LAM v THE UNIVERSITY OF SYDNEY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL GLEESON CJ, MASON P and BEAZLEY JA 22 April 1997 [1997] NSWCA 184 ADMINISTRATIVE LAW — PROCEDURAL FAIRNESS The appellant, a university student, was found guilty of misconduct by a Student Proctorial Board. He appealed unsuccessfully to an Appeals Committee. He then invoked the Vice-Chancellor's discretionary power to recommend that the determination be quashed, relying on what was said to be fresh evidence. His application was dismissed. The appellant claimed the Vice-Chancellor erred in law in his approach to the application and denied natural justice - HELD - No such error of law or denial of natural justice was shown. Gleeson CJ. From 1990 until the end of 1993, the appellant was a student enrolled in the Faculty of Medicine at Sydney University. In January 1994 the appellant came before a Student Proctorial Board, consisting of a former judge of this Court and two other members, to answer a charge in the following terms: Between 30 October 1992 and 9 November 1992 Ernie Tung Quang Lam of 9 Boronia Street, Ermington, in the State of New South Wales, being a second academic year student in the Faculty of Medicine at the University of Sydney, was guilty of misconduct contrary to Chapter 13 of the By-Laws of the university in that he did corruptly offer to pay Mrs Trudy Fatnowna, an administrative assistant employed by the university, $200 for information regarding the contents of the semester 2 1992 histology examination paper in the Faculty of Medicine to be held on 9 November 1992, an examination for which the said Mr Lam was to sit. The Student Proctorial Board conducted an inquiry into the complaint, during which it heard evidence on oath from witnesses called on behalf of the university, as well as evidence on oath from the appellant and witnesses called on behalf of the appellant. The appellant was legally represented before the Proctorial Board. The Board was unanimously of the view that the allegation of misconduct against the appellant had been established beyond reasonabledoubt and, after hearing evidence and submissions on the question of penalty, the Board ordered that the appellant should be expelled from the university as from the commencement of the 1994 academic year. It recommended to the university that, after a period of four years, should the appellant apply for readmission, the university should entertain his application, upon being satisfied that since his expulsion he had been a person of good character and was fit and proper to be readmitted. The appellant's solicitor gave notice that the appellant intended to appeal from the decision of the Board to the Appeals Committee of the Senate of the university constituted in accordance with Chapter 13 of the By-laws of the university. The appeal was pursued; the appellant, by his solicitor, made submissions; the university responded in writing. The appeal was dismissed on 5 May 1994. 2 UNREPORTED JUDGMENTS By a letter dated 30 January 1996 from the appellant's solicitor, the appellant then applied to the Vice-Chancellor of the university to exercise the power conferred on the Vice-Chancellor by s 40 of Chapter 13 of the By-laws. It is convenient at this point to make some brief observations as to the structure of the provision of the relevant By-laws. Chapter 13 of the By-laws deals generally with the subject of discipline of students. Sections 16 to 22 of Chapter 13 deal with the constitution and conduct of Student Proctorial Boards. Section 34 of Chapter 13 provides that a student may appeal to the Senate against a finding by a Student Proctorial Board that the student has been guilty of misconduct. The section provides for such an appeal to be referred by the Senate to the Appeal Committee. The section also provides certain grounds of appeal, which include a ground that fresh evidence has become available to the student, being evidence that was not available or not known to the student at the time of the hearing, and another ground that in any way whatever there was amiscarriage of justice. Sections 40 and 41 of Chapter 13 are in the following terms: 40. The Senate may at any time, on the recommendation of the Vice-Chancellor, quash a determination made by the Vice-Chancellor, a Student Proctorial Board, the Appeals Committee or itself, whether or not an appeal has been made against that determination. 41. Subject to s 40, the determination of the Senate or the Appeals Committee on an appeal shall be final and conclusive. It may be noted in passing that s 40 contemplates a recommendation of the Vice-Chancellor that a determination, relevantly in the present case a determination of the Student Proctorial Board or the Appeals Committee, be quashed. If such a recommendation is made by the Vice-Chancellor, then the Senate may on that recommendation quash the determination in question. To return to the facts of the present case, the appellant by his solicitor made an application to the Vice-Chancellor seeking a recommendation by the Vice-Chancellor to the Senate that the determination adverse to the appellant be quashed. That application was made by a letter dated 30 January 1996 addressed to the Vice-Chancellor by the appellant's solicitors. The letter recounted the adverse findings of the Student Proctorial Board and of the unsuccessful appeal to the Appeals Committee. It also made reference to a statutory declaration dated 5 August 1994, which had been obtained by the appellant's solicitors from a student named Hung Jun Yu. That statutory declaration, to which further reference will be made in due course, was relied upon by the appellant as establishing an alibi which, if accepted, would have demonstrated that the appellant could not have committed the offence of which he had been found guilty by the Proctorial Board. The letter from the appellant's solicitors referred to the Vice-Chancellor's powers under s 40 of Chapter 13 of the By-laws, requested thatfavourable consideration be given to the appellant, and asked that the Vice-Chancellor exercise his discretion under s 40. The letter enclosed a copy of the statutory declaration, together with the transcript of the evidence before the Proctorial Board, the judgment of the Proctorial Board, the grounds of appeal before the Appeals Committee, and certain medical reports. The letter made reference to certain proceedings in the Administrative Division of the Supreme Court, which are not of direct relevance to this appeal. The letter also contained certain submissions in relation to the penalty that was imposed upon the appellant but that subject is not of present relevance. URJ LAM v THE UNIVERSITY OF SYDNEY (Gleeson Cu) 3 The university responded in writing to the appellant's solicitors" submissions to the Vice-Chancellor and the appellant's solicitors in turn responded to the university's submissions. At no stage did either the solicitors for the appellant or the solicitors for the university suggest to the Vice-Chancellor that it was either necessary or appropriate that there should be any form of oral hearing in relation to the application being made by the appellant, nor was any complaint of any kind made about any supposed deficiency in the procedures that were adopted in relation to the way in which the Vice-Chancellor was considering the application under s 40. In due course, by a letter dated 25 March 1996 addressed to the solicitors for the appellant, the Vice-Chancellor responded to the application negatively. The terms of that letter, which are material to arguments presently advanced on behalf of the appellant, were as follows: I am writing on behalf of the Acting Vice-Chancellor in response to your letters of 30 January 1996 and 15 March 1996 on behalf of your client, Mr E T Q Lam. 'You have asked the Acting Vice-Chancellor to exercise his authority under Clause 40 of Section 13 of the University's By-Laws in relation to the determination of the Student Proctorial Board concerning Mr Lam. Under the terms of this section, "the Senate may at any time, on the recommendation of theVice-Chancellor, quash a determination made by the Vice-Chancellor, a Student Proctorial Board, the Appeals Committee or itself, whether or not an appeal has been made against that determination." The Acting Vice-Chancellor has reviewed all the material relating to this matter and has carefully considered the arguments put forward by you on behalf of your client. I must confirm my earlier advice to you that the Acting Vice-Chancellor does not believe that a substantive case has been made to support a recommendation to Senate that the University's earlier decision regarding Mr Lam should be quashed. Accordingly, the Acting Vice-Chancellor has decided that he will not make such a recommendation to Senate. Should you require any clarification of the Acting Vice-Chancellor's decision, please do not hesitate to contact me on 351 2300.' By summons filed in the Administrative Law Division of the Court on 10 April 1996, the appellant sought declaratory, injunctive and prerogative relief, complaining about the proceedings before the Student Proctorial Board, and also complaining about the decision of the Vice-Chancellor. The summons came on for hearing in November last year before Cooper AJ. His Honour dismissed the summons. The appellant now appeals against part of that decision. The appellant does not in this appeal pursue the arguments that were addressed, at first instance, in relation to the proceedings before and the decision of the Student Proctorial Board; however, he pursues the complaints that he made in relation to the proceedings before and the decision of the Vice-Chancellor. Before going to the substance of the complaints made on behalf of the appellant as to the manner in which the Vice-Chancellor dealt with the application under s 40, it is material to refer to one aspect of the history of the matter, although this was more directly related to the complaints about the proceedings before the Student Proctorial Board. The employee of the university, Ms Fatnowna, who was the original complainant against the appellant, said that he approached her and offered the alleged bribe on an occasion when, in his capacity as a student, he was visiting the histologylaboratory. 4 UNREPORTED JUDGMENTS It might be added that, having regard to the terms of the bribe, it was perfectly obvious that her allegation was that the conduct of the appellant took place at some time before 9 November 1992, which was the date of the histology examination. Her allegation was that the appellant offered her $200 to give him information as to what was going to be in the histology examination paper. The histology examination was held on 9 November 1992. However, when the university originally framed the charge against the appellant, perhaps as the result of some confusion or perhaps misunderstanding, and for some reason that does not appear clearly from the evidence, the charge was that the bribe was offered on a date between 9 November and 5 December 1992. The appellant must have known that was wrong. The charge was that he had offered a bribe to be told what was going to be in the histology examination paper. The histology examination, as the appellant well knew, was held on 9 November 1992. In due course the university was given leave to amend the particulars of the charge to alter the relevant dates to a date between 30 October 1992 and 9 November 1992; that is to say, to a date in what is sometimes called the stuvac and certainly to a date before the histology examination. At various times in the evidence and at various places, the appellant, by his solicitors, has professed that he was in great doubt and confusion as a result of this change in the particulars. Those who had the task at various times of evaluating those protestations, including the Student Proctorial Board, the Appeals Committee and the Vice-Chancellor, would have been perfectly justified in rejecting them. The appellant, when the matter was called on for hearing before the Student Proctorial Board, applied for an adjournment. His application for an adjournment was not on the basis that there was any confusion oruncertainty or prejudice resulting from the change in the particulars. His application was on a different basis. His application arose from the circumstance that the university was unable to specify the precise date on which this alleged offer of a bribe took place. That arose from the fact that the woman to whom the bribe was allegedly offered said that she did not make a note of the date and the professor to whom she reported the bribe did not make a note of the date either. Earlier reference was made to some proceedings in the Administrative Law Division of this Court started some years ago by the appellant. Those proceedings were founded upon the proposition that the absence of specification of the very day on which the alleged bribe was offered rendered, in a manner not presently material, defective the proceedings against the appellant. A desire to pursue that argument and those proceedings was the basis of the application for an adjournment before the Student Proctorial Board. Because the appellant does not in this appeal challenge so much of the decision of Cooper AJ as rejected his complaints about the Proctorial Board, it is unnecessary to go into further detail of that matter but it has some relevance to a complaint that the appellant made to the Vice-Chancellor that he was denied natural justice by the Student Proctorial Board. Cooper AJ, dealing with the substantive complaint about the Student Proctorial Board, held that the appellant was not denied natural justice and there seems no reason to suppose that the Vice-Chancellor would have come to any different conclusion himself when considering so much of the appellant's complaint to him as involved a supposed denial of natural justice. URJ LAM v THE UNIVERSITY OF SYDNEY (Gleeson Cu) 5 Putting the matter of denial of natural justice to one side, the principal burden of the argument advanced by the appellant to the Vice-Chancellor, invoking an exercise of the discretion under s 40, dependedupon the statutory declaration of Mr Yu. It is necessary then to turn to some aspects of the detail of that statutory declaration. Mr Yu, in part of his statutory declaration, gave some information which, on any view of the matter, might be thought to have given the quietus to the appellant's suggestion that he was under some confusion or uncertainty as a result of the change in the particulars against him. Mr Yu's statutory declaration said: I know the laboratory was not open for students to utilize for exam revision purposes during the exam period ... the histology exam is usually held in the first couple of days of the exam period and access to the laboratory is only available for revision purposes during the stuvac period. What Mr Yu is there saying is that, having regard to the practices that were adopted by the university in relation to use of the laboratory by students, practices which no doubt were just as well-known to Mr Lam as they were known to Mr Yu, it would have been quite impossible for there to have been any serious suggestion that Mr Lam offered the bribe during the exam period. In any event, as has been already mentioned, it would have been incongruous for there to have been any suggestion that Mr Lam offered the bribe at any time after 9 November 1992. The bribe was alleged to have been a bribe seeking some information about what was going to be in the paper for an examination that was going to be held on 9 November 1992. In his statutory declaration, Mr Yu said, in substance, that he spent the whole of the period during which the alleged offence was said to have been committed in the company of Mr Lam. He said he came to live with Mr Lam for the purpose of studying to prepare for the examination and he said that he was not out of Mr Lam's company for any significant period of time. In particular, he was not out of Mr Lam's company for any such time as would have enabled Mr Lam to visit the Histology Department and offer a bribe to Ms Fatnowna. The information which Mr Yu gave in that statutory declaration was, in one important respect, inconsistent with the evidence that Mr Lam had given before the Student Proctorial Board. Far from suggesting to the Student Proctorial Board that he had spent the whole of the relevant time in the company of Mr Yu, Mr Lam did not even mention Mr Yu. On the contrary, Mr Lam gave evidence that, amongst other things, during the period in question he visited his parents, information which, on the face of it, was inconsistent with the information contained in the statutory declaration of Mr Yu. The most obvious question that arises in relation to Mr Yu's declaration is why no use was sought to be made by Mr Lam of the information contained in that statutory declaration during the proceedings before the Student Proctorial Board or for that matter in connection with his appeal to the Appeals Committee. Reference has already been made to the fact that the By-laws provide a ground of appeal based on fresh evidence and another ground of appeal based on miscarriage of justice for any reason whatsoever. The lawyers who were representing Mr Lam in connection with the application to the Vice-Chancellor were obviously well aware of the significance of that question. Attempts were made in the written submissions to address that issue, although those attempts might well have been regarded by the Vice-Chancellor, 6 UNREPORTED JUDGMENTS and would certainly have been regarded by me, as containing nothing even approaching an adequate or cogent explanation on the part of Mr Lam for the failure to call this evidence at an earlier time. If Mr Yu was correct in his statutory declaration, then Mr Lam spent the whole of the critical period covered by the university's particulars in the company of Mr Yu. That is highly unlikely to have been something that would have escaped the attention or slipped the recollection of MrLam. Mr Yu's account of how he and Mr Lam spent the time together is, as has already been mentioned, inconsistent with the account given by Mr Lam of his movements over that same time. That is the background against which the Vice-Chancellor, in the terms set out in the letter quoted above, declined to recommend to the Senate that the determination adverse to Mr Lam be quashed. Before Cooper AJ the decision of the Vice-Chancellor was attacked on the following grounds: 1 that the Vice-Chancellor misdirected himself as to the test to be applied and as to the onus of proof; 2 that the Vice-Chancellor failed to take into account relevant considerations; 3 that the Vice-Chancellor took into account irrelevant considerations; 4 that the Vice-Chancellor made a decision that no reasonable person could have made; 5 that the Vice-Chancellor acted in breach of the rules of natural justice. Counsel for the appellant, in his comprehensive and helpful written submissions, and in his oral argument before this Court, placed particular emphasis on the first and fifth of those grounds. Before coming to them, it is appropriate to deal, relatively briefly, with the second, third and fourth grounds. The letter written by the Vice-Chancellor dated 25 March 1996 states that the Vice-Chancellor has reviewed all the material relating to the matter and has carefully considered the arguments put forward. There is no warrant for a conclusion that the Vice-Chancellor failed to take into account any relevant consideration or took into account any irrelevant consideration. No reasons for the Vice-Chancellor's decision were given other than those appearing in the letter of 25 March 1996. As to the argument that the Vice-Chancellor made a decision that no reasonable person could have made, a consideration of that argument forms a convenient introduction to a consideration of the two principal arguments relied upon by the appellant because it raises what might be referred to as the merits of the matter. In considering the decision of the Vice-Chancellor there are two aspects of the case that need to be borne in mind. The first is that by the time the matter came before him for consideration under s 40 there had already been a full hearing involving oral evidence and argument before the Students Proctorial Board and, subsequently, a full appeal conducted on the basis of written submissions before the Appeals Committee of the Senate. It was against that background that the appellant sought to raise for the first time for consideration by the Vice-Chancellor the evidence in the statutory declaration of Mr Yu. Aspects of that evidence have already been mentioned. It would have been well open to the Vice-Chancellor, and a perfectly reasonable decision for him to have made, to come to the conclusion that fairness and justice did not require that the appellant URJ LAM v THE UNIVERSITY OF SYDNEY (Gleeson Cu) 7 should at that stage of the proceedings be given an opportunity to raise for the first time for consideration the information brought forward by Mr Yu. The second thing to be borne in mind is that the relevant power of the Vice-Chancellor under s 40 is a power to make a recommendation that the determination be quashed. It is not, for example, a power to make a recommendation that there be a re-hearing by the Proctorial Board. I turn now to the first of the grounds relied upon. That is the ground that the Vice-Chancellor misdirected himself as to the test to be applied and as to the onus of proof. The appellant's argument in this respect turns upon the following sentence in the letter of 25 March 1996: I must confirm my earlier advice to you that the Acting Vice-Chancellordoes not believe that a substantive case has been made out to support a recommendation to Senate that the University's earlier decision regarding Mr Lam should be quashed. It is far from clear to me what is meant by the reference in this argument to 'onus of proof.' That is not an expression that appears in the Vice-Chancellor's statement of his decision or, for that matter, in the arguments that were advanced to the Vice-Chancellor on either side. As I understand the sentence that has just been quoted, what the Vice-Chancellor was saying was that he had not been persuaded that there was a case of substance which justified the intervention by him in the exercise of his powers under s 40 and the making of a recommendation to quash the determination. I do not understand the Vice Chancellor to have been moved by any considerations relating to onus of proof except to the extent to which what I have just said reflects what might be described as some question of onus. What the Vice Chancellor was being asked to do in terms was to exercise a discretion in favour of the appellant. Certain reasons were advanced to him by the solicitors for the appellant as to why he should exercise his discretion in favour of the appellant. The discretion that he was being asked to exercise was no light matter. He was being asked in the exercise of his discretion to recommend to the Senate that the determinations pursuant to the decisions of the Students Proctorial Board and the Appeals Committee should be quashed. The Vice-Chancellor's response to that application, after considering the arguments advanced for and against it, was simply to indicate that he had not been persuaded that a case justifying the exercise of the discretion had been made out. He was dealing with the matter precisely upon the basis upon which it had been put to him by the legal representatives of the appellant, and he was responding to their arguments in the terms in whichthey had been raised for his consideration. I see no error of law or misconstruction of the provisions of s 40 of Chapter 13 of the By-laws in the approach taken by the Vice-Chancellor to the application that was made to him and to his decision in respect of that application. In my view this ground of complaint has not been made out. JOBNAME: No Job Name PAGE: 8 SESS: 1 OUTPUT: Mon Feb 25 18:23:14 2008 /reports/caseml]/case/urj/9708170 UNREPORTED JUDGMENTS The remaining ground of complaint, which was also one emphasised on behalf of the appellant, was that in dealing with the application under s 40 the Vice-Chancellor disregarded the rules of natural justice. This argument proceeded upon a hypothesis which I do not for a moment accept. The hypothesis was that the Vice-Chancellor took it upon himself to make a decision as to the credibility of Mr Yu and in that respect failed to follow the dictates of procedural fairness because he failed to have a proper hearing at which he heard oral evidence from Mr Yu and at which Mr Yu was cross-examined. An alternative argument was advanced on behalf of the appellant, which I also do not accept, to the effect that if the Vice-Chancellor did not do that then his failure to do so involved a departure from his obligations and a departure from the requirements of natural justice. Both of those arguments in one way or another appeared to assume that the proper discharge by the Vice-Chancellor of his powers and functions under s 40 of Chapter 30 of the By-laws required him to determine the veracity of Mr Yu's statutory declaration. The reason why I would reject both of those alternative hypotheses is one that has already been given in dealing with the first of the grounds relied upon on behalf of the appellant. It would have been a perfectly proper approach for the Vice-Chancellor to take, to the resolution of this application, to conclude that in all the circumstances, including the nature and the contents of Mr Yu's statutory declaration, the nature of the evidence that had been given before the Proctorial Board by Mr Lam, and the inadequacy of theexplanations that were advanced as to why the alibi evidence of Mr Yu had not been led before the Proctorial Board or the Appeals Committee, that justice and fairness did not require that at that stage of the matter Mr Lam should have an opportunity to litigate the issue raised by Mr Yu's statutory declaration. Reference has already been made to the fact that the Vice-Chancellor was never asked by either side to hear the oral evidence of Mr Yu or conduct any other kind of oral hearing. There is another significant practical consideration to be borne in mind in evaluating the arguments advanced on behalf of the appellant. It would not have been possible for the Vice-Chancellor to make any final determination about the credibility of Mr Yu without in effect conducting a full re-hearing of the matter. The credibility of Mr Yu's evidence was closely tied up with the credibility of Mr Lam's evidence. As I have mentioned, there is on the face of the materials considerable inconsistency between what is in Mr Yu's statutory declaration and the evidence which Mr Lam gave before the Proctorial Board. Furthermore, the credibility of both Mr Yu and Mr Lam is in turn closely bound up with the integrity of the original complainant, Ms Fatnowna. It was the case for Mr Lam that she had invented this allegation against him out of reasons of malice and that she was corruptly and falsely alleging that he had engaged in serious misconduct in circumstances where she must have known her allegations to be baseless. URJ LAM v THE UNIVERSITY OF SYDNEY (Beazley JA) 9 In my view it has not been shown that the Vice- Chancellor departed from the requirements of fairness which applied in the circumstances of this particular case having regard to the background of the matter, to the nature of the function he was exercising and to the grounds upon which 5 his intervention had been invited. I do not think that the appellant has made good his arguments concerning the way in which the Vice-Chancellor dealt with the matter. Cooper AJ was right to determine those arguments adversely to the appellant. 10 I would propose that the appeal should be dismissed with costs. Mason P. I agree. Beazley JA. I agree. 15 Appeal dismissed with costs. Counsel for the appellant: G Johnson Solicitors for the appellant: Brian Muir and Co Counsel for the respondent: L V Stapleton Solicitors for the respondent: Helen Fleming