X v University of Western Sydney [2014] NSWSC 82

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