BELL V VICTORIA UNIVERSITY OF WELLINGTON HC WN CIV-2009-485-002634

BELL V VICTORIA UNIVERSITY OF WELLINGTON HC WN CIV-2009-485-002634 8 December 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2009-485-002634UNDER the Judicature Amendment Act 1972 IN THE MATTER OF an application for Judicial Review BETWEEN BRITTANY KESHIA BELL Plaintiff AND VICTORIA UNIVERSITY OF WELLINGTON Defendant Hearing: 30 and 31 August 2010 Appearances: L J Taylor and J Wass for the plaintiff B A Corkill QC and G Davenport for the defendant Judgment: 8 December 2010JUDGMENT OF CLIFFORD JSolicitors: R K Macdonald, Lower Hutt for the plaintiff (Counsel acting: L Taylor, Wellington) McBride Davenport James, Wellington for the defendant (Counsel acting: B A Corkill QC, Wellington)ContentsIntroduction...........................................................................................................[1]Factual backgroundContext of plagiarism allegations ...............................................................[4]First plagiarism decision ..........................................................................[21]Second plagiarism decision ......................................................................[30]The DAC's decision ............................................................................................[40]Grounds of review ...............................................................................................[54]Straying from the charge laid ...................................................................[60]Insufficiency of reasons.............................................................................[74]Failure to consider relevant matters.........................................................[81]Considering irrelevant matters ...............................................................[114]Unreasonableness ...................................................................................[120]Penalty and intentionality .......................................................................[152]Cross-examination of Associate Professor Brown .................................[191]Relief ..................................................................................................................[197]Costs ...................................................................................................................[200]Introduction[1] In 2008 the plaintiff, Ms Bell, was studying towards a Bachelor of Design at the respondent, Victoria University of Wellington ("the University"). One of Ms Bell's papers was ITDN412 Interior Design ("ITDN412"). In early November of that year Associate Professor Brown, the course co-ordinator of ITDN412, initiated two allegations of plagiarism against Ms Bell. Following investigation as student misconduct, one of those allegations was found to be proven whilst the other was not. Associate Professor Brown subsequently made a third allegation, which was also found to be proven. Ms Bell appealed those two findings of plagiarism to a Disciplinary Appeals Committee ("the DAC"), a body set up by the University to deal with appeals from findings of student misconduct. The DAC dismissed Ms Bell's appeals. [2] Ms Bell now applies for judicial review of the DAC's decision. Although Ms Bell advances a number of grounds of review, she does so primarily on the basis that the DAC's decision was one that no reasonable decision-maker could reach. [3] The University accepted that the DAC is a body amenable to judicial review. It did so on the basis of the definitions contained in s 3 of the Judicature Amendment Act 1972, and having regard to the liberal approach to the availability of review mandated in Royal Australasian College of Physicians v Phipps.1 It noted, however, that the width of the Phipps approach may well require reconsideration in light of the decision of the High Court of Australia in Griffith University v Tang. 2 The University accepted that this Court was bound by Phipps in the meantime, but reserved its position in light of Griffith University "if the matter goes further". I acknowledge that position.1 Royal Australasian College of Physicians v Phipps [1999] 3 NZLR 1, 11-12 (CA).2 Griffith University v Tang (2005) 213 ALR 724.Factual backgroundContext of plagiarism allegations[4] ITDN412 was an internally assessed paper, worth 40 points. That is approximately a third of the points that a final year student, such as Ms Bell, would usually take in a year. [5] The overall task of students taking ITDN412 was to redesign the interior of an existing building. Based on that task the course was divided into, and assessed by reference to, two parts. The first focussed on the design of the project, and the second on research and theory relevant to a student's chosen design. [6] Ms Bell's chosen project was to design the interior of a building to act as a seed archive. A seed archive, otherwise known as a doomsday vault, is designed to hold seeds to safeguard the world's food supply following a major disaster. Whilst, generally speaking, ITDN412 involved redesigning the interior of an existing building, Ms Bell concluded that there was no appropriate existing building for her to use. She elected to design the exterior of her building as well. [7] On 29 October 2009 Ms Bell, as part of what was known as her stage 3 submission, handed in three printed panels showing various images of her design ("the Panels"), and a digital file of the Panels ("the Digital File"). On the same day Ms Bell was due to present various images of her design to her class using power point slides ("the Slides"). Ms Bell made that presentation, but did not as required submit a digital file of the Slides to the R-Drive of the University's computer system. As matters transpired, Associate Professor Brown instead obtained a copy of what he understood were the Slides from another student in the class. [8] All students had been granted an extension for handing in the final elements of their stage 3 submissions, also originally due on 29 October, until 3 November. One of the main remaining pieces of assessment was known as the exegesis. A student's exegesis documents the research they have undertaken, and their discussion of relevant theoretical considerations, relating to their completed design. Course materials 3 for ITDN412 contained the following explanation:3 ITDN412 Course Outline, at 90 of defendant's Bundle of Key Documents.An Exegesis in architecture refers to the critical interpretation of design intention in relation to the formation of related propositional alternatives. It involves research, composition and dissertation, and it frames an architectural argument. It requires taking a position. By the completion of the Exegesis, your argument should be clearly articulated as well as located in the context of previous theoretical writings and design investigations. It should be interpretive as well as positional.[9] On 4 November, Ms Bell first submitted a version of her exegesis ("the Exegesis"), which she maintains was a draft, to the R drive. Associate Professor Brown emailed Ms Bell informing her that her Exegesis was incomplete, and advised her to upload the rest. Ms Bell uploaded a further version of her Exegesis on 6 November. She still considered that to be a draft. As matters transpired, the DAC eventually accepted that she continued to work on her Exegesis until 9.34 am on 7 November ("the Final Exegesis"), and that her final version was completed before she was advised of Associate Professor Brown's allegations of plagiarism. [10] Associate Professor Brown's affidavit evidence in this proceeding was that sometime around the end of October or the beginning of November a number of students came to see him over several days. He was told that Ms Bell was using unattributed images from websites in her project. Associate Professor Brown was not clear about the exact dates on which the students came forward, but it would appear to have occurred following Ms Bell's power point presentation to the class on 29 October. Therefore, prior to Ms Bell handing in any version of her Exegesis, Associate Professor Brown was on notice that there could be an issue with plagiarism. It is apparent that by the morning of 4 November, the day on which Ms Bell first submitted a version of the Exegesis, Associate Professor Brown had investigated the possibility of plagiarism and would appear to have consulted the websites to which his attention had been drawn by students in Ms Bell's class. [11] The University's Student Conduct Statute ("the Conduct Statute") provides for the regulation of student conduct. As relevant, it prohibits academic misconduct, including plagiarism. [12] The Conduct Statute defines plagiarism as:the presentation of the work of another person or other persons as if it were one's own, whether intended or not. This includes published or unpublished work, material on the Internet and the work of other students or staff.[13] That definition was reproduced in the ITDN412 Course Outline, followed by the following observations:It is still plagiarism even if you re-structure the material or present it in your own style or words.Note: It is however, perfectly acceptable to include the work of others as long as that is acknowledged by appropriate referencing. You are strongly advised to check with your tutor or the course coordinator if you are uncertain about how to use and cite material from other sources.[14] The Conduct Statute also provides, at clause 4.4, procedures for the formal resolution of complaints of misconduct and serious misconduct. In addition, a University document, entitled Dealing with Student Plagiarism Procedures ("the Plagiarism Procedures") sets out more detailed procedures for the way in which allegations of plagiarism against students are to be investigated and resolved. In general terms, and except as expressly challenged by Ms Bell in this proceeding, the University followed relevant procedures in dealing with the allegations of plagiarism against Ms Bell, and it is not necessary to refer in great detail to either the Conduct Statute or the Plagiarism Procedures at this point. [15] The Plagiarism Procedures contain the following direction under the heading "Identification of Plagiarism":(c) Where the student has submitted draft work for feedback, and plagiarised material is found in that draft work, that work should be returned to the student for resubmission with appropriate references. It is not appropriate to apply a penalty for draft work, but students may be directed to Student Learning Support for guidance.Hence the significance of Ms Bell's assertion – in response to Associate Professor Brown's first allegations of plagiarism – that the 4 and 6 November versions of her Exegesis were drafts. [16] On 7 November Associate Professor Brown and Ms France, the manager of student and academic services in the Faculty of Architecture and Design, met with Ms Bell. They gave her a letter from Professor David Bibby, Pro Vice-Chancellor and Dean of the Faculties of Science, Engineering, Architecture and Design. That letter formally raised an allegation of plagiarism on the following terms:ALLEGED SERIOUS MISCONDUCT 1. The School of Architecture has provided me with a copy of your Stage 3 submission for ITDN412. Slide 6, which appears on page 43 of your written exegesis, is identical to the site plan of an image published on the internet. An architectural section of that image also mirrors a section on that same slide. In addition, slide 12 closely resembles an image from a different website. There is no reference to either website in the bibliography of your exegesis. Attached is a copy of slides 6 and 12, the two images from the websites, and your bibliography. 2. It is expected that any material that is included in a piece of course assessment and is not your own work, is clearly attributed to the author. If you have taken the work of another person and passed them off as your own, your conduct may constitute serious misconduct under clause 4.2(g)(iii) of the Statute on Student Conduct. 3. I therefore invite you to attend a meeting with me at 11.30am on Wednesday 12 November 2008. The meeting will be held in Room 110 which is on ground floor of the Architecture and Design Building, Te Aro Campus. The purpose of the meeting will be to provide you with an opportunity to respond to the allegations made against you and give your version of events including any extenuating factors. 4. I note that you received a caution last year from Professor Simon Fraser for plagiarism in ITDN 311, and were cautioned again in September 2008 by Associate Professor Brown in respect of your Stage Two Submission for ITDN 412. In these circumstances, the University is treating this matter seriously.[17] The original complaint, therefore, related to two images. Both images were contained in the Slides and the Exegesis. The focus of the complaint was on the absence of any reference to the relevant websites in the bibliography to the Exegesis. [18] The first ("Image One") is shown labelled as such in the appendix to this judgment. As noted by Professor Bibby, Image One was displayed on the sixth of the slides ("Slide 6") and at page 43 of the 6 November Exegesis. Image One comprised the site plan of Ms Bell's seed vault project. Plagiarism was alleged because an identical image had been found by Associate Professor Brown on the internet forming part of a larger image attributed to Greg Lynn Studio. A copy of that larger image ("the Greg Lynn Studio Image") is shown labelled as such in the appendix to this judgment. [19] The second ("Image Two") is shown labelled as such in the appendix to this judgment. Image Two was displayed on the twelfth of the slides ("Slide 12") and –although not referred to by Professor Bibby – at page 24 of the 6 November Exegesis. Image Two comprised an image of the exterior of Ms Bell's seed vault building. Plagiarism was alleged because of the similarities between Image Two and an image found by Associate Professor Brown on the internet attributed to Sarah Schneider. A copy of that image ("the Sarah Schneider Image") is shown labelled as such in the appendix to this judgment. [20] For Ms Bell, Mr Taylor conceded that if these issues of plagiarism raised by the University were to be determined by reference to the material, including the Slides and the Exegesis, as submitted by Ms Bell up to and including 6 November, then the University would have a very strong case indeed. On that basis, Mr Taylor did not challenge the initial decision of the University to treat the original allegations as serious misconduct, as those allegations were made by reference to materials that excluded the Final Exegesis. It was Ms Bell's case, however, that the Final Exegesis, completed on 7 November and intended by her to be handed in as such, properly attributed the Greg Lynn Studio and Sarah Schneider Images, which Ms Bell fully accepted she had used in the development of her design project.First plagiarism decision[21] As requested, Ms Bell met with Professor Bibby on 12 November 2008. She was represented at that meeting by Mr Taylor's instructing solicitor, Mr MacDonald. She was also accompanied by her parents. [22] Ms Bell responded to the allegations of plagiarism in two principal ways: a) First, the version of the Slides that Associate Professor Brown had obtained from her class mates was not the version of the Slides that she had presented to her class. The version she presented referred to the bibliography of the Exegesis. That bibliography would, as contained in the Final Exegesis, reference all the images used on the Slides. b) Secondly, the two versions of the Exegesis submitted on 4 and 6 November were only drafts. She had continued working on the Exegesis until the morning of 7 November. With reference to thePlagiarism Procedures, no penalty was to be imposed in respect of draft work. [23] Professor Bibby issued his decision on the plagiarism allegations as regards Images One and Two on 24 November 2008. [24] As regards the presentation of the Images in the Slides, Professor Bibby referred to the dispute as to which version of the Slides had been presented by Ms Bell, and what was referred to on those Slides. Professor Bibby found that there was insufficient evidence to determine whether, as alleged, the version relied on by Associate Professor Brown had in fact been presented. There was therefore insufficient evidence to determine whether the presentation of Images One and Two on the Slides constituted plagiarism. [25] Professor Bibby then addressed the allegations of plagiarism regarding the presentation of Images One and Two in the Exegesis. The Professor concluded that the versions of the Exegesis submitted on 4 and 6 November were not drafts. He noted that those versions had been submitted after the due date, that Ms Bell had at no point mentioned to Associate Professor Brown that they were drafts, that the files' names did not indicate that they were drafts and that the correspondence from Associate Professor Brown did not indicate that he considered them to be drafts. [26] As regards Ms Bell's evidence that she finished working on the Final Exegesis on the morning of 7 November, the Professor concluded:At the meeting of 12 November, you claimed that you finished your exegesis on 7 November and it had been bound and printed. You said that you intended to hand it in after the class lunch that day but then received notice of this disciplinary process and your parents instructed you not to do this. However, following Daniel's approach to the binder and printer, Mr McDonald advised that the exegesis had in fact been taken to the binder on 10 November and not the previous Friday. In respect of the printer, your father has advised that while you discussed the job with Big Image on Friday morning, the printing was not in fact done on that day. This inconsistent evidence seriously calls into question your credibility. It also removes what would have been a compelling argument in your defence that you had completed your final exegesis before you received my letter.[27] On that basis, Professor Bibby upheld the allegation of plagiarism as regards the presentation of Images One and Two – which he referred to as the images in "slides 6 and 12" – in the Exegesis.[28] Professor Bibby then considered the penalty that would be appropriate. He took into account that Ms Bell had already failed ITDN412, as a large proportion of her work had been submitted after the deadline, or not at all. He considered the breach to be a mid-level one, and imposed a fail grade of "E" for ITDN412. [29] Ms Bell appealed Professor Bibby's decision on 1 December as regards the finding of plagiarism in the Exegesis. Associate Professor Brown appealed that decision on 2 December as regards the finding that plagiarism was not established in the Slides. Associate Professor Brown's appeal was rejected by the DAC and is not further referred to.Second plagiarism decision[30] On 26 November 2008 Ms Kruger, who taught ITDN412 with Associate Professor Brown, alerted him to further potential plagiarism in the Digital File. Three images in that File were involved. Two were identical to Images One and Two. The third ("Image Three") comprised a cross section of the interior of Ms Bell's seed vault. As regards Image Three, plagiarism was alleged because an identical image comprises a further part of the Greg Lynn Studio Image. The focus of the second allegation of plagiarism was the absence of references to the relevant websites in the Digital File. Associate Professor Brown notified Professor Bibby of these further concerns. Professor Bibby referred the complaint to Professor Willis, Pro Vice-Chancellor and Dean of the Faculty of Humanities and Social Science. [31] Ms Bell was first informed of this additional charge by letter dated 28 January 2009. That letter invited her to attend a meeting with Professor Willis on 2 February. By email of 30 January Mr MacDonald informed the University that Ms Bell would not attend the meeting, as she considered that the appeals against Professor Bibby's decision should be heard before the new allegations were considered. [32] The meeting of 2 February was therefore held without Ms Bell. Professor Willis issued her decision on 3 February. Professor Willis stated that she had compared the versions of Image One and Image Three that appeared on the Digital File with the Greg Lynn Studio Image, and had concluded that they wereidentical. Professor Willis also considered that there was a marked similarity between Image Two and the Sarah Schneider Image, to the extent that there should have been attribution. She concluded that there had not been any attribution to the Greg Lynn Studio and Sarah Schneider Images, and therefore that Ms Bell had plagiarised. [33] Professor Willis also concluded that a fail grade of "E" for ITDN412 was an appropriate penalty. [34] Ms Bell appealed Professor Willis' decision on 3 February 2009. [35] Ms Bell's grounds of appeal on both appeals were as follows: a) That there was a material defect in the procedures. The decision manager had issued the letter (of 7 November) alleging serious misconduct without an independent person taking steps to verify the claim. Furthermore, the process followed involved a conflict of interest, predetermination of guilt, breach of privacy, breach of "duty or relationship", the application of an incorrect standard of proof and onus and unfairness to Ms Bell. b) That the decision of Professor Bibby was contrary to the evidence of Ms Bell and her father that she had continued work on the Exegesis until the morning of 7 November. c) That the decision was plainly wrong in light of additional information. [36] There was, prior to the appeals being heard by the DAC, extensive communication between Mr MacDonald, on behalf of Ms Bell, and counsel for the University, McBride Davenport James. In addition, on 16 February 2009 Ms Bell submitted six spiral bound bundles of documents in support of her appeal. [37] The DAC met with Associate Professor Brown on 25 February. Notes of that meeting (totalling four pages) and a transcript (totalling 21 pages) were provided to Ms Bell. Ms Bell provided two pages of responses to those notes.[38] The DAC met with Ms Bell on 17 March. That meeting was apparently cut short as one of the members of the DAC was due elsewhere, but was reconvened on 26 March. Ms Bell was provided with nine pages of notes from those meetings and submitted a written response to them, as well as a further five pages of notes. [39] Further questions were asked of Associate Professor Brown on 15 April 2009, to which he responded in writing consisting of five pages on 27 April. Questions were also asked of Ms Kruger, which she annotated and which covered two pages. Ms Bell submitted a further written response to the comments by Associate Professor Brown and Ms Kruger, which ran to 12 pages.The DAC's decision[40] The DAC gave its decision on 29 June 2009. In summary, the DAC rejected both of Ms Bell's appeals and upheld the penalty imposed. [41] No doubt reflecting Professor Bibby's "compelling argument in your defence" comment (see [26]), and in any event anticipating Mr Taylor's acknowledgement of the strength of the University's case without the referencing contained in the Final Exegesis, Ms Bell focussed much of her case before the DAC on establishing that she had continued working on the Exegesis until 7 November, and that she had finished what she regarded as the Final Exegesis before she had received Professor Bibby's letter. The DAC accepted that, as a matter of fact, that was indeed the case. [42] Associate Professor Brown's allegation of plagiarism as regards the use of Images One and Two in the Exegesis would therefore be assessed by reference to the final, 7 November, version of the Exegesis. [43] Moreover, in my view the DAC accepted that referencing in the Final Exegesis could remedy a lack of referencing in the Digital File. At paragraph 25 of its decision, the DAC concluded:Having considered the final version of the exegesis, the Committee's findings are as follows:(i) it does not consider that the final exegesis that was completed by 7 November, properly and appropriately referenced the images also used in the digital file submitted on the R Drive; (ii) given that the final exegesis did not correctly attribute the images in question, the Committee does not accept Ms Bell's argument that the earlier submitted digital file did not amount to plagiarism.[44] Implicit within that conclusion is a finding by the DAC that proper and appropriate referencing in the Final Exegesis would be an answer to the allegation of plagiarism as regards the Digital File. The University did not accept that proposition. It pointed to paragraph 29 of the DAC's decision, where the DAC commented as follows:The Committee finds that the lack of referring and attribution in the Digital File submitted to the R Drive in relation to ITD 412 (the item considered by Professor Willis) was not correctly or appropriately referred in the Digital File, nor in the Final Exegesis, and that the finding of plagiarism on that matter was correct.[45] In my judgment, those comments reflect the DAC's assessment of Professor Willis' conclusion, by reference to the materials before her, and its own conclusion, by reference to the materials before it. It does not, in my view, derogate from the conclusion that, as regards its own decision-making, the DAC did accept that referencing in the Final Exegesis could remedy a lack of referencing in the Digital File. [46] However, and as the DAC noted, "the fact that the Exegesis was completed on 7 November does not itself address the issue of whether that Exegesis appropriately referenced the images in question that were contained in the digital file...". The issue for the DAC therefore became whether, as submitted by Ms Bell, Images One, Two and Three as they appeared in the Exegesis and the Digital File – which images Ms Bell acknowledged relied on the internet source material that had been referred to by Professors Bibby and Willis – were properly attributed in the Final Exegesis. [47] The DAC dealt first with the appeal against Professor Willis' finding of plagiarism as regards Images One, Two and Three as presented in the Digital File. [48] As already noted at [43], the DAC concluded that the referencing contained in the Final Exegesis was not sufficient, and therefore that the Digital File didcontain plagiarised material (ie Images One, Two and Three). The DAC explained its conclusion, at paragraph 28, in the following terms:Regarding the referencing, the Committee notes that the two essays within the exegesis contained no discussion of the precedents and no discussion of the process of taking existing designs and amending them. While references were included in the bibliography, the Committee's conclusion is that this was not sufficient. The Committee equates this to a written essay which includes a large segment of copied text in the body of the essay and a reference to the source in the bibliography. The Committee considers this to be inappropriate referencing which constituted plagiarism.[49] The DAC then considered Ms Bell's appeal against Professor Bibby's finding that the Exegesis contained plagiarised material. Again, Ms Bell's submission was that the referencing in the Final Exegesis answered any allegation of plagiarism that might have been sustained by reference to the versions of the Exegesis submitted on 4 and 6 November. [50] Just as it had found as regards the presentation of Images One, Two and Three in the Digital File, the DAC also found that the presentation of Images One and Two in the Final Exegesis was plagiarism. It therefore, once again, did not accept Ms Bell's argument that the referencing in the Final Exegesis was sufficient. The DAC expressed its conclusion in the following terms:... To reiterate the Committee's findings: (i) The Committee notes that the two essays within the exegesis contained no discussion of the precedents and no discussion of the process of taking existing designs and amending them. (ii) While references were included in the bibliography, the Committee's conclusion is that this was not sufficient. The Committee equates this to a written essay which includes a large segment of copied text in the body of the essay and a reference to the source in the bibliography. (iii) The Committee considers this to be inappropriate referencing which constituted plagiarism.[51] The DAC, in effect, reached the same conclusion, and for the same reasons, on both Ms Bell's appeals. [52] The DAC did not consider, as Ms Bell had argued, that various procedural defects had occurred.[53] The DAC agreed with Professors Bibby and Willis in concluding that a fail grade of "E" was the appropriate penalty. The DAC decided that the plagiarism involved amounted to serious misconduct, especially the use of the cross-section of the interior of the building. Even if it was misconduct (as opposed to serious misconduct), there was an overlap between the penalties for misconduct and serious misconduct and a grade of "E" could be imposed for either.Grounds of review[54] The primary ground of review advanced for Ms Bell was that the DAC's decision that her use of Images One, Two and Three constituted plagiarism was one that no reasonable decision-maker could have come to. Ms Bell argued that, once the Final Exegesis was accepted to be relevant, no reasonable decision-maker could conclude that such use constituted plagiarism. In support of that proposition, Mr Taylor's related submissions on Ms Bell's behalf were that the DAC erred in failing to take into account Ms Bell's referencing methodology, and had breached the principles of natural justice by giving insufficient reasons for its conclusion. It is fair to say that, as this case was argued before me, Mr Taylor placed more importance on the first of those propositions than had been reflected in the written submissions that were filed. The DAC's apparent conclusion – referred to by the chair of the DAC, Associate Professor Crabbe in his affidavit but not explicitly referred to in the DAC's decision – that Ms Bell's plagiarism was intentional was also unreasonable. Further, the DAC had breached natural justice by not putting the allegation of intentionality to Ms Bell and by failing to give sufficient reasons for that conclusion. [55] Ms Bell also claimed that the DAC had erred in going beyond considering her appeal by reference to Professor Bibby and Professor Willis' reasons, and in fact considering the issue of the adequacy of the referencing in the Final Exegesis. In my view, given the emphasis placed in her central argument on the adequacy of referencing in the Final Exegesis, this argument faced considerable difficulty. Mr Taylor referred to this ground by asserting that the DAC had "strayed from the charge laid".[56] A number of lesser points were also raised, which I will mention as necessary. [57] Finally, Ms Bell challenged the penalty imposed. [58] Having regard to the way this case was argued before me, I consider that the appropriate headings under which, and the order in which, the various grounds of review raised by Ms Bell can be considered are as follows: a) Straying from charge laid; b) Insufficiency of reasons; c) Failure to consider relevant matters; d) Considering irrelevant matters; e) Unreasonableness; f) Penalty and intentionality; and g) Cross-examination of Associate Professor Brown. [59] Ms Bell asks this Court to quash the decision of the DAC. Mr Taylor argued further that, in terms of remedy, the decision should not be referred back to the DAC but that this Court should reach its own decision on the matter. That decision should be that there was no plagiarism contained in Ms Bell's work.Straying from the charge laid[60] The argument here is based on the fact that the first allegations of plagiarism, considered by Professor Bibby, related to the absence of references to the source websites of the Greg Lynn Studio Image and the Sarah Schneider Image in the bibliography to the Exegesis. The second allegation of plagiarism, considered by Professor Willis, related to the absence of referencing to source websites in the Digital File. As those were the bases of the original charge, it was a breach of natural justice for the DAC to have considered – without prior notice to Ms Bell –the issue of whether the referencing actually contained in the Final Exegesis was sufficient. [61] In support of this proposition Mr Taylor cited Treaty Tribes Coalition v Urban Maori Authorities, where conduct of the Court of Appeal in deciding a question that was not directly before it resulted in its decision being overturned. 4There the Court of Appeal had before it an appeal from a High Court decision that a particular question, namely whether assets could only be allocated to iwi or groups representing iwi, should be decided pre-trial. The parties were agreed that the Court of Appeal could, instead of deciding whether that question ought to be tried separately, answer the question itself. [62] The Court of Appeal went on to answer two different questions, namely whether urban Māori came within the definition of iwi and what the statutory duties of the Treaty of Waitangi Fisheries Commission were. Most of the parties appealed to the Privy Council, complaining both of the substantive decision of the Court of Appeal and the process by which the Court of Appeal had reached its decision. Their primary concern with process was that the Court of Appeal had answered a different question to that which was before it and that, by doing so without giving them notice of its intention, it had breached their natural justice rights. The Privy Council allowed the appeal on the ground that the process adopted by the Court of Appeal in reaching its decision did breach the natural justice rights of the parties. While the issue of the definition of iwi was "on the table", in that it had been discussed before the Court of Appeal, the Privy Council held that further evidence was needed to be able to answer that question, and that notice of the Court's intention to answer that question should have been given. [63] For the University, Mr Corkill submitted that the issue of the adequacy of the referencing was put before the DAC by Ms Bell when she stated in her notice of appeal that the first instance decision:...was plainly wrong on the basis of the information before the deciding manager, including but not limited to the evidence from the Respondent and her father that the final exegesis was completed by the Respondent on the morning of 7/11/08 and had no element of plagiarism... (emphasis added)4 Treaty Tribes Coalition v Urban Maori Authorities [1997] 1 NZLR 512 (PC).[64] Mr Corkill also relied on a number of passages in the evidence that were before the DAC which refer to the adequacy of the referencing. The position of the University was that the main issue in the appeal was Ms Bell's submission that appropriate referencing was contained in the Final Exegesis, thereby curing any plagiarism in the Digital File and the earlier drafts of the Exegesis. [65] In my opinion, there is no doubt that the sufficiency of the referencing in the Final Exegesis was put in issue by Ms Bell. Ms Bell effectively directed the DAC to look at the referencing in the Final Exegesis. [66] In her summary of allegations, Ms Bell states that the images used in the Slides (not at issue in this proceeding) were referenced in the Final Exegesis. Ms Bell, in replying to the allegation of plagiarism in the Exegesis, notes that "I understood that the exegesis included all referencing ...[and] that the exegesis would be submitted for reference checking". In respect of the Digital File, Ms Bell states that she "referenced all external material on presentation board in [her] Exegesis". Therefore in respect of all three pieces of work complained of, Ms Bell submitted that the referencing in the Final Exegesis met the complaints of plagiarism. This put the issue of whether the referencing in the Final Exegesis was sufficient to meet the plagiarism allegations plainly before the DAC. [67] That this was the case is further reflected in: a) Ms Bell's summary response, dealing with Professor Bibby's letter of 24 November; b) Ms Bell's responses to Daniel Brown's memorandum of 30 April and Ms Krutger's email of 11 May; and c) the notes of meeting Ms Bell had with the DAC – which record Ms Bell's assertion that all material drawn from websites was referenced in the Final Exegesis. [68] Furthermore, Mr McDonald, for Ms Bell, was aware of this, as he noted in his submission outline that "DAC intends to determine the issue not remit for consideration".[69] In my view, the issue clearly before the DAC was to determine the allegations of plagiarism themselves, by reference to Ms Bell's submission that referencing in the Final Exegesis answered those allegations. The DAC was not simply to determine whether the first instance decision-makers had erred, and then decide how to proceed. [70] Therefore, I do not consider that Ms Bell had insufficient notice that the DAC would consider whether the referencing in the Final Exegesis was sufficient. I accept that much of the material submitted by Ms Bell did focus on the error she said the decision-makers committed by failing to accept her evidence that the Final Exegesis, had been completed prior to her receipt of Professor Bibby's formal plagiarism complaint. But her additional further argument (and necessary, otherwise that matter would have been irrelevant) was that the referencing in the Final Exegesis dealt with the allegations of plagiarism. In those circumstances, her right to natural justice clearly has not been breached by the DAC assessing the referencing in the Final Exegesis. [71] At the hearing, Mr Taylor also developed this argument by reference to the process for the consideration of appeals by the DAC contained in clause 4.7 of the misconduct statute. In particular, Mr Taylor referred to clause 4.7.1(g), which provides as follows:(g) The Committee will not allow an appeal unless it is satisfied that the decision of the deciding manager: (i) was unsound because of some material defect in the procedures followed by that mgt; (ii) was plainly wrong on the basis of the information before the deciding manager; or (iii) has been shown to be plainly wrong in the light of additional information which, for good reasons, the party appealing was unable to have considered by the deciding manager. (h) If the Committee allows an appeal, it may substitute a different direction or provision for that made by the deciding manager, or remit the matter back to the deciding manager for reconsideration.[72] As I understood these submissions, Mr Taylor was in effect arguing that clause 4.7.1(g) emphasised the limited role the DAC had when considering appeals. Accordingly, at most it should only have decided that the two decision-makers werewrong on the conclusion that the earlier versions of Exegesis were not drafts, and should then have remitted the matter to those decision-makers for further consideration. I do not find that argument persuasive. In particular, I think that paragraph 4.7(g)(iii) provided for the DAC, in considering an appeal, to have regard to additional information or to reach a decision based on the information before the deciding manager. Furthermore, clause 4.7(h) provides for the DAC, in allowing an appeal, to substitute its decision for that of the deciding manager or to remit the matter back to the deciding manager for reconsideration. Therefore, I do not think the clause 4.7(g) added to the strength of Ms Bell's challenge to the DAC's decision under this heading. [73] Fundamentally, and as I have already concluded, Ms Bell's argument to the DAC was that the referencing in the Final Exegesis was the answer to the charges of plagiarism. It cannot be a breach of natural justice for the DAC to consider and decide her appeal by reference to an assessment of that assertion.Insufficiency of reasons[74] Ms Bell argued that the DAC had failed to provide adequate reasons as to why her referencing was insufficient. [75] It is clear that the DAC had a duty to provide reasons for its decision. Clause 4.7.1(1) of the Conduct Statute provides as follows:The committee must provide written reasons for its decision to the complainant, the respondent, and the deciding manager.[76] It is well established that, where there is a duty to provide reasons, "[a]n inadequate statement of reasons is a reviewable error." 5 Therefore, if the DAC's reasons were inadequate there would be an error of law. It is also well established that adverse inferences about a decision making process can be expected to follow where an inadequate statement of reasons is provided. As a matter of law, therefore, a failure to provide adequate reasons can be a ground of review on its own, or can lead to the conclusion that the decision in question was made by an invalid process,5 G D S Taylor and J K Gorman Judicial Review: A New Zealand Perspective (2 nd ed, Lexis Nexis, Wellington, 2010) at [9.18].for example that relevant matters were not taken into account or that irrelevant matters were taken into account. 6[77] The reasons given by the DAC for its conclusion are set out at [48] and [50]. As can be seen, the core of the DAC's reasoning was contained in the analogy it made between the approach taken by Ms Bell and including a large and, inferentially, unacknowledged segment of text in the body of an essay and a citation in a bibliography to the source of that text which is not, however, linked to that text. The other limb of the DAC's reasoning is that there was no discussion of the sources included in the two essays. By my assessment, the DAC had made its reasons plain. [78] The DAC is not a judicial body, and is comprised of academics rather than lawyers. In my judgment, this properly impacts on the extent of the reasons that are to be expected in its decisions. DAC decisions, in fact, usually comprise little more than one page. The courts should, in my view, avoid overly formalising and legalising expert academic decision-making processes in this area. Requiring decisions of bodies such as the DAC to be in the form that is expected from the courts themselves, or from more formal quasi-judicial decision-makers such as professional regulatory bodies, would tend to have that very effect. [79] In my view, the reasons the DAC gave for its decisions on Ms Bell's appeals as regards the finding of plagiarism were sufficient. They clearly informed Ms Bell of the DAC's reasoning and, as evidenced by her submissions in this judicial review, provided a basis upon which she could properly challenge those decisions. [80] Whether an assessment of the reasons given shows that the DAC failed to consider relevant matters, or took irrelevant matters into account, are the separate questions to which I now turn.Failure to consider relevant matters[81] An important element of Ms Bell's challenge to the DAC's decision, particularly as developed in argument before me, is the proposition that the DAC failed to take into account the referencing methodology Ms Bell employed in the Exegesis, and on which she relied in response to the allegations of plagiarism in the6 Ibid, at [9.18].Digital File and the Exegesis. The DAC had therefore erred in law, and in a material way. It was, I acknowledge, Mr Taylor's further submission that this error had materially contributed to the irrationality of the DAC's decision, which irrationality he made the central element of Ms Bell's challenge. In my view, however, I think it is appropriate to separately analyse the contention of error for failure to consider. [82] I have already, at [66] and [67], identified the ways in which Ms Bell drew to the attention of the DAC, and therefore put in issue, the question of the referencing contained in the Final Exegesis. In her affidavit in reply in these proceedings, Ms Bell set out that referencing methodology in further detail. That methodology, in summary, was described by Ms Bell as consisting of: a) references to relevant website sources being provided in the body of the Final Exegesis on the page preceding the image of the work she had produced relying on the website material; b) a copy of the original website images being set out in the appendix to the Final Exegesis; and c) references to the websites where the images could be found also being included in the bibliography of the Final Exegesis. [83] By reference to the Final Exegesis, it is appropriate now to describe the actual way in which Ms Bell referenced her admitted source material. [84] Ms Bell accepts that, in preparing Image One, she copied the Greg Lynn Studio Image. [85] Image One was displayed as Slide 6, which also appears at page 41 of the Final Exegesis and was reproduced in the Digital File. [86] The following text is contained on page 40 of the Final Exegesis, which faces page 41:Revised Site Plan. Contours map of how landscape will be assumed in the year 2070.Site is spawning new part of the interior. Greg Lynn Studio, 'Factory for Today' http://staticdieangewandte.at/gems/archlynn/SS2008SMFinal/Plotmajano.pdf See Appendix for details[87] The appendix of the Final Exegesis, at page 93, contains the original version of the Greg Lynn Studio Image (including Image Three - the cross-section, which appears in the Digital File, but not in the body of the Final Exegesis), but not labelled as such nor cross-referenced to Slide 6 or Image One. [88] The citation, "Greg Lynn Studio, "Factory for Today", http://static dieangewandte.at/gems/archlynn/SS2008SMFinalPlotmajano.pdf Accessed 1 June 2008," appears in the bibliography of the Final Exegesis: a) at page 81, under the heading "Websites"; and b) at page 85 under the sub-heading "*These include images used in presentation boards and powerpoint / Power Point (Slide Six)". [89] Ms Bell acknowledges that in preparing Image Two she drew from the Sarah Schneider Image. [90] Image Two was displayed as Slide 12, which also appears at page 25 of the Final Exegesis and was reproduced in the Digital File. [91] The following text is contained on page 24 of the Final Exegesis, which faces page 25:Main intervention as seen from exterior. It acts as a life giving plant that has grown up into the hillside. The arch exists from an ancient stream, now gone. Sucker Punch Daily "Sarah Schneider" http://suckerpunchdaily.com/sarah.html[92] The appendix of the Final Exegesis, at page 94, contains the original version of the Sarah Schneider Image, labelled – along with other images appearing on that page – "(all images from suckerpunchdaily.com)", but not labelled by reference to Sarah Schneider or cross-referenced to Slide 12 or Image Two.[93] The citation, " Sucker Punch Daily "Sarah Schneider" http://suckerpunchdaily. com/sarah.html Accessed 1 September 2008" appears in the bibliography at: a) page 82, under the heading "Websites"; b) page 83, under the sub-headings: "*These include images used in presentation boards / Boards (Panel One); and / Boards (Panel Two)"; c) page 84, under the sub-heading "*These include images used in presentation power point" / Power Point (Slide Five)"; and d) page 85, under the sub-heading "*These include images used in presentation boards and powerpoint / Power Point (Slide Twelve)". [94] It was not disputed by the University that the Greg Lynn Studio Image and the Sarah Schneider Image appeared at the website references provided at pages 24 and 40 respectively. [95] Ms Bell accepts that Image Three is part of the Greg Lynn Studio Image. [96] Image Three only appears in the Digital File. On that basis, the references referred to above at [87] and [88] may be seen as potentially constituting references to, or as attributive of, the source of Image Three. [97] The issue, at this point, does not relate to the adequacy of Ms Bell's referencing methodology. That issue is raised by Ms Bell's challenge to the rationality of any finding of plagiarism in these circumstances. I discuss that issue below. Here, the question is whether the DAC, in making its decisions, took proper account of the referencing that Ms Bell had included in the Final Exegesis. This challenge principally arises by reason of the DAC referring, at the core of its reasons, only to the referencing contained in the bibliography as opposed to that found in the text of the Final Exegesis and in the appendix. [98] Mr Taylor's primary submission was that the references in the Final Exegesis on the pages preceding Images One and Two – referred to by Mr Taylor as"footnotes" – were not taken into account by the DAC. By not taking into account those references, the DAC failed to take into account a relevant matter and thereby committed a material legal error. [99] I have already set out, at [48] and [50] the core of the DAC's reasoning. There, the DAC acknowledges that "references were included in the bibliography", but equates that to a written essay which includes a large segment of copied text in the body of the essay and a reference to the source of that otherwise unattributed text in the bibliography. [100] The DAC did not, therefore, refer at all to the website references that appear at pages 24 and 40. Further, I observe that the DAC's analogy to a large segment of copied text in the body of an essay, and a reference to the source in the bibliography, sits a little uneasily with the number of references contained in the bibliography and, in particular, the express attributions, as regards Slides 6 (Image One) and 12 (Image Two) to the relevant website sources. [101] Mr Corkill did not contend that the "footnote" references were not a relevant consideration, nor that their consideration was not mandatory. So a failure to consider them would constitute a reviewable error. In my view that was appropriate, as the footnote references were clearly relevant given that Ms Bell referred the DAC to the referencing in the Final Exegesis as a whole as an answer to the plagiarism allegations. Rather, Mr Corkill submitted that the referencing had been taken into account by the DAC, and the DAC had clearly addressed the appropriateness of Ms Bell's referencing. He submitted that the DAC assessed the evidence in light of its academic expertise and had formed the opinion – which the Court should respect – that Ms Bell had plagiarised. [102] Mr Corkill referred to passages of Associate Professor Crabbe's affidavit evidence that set out the reasoning of the DAC. [103] Some comment on that evidence is appropriate. Associate Professor Crabbe was himself a member of the decision-making body, the DAC, whose decision is under challenge in this proceeding. In his affidavit, and at considerable length, Associate Professor Crabbe justifies the DAC's decision by extensive fresh analysis not contained in the DAC's decision itself. He also relies on aspects of the record ofthe DAC's consideration of Ms Bell's appeal not referred to in the DAC's decision, and to the affidavits of Ms Bell and Associate Professor Brown filed in this proceeding. In judicial review proceedings the general proposition is that the decision under challenge stands on its own merits. It is not generally for the original decision-maker to explain its decision, particularly where the challenge is to a judicial or quasi-judicial – as the DAC clearly is – decision-maker. 7 That position may be distinguished from that in an appeal where, pursuant to HR20.12, the High Court may require that a decision-maker produce a report setting out various matters including considerations – other than findings of fact – not set out in the decision but to which the decision-maker had regard in making the decision appealed against. These, however, are not proceedings by way of appeal, but by way of judicial review. Further, given the extensive record available and the DAC's own reasoned decision, such a report was neither called for nor necessary. In that context, Associate Professor Crabbe's affidavit went, I think it is fair to say, beyond that which would normally be provided by or on behalf of a decision-maker in such proceedings. [104] Having said that, I acknowledge that to a large extent the relevant contents of Associate Professor Crabbe's affidavit anticipate and reflect the submissions made in support of the DAC's decision on behalf of the University. I also note the very extensive material, including a statement of claim that ran to 159 main clauses, filed by Ms Bell. Moreover, and as the University submitted, Mr Macdonald, Ms Bell's representative for the purposes of the University's internal disciplinary proceedings, raised a multitude of issues on her behalf. I accept, therefore, that there was a lot of material for the University to respond to. It is also relevant that this was a challenge to the reasonableness of the DAC's decision. [105] Therefore, and given the way the case was argued me, I have considered Associate Professor Crabbe's affidavit as – in this context - not inappropriate, as responding to the wide range of factual matters raised by Ms Bell and as, in effect, anticipating the submissions made by Mr Corkill for the University in support of the DAC's decision. I note, however, that I do have reservations as regards the appropriateness of that affidavit to the extent it deals with the DAC's finding of intentional plagiarism. I discuss that matter further below.7 See Taylor and Gorman at [10.33].[106] On that basis, I observe that Associate Professor Crabbe says that "the approach [Ms Bell] took to referencing in the body and the bibliography of her final exegesis was not an adequate acknowledgement of the work of another." He then discusses various pages from the bibliography, and explains why he considers the referencing found at those pages to have been insufficient. Those reasons essentially relate to the fact that the references in the bibliography and the appendix were not, as I have observed, explicitly linked to Images One and Two where they appear at pages 25 and 41 respectively. [107] That analysis, however, does not refer to the pages with the "footnote" references on them. Associate Professor Crabbe discusses those pages slightly later when he observes:The references to websites on pages 24 and 40 of the final exegesis also do not give any indication about whether the website is being referred to as the source of a quote, or image, or for some other reason.[108] Associate Professor Crabbe then compares those references to references Ms Bell provided to work by the architect Calatrava. In those references, Ms Bell added the phrase "developed from working drawings of Calatrava", as well as providing a reference to the relevant source. Associate Professor Crabbe considered it significant that an equivalent explanation was not provided on pages 24 and 40. [109] The views expressed by Associate Professor Crabbe were also expressed in an affidavit provided by Ms Petty, the Deputy Head of the School of Design, which is part of the Faculty of Architecture and Design at the University. Ms Petty has held that role since 2009. Therefore, her presence in that position would appear to post-date the events which gave rise to the allegations of plagiarism against Ms Bell. In any event, Ms Petty stated that she had not been involved with the actual complaints and investigation of those issues, nor the appeals. Ms Petty generally supported Associate Professor Crabbe's analysis, including that of the footnote references. Like Associate Professor Crabbe, she also considered that the absence in those footnotes of the reference to "developed from" was significant. She concluded:There is no way to tell what the websites on pages 24 and 40 are referring to. There is no indication that they are meant to refer to text, or images. Also particularly problematic, suckerpunch is a website that contains multiple images from various artists and designers at any one time.[110] Associate Professor Crabbe's and Ms Petty's analysis essentially responds to Ms Bell's challenge to the rationality of the DAC's decisions. It does not go so far as to say that the "footnote" references on pages 24 and 40 were actually taken into account by the DAC when it made its decision. [111] The actual DAC decision does not mention pages 24 and 40 at all. Having considered the extensive materials appended to the various affidavits filed in this proceeding, there is, in my judgment, no basis on which an inference can safely be drawn that the DAC had actually considered those footnote references. Associate Professor Crabbe does not say the DAC did. Clearly, neither Associate Professor Brown nor Ms Petty were in a position to comment on what the DAC had considered. The primary reasoning of the DAC, as discussed above, is the analogy made between Ms Bell's conduct and using a large segment of copied text in an essay and containing a reference to the source in the bibliography. Even noting the Latin maxim – translated – that every comparison limps, that very analogy nevertheless strongly suggests that the DAC had not considered the significance of those references. [112] Nor do I think that the references at pages 24 and 40 were, by reason of the criticism that both Associate Professor Crabbe and Ms Petty made of them, irrelevant. As I set out in more detail when I consider Ms Bell's challenge to the rationality of the DAC's decision, I think that a person reading the Final Exegesis would naturally consider that those website references were relevant to the images presented on the opposite pages, and were – as Mr Taylor submitted – essentially acting as footnotes for those images. [113] In my judgment, therefore, the DAC did fail to take into account the website references on pages 24 and 40 of the Final Exegesis. In doing so, it failed to take into account a relevant matter and erred in law.Considering irrelevant matters[114] The second key element of the DAC's decision was the reliance it placed on the absence of any discussion by Ms Bell in her position and thematic statements ("the Essays") of the use of those source materials, and how she developed her designs based on them. Mr Taylor submits that, in taking into account the absenceof any such discussion, the DAC considered an irrelevant matter. Mr Corkill's submission was that that lack of discussion was relevant to whether Ms Bell presented the work of others as her own, and therefore whether she committed plagiarism. [115] As noted at [48], the relevant comment of the DAC as regards the allegations involving the Digital Files was:Regarding the referencing, the Committee notes that the two essays within the Exegesis contained no discussion of the precedents and no discussion of the process of taking existing designs and amending them.[116] The same finding was repeated in relation to the allegedly plagiarised images within the Final Exegesis. [117] In my view, a consideration of the discussion in the Essays was not irrelevant to the decision the DAC was called to make. [118] If Ms Bell had clearly identified the use of the Greg Lynn Studio and the Sarah Schneider Images in those Essays, and had discussed their influence on Images One, Two and Three, then there could have been no allegation of plagiarism. Questions of the extent to which she had developed her own work based on those source materials, as relevant to the assessment of her work, may nevertheless have arisen. That is, however, a different issue. [119] Therefore, I do not consider that the DAC erred in considering the material contained in the Essays.Unreasonableness[120] Mr Taylor argued that the DAC's decision that Ms Bell had plagiarised was unreasonable on two bases. [121] The first was with reference to the classic ground of unreasonableness set out in Wellington City Council v Woolworths New Zealand Limited (No. 2): 88 Wellington City Council v Woolworths New Zealand Ltd (No. 2) [1996] 2 NZLR 537 (CA) at 545.To prove a case of that kind requires "something overwhelming" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 per Lord Greene MR). In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 364, 410 Lord Diplock said in respect of unreasonableness, or "irrationality" as he preferred to call it:It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.[122] Similarly in Nottinghamshire County Council v Secretary of State for the Environment Lord Scarman used expressions such as "so absurd that he must have taken leave of his senses" and "a pattern of perversity" as setting the standard. 9 InWebster v Auckland Harbour Board Cooke P spoke of an unreasonable decision as "one outside the limits of reason." 10 Clearly, the test is a high and stringent one. [123] Mr Taylor also relied on the other form of unreasonableness identified in Taylor and Gorman, namely unreasonableness of reasons. 11 That ground arises where there is no factual basis for the conclusion reached. It is closely aligned with the error of law identified in Edwards v Bairstow.12[124] Mr Taylor made his submissions on these two grounds concurrently, and I intend to address them in similar fashion. [125] Essentially Mr Taylor's submission was that, given the referencing methodology of Ms Bell, no reasonable decision-maker could conclude that she had presented Images One, Two and Three as her own. I have already summarised that methodology at [82] and at [86] to [88] I have described the various references contained in the Final Exegesis. Mr Taylor argued that if the three elements of that methodology were considered together, the decision of the DAC that Ms Bell had plagiarised became untenable. [126] As analysed by Mr Taylor, essentially Ms Bell's methodology first involved the website references on pages 24 and 40, being references to the websites at which Ms Bell had accessed the relevant source image. A copy of the relevant source image was then contained in the appendix. Website references were also contained9 Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 (HL) at 247 – 248.10 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 131.11 Taylor and Gorman at [14.42].12 Edwards v Bairstow [1956] AC 14 (HL).in the bibliography, most specifically perhaps as regards Slides 6 and 12 which present Images One and Two respectively. [127] In assessing that submission, I consider the appropriate place to start is with what can properly be taken from the references that appear at pages 24 and 40. [128] As already noted, neither Associate Professor Crabbe nor Ms Petty considered that much, if anything, could be taken from those references. In its submissions, the University also challenged the significance of that referencing, on the basis that the website references required the reader to undertake further research, and obtain further material, and then carry out an assessment or process of deduction, because the acknowledgement was not sufficient in the first place. [129] I am not persuaded by that analysis. [130] In my judgment, a reader of the Final Exegesis, considering the images that appear on pages 25 and 41 and referring to the text on pages 24 and 40, would most naturally take it that the initial text is Ms Bell's description of the image on the opposite page, and that the website reference is being used by Ms Bell to reference, or attribute, that image to a website. By my assessment, there is therefore a logical connection between the Images, set out on pages 25 and 41, and the references to websites contained on pages 24 and 40. I consider Associate Professor Crabbe and Ms Petty's contentions to the contrary – which appear to deny any relevant significance to those references – to be more than a little strained and artificial. I conclude that a reader of the Final Exegesis would take it that Ms Bell was referencing those websites, given the content of the Images. As was accepted at the hearing before me, if a reader had consulted the websites they would have been taken to each of the Greg Lynn Studio Image and the Sarah Schneider Image. As Ms Bell acknowledged, that would make reasonably plain her use of those images as, indeed, Associate Professor Brown concluded when he accessed them on the internet. The need to "look up" the website is not dissimilar, in my view, to the need to refer to text referenced in a footnote. [131] I therefore accept that the presence of those references in the Final Exegesis does challenge the rationality of the DAC's findings as to plagiarism.[132] At the same time, I acknowledge a lack of clarity of other aspects of Ms Bell's referencing methodology. [133] First, and with reference to the appendix: a) As regards Image Two: i) there is no link between the footnote at page 24 and the relevant image at page 94; and ii) there are in fact five images that appear at page 94, and they are referenced to suckerpunchdaily.com, but not to Sarah Schneider. b) As regards Image One: i) whilst at page 40 the additional words appear "See Appendix for details", and the Greg Lynn Studio Image from which Image One at page 41 is taken is shown in the appendix at page 93, there is no express cross-referencing at page 93 to Image One as shown at page 41; and ii) Image One at page 41 forms only part of a larger image, further reducing the referential significance of the image shown at page 93 of the appendix. c) Image Three is not separately presented in the body of the Final Exegesis. In fact, it only appears as part of a larger image in the Digital File. Considerable attention therefore needs to be paid to the image at page 93 of the appendix, where the Greg Lynn Studio Image appears, to discern that the acknowledged source of Image Three does appear in the Final Exegesis at all. [134] Second, and as regards the significance of the bibliography references, I accept the critique of the DAC of the website references that appear at pages 81 and 82. I do not think that, by themselves, those references in the bibliography addanything to the "footnote" references at pages 24 and 40. It is less clear to me, however, that that is the case as regards the website references that appear at pages 83 and following, which refer specifically to the Panels and to the Slides. I note, however, that as regards those specific references to the Images that appear at Slides 6 and 12, a reader of the Final Exegesis who had not had access to the presentation of the Slides would be in no position to understand that Slides 6 and 12 in fact displayed Images One and Two respectively. [135] I have already accepted that the content of the Essays was not irrelevant to the DAC's decision. In that regard, and third, I also accept the DAC's analysis of the Essays. That is, there is no acknowledgment in that material that Ms Bell had used, in the case of Image One, or relied on and developed from, in the case of Image Two, the work of other authors. A reader of the Essays only would not have been aware of those matters. [136] The references in the bibliography and the Essays do not provide any relevant additional attribution of Image Three. [137] There is one further consideration to refer to. The DAC approached its consideration of Ms Bell's appeals on the basis that the absence of referencing in the submitted Digital File could be addressed by referencing in the Final Exegesis. Moreover, that approach was not inconsistent with the way in which Professor Bibby had communicated the first plagiarism allegation to Ms Bell. Notwithstanding that, both Associate Professor Crabbe (for example at paragraph 72(c) of his affidavit) and Associate Professor Brown, more generally, continued to emphasise the fact that the Digital File contained no references to the source material of Images One, Two and Three. Further, Associate Professor Brown also continued to assert that referencing in the Final Exegesis could not be a response to plagiarism in the Digital File. Ms Petty, at paragraph 23 of her affidavit, approached the issue on the same basis. In its submissions the University also placed emphasis on similar considerations. [138] In my view, and given the way the DAC proceeded, at the time of this proceeding those matters were no longer relevant considerations as regards a finding of plagiarism against Ms Bell. That is, and as I have found at [44], in my view implicit within the DAC's conclusion recorded at paragraph 25 of its decision is afinding that proper and appropriate referencing in the Final Exegesis would be an answer to the allegation of plagiarism as regards the Digital File. [139] In assessing the rationality of the DAC's findings of plagiarism, therefore, there is what I consider to be the reasonably clear attribution constituted by the "footnote" references at pages 24 and 40. These may be combined with – but not by my assessment nearly as convincingly as Mr Taylor argued – the images that appear in the appendix and the various references in the bibliography. At the same time, there is what I consider to be the relevant issue of the absence of referencing in the Essays. [140] Taken overall, I do not think it is correct for me as a matter of law to conclude that, by reference to the material contained in the Final Exegesis, the finding of plagiarism by the DAC is one that I should characterise as being so plainly irrational as to be wrong in law. In saying that I acknowledge that the DAC is an expert panel of academics who no doubt – whether as members of the DAC or otherwise – deal with the issue of plagiarism on an ongoing basis. [141] In reaching its conclusion the DAC had particular concerns about the significance of the way in which Ms Bell presented her design outcomes in the Essays. From Associate Professor Brown's point of view, that was an issue of central significance. Ms Petty expresses the same view in her independent, and expert, affidavit. [142] Associate Professor Brown and Ms Petty both opine that even if Images One, Two and Three had been referenced with appropriate footnotes supported by relevant bibliography references, the absence of an analysis by Ms Bell in the Exegesis of the way in which those sources had influenced her and how she had developed her materials based on them, would of itself result in her having plagiarised. [143] Thus at paragraph 85 of his affidavit, Associate Professor Brown expresses the view that "When a person copies or uses somebody else's work it needs to be clearly attributed, both through footnoting, discussion in the text, and in the bibliography".[144] During the course of his interactions with Professor Bibby and the DAC, Associate Professor Brown expressed similar views on a number of occasions: a) On 13 November 2008, in an email to Professor Bibby he stated:It is important to also add that, referenced or not, the design is still a copy of someone else's work and would not be acceptable as a submission. Brittany unequivocally presented this design to the critics as her own creation.b) The notes summarising a meeting on Wednesday 25 February between Associate Professor Brown and the DAC record Associate Professor Brown responding to the DAC as follows:In response to a question on the extent of the plagiarism Daniel stated that the images from the website were the work, it was not just a small part. Regarding these images, Daniel had two concerns (i) the fact that the images were not referenced but more importantly, (ii) even if they had been referenced there should also have been some discussion of them in the two written components of the exegesis. If [Ms Bell] was using the work of others, she should also have been challenging the work of the other designers in her essays. Students are expected to look at, respond to, and challenge precedents. The Course Outline has details about responding to research and precedents. The Course Outline also specifies that a bibliography and footnotes should be provided for every hand in.That note of the meeting is reflected in a transcript included in the materials provided to the Court. That transcript, at 408, has VOICE 2 – which I understand was accepted to have been Associate Professor Brown's – commenting that the most important point of her consciously passing off the material of others as her own was "never having talked about the sources in her essays". VOICE 3, which would appear to be a member of the DAC, appears at page 409 acknowledging the significance of that matter for the issue before the DAC.c) In a memorandum dated 30 April 2009 to Lynne Kelly, the Academic Policy Adviser, Associate Professor Brown expressed the following view: and [Ms Bell's] work is so closely identical to the work on both websites, that if these websites had been referenced, her work would in no way be considered original or her own.[145] At paragraph 32 in her affidavit of 18 May 2009, Ms Petty stated that the standard and accepted approach to "referencing another person's design, even where it is used as a precedent" is to use each of footnotes, inclusion of the source and original designer in the bibliography and, if it is being used as a precedent, discussion of the precedent and how and why it has been used in the Essays. Ms Petty had put the position thus at an earlier point in her affidavit (paragraph 27):It is not standard practice to use imagery or design from another designer without thoughtful, rational, and explanation about why this has occurred, and how the precedent relates to the student's own work or projects.The clear view expressed by Associate Professor Brown therefore, and one on which the DAC would certainly appear to have placed some weight, is that bibliographic and footnote referencing will not themselves be sufficient to avoid an allegation of plagiarism without there being narrative description in an exegesis or equivalent document. [146] This was also a matter emphasised by the University in its submissions. In addition to the matters noted above, the University drew the Court's attention to evidence from Associate Professor Brown as to conversations he had had with Ms Bell earlier on in ITDN412. At paragraph 52 of his affidavit Associate Professor Brown records a discussion he had had with Ms Bell relating to the way in which she was using, and acknowledging, designs from the architect Calatrava. As he put it:My written comments expressly warned her that creating a design that is virtually identical to a design by another architect is not taking a position, and that such an approach would not meet the objectives of the course.[147] I accept that it would be artificial to exclude a possible concern as to plagiarism, given Associate Professor Brown's remarks. However, it needs to be observed that – as referred to in his affidavit – the focus would appear to have been not so much on plagiarism, but on meeting the course requirement of "taking a position". I also note, moreover, that at paragraph 83(vi) of his affidavit Associate Professor Brown observes as follows:In the feedback I provided to Brittany Bell during 2008, I stressed the need for both footnotes and referring in the bibliography. An example is the comment "DKB5" on page 1 of DKB19 where I stated in respect of her work "You need to include a footnote and bibliographic reference to confirm where you found this information". It has never been sufficient in our course simply to include something in the bibliography, but not to reference it in the body of the document.In my judgment, there is more than a little tension between those comments and the approach referred to at [142], not as regards the substantive requirements of the course, but as regards the significance for the finding of plagiarism of the absence of discussion in the Final Exegesis. [148] Yet, in terms of plagiarism and in the only material provided to the Court on referencing, The Chicago Manual of Style Online, there was no mention of this type of requirement – namely explanation in an exegesis or similar document, in the context of plagiarism. The only relevant example given by that manual is as follows:3. Illustrations and Tables3.36 Crediting adapted materialAn author creating an illustration adjusted from, or using data from, another source should credit that source for reasons of professional courtesy and readers' information.[149] In all of this, therefore, I think the issue the University needs to consider carefully is whether Associate Professor Brown and Ms Petty are in fact correct where they say in effect that, in the context perhaps of architectural work in particular, footnote and bibliographic referencing will not be sufficient to avoid a charge of plagiarism, and that what is also required in circumstances such as this is discussion of developmental significance in an exegesis. [150] Although I think it appropriate for the University itself – through the DAC – to address that question, I observe that, given the University's definition of plagiarism, I would have thought that it was at least possible to conclude that appropriate footnoting and bibliographic referencing would be sufficient to avoid a finding of plagiarism. At least as I understand matters, it is not plagiarism to copy, but rather it is plagiarism to copy and not to attribute. In a course such as ITDN412 attributed copying will remain just that – copying. The product of such copying may well therefore not meet the substantive requirements of the course. The student would fail, but not because he or she had plagiarised.[151] My concern here, with respect to the DAC, is that the two questions of plagiarism and of unoriginal work – albeit attributed – may have been conflated. This concern arises from the very clear views expressed by Associate Professor Brown and Ms Petty, and the significance placed by the DAC on the absence of relevant discussion in the Essays which is clearly evident in the DAC's decision and the record of interactions between the DAC and Associate Professor Brown.Penalty and intentionality[152] The DAC upheld the decisions of each of Professors Bibby and Willis that the appropriate penalty for Ms Bell's plagiarism was the imposition of the fail "E" grade. At paragraphs 40 to 43 of its decision, the DAC explained its reasons for that conclusion. First, it considered that Ms Bell's conduct constituted serious misconduct "as the images, and in particular the interior cross-section drawing, had been presented as Ms Bell's own work". It noted that the range of penalties for serious misconduct was wide, including a period of suspension from the University. The DAC went on to note that there was an overlap between the range of remedies granted for serious misconduct, and for misconduct. It therefore considered what the appropriate outcome might have been if Ms Bell's conduct had been held to constitute misconduct only. In that context, it concluded that the awarding of a fail grade of "E" would still be appropriate. Its explanations for that conclusion were as follows:(i) First, even if the failure to appropriately reference was unintentional, it still amounts to plagiarism. The Student Conduct Statute (clause 4.2(g)(iii)) makes it clear that presenting the work of another person as if it were one's own is regarded as plagiarism, whether this was intended or not. (ii) Secondly, the inappropriate lack of referencing in this case occurred not only in the pdf files, and the digital file – it remained in the final exegesis; (iii) Thirdly, Ms Bell was a final year student at the time. She was an experienced student, and could reasonably be expected to comply with the requirement not to present the work of others without appropriate referencing. (iv) Fourthly, if as Ms Bell contends, the Stage 3 Course Outline had not been readily available to students, the Committee agreed that any uncertainty regarding the submission requirements for the course did not have a bearing on the outcome of the appeal, given that each of the pdfs, the digital file submitted to the R drive and the final exegesis failed to appropriately attribute the images in question.[153] The reference at paragraph (i) above to "even if the failure to appropriately reference was unintentional" is the only reference in the DAC's decision to the question of whether or not Ms Bell's plagiarism was intentional or otherwise. As noted, plagiarism is defined by the University objectively, and intentionality is not a necessary element. [154] Ms Bell challenged the penalty imposed on the basis that the DAC had not, at any time, given her notice that it was considering finding that she had intentionally plagiarised. Moreover, the DAC gave insufficient or no reasons for that finding and, as with the DAC's finding of plagiarism generally, its conclusion was one that no reasonable decision-maker could reach. [155] It is not clear from the DAC's decision itself that the DAC did find that Ms Bell's plagiarism was intentional. As noted, the only reference to the question of intentionality is in the discussion of what the penalty might have been if Ms Bell's conduct had been categorised as misconduct, as opposed to serious misconduct. There, the possibility that the DAC considered Ms Bell's plagiarism may have been intentional is reflected in the reference "even if the failure to appropriately reference was unintentional". Having said that, Associate Professor Crabbe in his affidavit made clear what is not clear on the face of the DAC decision. He stated: the DAC considered Ms Bell's conduct amounted to serious misconduct, including that she deliberately presented images as her own, when they were designed by others.[156] At a number of places in his affidavit, Associate Professor Crabbe identifies two reasons in particular for that finding: that is, and as set out at paragraph 72(a), Ms Bell's "approach to these two designers involved a complete lack of discussion in any of her essays; and a very different approach to attribution when contrasted to her approach on pages 12 and 14 of BKB44". The latter refers to the different referencing of the Greg Lynn Studio and Sarah Schneider Images to that used in the references at pages 12 and 14 of the Final Exegesis to source materials involving the architect Calatrava (that is, the absence in the former of words equivalent to the words "developed from working drawings of Calatrava's airport project in Lyon, France"). The University, in its submissions, also referred to other footnote references in the Final Exegesis, for example at pages 48, 52, 58 and 60 where similar words are used, in conjunction with footnote type references.[157] I comment firstly that I do not think the DAC can respond – as it has on this point through Associate Professor Crabbe's affidavit – to a challenge to a lack of reasons for a written decision by supplementing its written decision with reasons not explicitly contained therein, nor able to be discerned by reasonable inference. I accept that, by reference to the record of the DAC's interactions with Associate Professor Brown and Ms Bell and the earlier record of the decisions reached by Professors Bibby and Willis, the matters that Associate Professor Crabbe refers to would appear to have been matters relevant to the DAC's overall findings of plagiarism and therefore, no doubt, to the conclusion communicated by Associate Professor Crabbe as to intentionality. I do not think it can be said, however, that those matters are reasons recorded by the DAC in its decision. [158] As I note at [78], I am reluctant to make findings in these proceedings that would overly legalise the procedures before the DAC and its decision-making processes. Having said that, if the DAC did reach a finding of intentionality as regards Ms Bell's plagiarism (as Associate Professor Crabbe indicates was the case), then there are no reasons for that finding set out in its decision. I have already discussed, at [75] and [76], the existence and significance of the duty the DAC has to provide reasons for its decisions. [159] Here, a finding of intentional plagiarism is relevant both to penalty and to the finding of plagiarism itself. Moreover, I think a finding of intentional plagiarism is more serious, in terms of culpability, than a finding of objective, but unintentional, plagiarism. The finding of intentional plagiarism involves – in effect – a finding of an intention to deceive. I therefore think that reasons were required for that part of the DAC's decision. The DAC failed to provide those reasons, perhaps because it failed to explicitly articulate its finding of intentionality. I think that here the failure to provide reasons does constitute reviewable error. [160] Mr Taylor also submitted that Ms Bell was not put on notice that the DAC was considering finding that the plagiarism was intentional. She therefore did not have an opportunity to put forwards submissions or evidence to prove a lack of intention. I note, in this context, that neither of Professors Bibby or Willis had recorded a finding of intentional plagiarism.[161] Mr Corkill submits that the conclusion that there was an intention to deceive stemmed from the magnitude of the breach. The degree of the breach in question was a matter that was always before the DAC, and therefore Ms Bell had an opportunity to respond to it. [162] The leading case in New Zealand in this area is Re Erebus Royal Commission; Air New Zealand Ltd v Mahon. 13 The facts of the case are well known. Judicial review was brought against passages of the Royal Commission report on the Erebus disaster. The passages concerned concluded that some of the witnesses before the Commission had engaged in a "pre-determined plan of deception" and that the Commission had heard "an orchestrated litany of lies". The various allegations the Judge found against the witnesses included perjury and destruction of relevant documents. The Court of Appeal, on the judicial review application, found that the allegations in question had not been put to the people concerned, and that this had amounted to a breach of natural justice. [163] The rule of natural justice as stated by the Privy Council in the Erebus case was: 14That [the decision-maker] must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made. ... [That rule] required that any person represented at the inquiry who will be adversely affected by the decision so make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional evidence of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.[164] Judicial review was therefore granted on the basis that there had been a breach of natural justice as relevant witnesses had not been made aware that such findings might be made against them. Judicial review was also allowed on the ground that the evidence did not support the findings that the Judge made.13 Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662 (PC).14 At 671.[165] These principles have been considered in a number of cases since. In Khalon v Attorney-General the claim for judicial review was based in part on failure to give adequate notice that the Refugee Status Appeal Authority might find against the plaintiff on the grounds of credibility. 15 That ground of appeal was dismissed on the facts as credibility had clearly been a major issue at the hearing. However, the following comments were made as to the duty to put allegations before the person they relate to: 16There is a single underlying principle which I believe emerges from both the decisions and the policy which underlies them: a party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted. The converse will generally be true if the risk of an adverse finding was always foreseeable, particularly if the challenge to the finding relates to the way in which the tribunal had exercised a value judgment rather than the completeness of the material which had been placed before the tribunal. The key elements are surprise and potential prejudice. If an adverse finding is foreseeable there is no surprise. Even where there is surprise, there could be no prejudice unless better notice might have allowed the affected party to do something about it. Those principles seem applicable whether the hearing is adversarial or inquisitorial.[166] Those comments have been considered by a number of cases, and were cited with approval in Ali v Deportation Review Tribunal. 17[167] Applying those principles to this case, the DAC did not put to Ms Bell that it was considering finding that the plagiarism was intentional. The question then becomes whether such a finding was a surprise, and whether it caused Ms Bell prejudice. As to surprise, the intentionality of the plagiarism was not referred to in either of the first instance decisions that were appealed from to the DAC. Nor does it seem to have been addressed before the DAC in any of the substantial communications with Ms Bell. On that basis, I am of the opinion that a finding that the plagiarism was intentional would have come as a surprise to Ms Bell. [168] As to prejudice, this point has caused me more difficulty. On the one hand, Ms Bell's argument was that she had not plagiarised at all. The same submissions that she relied on in arguing that she had not plagiarised at all would have applied to15 Khalon v Attorney-General [1996] 1 NZLR 458 (HC).16 At 466.17 Ali v Deportation Review Tribunal [1997] NZAR 208 (HC).an argument that she had not intentionally plagiarised. Presumably her argument against the intentionality of any plagiarism would have been that advanced by Mr Taylor at the hearing, namely why would she have included any references in the Final Exegesis at all if she had intended to present the offending images as her own? In that respect, she would have been relying on the same evidence to establish that any plagiarism was unintentional as she was to show that there was no plagiarism. That evidence was the Final Exegesis, and that was before the DAC already. [169] On the other hand, Ms Bell did not have the opportunity to make that argument to the DAC. She did not have the chance to make the argument, as Mr Taylor made it in Court, by taking the DAC to all the relevant parts of the Final Exegesis and showing how they proved a lack of intention to present the work as her own. Nor did she have the chance to explicitly state that, even if there was plagiarism, it was unintentional. In light of those considerations and the absence of reasons in the DAC's decision, I am of the opinion that there was prejudice to Ms Bell. [170] Therefore the DAC's failure to inform Ms Bell of the possibility of a finding of intentional plagiarism breached Ms Bell's natural justice rights. [171] The final matter to be considered here is whether the finding of intentional plagiarism was unreasonable. Mr Taylor argued that it was inconceivable that a person intending to present someone's work as his or her own would put citations for the works on the pages opposite to the works in question. Regardless of whether what Ms Bell did amounted to plagiarism, it was irrational to conclude that she did so with an intention to deceive. [172] As set out above at [155], there are no reasons given in the decision itself for the DAC's conclusion that the plagiarism was intentional. Associate Professor Crabbe in his affidavit suggests that in reaching that conclusion the DAC was influenced by the absence of discussion in the Essays and the different approach taken by Ms Bell to the attribution of the Calatrava images. In its submissions, the University also referred to Associate Professor Brown's evidence that Ms Bell had told him that Images One and Two were hers.[173] As I have noted at [122], the Wednesbury standard of reasonableness is a demanding one. Moreover, and of some significance, it is not clear, on the face of the DAC's decision, what was the basis upon which the DAC had made the significant finding of intentional plagiarism. Making such a finding necessarily involves making relevant findings of fact, and then drawing in a reasoned way, having regard to the significance of such a finding, the conclusion or inference of subjective intentionality. [174] In my view, and in the absence of that analysis on the face of the DAC's decision, the appropriate relief is to refer this aspect of the DAC's decision – if that is what it was – back to the DAC for further consideration. [175] Having said that, I think there are a number of matters – at least on the record as I have perused it - which the DAC will need to give further consideration to. [176] First, and as noted, I think it is incumbent on the DAC in this regard to identify the findings of fact on which, if it does so, it would base a conclusion of intentional plagiarism. There are, in this regard, important conflicts of evidence between Associate Professor Brown and Ms Bell, for example as to whether or not Ms Bell told Associate Professor Brown that the Images were her own (as he states in his affidavit), or whether she had in fact told him that she was using the Greg Lynn Studio and the Sarah Schneider Images, as she stated on several occasions in her evidence. [177] Further, there are a number of factors that in my view point against a finding of a subject intention to plagiarise. [178] The first is the progression of reference material within the various versions of the Exegesis. The first Exegesis, submitted on 4 November, contained no bibliography. It also contained few, if any, references. Those that were included were incomplete. For example, the image on page 15 was influenced by Calatrava. In the Exegesis of 4 November, the following was contained on page 14, which faced the image in question:Initial wing structure and main spine of structure. Developed from working drawings of Calatrava's airport project in Lyon, France.Each extension limb is able to move in to directions at a 90 degree angle Can work electronically but can also work passively in event of ecological disaster.[179] In the Final Exegesis the following had been added:Anthony Tischhauser, StanislausVon Moos, Quim Nolla, Calatrava: Public Buildings (Basel: Birkhauser, 1998) p Alexander Tzonis, Santiago Calatrava: The Complete Works (Rizzoli, 2007) p[180] Similarly, in respect of Image Two, which appears on page 25 of the 4 and 6 November versions of the Exegesis, the following was located opposite that image:Main intervention as seen from exterior. It acts as a life giving plant that has grown into the hillside. The arch exists from an ancient stream, now gone.[181] However, in the Final Exegesis, the following had been added below that:Sucker Punch Daily "Sarah Schneider" http://suckerpunchdaily.com/sarah.html[182] The same occurred in respect of Image One, as depicted on page 41 of the Final Exegesis. The footnote reference was not added until the Final Exegesis. [183] Similar observations can be made in respect of the bibliography. The 4 November Exegesis contained no bibliography at all. The 6 November Exegesis contained a one page bibliography that cited one book, two films and five websites. None of the websites were those that are concerned in this case. The Final Exegesis, on the other hand, contained a bibliography running to six pages. The bibliography contains references to the websites on which Images One and Two appear. In respect of the Digital File, there are specific references to the website on which Ms Bell found the Sarah Schneider Image. A reference to the website from which Image One was taken is found under the heading "These include images used in presentation boards and powerpoint", as was a second reference to the website on which the Sarah Schneider Image was found. Those two website references were also put into the general "websites" section of the bibliography. References to both the relevant websites were therefore added into the Final Exegesis. Also added to the Final Exegesis was the appendix, which set out all the images in their original form, and included a reference to suckerpunchdaily.com, but not to Sarah Schneider.[184] In my view, this progression of referencing in the various versions of the Exegesis, that is the adding of relevant references – whether or not sufficient to negate actual plagiarism – counts against an intention to plagiarise. [185] The second and closely related factor that I consider relevant is the footnote references themselves. The references were on the pages preceding the images to which they related. While there could be some argument that it was not clear whether they related to images or text, that argument is more difficult to make in relation to the intention with which they were put there. Ms Bell knew that those website references related to the images on the following pages. It seems to be a reasonably persuasive argument, therefore, that the purpose for which those references were put there was to reference those images. That argument also counts against a finding that any plagiarism was intentional. At the same time, I accept the possible counter significance of the absence of words to the effect of "developed from working drawings of Calatrava's airport project in Leon, France". [186] The third and final factor which the DAC will need to consider is the significance – on intentionality – of the references in the bibliography, specifically those that relate to the powerpoint slides. Image One appeared on Slide 6. In the bibliography of the Final Exegesis, under the heading "Power Point (Slide Six)" is a reference to the Greg Lynn Studio website where Image One can be found. Similarly, Image Two appeared on Slide 12. In the bibliography under the heading "Power Point (Slide Twelve)" there is a reference to the sucker punch daily website where the Sarah Schneider Image could be found. Ms Bell knew that the images on Slides 6 and 12 were Images One and Two respectively, and with that knowledge included those references in the Final Exegesis. That is also a factor which, in my view, counts against an intention to plagiarise. [187] I acknowledge the evidence that possibly supports a finding of intentionality includes the fact that there is no discussion of the use of any of Images One, Two or Three in the Essays. Ms Bell, however, gives an explanation for this. In her affidavit she states:The DAC questioned me on why I had not discussed my use of Sarah Schneider images in the commentaries in my exegesis. I explained to them that both the Position Statement and Thematic Statement had already been submitted for grading earlier on. It was subsequent to this thatDaniel Brown, on 6 October, told me to look further into cellular (that is, organic plant-like) buildings. I told the DAC that the Sarah Schneider images had an aesthetic appeal to me as the building's exterior design was based on a growing cytoskeleton that fitted my idea of a growing plant.[188] Therefore, Ms Bell's decision not to update the Essays was, according to her, based on her view that they had already been marked, and therefore were not required to be updated, and that the Sarah Schneider Image was an aesthetic influence only, and therefore would not be appropriately discussed in the Essays as it did not have a theoretical influence on her work. Similarly in respect of Image One, Ms Bell states that it did not influence her theoretical stance and therefore it would not have been appropriate to discuss it in the Essays. [189] Ms Bell may well have been wrong as to whether the Essays required updating and as to what influences were appropriately discussed in the Essays. However, the fact that she might be wrong on those questions does not mean that she intentionally plagiarised the material in question. Her explanation appears to be at least a plausible response to the issue of the lack of discussion in the Essays. Although Associate Professor Crabbe does note, at paragraph 81(iii) of his affidavit, that the DAC was able to consider the plausibility of Ms Bell's explanations for the absence of any mention at all of either of Sarah Schneider or Greg Lynn Studios in her Essays, the DAC did not make a finding that it did not consider her explanation to be truthful. The only actual finding of credibility by the DAC was that, as opposed to Professor Bibby, the DAC accepted Ms Bell's statement that she had continued to work on her exegesis until the morning of 7 November. This is a further area where appropriate findings of fact are called for. [190] I therefore remit to the DAC for reconsideration by it in light of its decision, its findings as to penalty, including the issue of whether or not Ms Bell intentionally plagiarised, if the University's conclusion is, on reconsideration, that she did in fact plagiarise.Cross-examination of Associate Professor Brown[191] Ms Bell challenged the way in which the DAC treated Associate Professor Brown as a witness. The central submission was that Mr MacDonald, on behalf of Ms Bell, should have had the opportunity to cross-examine Associate ProfessorBrown before the DAC. A related submission was that, even if that should not have occurred, Associate Professor Brown should have been questioned in the same manner that Ms Bell was, ie by a lawyer on behalf of the University. [192] Mr Taylor cited Bushell v Secretary of State for the Environment in support of the proposition that fairness requires "that a party be given an opportunity of challenging by cross-examination witnesses called by another party". 18 Bushell was a case of judicial review of a decision by the Minister to build a motorway. In that case, opposers to the motorway had not been able to cross-examine experts as to the methodology used to predict future road use and the ability of the current roads to withstand any increase in road use. The situation was therefore far from that currently before the Court, but I note that in that case the failure to provide for cross- examination was held by the House of Lords not to breach the rights of natural justice. [193] For the University, Mr Corkill QC submitted that the DAC was an inquisitorial rather than an adversarial body. 19 In those circumstances, the transparency of the process adopted by the DAC (primarily in making all records available to Ms Bell and giving her an opportunity to comment on them) satisfied the requirements of natural justice. [194] Given the conclusions I have already reached, I do not think it is necessary to discuss this matter in any great detail. [195] Here, given that there were factual issues in dispute, there was a need to test veracity and recall. In my view, the question becomes whether Ms Bell was provided an effective means of controverting the adverse testimony of Associate Professor Brown. One possible alternative to cross-examination is the "opportunity to comment on adverse testimony and the submission of rebuttal evidence".20[196] That was exactly what happened in this case. Although Ms Bell was not able (through her counsel) to cross-examine Associate Professor Brown, or have18 Bushell v Secretary of State for the Environment [1981] AC 75 (HL) at 116.19 Relying on Spivey v University of Canterbury (1987) 7 NZAR 175 (HC).20 Flick Natural Justice: Principles and Practical Application, (2 nd ed, Butterworths, Melbourne, 1979) at 86.questions put to him by the DAC, she was provided with notes of the meeting that the DAC had with Associate Professor Brown and the answers to questions the DAC asked Associate Professor Brown. She was given the opportunity to comment in writing on both of those, and she made the most of that opportunity. In those circumstances, where she was able to comment effectively on all adverse evidence of Associate Professor Brown, I am not willing to hold that there has been a breach of natural justice.Relief[197] As regards Ms Bell's challenge to the finding of plagiarism, therefore, I have not found that the decision the DAC reached that Ms Bell had plagiarised was unreasonable. I have also found that the DAC did not stray from the charges laid, take into account irrelevant matters or fail to give sufficient reasons for its conclusion. Nor did it err in not providing an opportunity for Associate Professor Brown to be cross-examined. I have found, however, that the DAC failed to take into account relevant matters. [198] In terms of Ms Bell's challenge to the penalty imposed, I have found that the DAC did not give sufficient reasons for the conclusion that the plagiarism was intentional. Further, the DAC did not put the allegation of intentional plagiarism to Ms Bell and thereby breached her right to natural justice. [199] On that basis, I consider that the appropriate remedy is to quash the DAC's decisions on Ms Bell's two appeals and remit those decisions to the DAC for reconsideration in light of this judgment.Costs[200] As requested by both Ms Bell and the University at the hearing, I reserve the question of costs. If that matter cannot be resolved between the parties, submissions may be filed. [201] I make some final comments. This matter has already involved considerable time, effort and resources for each of Ms Bell and the University. I accept that mydecision may frustrate both, as it necessarily prolongs that process. At the same time, and given the narrower range of issues on which Mr Taylor, for Ms Bell, focussed at the hearing of this judicial review application – relative to the far wider range of issues that at various times have been raised between the parties – I would hope that it may be possible for the parties to resolve this matter without the need for a further extensive hearing by the DAC. I appreciate that issues of principle are involved. At the same time, a measure of pragmatism by all involved may help produce a satisfactory outcome."Clifford J"APPENDIX1. Image One 2. Greg Lynn Studio Image 3. Image Two 4. Sarah Schneider Image1. Image One.BELL V VICTORIA UNIVERSITY OF WELLINGTON HC WN CIV-2009-485-002634 8 December 20102. Greg Lynn Studio Image3. Image Two4. Sarah Schneider Image