Nandutu v University of Sydney [2020] NSWSC 352

Supreme Court New South Wales

Medium Neutral Citation: Nandutu v University of Sydney [2020] NSWSC 352 Hearing dates: 20 March 2020 Decision date: 08 April 2020 Jurisdiction: Common Law - Administrative Law Before: Button J Decision: (1) The statement of claim of the plaintiff, Ms Susan Nandutu, is dismissed. (2) Costs are reserved, and will be determined in Chambers. (3) The defendant, the University of Sydney, must file and serve written submissions of no more than four pages in length on the question of costs by 4 PM on 14 April 2020. (4) The plaintiff, Ms Susan Nandutu, must file and serve written submissions of no more than four pages in length on the question of costs by 4 PM on 21 April 2020. Catchwords: Common Law – Administrative Law – termination of plaintiff from PhD program conducted by defendant – appeal to Student Appeal Board of defendant dismissed – many asserted grounds for judicial review – misconception as to nature of primary appeal – statement of claim dismissed Legislation Cited: Administrative Decisions (Judicial Review) Act 1997 (Cth) Category: Principal judgment Parties: Susan Nandutu (Plaintiff) University of Sydney (Defendant) Representation: Counsel: B Tronson and M Cobb-Clark (Defendant)

Solicitors: Susan Nandutu (Self-represented) Minter Ellison (Defendant) File Number(s): 2015/287280

Judgment

Background 1. As at 15 December 2014, Ms Susan Nandutu (the plaintiff) was enrolled as a candidate for a Doctorate of Philosophy (PhD) in the Faculty of Medicine (the Faculty) within the University of Sydney (the defendant). She was a student engaged in postgraduate research. She had been enrolled in that program since 31 August 2010. 2. On 16 December 2014, Associate Professor Gary Halliday signed a letter terminating the plaintiff from the program. He identified a number of bases for doing so. 3. First, there was clear evidence of lack of progress, and unconvincing reasons given for it by the plaintiff. 4. Secondly, there was a failure to address the concerns raised in the 2014 Annual Progress Review report (APR) of the plaintiff, namely that she had been conducting research without the approval of the relevant ethics board. 5. Finally, there were long-standing and ongoing problems with communication, and a failure to maintain relationships with supervisors and postgraduate coordinators. 6. The plaintiff appealed against that decision to terminate her candidature to the University of Sydney Student Appeals Body (the SAB). The SAB was constituted pursuant to the University of Sydney (Student Appeals against Academic Decisions) Rule 2006 (as amended) ("the Student Appeals Rule"). 7. The SAB met on 10 March 2015. It delivered its decision on 25 June 2015. It resolved not to uphold the appeal of the plaintiff. Since that time, the plaintiff has been excluded from the program. 8. In fact, that was not the first time that the plaintiff had appealed to the SAB. She had previously been purportedly terminated from the same program in about October 2012. With regard to that termination, she had succeeded in the SAB. That earlier appeal had been upheld on 22 February 2013. 9. Furthermore, according to the reasons of the SAB of 25 June 2015, two of its members at the second hearing had also been members of the SAB in the previous, successful appeal to that body by the plaintiff. 10. After having failed in the SAB on the second occasion, the plaintiff commenced proceedings in this Court quite some time ago. She has sought to pursue a large number of causes of action against the defendant, including some that would lead to damages if established. For most of the time since then, she has represented herself. At one stage, she was assisted by a solicitor and barrister. 11. Many judgments have been delivered by many judges with regard to the matter: see, for example, Nandutu v The University of Sydney [2017] NSWSC 509 (Hoeben CJ at CL), Nandutu v University of Sydney [2019] NSWSC 375 (Schmidt J). Recently, R A Hulme J restrained the plaintiff from taking any further steps in the present matter without the prior leave of a judge of the Court, and further restrained her from issuing any new proceedings against the defendant without leave of the Court: see Nandutu v University of Sydney [2019] NSWSC 1436. 12. A little later, on 22 November 2019, I confined the claim of the plaintiff within the parameters of a statement of claim that was filed on 17 August 2016, at which time the plaintiff was represented by (at the least) a solicitor (I have not placed that revised ex tempore judgment on NSW Caselaw). 13. That claim is an orthodox one seeking judicial review of an administrative decision (much of the above undisputed chronology is derived from it). Finally by way of background, it was accepted by counsel for the defendant prior to the substantive hearing of the matter before me on 20 March 2020 that, although the plaintiff must be confined to a claim in administrative law, in light of the fact that she is self-represented, there should be a degree of flexibility on my part with regard to any departure at the hearing from the pleaded particulars of the claim.