Mills v University of New England [2023] FCA 1409

Federal Court of Australia

Mills v University of New England [2023] FCA 1409 File number: NSD 1282 of 2023

Judgment of: KENNETT J

Date of judgment: 15 November 2023

Catchwords: PRACTICE AND PROCEDURE – Injunctions – interlocutory injunction – where applicant seeks continuation of injunction granted ex parte preventing further steps being taken in misconduct investigation process – where substantive proceeding includes claim for misconduct investigation process to be terminated – real issue to be tried – balance of convenience

Legislation: Fair Work Act 2009 (Cth) ss 50, 545, 546

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 40

Date of hearing: 10 November 2023

Counsel for the Applicant: O Fagir

Solicitor for the Applicant: APJ Law

Counsel for the Respondent: S Meehan SC with D Lloyd

Solicitor for the Respondent: UNE Legal Services

ORDERS NSD 1282 of 2023

BETWEEN: GREGORY MILLS Applicant

AND: UNIVERSITY OF NEW ENGLAND Respondent

order made by: KENNETT J DATE OF ORDER: 15 NOvember 2023

THE COURT ORDERS THAT:

1. The costs of the applicant's application for continuation of the injunction made on 2 November 2023 be reserved. 2. The matter be listed for case management at 9:30 am on Tuesday 21 November 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNETT J

introduction 1 The applicant (Mr Mills) is employed as the head of a residential college at the University of New England (the University) in Armidale, New South Wales. In February 2023 he attended a retreat for student leaders at Coffs Harbour. An allegation later emerged that, when walking with a group of students to their accommodation in the evening, Mr Mills had touched a female student inappropriately. 2 Mr Mills complains that the process that has been followed by the University to investigate this allegation, and consider the imposition of sanctions upon him, has not complied with relevant provisions of the UNE Professional Staff Enterprise Agreement 2002 (the Agreement) and that the University has therefore contravened s 50 of the Fair Work Act 2009 (Cth) (the FW Act). Pursuant to s 545 of that Act, he seeks declaratory relief and an order that the "misconduct process" be abandoned. He also seeks pecuniary penalties under s 546 of the FW Act. 3 The present issue concerns an interlocutory order sought by Mr Mills. His originating application sought an order that the University: (a) cancel a meeting of the Misconduct Investigation Committee (MIC), which had been convened to consider the complaint against Mr Mills, that was scheduled for 3 November 2023; and (b) take no further steps in the misconduct process until further order. 4 This application came before Katzmann J as duty judge on 2 November 2023. At that stage it was urgent and was heard ex parte. Her Honour made the order that was sought. 5 The issue whether the ongoing aspect of the order should be continued came before me, as duty judge, on 10 November 2023. I have concluded that the order should continue.