had practical application for the purpose of that provision.

296 In circumstances in which I have determined Ground 1 in the plaintiff's favour, it is unnecessary in this judgment to finally resolve the question as to whether the test applied by Dr Rowland resulted in the application of a standard that was substantially and impermissibly higher than the test he earlier stated was the test that should be applied. In general terms, the application of a test that is based upon the elimination of any risk, however small, may not be considered to provide a rational basis for outright suspension. Although there is a sound basis to Mr Drummond's submission that Dr Rowland did not apply the test he specified he would apply in his letter to the plaintiff's solicitor on 16 September 2013, and to which he referred in paragraph 6.3 of his Reasons for Decision, for reasons I have stated, the "jurisdictional error" ground does not arise in circumstances in which I have determined that the decision-making process leading to the decision was flawed on procedural fairness grounds.

Form of Relief

297 On the basis of the finding and conclusion I have earlier stated in relation to Ground 1, procedural fairness, I consider that it is appropriate to make orders and declarations as appropriate to reflect the invalidity of the decision to suspend the plaintiff by reason of the breach of procedural fairness requirements pertaining to the decision-making process under clause 40 of the Misconduct Policy.

298 On Friday, 14 October 2014, I made a declaration in terms set out in Order (1) below. I granted leave to the parties to make further submissions before determining the terms of any restraining order sought by the plaintiff.

Orders

(1) The Court declares that the whole of the determination made on 1 October 2013 by Dr Paul Rowland, the defendant's authorised delegate, pursuant to clause 40 of the Student Non-Academic Misconduct Policy ("the Misconduct Policy"), that the plaintiff be suspended from the University including:

(a) any lands or buildings (including student residences) owned or operated by and on behalf of the University, and

(b) any activities associated with the Plaintiff's course, including attending lectures, tutorials or clinical placements.

was not validly made and is of no force and effect.

(2) The proceedings to be re-listed for the purposes of determining any ancillary orders including any order in relation to costs of the proceedings.

(3) I grant liberty to the parties to apply for the appointment of a date and time for the re-listing of the proceedings.

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Decision last updated: 17 February 2014