Western Sydney University v Thiab [2023] NSWCA 57

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Western Sydney University v Thiab [2023] NSWCA 57 Hearing dates: 28 February 2023 Date of orders: 29 March 2023 Decision date: 29 March 2023 Before: Bell CJ, Meagher JA, Leeming JA Decision: 1. Grant leave to appeal. 2. Appeal allowed with costs. 3. Set aside the orders of the primary judge made on 21 June 2022 and, in lieu thereof, order that the Amended Summons be dismissed with costs. Catchwords: EDUCATION – universities – discrimination on the basis of political affiliations, views or beliefs – challenge to internal university disciplinary decisions – s 35 of Western Sydney University Act 1977 (NSW) prohibits denial of progression within the university on the basis of political affiliations, views or beliefs – where university cancelled clinical placements of nursing student who expressed scepticism about the safety and efficacy of COVID-19 vaccination while attending placements – where university subsequently imposed disciplinary sanctions – whether views or beliefs expressed by student were "political" within meaning of s 35 – whether the adverse action taken by the university was taken "because of" student's views HUMAN RIGHTS – discrimination – grounds – political discrimination – challenge to internal university disciplinary decisions – s 35 of Western Sydney University Act 1977 (NSW) prohibits denial of progression within the university on the basis of political affiliations, views or beliefs – where university cancelled clinical placements of nursing student who expressed scepticism about the safety and efficacy of COVID-19 vaccination while attending placements – where university subsequently imposed disciplinary sanctions – whether views or beliefs expressed by student were "political" within meaning of s 35 – whether the adverse action taken by the university was taken "because of" student's views CIVIL PROCEDURE – hearings – procedural fairness – where university cancelled clinical placements of nursing student who expressed scepticism about the safety and efficacy of COVID-19 vaccination while attending placements – where student sought declaratory and interlocutory relief – where university imposed further disciplinary sanctions on student after commencement of proceedings – primary judge made declaration that the disciplinary sanctions were unlawful notwithstanding that student had not advanced an argument to that effect – whether university was fairly put on notice that the lawfulness of the later disciplinary sanctions would be in issue – whether there was a denial of procedural fairness Legislation Cited: Anti-Discrimination Act 1991 (Qld) s 7(j) Anti-Discrimination Act 1992 (NT) s 19(n) Anti-Discrimination Act 1998 (Tas) s 16(m) Australian Catholic University Act 1990 (NSW) s 7 Australian William E. Simon University Act 1988 (NSW) s 8 Bond University Act 1989 (Qld) s 6 Charles Sturt University Act 1989 (NSW) s 27 Discrimination Act 1991 (ACT) s 7(n) Equal Opportunity Act 1984 (WA) s 53 Equal Opportunity Act 2010 (Vic) s 6(k) Extradition Act 1988 (Cth) s 7(a) Fair Work Act 2009 (Cth) s 351 Government Sector Employment Act 2013 (NSW) s 7 Higher Education Act 1969 (NSW) s 27 Macquarie University Act 1964 (NSW) s 29 Macquarie University Act 1989 (NSW) s 24 Southern Cross University Act 1993 (NSW) s 25 Supreme Court Act 1970 (NSW) s 101(2)(r) University Legislation Amendment Act 1994 (NSW) Sch 1 University of New England Act 1993 (NSW) s 24 University of New South Wales Act 1989 (NSW) s 23 University of Newcastle Act 1964 (NSW) s 30 University of Newcastle Act 1989 (NSW) s 24 University of Sydney Act 1989 (NSW) s 31 University of Technology Sydney Act 1987 (NSW) s 32 University of Technology Sydney Act 1989 (NSW) s 24 University of Western Sydney Act 1988 (NSW) ss 27, 29 University of Wollongong Act 1972 (NSW) s 35 University of Wollongong Act 1989 (NSW) s 24 Western Sydney University Act 1997 (NSW) ss 19, 35, 36 Cases Cited: Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 Australian Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56 Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 Browne v Dunn (1893) 6 R 67 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72 Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11 Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 Re Macquarie University; Ex Parte Ong (1989) 17 NSWLR 113 Ridd v James Cook University [2021] HCA 32; (2021) 95 ALJR 878 Rumble v Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423; [2020] FCAFC 37 Scott v Scott [2022] NSWCA 182 State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 Thomas v University of Bradford [1987] AC 795 Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137 Victoria v Commonwealth (1975) 134 CLR 81; [1975] HCA 39 Texts Cited: B Mansfield and M Hutchinson, Liberality of Opportunity: A History of Macquarie University 1964-1989 (Hale & Iremonger Pty Ltd, 1992) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 April 1964 P Kamvounias and S Varnham, "Legal Challenges to University Decisions Affecting Students in Australian Courts and Tribunals" (2010) 34 Melbourne University Law Review 140 Category: Principal judgment Parties: Western Sydney University (First Applicant) Leanne Hunt (Second Applicant) Nera Thiab (Respondent) Representation: Counsel: