"X" v University of Western Sydney (No 3) [2013] NSWSC 1329

"X" v University of Western Sydney (No 3) [2013] NSWSC 1329

The decision to refer the allegation to the Non-Academic Misconduct Investigation Committee under clause 39(a) did not itself adversely affect the plaintiff and therefore did not require a prior hearing. The clause 40 suspension decision did adversely affect the plaintiff and was made without telling him suspension was being considered, without disclosing the factors being considered, and without giving him a reasonable opportunity to respond. That failure to afford procedural fairness invalidated the suspension. Relief was not refused because the defendant did not show an incontrovertible basis for the decision or that the same outcome was inevitable on reconsideration.

Jurisdiction
Australia
Judgment Date
11 September 2013
Procedural Posture
Common Law Proceeding Seeking Declaratory and Injunctive Relief Concerning University Non Academic Misconduct Decisions / Final Hearing; Principal Ex Tempore Judgment
Outcome
The challenge to the referral decision was rejected; the suspension determination was declared invalid and the defendant was restrained from acting on it.
Legal Topics
['university Student Misconduct' 'suspension Pending Disciplinary Hearing' 'referral to Misconduct Investigation Committee' 'natural Justice' 'discretionary Refusal of Relief' 'declaration and Injunction']
['administrative Law' 'procedural Fairness' 'education Law'] ['university Student Misconduct' 'suspension Pending Disciplinary Hearing' 'referral to Misconduct Investigation Committee' 'natural Justice' 'discretionary Refusal of Relief' 'declaration and Injunction']

Case Brief

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Procedural Posture

Common Law Proceeding Seeking Declaratory and Injunctive Relief Concerning University Non Academic Misconduct Decisions / Final Hearing; Principal Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the Deputy Vice-Chancellor's decision under clause 39(a) of the Student Non-Academic Misconduct Policy to forward the complaint to the Non-Academic Misconduct Investigation Committee attracted an obligation to afford procedural fairness before the referral." 'Whether the decision under clause 40 of the Student Non-Academic Misconduct Policy to suspend the plaintiff from University precincts and restrict communication was invalid because the plaintiff was not afforded procedural fairness.' 'Whether relief should be refused on discretionary grounds despite a denial of procedural fairness.' 'What form of relief should be granted.']

Ratio Decidendi

The decision to refer the allegation to the Non-Academic Misconduct Investigation Committee under clause 39(a) did not itself adversely affect the plaintiff and therefore did not require a prior hearing. The clause 40 suspension decision did adversely affect the plaintiff and was made without telling him suspension was being considered, without disclosing the factors being considered, and without giving him a reasonable opportunity to respond. That failure to afford procedural fairness invalidated the suspension. Relief was not refused because the defendant did not show an incontrovertible basis for the decision or that the same outcome was inevitable on reconsideration.

Court Disposition

The challenge to the referral decision was rejected; the suspension determination was declared invalid and the defendant was restrained from acting on it.

Orders

  • ["The Court declares that the purported determination made under clause 40 of the University's Student Non-Academic Misconduct Policy on or about 29 August 2013 that the Plaintiff be denied access to all of the Defendant's campuses and associated facilities with immediate effect, and that he not communicate with any...