"X" v University of Western Sydney [2013] NSWSC 1280

Supreme Court New South Wales

Medium Neutral Citation: "X" v University of Western Sydney [2013] NSWSC 1280 Hearing dates: 6 September 2013 Decision date: 06 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Interim suppression order. Catchwords: SUPPRESSION ORDER - no question of principle. Legislation Cited: - Court Suppression and Non-publication Orders Act 2010 Category: Interlocutory applications Parties: "X" (Plaintiff) University of Western Sydney (Defendant) Representation: Counsel: J.S. Drummond (Plaintiff) Ms R. Graycar (Defendant) Solicitors: Bateman Battersby (Plaintiff) Bartier Perry (Defendant) File Number(s): 2013/272522 Publication restriction: Nil.

EX TEMPORE Judgment 1This is an application for an interim suppression order under s 10 of the Court Suppression and Non-publication Orders Act 2010. At this point of the proceedings an approach has been made to the Court for urgent ex parte relief by a student at a university who has been suspended by reason of a serious allegation of misconduct made against them. The urgency is said to have arisen because, if the suspension is maintained, it may have the consequence that, irrespective of the merits of the outcome of the allegation against him, he may incur an automatic fail. 2The material that has been placed before the Court indicates that the University has at least purported to deal with the matter in accordance with a document entitled "Misconduct Student Non-academic Misconduct Policy". The precise relationship between that policy and the Act or Regulations under which the University acts or, alternatively, any possible contract between the University and the student, has not been explored. For present purposes, it is sufficient to note that a clause in the policy provides that the investigation of misconduct and all information relating to it are "considered confidential details which would normally not be disclosed to any persons other than for authorised or lawful purposes". Such a clause should be seen in a context where the allegations of misconduct can be very grave, as they are in this case. In particular, they may extend to conduct which, if demonstrated, could amount to a criminal offence. In this sense, this clause and the policy travel beyond what would otherwise be merely considered a consensual agreement to keep matters confidential. It serves to protect a number of interests which extend to the reputation of the person who is being investigated, the private details of the person who may be the victim of any misconduct and, potentially, the integrity of any criminal proceedings that might arise. 3In those circumstances, I am minded to make an interim order. At the very least there appears to be sufficient material to indicate a possible basis for a final order on the grounds specified in s 8(1)(c) and possibly s 8(1)(e) of the Act. Moreover, it would also follow from the reasons I have given that, at least in the interim and without finally determining the merits, the name of the plaintiff is also a matter that should be suppressed. The form of the order that I am about to make will be expressed to be until further order. I will revisit the terms of the order when I hear the next application, which is, as I understand it, for a brief adjournment. 4Accordingly, until further order, I order that the name of the plaintiff be substituted so that he is to be referred to as "X". I order that all of the evidence and submissions in these proceedings not be published or otherwise disclosed, other than to the legal representatives engaged, the plaintiff personally and such officers of the defendant from whom it is necessary for the defendant's lawyers to obtain instructions. Also, as a consequence, I will from this point order that the proceedings be conducted in closed court.