Reading List - Academic Decisions; Privileges; Review

[A] "All the rights and privileges pertaining thereto": University Degrees

• Pearl Kibre, Scholarly Privileges in the Middle Ages: The Rights, Privileges, and Immunities of Scholars and Universities at Bologna, Padua, Paris, and Oxford (Mediaeval Academy of America, 1962). 

• Pearl Kibre, The Nations in Mediaeval Universities (Mediaeval Academy of America, 1948) <https://archive.org/details/nationsinmediaev0000kibr/page/n5/mode/2up>. 

• Hastings Rashdall, The Universities of Europe in the Middle Ages (Cambridge University Press, 1895) <https://doi.org/10.1017/CBO9780511722301>. 

• Sunagainstgold, Reddit <https://www.reddit.com/r/AskHistorians/comments/459h5n/my_diploma_refers_to_the_rights_responsibilities/?rdt=41183>: "... The modern university system in the West is born in the 12th-13th century, out of the so-called "cathedral schools." Not at all coincidentally, this is the era of a massive revival of interest in written law, both civil and canon (secular and Church); and the bureaucratization of governments (which includes the Church). The basic goal of these early universities is to train preachers for the laity and clerks to staff bureaucracies. Per medieval law, a "privilegium" is a private law, which means a law that applies only to one person or group as opposed to all of society. In 1158, Holy Roman Emperor Frederick Barbarossa stuffed a privilegium entitled Authentica Habita into an otherwise-unrelated council decree. Habita granted safe conduct to scholars traveling throughout the HRE for the purposes of study (which includes part of Italy during this time). It also granted scholars the right to be tried for alleged crimes by a judge of their own choice, rather than automatically subject to the civil jurisdiction of the town that accused them. This was important for the scholars because the 12th century was rather much an era of petty violence, and traveling scholars might well find themselves kidnapped and held hostage by one lord or town to extract payment or leverage from another lord. It was important for Frederick because among his closest counselors were legal scholars from the Bologna schools--who had written effusively in support of his imperial claims. Just as Frederick's legal scholars built on Roman law traditions when they shaped the scholarly privilegium of the Habita, other principalities in Europe would build on that decree to extend their own protections to scholars. This movement from secular law coincided neatly with an unshakeable principle of medieval higher education. Thanks to the roots of the university system in cathedral schools and ongoing ties between the universities and the Church, students (and by extension, teachers) were necessarily minor clerics. The privilegia offered to clergy were theirs, especially the right to be tried in an ecclesiastical rather than civic court for any crimes. Well, concentrate a group of adolescents into one place and you're going to end up with shenanigans, right? From 1200 on, there is an escalating trail of sources detailing "town-gown" friction in the Middle Ages. Tavern brawls, riots, murders, landlords that make the Thenardiers look like the Holiday Inn. Increasingly, legal scholars interpreted and reinterpreted Habita and its sister privilegia to cover more and more legal territory. Statutes proliferated. Civic authorities who arrested students in 1210 Paris, for example, had to make sure they were kept in a nice jail. In 1265 England, Oxford students were exempt from jury duty. 13th-14th century legal scholars tried very hard to blanket Europe with statutes asserting that scholars did not have to pay taxes. By 1500, burning down the residence of a scholar was considered not just arson but sacrilege, because of the holy books he was assumed to possess. Why would Philip IV, desperate for funds to support his campaign in Flanders, free France's intellectual community from paying the war tax? Well, again, the people advising Philip down this path were scholars and university graduates themselves. Additionally, though, privileges to universities and their corporate body (students and teachers) actually played a role in intranational politics. It was a chance for king/emperor and arch/diocesan Church (arch/bishop-level) to assert their authority over local government (town and parish). Of course the high-minded explanation offered was the need for scholars to devote themselves to study. And while we can appreciate the more romantic tinges of this notion, there is a practical core: the faster students get through university, the more clerks are available to staff princely courts, the more preachers can get out in the field to fight heretics and save souls--increasing, respectively, civic and ecclesiastical authority and power. The university degree, or rather degrees, themselves awarded additional privileges. Most importantly for the universities themselves, the ability to teach at various levels. However, it was a fairly regular occurrence in the Middle Ages to complete most of an education without paying the hefty additional fee to receive the degree. It was a question of whether the student needed the credential (for example, to continue education in one of the higher faculties of law, medicine, or theology) versus what he (always he in the Middle Ages) could afford. From around 1500 or so, however, civic governments exercised increasing control of universities as the Church's iron control fluctuated. Local nobles sat in judgment of internal university disputes, as in Ingolstadt (in Bavaria). Growing attention to public order meant the excesses of students that earlier privilegia had protected needed to be brought under control. The rights, responsibilities, privileges, and immunities of the Middle Ages were gradually etched away."

• University of Cambridge, Statutes and Ordinances: <https://www.admin.cam.ac.uk/univ/so/>.

• University of Western Australia, Statutes, Regulations and Rules: <https://www.uwa.edu.au/about/leadership-and-governance/governance/university-legislation>. 

• Stephen R Briggs, 'Rights, Privileges and Obligations' (2008) Berry <https://www.berry.edu/about/_assets/2008Spring_RightsPrivilegesandObligations.pdf>, archived at <https://perma.cc/8KRK-JQFT>. 

[B] Adverse Academic Decisions affecting course progress

• “Blossom Lawyers represents students – predominantly university students – in issues or claims that take place in the education setting. Matters may include bullying, discrimination, negotiating reasonable adjustments, suspensions, exclusions, procedural unfairness, and contract and consumer matters. Importantly, we help students with regard to adverse academic decisions affecting course progression.”: ‘Education Law’ (Blossom Lawyers, Webpage) <https://www.blossomlawyers.com.au/services/education-law/>, archived at <https://archive.is/DB7K7>.

> Holly Mylne, ‘Review of Assessment: What is it and what to keep in mind when requesting it’ (Blossom Lawyers, 21 December 2023) <https://www.blossomlawyers.com.au/review-of-assessment/>, archived at <https://archive.is/MyVs1>.  

> Holly Mylne, ‘Academic Misconduct Guide for Students’ (Blossom Lawyers, 16 November 2023) <https://www.blossomlawyers.com.au/academic-misconduct-guide-for-students/>, archived at <https://archive.is/jb9SS>.  

> Holly Mylne, ‘Caution for Students Using Artificial Intelligence’ (Blossom Lawyers, 16 November 2023) <https://www.blossomlawyers.com.au/students-using-artificial-intelligence/>, archived at <https://archive.md/mLlMW>.   

> Holly Mylne, ‘Education Law Avenues For University Students’ (Blossom Lawyers, 11 April 2020) <https://www.blossomlawyers.com.au/education-law-avenues-for-university-students/>, archived at <https://archive.md/iqstr>. 

> ‘University Students’ (Blossom Lawyers, Webpage) <https://www.blossomlawyers.com.au/services/education-law/university-students/>, archived at <https://archive.is/BDzxU>.  

> Hove v University of Western Australia [2024] WASCA 37.

> Jenny Edinger, ‘Dental Student wins Appeal against University’s Decision to Exclude from Clinical Units’ (Panetta McGrath, 9 May 2024) <https://www.pmlawyers.com.au/blog/2024/05/health-blog/dental-student-wins-appeal-against-universitys-decision-to-exclude-from-clinical-units/>.

> 'Q and A: Holly Mylne - "I've found that business often grows when i delegate because it frees up my time for more of the money-generating work' (2021) Nov Australian Law Management Journal 1 <https://search.informit.org/doi/abs/10.3316/informit.188001012431556>; <https://www.lmhub.com.au/article/qa-holly-mylne--ive-found-that-business-often-grows-when-i-delegate-because-it-frees-up-my-time-for-more-of-the-moneygenerating-work>, archived at <https://archive.is/Aqb5m>; <https://lawcouncil.au/lmhubfiles/articles/ALMJ-November2021-HollyMylne-PDF.pdf>. 

> Legal Awards 2022 <https://legalawards.lawyer-monthly.com/editions/2022/166/>, archived at <https://archive.is/7LAYs>. 

• Patty Kamvounias and Sally Varnham, ‘Legal Challenges to University Decisions Affecting Students in Australian Courts and Tribunals’ (2010) 34(1) Melbourne University Law Review 140 <https://classic.austlii.edu.au/au/journals/MelbULawRw/2010/5.html>; <https://law.unimelb.edu.au/__data/assets/pdf_file/0005/1703588/34_1_5.pdf>. – see cited case Ivins v Griffith University [2001] QCA 393.

• Duncan Lawyers, 'University complaints, reviews and appeals' (Newsletter, Sept 2021) <https://static1.squarespace.com/static/5b2ae0f2372b965e611a8290/t/6139889f1761ae6e231f50a6/1631160545461/Newsletter_September_2021.pdf>, archived at <https://web.archive.org/web/20251206011304/https://static1.squarespace.com/static/5b2ae0f2372b965e611a8290/t/6139889f1761ae6e231f50a6/1631160545461/Newsletter_September_2021.pdf>. 

• 'Academic Appeals - Non Academic Appeals - Higher Education Lawyers' (RT Coopers) <https://www.rtcoopers.com/testimonials_educationlaw.php>. 

• Mark Thomas, 'Admission as a Lawyer: The Fearful Spectre of Academic Misconduct' (2013) 7(1) QUT Law Review 73 <https://lr.law.qut.edu.au/article/view/534/502/view.html>. 

• Bruce Lindsay, 'Student Plagiarism in Universities: The Scope of Disciplinary Rules and the Question of Evidentiary Standards' (2011) 16(1) International Journal of Law & Education 27 <https://www.austlii.edu.au/au/journals/IntJlLawEdu/2011/3.pdf>. 

• Tom Fletcher (MinterEllison) <https://www.minterellison.com/people/tom-fletcher>. 

• Harriet Eager (MinterEllison) <https://www.minterellison.com/people/harriet-eager>. 

• ‘Education Law’ (TIA Lawyers, Webpage) <https://tia.com.au/education-law/>, archived at <https://archive.is/tCIwa>. 

• ‘Education Law’ (Aitken Wilson Lawyers, Webpage) <https://www.aitkenwilson.com.au/lawyers-education-law.html>, archived at <https://archive.is/RBVL7> . 

• ‘Expert Legal Support for Vocational and Higher Education Institutions’ (Denison Toyer, Webpage) <https://denisontoyer.com/educationlaw/>, archived at <https://archive.is/Fetrq>. 

[B.A] Matters of Academic Merit; Academic Judgment & Judicial Review

• “[24]  The plaintiff relies upon two grounds for judicial review of the “decisions“. Although, the plaintiff refers to these as “decisions“, the final result regarding her grade for PREX 902 is still in limbo, as it is presently RU. In these circumstances, it is debateable whether the final result is a decision. Firstly, the plaintiff submitted that there was a breach of the principles of natural justice; and secondly, that the making of the “decisions“ were an improper exercise of power that failed to take into account a relevant consideration. The plaintiff also submitted that the power was exercised in such a way as to constitute an abuse of power. [25]  UNE submitted that the plaintiff was given the opportunity to have the matter internally reviewed at several levels. More importantly, it was submitted that this court has no power to grant an order in the nature of mandamus or other order compelling UNE to make a particular decision on the merits regarding a grade that it gave to the plaintiff, because questions of academic judgment are not justiciable. In support of that proposition UNE relied upon the decisions of Norrie v Senate of the University of Auckland [1984] 1 NZLR 129 at 134; Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at 1992 and 1996; and Mathews v University of Queensland [2002] FCA 414 at [17] to [27]. 26]  Further, UNE submitted that should the amended summons identify a justiciable decision and a ground of review, the plaintiff’s summary of argument impermissibly invites the court to review the merits of the decision to grade the plaintiff’s report as unsatisfactory. In support of this proposition it referred to the decisions of Hanna v University of New England [2006] NSWSC 122 at [66] and Walsh v University of Technology, Sydney [2007] FCA 880 and Walsh v University of Technology [2007] FCA 1308. [27]  The starting point is Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335, where Davies J stated at [26]: [26]… Disputes between students and establishments of learning are ordinarily unsuitable for adjudication in the courts and ought to be resolved by internal procedures: Clark v University of Lincolnshire and Cumberside [2000] 1 WLR 1988 at [12] and [30]–[31], seemingly approved in Griffith University v Tang (2005) 221 CLR 99 at [58] and [165]; and see also Walsh v University of Technology, Sydney [2007] FCA 880 at [71]–[80]. [28]  I shall refer to only one other decision and that is Walsh v University of Technology, Sydney [2007] FCA 880. The brief facts are that Mr Walsh was a student at UTS, enrolled for the degree of Master of Education. He was required to satisfactorily complete eight subjects. He failed one of the subjects, Enhancing Learning Environments with Educational Technology. The assessment of that subject involved four assignments and Mr Walsh passed only one assignment. Mr Walsh sought judicial review, seeking passes for the three failed assignments, which would result in him then being able to pass the subject. He claimed relief under various provisions of the Trade Practices Act 1974 (Cth). Mr Walsh did not rely on any cause of action under contract law, torts or administrative law. UTS brought an application for summary judgment, seeking to have Mr Walsh’s statement of claim struck out for failure to comply with requirements for pleadings. At [70], Buchanan J stated that Mr Walsh’s case, both factually and legally, depended “upon the suggestion that the court can both directly and effectively substitute an opinion for that of UTS and require a different result to be awarded.“ [29]  Buchanan J provided a useful outline of the leading cases in this area. At [72] to [80] in Walsh, his Honour stated: [72]In Griffith University v Tang (2005) 221 CLR 99 the High Court considered whether a decision to exclude a PHD student from its programmes was reviewable under the Judicial Review Act 1991 (Qld). It decided by majority that it was not. The university had acted in the exercise of a general discretion deriving from its activities generally as a university pursuant to the functions and general powers granted by its enabling Act which included setting academic standards. [73]Gleeson CJ said (at [15]): The functions of the appellant include providing education, providing facilities for study and research, and conferring higher education awards. Its powers include the power to do anything necessary or convenient in connection with its functions. Subject to any other legal constraint, it may establish a PhD research programme, and decide who will participate in the programme and on what terms and conditions. [74]Similarly in the present case, and the contrary was not argued, it was open to UTS to establish the course of study in which Mr Walsh enrolled and set the requirements to be satisfied, including the academic standard to be achieved as demonstrated by assignments or other coursework. Decisions about such matters are inherently unsuited to judicial review. [75]Gummow, Callinan and Heydon JJ referred to this at [58], although like Gleeson CJ they decided the case on other grounds. They said: Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside. The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, “jejune and inappropriate“. [76]Kirby J dissented on the question of reviewability of the particular decision to exclude Ms Tang from the PhD programme. However, he drew a distinction between disciplinary decisions and matters of academic judgment. He said (at [165]–[166]): [165]The special position of universities: I recognise that universities are in many ways peculiar public institutions. They have special responsibilities, as the University Act envisages in this case, to uphold high academic standards about which members of the academic staff will often be more cognisant than judges. There are issues pertaining to the intimate life of every independent academic institution that, sensibly, courts decline to review: the marking of an examination paper; the academic merit of a thesis; the viability of a research project; the award of academic tenure; and internal budgets. Others might be added: the contents of a course; particular styles of teaching; and the organisation of course timetables. As Sedley LJ noted in Clark v University of Lincolnshire and Humberside, such matters are “unsuitable for adjudication in the courts … because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate“. Judges are well aware of such peculiarities. The law, in common law countries, has consistently respected them and fashioned its remedies accordingly. [166]However, as Maurice Kay J explained in R v University of Cambridge; Ex parte Persaud (a recent English case similar to the present appeal), it is entirely “correct“ of courts “to distinguish between the disciplinary type of case and the situation where what is in issue is pure academic judgment“. In the present appeal, the respondent’s claim fell squarely within the former class. Academic judgment is one thing. But where an individual who has the requisite interest is affected by disciplinary decisions of an administrative nature made by a university body acting according to its powers under a statute, outside the few categories peculiar to “pure academic judgment“, such decisions are susceptible to judicial review. They are so elsewhere. They should likewise be so in Australia. An appeal to “academic judgment“ does not smother the duties of a university, like any other statutory body, to exhibit, in such cases, the basic requirements of procedural fairness implicit in their creation by public statute and receipt of public funds from the pockets of the people. [77]The present case does not raise disciplinary issues. It raises questions of academic assessment and judgment. [78]The English case cited by Gummow, Callinan and Heydon JJ and by Kirby J, Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, concerned an action in contract, brought by a student against a university, which was initially struck out. The Court of Appeal, although allowing the student to replead to raise conventional allegations of breach of contract (a circumstance which does not arise in the present case) approved the summary rejection of the “claim as originally pleaded [which] had travelled deep into the field of academic judgment“ (at p 1988). The leading judgment was given by Sedley LJ He said (at p 1992): … there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class. It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified. [79]Lord Woolf MR said (at p 1996): The court, for reasons which have been explained, will not involve itself with issues that involve making academic judgments. Summary judgment dismissing a claim which, if it were to be entertained, would require the court to make academic judgments should be capable of being obtained in the majority of situations. [80]It seems to me that the matters Mr Walsh wishes to agitate are of the character to which these observations were directed. At the heart of Mr Walsh’s claims, and underpinning the relief sought, is an attempt to involve the Court directly in an adjudication upon a matter of both academic standards and of the assignment of specific grades to particular assignments. In addition, his claim is that the Court enforce its own view directly. In the circumstances revealed by the present case I can discern no legal foundation for doing so. [30]  As in Walsh, the plaintiff in these proceedings attempts to involve the court directly in an adjudication upon a matter of both academic standards and of the assignment of specific grades to her practical teaching assessment. There is no legal foundation for this court to do so. The plaintiff’s application for judicial review fails on this basis. [31]  If I am wrong, I will turn to consider the plaintiff’s other complaints. They are, firstly, that the final report should award her a pass in PREX 902 on the basis that the assessments of her teaching placement at Fairvale High School were satisfactory; and secondly, the reports provided were not in accordance with the Handbook. …”: Shvetsova v University of New England [2014] NSWSC 918 (Harrison AsJ).

• “[16]  The main area of controversy was the issue of the third assignment, which was worth 40% of the overall assessment for the course. Mr Walsh argued before his Honour and before me that when he was asked to resubmit that assignment the inference to be drawn was that he had passed the two previous assignments. He said this was because the university would not allow him to submit for reassessment the final assignment, as it sought on this occasion to do, unless he already passed the preceding assignments. Mr Walsh alleges that he refused to resubmit his assignment, taking into account the views expressed by the reassessor, on the basis that he believed he had already satisfied the requirements of both the course and university and that his assignment should be marked and passed accordingly. Moreover, he argued that he had actually done precisely what he had been told to do and therefore, in substance, ought to have been awarded a pass. [17]  Buchanan J has dealt with that position in his judgment in a way which I do not see raises any arguable error or has occasioned any reason to doubt the soundness of the result at which he arrived. In essence, as his Honour found, Mr Walsh is seeking to challenge the university’s determination, as a matter of its academic judgment, of the merit of his third assignment and, consequentially, the earlier two assignments on the implied basis that I have set out above. [18]  Mr Walsh is seeking from the Court a remedy which, in my opinion, it is unable to award him, namely the award of a degree or of a pass in a subject, or even of passes in various individual assignments. For the Court to embark on such an exercise necessarily involves it in making a judicial decision about questions of academic judgment. Mr Walsh’s claims seek to assert an area of operation for s 87 of the Trade Practices Act concerning academic assessments which is not easy to reconcile with that Act’s scope of operation in matters of trade or commerce. [19]  At the end of the day, his Honour approached the University’s motion to dismiss the proceeding under s 31A(2) of the Federal Court of Australia Act as a matter of substance rather than one merely directed to the form of Mr Walsh’s pleading. No doubt there were considerable formal issues with that pleading. But, reading his Honour’s judgment as a whole, I am satisfied that there is no sufficient reason to doubt the correctness of his substantive assessment that Mr Walsh’s complaint sought the adjudication of the Court on matters of academic standards and the assignment of specific grades to his particular assignments. Nor do I see any reason to doubt the correctness of his Honour’s assessment that those are matters which it is inappropriate for the Court to be called upon to determine. [20]  While Mr Walsh clearly feels a deep sense of grievance about the way in which his academic efforts were approached by the University’s lecturers and staff in his subject, Enhancing Learning Environments with Educational Technology, I am not satisfied that he would suffer substantial injustice from a refusal of leave to appeal. I do not consider that he has established that there is any reason to doubt the correctness of Buchanan J’s decision or that his Honour made any error in the way in which he determined the matter. [21]  For these reasons I am of the opinion that the application for an extension of time should be granted but the application for leave to appeal which Mr Walsh, necessarily, must then seek to make should be refused.”: Walsh v University of Technology [2007] FCA 1308 (Rares J). 

• “[69]  Aside from the particular matters with which I have dealt, the relief sought by Mr Walsh, in all of its permutations and restatements, remains that set out at the beginning of this judgment as appearing in the application. [70]  Mr Walsh asserts that, so far as each of the group exercise, the second assignment and the individual project are concerned, his work merited a passing grade. His case, factually and legally, depends upon the suggestion that the Court can both directly and effectively substitute an opinion for that of UTS and require a different result to be awarded. Moreover, it requires vindication by the Court of his personal desire to focus his assignment upon matters of personal interest to him rather than matters judged by the course lecturers to be those with which the subject, as offered by UTS, was concerned. [71]  I expressed directly to Mr Walsh during his oral submissions my reservations about the power of the Court to grant him any remedy of the kind he seeks. He was not able to draw my attention to any statutory provision, authority or legal principle which might provide a foundation or starting point for the proposition that the Court could direct UTS as to course content or requirements or require UTS to award him passing grades in either individual assignments or a whole subject. Indeed he said he had been unable to find any case of this kind and agreed that he was asking the Court to strike out into new legal territory. [72]  In Griffith University v Tang (2005) 221 CLR 99 the High Court considered whether a decision to exclude a PHD student from its programmes was reviewable under the Judicial Review Act 1991 (Qld). It decided by majority that it was not. The university had acted in the exercise of a general discretion deriving from its activities generally as a university pursuant to the functions and general powers granted by its enabling Act which included setting academic standards. [73]  Gleeson CJ said (at [15]): The functions of the appellant include providing education, providing facilities for study and research, and conferring higher education awards. Its powers include the power to do anything necessary or convenient in connection with its functions. Subject to any other legal constraint, it may establish a PhD research programme, and decide who will participate in the programme and on what terms and conditions. [74]  Similarly in the present case, and the contrary was not argued, it was open to UTS to establish the course of study in which Mr Walsh enrolled and set the requirements to be satisfied, including the academic standard to be achieved as demonstrated by assignments or other coursework. Decisions about such matters are inherently unsuited to judicial review. [75]  Gummow, Callinan and Heydon JJ referred to this at [58], although like Gleeson CJ they decided the case on other grounds. They said: Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside. The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, "jejune and inappropriate" [76]  Kirby J dissented on the question of reviewability of the particular decision to exclude Ms Tang from the PhD programme. However, he drew a distinction between disciplinary decisions and matters of academic judgment. He said (at [165]–[166]): [165] The special position of universities: I recognise that universities are in many ways peculiar public institutions. They have special responsibilities, as the University Act envisages in this case, to uphold high academic standards about which members of the academic staff will often be more cognisant than judges. There are issues pertaining to the intimate life of every independent academic institution that, sensibly, courts decline to review: the marking of an examination paper; the academic merit of a thesis; the viability of a research project; the award of academic tenure; and internal budgets. Others might be added: the contents of a course; particular styles of teaching; and the organisation of course timetables. As Sedley LJ noted in Clark v University of Lincolnshire and Humberside, such matters are "unsuitable for adjudication in the courts … because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate". Judges are well aware of such peculiarities. The law, in common law countries, has consistently respected them and fashioned its remedies accordingly. [166] However, as Maurice Kay J explained in R v University of Cambridge; Ex parte Persaud (a recent English case similar to the present appeal), it is entirely "correct" of courts "to distinguish between the disciplinary type of case and the situation where what is in issue is pure academic judgment". In the present appeal, the respondent's claim fell squarely within the former class. Academic judgment is one thing. But where an individual who has the requisite interest is affected by disciplinary decisions of an administrative nature made by a university body acting according to its powers under a statute, outside the few categories peculiar to "pure academic judgment", such decisions are susceptible to judicial review. They are so elsewhere. They should likewise be so in Australia. An appeal to "academic judgment" does not smother the duties of a university, like any other statutory body, to exhibit, in such cases, the basic requirements of procedural fairness implicit in their creation by public statute and receipt of public funds from the pockets of the people.’; [77]  The present case does not raise disciplinary issues. It raises questions of academic assessment and judgment. [78]  The English case cited by Gummow, Callinan and Heydon JJ and by Kirby J, Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, concerned an action in contract, brought by a student against a university, which was initially struck out. The Court of Appeal, although allowing the student to replead to raise conventional allegations of breach of contract (a circumstance which does not arise in the present case) approved the summary rejection of the ‘claim as originally pleaded [which] had travelled deep into the field of academic judgment’ (at p 1988). The leading judgment was given by Sedley LJ He said (at p 1992): … there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class. It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified. [79]  Lord Woolf MR said (at p 1996): The court, for reasons which have been explained, will not involve itself with issues that involve making academic judgments. Summary judgment dismissing a claim which, if it were to be entertained, would require the court to make academic judgments should be capable of being obtained in the majority of situations. [80]  It seems to me that the matters Mr Walsh wishes to agitate are of the character to which these observations were directed. At the heart of Mr Walsh’s claims, and underpinning the relief sought, is an attempt to involve the Court directly in an adjudication upon a matter of both academic standards and of the assignment of specific grades to particular assignments. In addition, his claim is that the Court enforce its own view directly. In the circumstances revealed by the present case I can discern no legal foundation for doing so.[81]  However that matter is examined, so far as he seeks the direct grant of, or a mandatory injunction to require, passing grades in assignments or a subject or the award of a degree, in my view, on the material advanced by him, and having regard to the nature of his conflict with UTS as disclosed by that material, there is no reasonable prospect that he can succeed in obtaining such relief. [82]  Even if the matter is approached by reference to the nature of Mr Walsh’s complaints against UTS, rather than by reference to the relief he seeks, the matter does not improve for him. For myself, I can see no way in which Mr Walsh’s claims might be legitimately reformulated to achieve anything like the result he seeks. That, in any event, is not the task of the Court even though he is unrepresented.[83]  Moreover, it would be futile to allow the proceedings to go forward to an examination of the factual issues because ultimately nothing useful could come of it. [84]  The complaints relating to the group exercise and the second assignment lack virtually any factual foundation. They appear to me to consist, factually at least, of a refusal by Mr Walsh to accept the legitimacy or correctness of the evaluation made of his work by the two lecturers responsible for delivering the subject. It may be accepted that his views are sincerely held but it seems, on his own version, to be a straightforward case of Mr Walsh not accepting the assessment made about these two assignments. [85]  The main area of controversy in the case is the issue of the third assignment which was worth 40% of the overall assessment. It is clear from the allegations which Mr Walsh makes about this matter that he endeavoured from the outset to pursue his own view about what sort of project or assignment he would submit for this part of the course and, equally, that that view was disapproved at the outset. His determination to follow his own course has evidently brought him into conflict of various kinds with the course lecturers. Ultimately the issue which arose involved questions of academic judgment and the content and standard required by the university to satisfy its requirements for the award of its degree. [86]  Mr Walsh rebuffed any suggestion that he should resubmit the assignment. He decided to maintain his position and, initially at least, seek some form of internal review within UTS. He was entitled to take that course and adhere to it. He could not be compelled to surrender his own views about these matters. Neither can he, in my view, call in aid the powers of the Court in the way which he has sought to do. The judgment to be made by UTS with respect to requirements for the award of a degree are not matters susceptible to judicial review in the ordinary way. At least to the extent that it may be possible to conceive of some form of possible judicial review, none is presented for consideration in the present case. I see no prospect therefore that an evidentiary excursion into the merits of his position (as he sees them) could conceivably provide a foundation for any form of relief (whether sought by him at the moment or not) which could provide him what he seeks — a UTS Masters degree. [87]  The difficulties which I have identified are matters of substance, not just form. Accordingly, I see no point arising from his factual complaints which would justify giving Mr Walsh leave to revisit the matter by granting him leave to amend the proceedings or by now attempting to file proper pleadings. …”: Walsh v University of Technology, Sydney [2007] FCA 880 (Buchanan J). 

• “[17]  The written submissions of counsel for the respondents were in the following terms: … ASSESSMENT OF EQUIVALENCY OF QUALIFICATIONS IS NOT A PROPER MATTER FOR ADJUDICATION BY THE COURT 16Those observations aside, it seems plain that the thrust of the proceedings is that Dr Pardo disagrees with assessments that have been made at various times and by various registration authorities concerning the sufficiency of her overseas qualifications to make her eligible for registration in Australia (Mr Shears’ affidavit, par 17 and annexures ‘E’, ‘F’ and ‘G’) and she wants the Court to assume the role of the National Board in making those assessments. If that is the matter the Court is being asked to determine, then it involves the kinds of assessment and judgment that various courts have consistently said are not proper matters for adjudication by courts and administrative tribunals. That is because it necessarily involves adjudication and determination of academic standards and questions of academic assessment and judgment directed at evaluating likely clinical competence and performance in much the same way that assessment by way of formal examination and clinical assessment does: Tanious v Australian Medical Council Ltd and AHPRA [2015] NSWSC 447 at [20], [28]–[34]; Tanious v Australian Medical Council Ltd [2015] NSWCA 189 AT [8], [33], [34]; Walsh v University of Technology, Sydney [2007] FCA 880 at [72]–[80]; Shvetsova v University of New England [2014] NSWSC 918 at [30]. Reference is made in each of those cases to pronouncements of high authority to like effect as to the lack of any legal foundation for adjudication on such matters in decisions of the English Court of Appeal and the High Court: Clark v University of Lincolnshire and Humberside[2000] 1 WLR 1988 and Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99. There is ‘no legal foundation’ for the Court to involve itself directly in adjudication upon a matter of academic standards: Walsh v University of Technology, Sydney at [80]; Shvetsova v University of New England at [30]; Tanious v Australian Medical Council per Bellew J at first instance at [34]. [Footnotes omitted.]”: Pardo v Australian Health Practitioner Regulation Agency [2016] TASSC 31 (Tennent J).

• “[27]  Where an application for dismissal of the proceedings is brought under r 13.4, it is open to the court to make the order sought on an examination of the pleadings if that examination demonstrates that there is no possibility of the facts pleaded giving rise to a good cause of action: Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 90. However, it must be recognised that the nature of the power in r 13.4 is exceptional. It is only appropriately exercised where the plaintiff’s claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue: General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129–130. [28]  The nature of the orders sought by the plaintiff is set out in [19] above. Orders to that effect would, if made, involve the court in adjudicating upon: (i)academic and/or examination standards; (ii)the accuracy of the results of the clinical assessment undertaken by the plaintiff and, perhaps more specifically, the accuracy of the grades assigned in the course of that assessment. [29]  In Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335 Davies J (at [26]) observed that issues of that nature are ordinarily unsuitable for adjudication by a court. One of the authorities cited by his Honour in support of that proposition was Clark v University of Lincolnshire and Humberside[2000] 1 WLR 1988 where Sedley LJ observed (at 1992): There are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class. It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified. [30]  In the same case, Lord Woolf MR said (at 1996): The court, for reasons which have been explained, will not involve itself with issues that involve making academic judgments. Summary judgment dismissing a claim which, if it were to be entertained, would require the court to make academic judgments should be capable of being obtained in the majority of situations. [31]  The decision in Clark was cited with approval by the plurality (Gummow, Callinan and Heydon JJ) in Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [58] and by Buchanan J in Walsh v University of Technology Sydney [2007] FCA 880, both of which were also cited by Davies J in Chan. [32]  In Walsh Buchanan J said (at [80]): At the heart of Mr Walsh’s claims, and underpinning the relief sought, is an attempt to involve the Court directly in an adjudication upon a matter of both academic standards and of the assignment of specific grades to particular assignments. In addition, his claim is that the Court enforce its own view directly. In the circumstances revealed by the present case I can discern no legal foundation for doing so. [33]  The judgment of Buchanan J in Walsh was applied by Harrison AsJ in Shvetsova v the University of New England [2014] NSWSC 918 at [30]. [34]  The plaintiff’s application for relief against the first defendant seeks to involve this court in the process of clinical assessment generally, and specifically in the determination of a candidate’s performance and the assignment of specific grades to particular aspects of that assessment. The plaintiff is, in effect, asking this court to substitute its own views for those of the appropriately qualified representatives of the first defendant who supervised the assessment and who assessed the plaintiff’s performance. As Buchanan J observed in Walsh there is no legal foundation for doing so. No reasonable cause of action is disclosed against the first defendant. …”: Tanious v Australian Medical Council Limited [2015] NSWSC 447 (Bellew J). 

• “[25]  In my opinion, no cause of action is disclosed in those paragraphs. First, it is not shown, and it does not appear to be the case, that there is any form of contractual status between TAFE and any student that gives rise to a legal entitlement for the student to sue even if it is accepted that a breach of that clause is made out. Mr Chan does not plead a contractual basis for this claim. [26]  Secondly, even if a contractual basis was established that would not mean a cause of action was necessarily available to a person in the position of Mr Chan. Disputes between students and establishments of learning are ordinarily unsuitable for adjudication in the courts and ought to be resolved by internal procedures: Clark v University of Lincolnshire and Cumberside [2000] 1 WLR 1988 at [12] and [30]–[31], seemingly approved in Griffith University v Tang (2005) 221 CLR 99 at [58] and [165]; and see also Walsh v University of Technology, Sydney [2007] FCA 880 at [71]–[80].”: Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335. 

• “[58]  Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside.40 The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi;41 rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, “jejune and inappropriate”.42 … [165]  The special position of universities: I recognise that universities are in many ways peculiar public institutions.239 They have special responsibilities, as the University Act envisages in this case, to uphold high academic standards about which members of the academic staff will often be more cognisant than judges. There are issues pertaining to the intimate life of every independent academic institution that, sensibly, courts decline to review: the marking of an examination paper;240 the academic merit of a thesis;241 the viability of a research project;242 the award of academic tenure;243 and internal budgets.244 Others might be added: the contents of a course; particular styles of teaching; and the organisation of course timetables. As Sedley LJ noted in Clark v University of Lincolnshire and Humberside,245 such matters are “unsuitable for adjudication in the courts … because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate”. Judges are well aware of such peculiarities. The law, in common law countries, has consistently respected them and fashioned its remedies accordingly. [166]  However, as Maurice Kay J explained in R v University of Cambridge; Ex parte Persaud246 (a recent English case similar to the present appeal), it is entirely “correct” of courts “to distinguish between the disciplinary type of case and the situation where what is in issue is pure academic judgment”. In the present appeal, the respondent’s claim fell squarely within the former class. Academic judgment is one thing. But where an individual who has the requisite interest is affected by disciplinary decisions of an administrative nature made by a university body acting according to its powers under a statute, outside the few categories peculiar to “pure academic judgment”, such decisions are susceptible to judicial review. They are so elsewhere.247 They should likewise be so in Australia. An appeal to “academic judgment” does not smother the duties of a university, like any other statutory body, to exhibit, in such cases, the basic requirements of procedural fairness implicit in their creation by public statute and receipt of public funds from the pockets of the people. [167]  Where the personal interests of an individual are affected by an institution funded by public moneys, there is, to use Woodhouse P’s expression, a “double consideration”:248 On the one hand a final year … student should be entitled on personal grounds to know that an end to his potential career has been decided upon by the University for reasons that are entirely justified and by methods that are demonstrably fair and appropriate. As well there is the very distinct public interest in seeing that the very large investment of public money in taking him so far will not be thrown away except for good and substantial reasons. His Honour’s elaboration is apposite to the situation of the respondent in this appeal. This court, by narrowly construing the Review Act and adopting an untextual gloss, effectively puts such persons outside the Act and leaves them without the means of judicial review which would normally be afforded them in other common law countries and hitherto in Australia. This withdrawal of the protection of the law is justified neither by the statutory text nor by past authority or consideration of legal principle and policy. [168]  If a university asserts that, globally, by its very nature and by the character of its “decisions”, it should be completely exempted from an enactment such as the Review Act, it has the right to seek such an exemption from parliament.249 None was granted here. The party seeking a statutory order of review must always establish that it is a “person aggrieved”, that the decision in question is “administrative” in character, that it is “made … under an enactment” and that relief should be granted in the exercise of the court’s discretion. Without embracing notions of “deference” that find no footing in the Review Act (or the ADJR Act), it remains true that, in exercising a discretion in relation to a complaint concerning a “decision” of a university, if the decision was made fairly by the appropriate body in accordance with the applicable university policy, the risks of judicial interference would be slight indeed.250”: Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99. 

• “Firstly, she contends that she ought to have been present at the re-mark, and secondly, she contends that the respondent allegedly made it appear that she had failed the two subjects in order to punish her for the complaint she had originally made on 17 March 2000. There is no evidence to support the allegation that the respondent failed her in order to punish her for making of the complaint. So far as the question of her being present at the re-mark is concerned her case appears to be that she had a legal right to be present at the time. That is not the law. Clearly when it is purely a question of academic assessment or academic judgment the student has no right to be present on the marking of examination papers. It may well be different if the evaluation of the student's progress or the question of exclusion of a student from the university involves questions other than mere academic judgment. Those observations in my view are supported by the reasoning in The Queen v Ashton University Senate ex parte Roffey (1969) 2 Queens Bench 538, The Queen v Cambridge University unreported 2001 EWCA civil 534 and Clark v The University of Lincolnshire and Humberside unreported 2000 EWCA civil 129. Having considered the material which has been filed with the Court and the additional submissions which have been made in the course of oral argument today I can see no basis for concluding otherwise than that Justice Philippides was correct in dismissing the application.”: Ivins v Griffith University [2001] QCA 393. 

• “Issues  6. The claim is pleaded in contract. It is to the effect that the appeal board misconstrued the meaning of plagiarism, awarded a mark beyond the limits of academic convention and failed to take into account the claimant's explanation. The first two of these, as can be readily seen, travel deep into the field of academic judgment; the third goes nowhere, since the finding of plagiarism was abandoned. … 29. A university is a public body. This is not in issue on this appeal. Court proceedings would, therefore, normally be expected to be commenced under Ord 53. If the university is subject to the supervision of a visitor there is little scope for those proceedings (Page v Hull University Visitor [1993] 1 All ER 97, [1993] AC 682). Where a claim is brought against a university by one of its students, and the university does not have a visitor because it is a 'new university' created by statute, the role of the court will frequently amount to performing the reviewing role which would otherwise be performed by the visitor. The court, for reasons which have been explained, will not involve itself with issues that involve making academic judgments. Summary judgment dismissing a claim, which if it were to be entertained, would require the court to make academic judgments should be capable of being obtained in the majority of situations. Similarly, the court now has power to stay the proceedings if it comes to the conclusion that, in accordance with the overriding objective, it would be desirable for a student to use an internal disciplinary process before coming to the court. (See CPR 1.4(1)(e).) … 31. This is a matter of considerable importance in relation to litigation by dissatisfied students against universities. Grievances against universities are preferably resolved within the grievance procedure which universities have today. If they cannot be resolved in that way, where there is a visitor, they then have to be resolved by the visitor (except in exceptional circumstances). The courts will not usually intervene. 32. While the courts will intervene where there is no visitor this should normally happen after the student has made use of the domestic procedures for resolving the dispute. If it is not possible to resolve the dispute internally, and there is no visitor, then the courts may have no alternative but to become involved. If they do so, the preferable procedure would usually be by way of judicial review. If, on the other hand, the proceedings are based on the contract between the student and the university then they do not have to be brought by way of judicial review. 33. The courts today will be flexible in their approach. Already, prior to the introduction of the CPR the courts were prepared to prevent abuse of their process where there had been an inordinate delay even if the limitation period had not expired. In such a situation, the court could, in appropriate circumstances, stay subsequent proceedings. This is despite the fact that a litigant normally was regarded as having a legal right to commence proceedings at any time prior to the expiry of the limitation period. (See Birkett v James [1997] 2 All ER 801, [1978] AC 297.)”: Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752; [2000] 1 WLR 1988. 

• “[24]  La Trobe University submitted that Mr Lee’s proceeding had no prospect of success because academic judgment is not justiciable in this Court. Mr Lee’s grade was the product of an evaluative judgment by those with appropriate academic skills and training. Whether Mr Lee satisfactorily met the competency standards of its courses was a matter for the University to determine and it would be inappropriate for the Court to supervise it.4 [Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 , cited with approval in Griffith University v Tang (2005) 221 CLR 99 , 121 [58].] [25]  Mr Lee submitted that his application does not seek a review of ‘academic judgment’ but rather was based on the University’s breach of procedural fairness and natural justice principles. .. [28]  In relation to the University policy ground Mr Lee’s originating motion says the University’s Assessment of Professional Experience policy states that if a placement student is not meeting expectations in two or more criteria, the supervising teacher should request additional support from the University to help the student address their difficulties during the remainder of their placement. Mr Lee’s ground says this did not occur because, while the school contacted the University, the relevant University staff did not respond. Secondly, Mr Lee’s policy ground said the midpoint of his placement, at which he was informed of his performance issues, occurred at a time that did not allow him to demonstrate progress before the end of his placement because of school exams, a public holiday and his supervising teacher’s illness. Thirdly, Mr Lee’s policy ground says that he was given less than 50% of the teaching load and supervision days prescribed in the EDU5017 Consolidating Placement Expectations policy, and his prescribed discussion of student achievement and learning occurred too late in his placement. … [30]  In relation to the false claim ground, Mr Lee’s originating motion said that the University’s Practice Advisor admitted that he did not respond to the supervising teachers’ request for support because he was busy with other work. Mr Lee’s attempts to contact the University’s placement team went similarly unanswered. [31]  Mr Lee’s proposed grounds of appeal make clear that he seeks judicial review into the decision to assess his placement performance as ‘does not meet expectation’. I accept the submission made by counsel for the University that Mr Lee’s grade was the product of an evaluative judgment by those with appropriate academic skills and training and so a matter solely for the University to determine and inappropriate for the Court to supervise. The authorities make clear that issues of academic judgment are not justiciable by the courts.5 [See for example, Griffith University v Tang (n 4), 121 [58]; Alskeini v Queensland University of Technology [2020] QCA 285 , [14] (per Sofronoff P with Fraser and McMurdo JJA agreeing).] [32]  To the extent that it can be said that Mr Lee is not seeking judicial review of an academic assessment but rather the University’s failure to follow policy, his proceeding faces two problems. The first is that almost all of the matters raised in Mr Lee’s grounds go to the circumstances of the placement itself. The second is that there is no evidence that the University policies identified by Mr Lee required the University to consider the matters Mr Lee has identified as relevant. … [34]  Mr Lee has not explained why a failure by the University to follow its Assessment of Professional Experience and Consolidating Placement Expectations policies, assuming the Court accepts the University has not followed those policies, might amount to a jurisdictional error that could be corrected by certiorari. Mr Lee has not explained how the lack of further support from the University when, half way through his placement, he was informed he was not meeting his supervising teachers’ expectations, amounts to a lack of procedural fairness as that term is understood in the context of judicial review. The same is true of the other complaints Mr Lee makes about the circumstances of his placement. Mr Lee has not explained how the policies required Mr Lee to be informed of the school’s examination timetable. [35]  Mr Lee has not pointed to any requirement within the University policies he has identified for the University to consider the matters said by Mr Lee to be relevant considerations under his second ground of appeal. [36]  For the above reasons I find that Mr Lee has not demonstrated an arguable case.”: Lee v La Trobe University [2024] VSC 472.

• “[13]  For the purpose of considering the appellant’s case it may be assumed, without deciding the issue, that the relationship between the parties was contractual.6 If there was a contract then, Mr Heath, who appeared for the respondent, accepted that the assumed contract obliged the University to provide the appellant with the necessary services so that he could study for his degree and that those services would include an assessment of his work. Mr Heath also accepted that the assumed contract would oblige the University to act towards the appellant in good faith and to afford him procedural fairness.7 However, Mr Heath submitted that such a contract would not oblige the University to confer a degree upon the appellant just because he had worked hard. More importantly, he also submitted that such a contract, if it existed, would not render justiciable an academic judgment that the appellant had failed to earn his degree. Mr Heath’s submission should be accepted. [14]  In Re Polten and Governing Council of the University of Toronto8 it was held that a court has no power to intervene so as to inquire into the standards for a degree and the assessment of a student’s work. There have been many other cases to the same effect9 and in Tang Kirby J, who was in dissent but not on this point, cited with approval10 a dictum in an English case11 that such matters are not justiciable for adjudication in the courts because they are issues of academic judgment which the university is equipped to consider in breadth and in depth but on which any judgment of the courts would be jejune and inappropriate. [15]  The appellant’s case, as it appears from the documents which he tendered before Jackson J and from the additional documents which he tendered on this appeal, seeks to controvert the merits of an academic judgment made by academic staff who were qualified to make it and whose duty it was to make it. Such a challenge does not raise a justiciable issue. Otherwise, the evidence tendered below and on appeal does not raise an arguable case that the University has breached any of the contractual obligations which, for the purpose of deciding this appeal, have been assumed to exist. [16]  For these reasons the appeal should be dismissed with costs.”: Alskeini v Queensland University of Technology [2020] QCA 285. 

• “[98]  Mr Alajmi submitted that Macquarie University is a public university created by statute. It is a body corporate the subject of statutory regulation. In its supervision of its students on matters affecting students’ legal rights, as opposed to questions of academic judgement, the University exercises a public power or a power in the nature of a public power amenable to relief granted in the Court’s jurisdiction under ss 23 and/or 69 of the Supreme Court Act 1970 (NSW) .[99]  Mr Alajmi submitted that the act of non‐certification was sufficiently an act of public power so as to be amenable to judicial review. Mr Alajmi submitted that the derivation of power is peculiarly public in nature and that universities are, for all intents and purposes, public bodies. The Macquarie University Act and the delegated or subordinate legislation or rules created further to the derivation of power conferred by the Act played a relevant part in affecting or effecting rights or obligations of Mr Alajmi. The Macquarie University Act and the delegated or subordinate legislation or rules created further to that Act reposed in Associate Professor Wright a grant of authority to do that which under the general law a person does not have the authority to do. … [119]  Macquarie University submitted that the core subject matter sought to be raised in the proceedings by Mr Alajmi, namely, whether he engaged a third party to prepare intellectual content for his thesis, is not justiciable because that issue involves academic judgement and that matters of academic judgement are not suitable for resolution by the Court. It was submitted that this is a matter of academic judgement because, inter alia, the University requires that at least one of the members of the Panel have knowledge and experience in the relevant field of research and the Panel’s finding was reached in part by the Panel drawing “on its collective academic experience”. [120]  Macquarie University submitted that, even if the Final Report or the non‐certification decision are amenable to relief under s 69 and the core subject matter of the proceedings is justiciable, none of the complaints made by Mr Alajmi establish reviewable error to ground relief and many of the complaints amount to an impermissible attempt to engage in merits review. … [123]  Macquarie University submitted that Mr Alajmi’s claim in contract was not fairly raised in the points of claim. The basis for any contract, how it was formed, its terms (including any term imposing any specific obligation on the University), any breaches of any such terms and the basis for any claimed breach were not identified. Orally, Macquarie University submitted that the absence of proper pleadings caused problems because, without context, the Court cannot meaningfully answer the question of whether or not a particular term ought to be implied into the contract and what the appropriate standard of legal unreasonableness might be. The defendant submitted that the Court ought not to allow Mr Alajmi to depart from, or enlarge, the issues in the points of claim at this very late stage. [124]  Macquarie University submitted that, even in a contractual framework, the relevant question is one of academic judgement and the Court would be reluctant to intervene. The people involved in reviewing the allegation were, by reason of their experience and expertise, in a much better position to adjudicate than the Court. This is particularly so in circumstances where there has been no expert evidence before the Court. … [170]  The next formidable hurdle to acceptance of Mr Alajmi’s administrative law case is that his attacks on the decisions in the Final Report and the “non‐certification decision” are, in truth, attacks on the merits, being matters of academic judgement. [171]  The core subject matter sought to be raised in the proceedings by Mr Alajmi, namely, whether he engaged a third party to prepare intellectual content for his thesis, is an issue that centrally involves academic judgement. This is because academic judgement is involved in considering the content of the thesis, the importance of the issues raised by Mr Alajmi in his comments in the margin of drafts of that thesis, the content of the requests made by Mr Alajmi to third parties and the importance of the material apparently received by Mr Alajmi from the third parties. Close consideration of all of these issues by academics in the appropriate field of discourse was involved in both decisions here under attack. The core subject matter, alleged plagiarism, is a matter best suited to consideration by academics who are involved every day in the relevant field of discourse. [172]  It would be, to adopt the language of Sedley LJ in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 , “jejune and inappropriate” for me to attempt to apply my understanding of academic standards of plagiarism to the particular problem posed by Mr Alajmi’s thesis. What may seem important to a present‐day academic in a business school in identifying and dealing with plagiarism will not necessarily be apparent to a judicial officer, particularly one dealing with a doctoral thesis in a field only tangentially related to law. [173]  As to the Final Report, the University requires that at least one of the members of the Panel have knowledge and experience in the relevant field of research and the Panel’s finding was reached in part by the Panel drawing “on its collective academic experience”. [174]  As to the “non‐certification decision”, Associate Professor Wright was plainly in a position where she was asked to make an evaluative judgement based, at least in substantial part, on her academic skills and training. [175]  I reject the submission that I should seek to identify plagiarism by Mr Alajmi by looking at all the drafts of Mr Alajmi’s thesis and seeking to discern his unique “authorial voice”. Rather than seeking to apply standards of administrative review, by undertaking that task I would be engaging in impermissible merits review. [176]  As I have said, however, and contrary to my conclusion about the availability of relief under s 69 of the Supreme Court Act, I propose to address the remainder of Mr Alajmi’s administrative law claim on its merits. … [219]  This is because it is not necessary in the present case to imply a term in the contract that the parties agreed to be bound by the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure. Those policies deal, relevantly, with the issue of whether or not a piece of academic work is the student’s “own work”. That issue involves, to a significant degree at least, a question of academic judgement. I would not conclude in this case that it was necessary to give business efficacy to the contract5 or was obvious to both parties6 that a term would be implied that the parties were contractually bound by the terms of the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure. This is principally because this would make academic judgements about matters such as alleged plagiarism the subject of a contractual promise. [220]  I accept Mr El‐Hage’s submission that, on the application of the usual principles for the implication of contractual terms, the Court should not imply a term into this contract that the University was bound to give effect to the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure. Mr Alajmi’s contract case fails at this point. [221]  The next threshold difficulty for Mr Alajmi’s contract case is that in Tang Gummow, Callinan and Heydon JJ at [58] said: Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988; [2000] 3 All ER 752 . The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 ; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, “jejune and inappropriate”: Clark [2000] 1 WLR 1988 at 1992; [2000] 3 All ER 752 at 756 . [222]  I have earlier found that the core subject matter sought to be raised in the proceedings by Mr Alajmi, namely, whether he engaged a third party to prepare intellectual content for his thesis, is an issue that centrally involves academic judgement. The core subject matter, alleged plagiarism, is a matter best suited to consideration by academics who are involved every day in the relevant field of discourse. That conclusion applies equally to Associate Professor Wright and the “non‐certification decision”. [223]  I have earlier concluded it would be “jejune and inappropriate” for me to attempt to apply my understanding of academic standards of plagiarism to the particular problem posed by Mr Alajmi’s thesis. [224]  I will, however, against the possibility that Mr Alajmi will seek to take this case further and contrary to the findings I have made, consider Mr Alajmi’s contract claim on its merits. … [247]  The other available internal and external avenues of review ground pose a more difficult problem. If I had been persuaded that relief should otherwise have been granted, for example on the basis that the University had made a legally unreasonable decision not involving academic judgement which was properly the subject of relief under s 69 of the Supreme Court Act, I would not refuse relief on discretionary grounds. [248]  I accept that the Court should be reluctant to intervene in this dispute, given that there are internal appeal avenues available to Mr Alajmi which he has not availed himself of: cf. Chan v Sellwood [2009] NSWSC 1335 at [26] . An often compelling discretionary bar to a claim for prerogative relief is the availability of other relief: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ). [249]  An internal appeal to the Chair of the Academic Senate in relation to the Panel’s findings was available. The appeal could have been brought on one or more of the grounds specified in s 30.1 of the Macquarie University Code. Mr Alajmi did not avail himself of this opportunity. Additionally, Mr Alajmi could have sought review of the Panel’s findings to the Australian Research Integrity Committee (“ARIC”) pursuant to s 30.8 of the Macquarie University Code. Although there is a time limit of 60 working days following formal notification to apply to ARIC, late applications for review are assessed by ARIC on a case by case basis: Australian Research Integrity Committee Framework (February 2011) at 7. Mr Alajmi did not avail himself of this opportunity. [250]  In relation to the “non‐certification decision”, Mr Alajmi could have submitted his thesis for examination against the advice of his supervisor. This was made clear to him in the correspondence notifying him of the “non‐certification decision”. Mr Alajmi did not avail himself of this opportunity. [251]  Despite these available alternative avenues for review, if I had concluded that relief should otherwise have been granted to Mr Alajmi, I would have granted declaratory relief. Given the delay and the expiry of Mr Alajmi’s PhD candidature, injunctive relief would not be appropriate.”: Alajmi v Macquarie University [2019] NSWSC 1026. 

• “[19]  The judge accepted that the Supreme Court did not have the jurisdiction to override the judgment of university staff that the applicant had not completed the academic requirements set by the University for completion of both the subject and the degree and, in effect, to alter those requirements.21 Her Honour stated that the ‘Court’s judicial review jurisdiction is strictly supervisory and is confined to the lawfulness of a decision under review’.22 The matters of marking an assignment or otherwise determining questions of academic merit are areas for academic judgment where the Court will not intrude.23 [Reasons [44], citing Griffith University v Tang (2005) 221 CLR 99 , 156–7 [165] (Kirby J).] For that reason the judge held that the applicant could not obtain the relief that he sought.”: Naik v Monash University [2019] VSCA 72. 

• “[43]  The primary remedy that Mr Naik seeks is an order in the nature of mandamus granting exemption from the result of that assessment task, and declaring an overall pass grade in APG5135 Video Journalism and completion of the Masters of Journalism course. The effect of that order would be to override the judgment of University staff that Mr Naik has not yet completed the academic requirements set by the University for completion of both the subject and the degree and, in effect, to alter those requirements. [44]  The University submits that the Court does not have jurisdiction to make such an order, which involves an issue of academic judgment that is unsuitable for adjudication. I accept that submission. The Court’s judicial review jurisdiction is strictly supervisory and is confined to the lawfulness of a decision under review.14 It does not extend to marking an assignment or otherwise determining questions of academic merit. These are matters solely for the University — areas for academic judgment where the Court will not intrude.15 [Griffith University v Tang (2005) 221 CLR 99 , [165] (Kirby J), citing Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 , 1992.] [45]  However, Mr Naik also seeks ‘any other order deemed appropriate by the court to do justice between the parties’. Alternative orders that the Court might make include an order in the nature of certiorari, setting aside the assessment of the video assignment, and an order requiring the University to re-assess the assignment according to law, as well as a declaration. The University accepted that the Court has jurisdiction to review the lawfulness of an assessment decision. It is therefore necessary to consider whether there is an arguable case for any relief on any of the grounds of review identified in Mr Naik’s originating motion. [46]  The first ground on which Mr Naik seeks relief is that, in managing his special consideration application, the University denied him reasonable adjustments in a reasonable time, and imposed unreasonable and disruptive conditions on the adjustment made. He alleges that this was contrary to s 40 of the EO Act, the Disability Standards for Education 2005 (Cth) and s 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) . These are not grounds to set aside the decision made by the University to give Mr Naik special consideration and to grant him the extension he had asked for, or the assessment of the video assignment he submitted. His complaints concern the way in which the University managed his application for an extension, rather than the ultimate decision to grant it or the assessment of his video. Those complaints, which Mr Naik also makes in his VCAT proceeding, are not matters that the Court can remedy on judicial review. There is no arguable case in relation to the first ground.”: Naik v Monash University [2018] VSC 605.

• Determination that the applicant’s PhD thesis proposal was lacking a substantial thesis question - Panel had unanimously recommended that the applicant’s candidature be terminated - Extension of time for judicial review - dismissed: Garvey v Australian National University [2024] FCA 632.

• Reviews and appeals — Judicial review — Disciplinary decisions — Student misconduct — Application of rule or policy - submitted her doctoral thesis for examination - referencing and attribution - After the initial review, the plaintiff was required to revise and re-submit her thesis - Academic Integrity  — Jurisdictional error — Where plaintiff seeks Certioari and Mandamus — Summons dismissed: Jarrah v The University of Sydney [2024] NSWSC 1162. 

[B.B] Reviewable Decisions

Natural Justice / Procedural Fairness

• Procedural fairness — Natural justice — Exclusion of student from university premises — Whether proper notice given to student of the case alleged against him — Whether student provided with documents and information relied on by decision-maker — Victoria University Act 2010 (Vic) ss 28, 30(1) and 34 — Victoria University Regulations (Vic) reg 10.2 cl 2 — Failure to comply with procedural fairness and natural justice — Grant of relief not futile — Exclusion decision invalid and of no effect: Durney v Victoria University & Ors [2014] VSC 161. 

• Alleged denial of natural justice and error of law - enrolment of student - Academic Appeals Committee: “[5]  The only relief available to the plaintiff in this Court is pursuant to s 69 of the Supreme Court Act 1970. Discretionary relief is available thereunder where there has been jurisdictional error or error of law on the face of the record. … [21]  It can be readily seen that such matters fall outside the scope of what was litigated in the appeal and/or the function of the AAC. … [22]  I have both read and listened to what has been said on the matters of denial of natural justice. In my view, the plaintiff has not demonstrated any denial of natural justice by the AAC. I should add that it is not sufficient to merely identify a denial of natural justice. There must also be materiality to the decision that is sought to be disturbed. Whether or not a different view was taken on the matters of denial of natural justice, the requirement of materiality would not be made out. [23]  There has been an attack on the lack of disclosure of reasoning process by the AAC. The authorities well illustrate that what will suffice will vary from case to case. In the present case, the AAC rejected the only real issue raised in the submissions. In the circumstances of this case, the plaintiff was left in no doubt as to what had been decided and did not need any further exposition of reasoning process for the purposes of mounting a challenge to that decision. Indeed, as earlier seen, he accepts that the AAC was not in error in deciding that PPP231 was a key subject. [24]  What was said on the matter of error of law lacked specificity and was doomed to failure. In my view, the plaintiff faced an impossible task to demonstrate either jurisdictional error or error on the face of the record. [25]  As earlier mentioned, s 69 provides a discretionary relief. The exclusion of the plaintiff from the course was for a period of two years. The question of the utility of granting any relief was not ventilated in any argument. However, it may be observed that there has been delay in the bringing of these proceedings to hearing and the exclusion expires at the end of this year. [26]  The plaintiff bears the onus of demonstrating an entitlement to relief. In my view, the onus has not been discharged. [27]  The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.”: Jenkins v Charles Sturt University [2008] NSWSC 50.

• Decisions of a university academic misconduct committee and the appeals to the university’s proctorial board — did the conduct of the tribunals constitute a denial of natural justice — procedural fairness — whether tribunal entitled to adopt an inquisitorial role — whether tribunal entitled to draw upon its expertise — whether accidental contact between the prosecution and tribunal members constituted apprehended bias — whether tribunal entitled to admit evidence not available for cross-examination — no finding of a failure to apply procedural fairness — claims dismissed: Simjanoski v La Trobe University [2004] VSC 180.

• CORRECT CONSTRUCTION OF STUDENT ACADEMIC MISCONDUCT POLICY — Requirements of Natural Justice — Duty of Procedural Fairness — Whether required by primary decision maker — Meaning of Internal Appeal Provision — University withdrawing refusal to hear appeal — Whether subsequent hearing of appeal "cures" any prior defects or should lead to refusal of relief on discretionary grounds — Academic Misconduct capable of being regarded as serious — Appeal Committee erroneously including certain factors as bearing upon the seriousness of the offence — Relief limited to declarations: Tadros v Charles Sturt University and 2 Ors [2008] NSWSC 1140.

• Procedural fairness — Inquiry established by University to investigate allegations of scientific misconduct and/or scientific fraud against professor — whether University amenable to judicial review — whether Inquiry bound to afford procedural fairness to professor — standards of procedural fairness — whether evidence informing an inquiry's conclusions must be provided to affected person — whether Inquiry discharged obligations of procedural fairness: Hall v The University of New South Wales [2003] NSWSC 669.

• ADMINISTRATIVE LAW — PROCEDURAL FAIRNESS - The appellant, a university student, was found guilty of misconduct by a Student Proctorial Board. He appealed unsuccessfully to an Appeals Committee. He then invoked the Vice-Chancellor's discretionary power to recommend that the determination be quashed, relying on what was said to be fresh evidence. His application was dismissed. The appellant claimed the Vice-Chancellor erred in law in his approach to the application and denied natural justice - HELD - No such error of law or denial of natural justice was shown - bribery: Lam v University of Sydney [1997] NSWCA 184.

• Administrative law — whether compliance with procedures under bylaws a condition of jurisdiction — legislative purpose — investigation — no denial of natural justice: “[1]  These are proceedings which the plaintiff brings in which she seeks certain declarations that steps which the defendant University has taken in respect of certain charges of student misconduct were in breach of the bylaws of the University and that in the commencement of such proceedings she was not accorded natural justice. …”: Wilde v University of Sydney [2002] NSWSC 954.

• Administrative Law — University disciplinary tribunal — Whether a suspension order warranted by a power to exclude a student from the University — Natural justice — Duty to act fairly — Bias — Discretion - Set Aside and remitted: Bray v The University of Melbourne [2001] VSC 391.

• University student — Allegation of serious misconduct — University policy dealing with misconduct includes express obligation to afford procedural fairness — Jurisdiction of court to review University’s decisions — Whether decision to review allegation to committee for hearing attracts procedural fairness — Whether decision to suspend student pending hearing attracts procedural fairness — Discretion to refuse to intervene — Form of relief — Declaration — Injunction: “[1]  The plaintiff is a student at the University of Western Sydney (the “University”). He seeks to challenge two decisions made by the University. The first decision was made on or about 29 August 2013 under subcl 39(a) of the Student Non-Academic Misconduct Policy (the “Policy”) to forward a complaint against him to the Non-Academic Misconduct Investigation Committee (the “Committee”). The second is a decision made at the same time under cl 40 of the Policy to suspend him from the University pending the outcome of the hearing of the complaint against him. Since those decisions were made the hearing of the complaint has not progressed, principally because there is a police investigation into the allegation against him. [2]  The nature of the challenge being made in this proceeding needs to be firmly borne in mind. The plaintiff attacks the decisions of the University on the basis that he was not afforded procedural fairness. Nothing in this case has involved any assessment of the merits of the underlying complaint of misconduct that was made against the plaintiff, nor has it involved any assessment of the merits of the decision to suspend him. Instead, the proceedings involve a consideration by the court of whether, in making the decisions that are challenged, the plaintiff was denied any right to be heard that was owed to him by the University and, if so, whether any relief should be granted. [3]  The expectation of a young person to continue with their University education is an important interest even if it may not amount to a legal right. Depending upon the legal framework governing a student’s relations with a University and the exigencies of the particular case, this expectation should not be defeated for reasons related to an allegation of misconduct unless a fair opportunity to be heard is afforded. … [24]  Two matters should be noted to this point. First, at no time up to the point at which the plaintiff had been suspended and the allegation against him had been referred to a Committee was the plaintiff ever given any notice of the details of the allegation made against him. Counsel for the University, Ms Graycar, submitted that the details of the allegation of misconduct would have been apparent to the plaintiff from the Facebook exchange that I have referred to earlier. It is not necessary for me to set out the details of that exchange. It is suffice to state that at no point during that exchange was there a clear statement to the plaintiff as to what was the precise conduct that he is said to have engaged in. [25]  Second, at no point prior to these decisions was the plaintiff given any opportunity to be heard before the making of a decision to suspend him from his course and exclude him from the University altogether. The decision to suspend him had already been made prior to his meeting with Professor Z and Mr Byrne. In any event, they did not provide him with any opportunity to be heard. The letter that was handed to him did not suggest that he could request the suspension be revoked. … [42]  Section 5 of the University of Western Sydney Act 1997 provides that the University is established by that Act although Sch 4 clarifies that the University is a continuation of the University established by the University of Western Sydney Act 1988. By s 5 the University is said to consist of, inter alia, its students. Nothing in the body of the Act expressly governs the admission and exclusion of students from the University. Both the By-Laws made under s 40(1) and the Rules which are capable of being made under s 41(1) can deal with those topics. Nevertheless the University of Western Sydney By-Law 2005 does not address any topic concerning student inclusion, exclusion or misconduct. The court was not provided with the Rules of the University but there is nothing to suggest that they do either. [43]  Instead, the parties conducted the matter on the basis that the relationship between the University and the plaintiff was governed by some form of contract or agreement between them (cf Griffith University v Tang [2005] HCA 7 ; 221 CLR 99 at [17] per Gleeson CJ and [57] per Gummow, Callinan and Heydon JJ). In particular, the common assumption of both parties was that there was a legal relationship which was governed by, inter alia, the Policy. For the University’s part, it traced its legal effect to the declaration completed by the plaintiff noted above (at [7]) which incorporates the “Policies” of the University. That reference appears to have included the Policy as well as a Code of Conduct and the University Sexual Harassment Prevention Policy. Further, in March 2013 the University issued a tax invoice to the plaintiff, thus giving some further contractual flavour to their relationship. [44]  It is unfortunate that something so important as the legal relationship between the University and its students is unclear. The judgment of Macready AsJ in Wilde v University of Sydney [2002] NSWSC 954 reveals that the By-Laws of the University considered in that case dealt extensively with matters of student discipline. That is not the case here. [45]  A further common assumption of the parties was that the rules of procedural fairness were generally applicable to decisions of the University insofar as they affected a student’s individual interests. These rules are commonly extended to private associations at least in circumstances where a person’s livelihood or similar interest is jeopardised (see Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162 ; 52 NSWLR 242 at [246]–[248] per Ipp JA). Regardless of that common assumption the Policy incorporates the requirements of procedural fairness by providing as follows: 16. The respondent student is entitled to fairness in the handling of any allegation in accordance with this policy including any appeal. A Fairness in Proceedings Guideline is contained in this policy and those principles should be applied where it is reasonably practical to do so. … Fairness in Proceedings Guidelines … 110.The University is committed to ensuring the elements of procedural fairness are followed. These include: aThe opportunity to be heard — a person should be given the opportunity to be heard before a decision that could adversely affect him or her in an individual way is made. bAdequate prior notice of hearing — the person will normally be given adequate notice of the hearing. cAbsence of bias — the decision maker will normally not be biased. Bias may be actual or perceived. dDisclosure of relevant material before the decision — the person about whom the decision is to be made is entitled to know what case is to be met. eReasonable opportunity to respond — the person about whom a decision is to be made should have a reasonable opportunity to respond before a decision is made. fRelevance — decision makers will normally take account of relevant considerations and ignore irrelevant ones. [46]  I have already adverted at [5] to the terms of cl 17 of the Policy. For completeness, I note that it provides: The misconduct investigation and all information and/or documents in relation to it, are considered confidential, details of which will normally not be disclosed to any persons other than for authorised or lawful purposes. [47]  The relevant part of the Policy for this case is s 4 which is entitled “Procedures”. Part A of s 4 is entitled: “Temporary Removal from Activities, Facilities or University”. It addresses situations of urgency arising from a student’s misbehaviour. Part B of s 4 is entitled “Matters Dealt With by a Unit Head”. It addresses various types of complaints that can be dealt with by a so called “Unit Head”, which can include a departmental head or a person in the position of Mr Byrne and other University officers. Clause 28, which is found in Pt B, provides: A Unit Head is responsible for assessing an allegation of non-academic misconduct that has been received. The Unit Head may then deal with the matter under this Part or refer the matter to the Non-Academic Misconduct Investigation Committee, via the Deputy Vice Chancellor, Corporate Strategy and Services, under Part C. [48]  In this case, both Mr Byrne and Professor Z were unit heads. It seems that Mr Byrne assessed the allegation and referred it to the Deputy Vice Chancellor, Corporate Strategy and Services, that is, Ms Hawkins. [49]  Part C is entitled: “Matters Referred to the Non-academic Misconduct Investigation Committee”. It is necessary to set out cll 38–43 as they are central to the resolution of these proceedings. (38)When a Unit Head refers an allegation of misconduct under this Part the role of the Unit Head is to: a.ensure that the allegation is clearly stated and that all supporting material is provided, this includes, where necessary, a covering submission outlining the chronology of events and referencing of relevant documents being submitted; b.advise any persons bringing forward the allegation that the allegation and supporting material will be made available to the Committee and the respondent student; c.advise the parties of any interim arrangements that are to be put in place pending the formal consideration and processing of the allegation. Such arrangements are not intended to be punitive; they are aimed at keeping the peace and may involve obtaining undertakings from the parties, requirements for reporting and avoidance of parties or particular precincts of the University. As far as possible the arrangements should not affect a student’s ability to continue to pursue their studies, attend classes, visit the library and the like; d.consider whether the matter should initially proceed in accordance with the University’s complaints or other formal procedures; e.consider whether the Work Health and Safety Unit should be advised where a matter may affect the health and/or safety of members of the University community. (Refer to SN-AM Associated Document). (39)The Deputy Vice-Chancellor, Corporate Strategy and Services on receiving such an allegation should determine within five working days of its receipt, whether to: a.forward the matter to the Non-Academic Misconduct Investigation Committee; or b.determine the matter should be handled more appropriately under another University procedure or process; or c.dismiss the matter if the Deputy Vice-Chancellor, Corporate Strategy and Services is of the view that the allegation is unfounded or does not constitute non-academic misconduct; or d.determine that the matter requires further investigation. Any such investigation should normally be conducted within 30 working days of receipt by the Deputy Vice-Chancellor, Corporate Strategy and Services. Where this is not practicable the Deputy Vice-Chancellor, Corporate Strategy and Services should advise parties of the reasons for the delay and the likely time frame; or e.determine that the matter should be managed by a Unit Head in accordance with Part B and refer the matter accordingly. (40)Where a matter is proceeding to a hearing and the circumstances of the allegations are of such seriousness that some immediate action is warranted, particularly in the interests of health and safety, the Deputy Vice-Chancellor, Corporate Strategy and Services may temporarily suspend the student from the University precincts or restrict the respondent student from attendance or use of particular activities, facilities or services at the University. Such a suspension or restriction may be limited in time but otherwise shall remain in force until the completion of the disciplinary proceedings including any appeal period unless revoked by the Deputy Vice-Chancellor, Corporate Strategy and Services at an earlier time. (41)The University contact officer will notify the respondent student of the Deputy Vice-Chancellor, Corporate Strategy and Services’ decision under clause (39) within five working days of the decision being made. (42)Where the matter is deemed to be referrable to the Non-Academic Misconduct Investigation Committee the initial notification to a respondent student concerning the allegation will normally: a.provide the respondent student with the precise terms of the allegation; b.provide the respondent student with a copy of this policy and any guidelines; c.provide advice to the respondent student on options available within the University for independent advisory services and student associations, including relevant contact details; d.provide the respondent student with advice of any action taken, or statutory obligation on the University, to report the matter to an external agency; e.advise the respondent student of the option to admit the allegation and have the matter dealt with summarily in which case there is no right of appeal; f.notify the respondent student of any immediate and temporary suspension or restrictions that have been imposed; and g.ask the respondent student whether he or she wishes to admit the allegation and if so to make a submission with regard to any penalty that might be imposed or any mitigating circumstances that the student feels should be taken into account. (43)Such a notice is to be sent to the respondent student by mail and the respondent student is to be provided with no less than five working days from the date of delivery to respond. [50]  Part D of s 4 of the Policy deals with the proceedings of the Committee. It is unnecessary to describe its provisions in detail. It suffices to note that they incorporate the means by which a student the subject of a complaint can be represented and adequately put their case. … [76]  Accordingly, I am satisfied that the decision to suspend under cl 40 involves a failure to afford the obligation of procedural fairness embodied by cl 110. … [92]  The remaining issue that arises is the form of relief that should be granted. In respect of the decision to suspend the plaintiff, I consider it is appropriate to grant declaratory relief reflecting the invalidity of the decision to suspend. Further, I consider it appropriate to grant a limited form of injunctive relief that prevents the University from further acting on or giving effect to that decision to suspend. In a sense I will grant a form of relief analogous to prohibition. … [97] (1)The court declares that the purported determination made under cl 40 of the University’s Student Non-Academic Misconduct Policy on or about 29 August 2013 that the Plaintiff be denied access to all of the Defendant’s campuses and associated facilities with immediate effect, and that he not communicate with any member of staff of the Defendant, was not validly made and is of no effect. (2)The court orders that the Defendant be restrained from denying the Plaintiff access to the University’s campus and associated facilities or be otherwise impeded in the pursuit of any course of study in which he is enrolled based on the purported determination made under cl 40 of the University’s Student Non-Academic Misconduct Policy on or about 29 August 2013 that the plaintiff be denied access to all of the Defendant’s campuses and associated facilities with immediate effect and that he not communicate with any member of staff of the Defendant. (3)The proceedings are stood over to 16 September 2013 at 10.00 am before Beech-Jones J.”: X v University of Western Sydney (No 3) [2013] NSWSC 1329. 

• “[20]  It is unclear as to the basis upon which the relief is sought. It has not been identified in submissions. Presumably, the relief sought is inter alia that of judicial review as is now provided by s 69 of the Supreme Court Act 1970. This has been an approach taken by the Defendants. The section enables the granting of relief inter alia where error of law appears on the face of the record or jurisdictional error is involved. The granting of such relief is discretionary. [21]  One aspect of the Plaintiff’s claim is that the decisions were made without power. Maintaining such a claim is beset with difficulties. [22]  The source of power emanates from the Technical and Further Education Commission Act 1990 (the “TAFE Act”). In submissions, the claim was made in the most general of terms and unsupported by relevant authority. [23]  The Plaintiff appeared to be propounding erroneous views as to the contractual relationship between the parties and this seems to have led him to a mistaken view that there was no power to decide that he had failed. [24]  During submissions, it was suggested to the Plaintiff that this claim was hopeless. Despite this, the claim continued to be pressed with enthusiasm. [25]  In my view, the claim is hopeless and doomed to failure. [26]  The Defendants have made submissions on the basis that the decisions have also been attacked as involving denial of procedural fairness and fraud/improper purpose. This approach appears to have been embraced by the Plaintiff. … [Discussion of grading and assessment policy] … [29]  The material before the Court demonstrates that the two decisions were made in accordance with the relevant provisions. No error of law (be it on the face of the record or otherwise) has been either identified or demonstrated. [30]  Mere dissatisfaction with a decision forms no basis for a challenge to it. Generally speaking, the decisions involved academic assessment (see Clark v University of Lincolnshire & Humberside (2000) 1 WLR 1988 ). [31]  The basis of the allegations of denial of procedural fairness seems to come down to no more than failure to notify of a forthcoming adverse decision. The rationale for this approach seemed to be that if he had been given prior warning he would have been able to withdraw before the “Fail” decision was made. [32]  The proposition, that prior notice should be required of such a forthcoming adverse academic decision made by an educational institution is somewhat novel. In my view, it is also misconceived. Its implementation could be expected to see the concept of student failure becoming obsolete. Such a decision is one of assessment of what has been already done by the student. It is not a matter on which the student need be further heard. If a student commits himself to a course, he or she has to accept the risk of failure. It is not surprising that the proposition was not supported by relevant authority. Accordingly, I do not consider that the Plaintiff was denied procedural fairness. [33]  The plaintiff seems to labour under misapprehension as to the operation of the Assessment Policy. Clause 3.2 has application where a student has not completed a module and evidence can be provided of “participation”. What is contemplated by “participation” may be gleaned from “Assessment criteria”. If it is established that the student did not so participate then the assessment will be “Fail”. Clause 3.3 has application where the student has not completed a module and has a progressive assessment at a Fail level. The decision to fail is a matter for judgment of the teacher (is it appropriate to the circumstances). The judgment is to be based on evidence in the roll book. The teacher must consult with the Head Teacher before awarding this result. [34]  I do not consider that the Plaintiff has a right to a recording of “WN” upon withdrawal. An entitlement to it is dependent upon a satisfaction of the criteria (if evidence can be provided of participation). Such participation being in a small team in the collection, organisation and presentation of information about a library or information agency. This involves the use of a Progress Log Report. [35]  A proceeding commenced by Summons is not the appropriate vehicle to ventilate a claim of fraud. The rules require such a claim be prosecuted by a Statement of Claim. In these circumstances, it was not open to the Plaintiff to press any claim of fraud in the process chosen by him. [36]  For completeness, it should be added that there was no mention of fraud in the claims for relief, the claim was never articulated or made the subject of comprehensible particulars. Apart from these matters, the many affidavits relied on by the Plaintiff do not provide a scintilla of evidence of fraud in relation to the decisions. The same can be said in respect of the contention of improper purpose (whatever that contention was intended to convey). [37]  As earlier mentioned, the second Defendant provided its own internal procedure enabling the challenge to either of these decisions (see Annex “C” of the Katherine Curic affidavit). The Plaintiff chose to immediately bypass this facility and resort to these Court proceedings. He could have pursued the faculty and still come to this Court, had he remained unsatisfied. The facility may still remain available to him. [38]  It was a facility that would have provided the parties with a cheaper and more expeditious remedy. It was a remedy which was more appropriate for the dealing with the decisions (inter alia it was a challenge of wider scope and would have enabled the Plaintiff to bring a challenge involving the merits of the decision). [39]  In my view, the Defendants have demonstrated a clear case for summary relief. It seems to me that the Plaintiff’s claims cannot succeed. Leaving aside these matters, I consider that the Court should also have regard to other matters (the futility of the granting of the relief sought and the availability of the non-curial remedy) in exercising the discretion.”: Chan v Louey and 1 Ors [2006] NSWSC 605. 

Discrimination

• HUMAN RIGHTS — Political discrimination — University statute prohibits denial of progression within university because of students’ religious or political affiliations, views or beliefs — University nursing degree requires students to complete clinical placements approved by university — Student expresses scepticism about safety of Covid-19 vaccination — University cancels student’s clinical placements — Internal university disciplinary tribunal makes reinstatement of placements conditional on student making written acknowledgement of unprofessional conduct — Whether discrimination “because of” student’s views or beliefs about Covid-19 vaccination — Nursing and Midwifery Board of Australia Code of Conduct — Whether student’s views or beliefs about Covid-19 vaccination are “religious or political”: Thiab v Western Sydney University [2022] NSWSC 760.

> See also, Western Sydney University v Thiab [2023] NSWCA 57.

• Racial discrimination in education; use of words "speak English"; whether Applicant treated less favourably because of his race; causation; whether inference should be drawn from evidence: Yu v University of Newcastle [2012] NSWADT 201.

• Discrimination in Education: “[1]  Former law student, Mr Adnan Husein, made a complaint to the President of the Anti-Discrimination Board, alleging that the University of Western Sydney had discriminated against him on the grounds of disability in the area of education. The President has referred Mr Husein’s complaint to the Administrative Decisions Tribunal for determination. …”: Husein v University of Western Sydney (No 2) [2009] NSWADT 86.

• Suspicion of plagiarism  - Honours Thesis - law degree - alleged racial discrimination - dismissed: Kunhi v University of New England [2008] NSWADT 333.

• HUMAN RIGHTS — Sex, race and disability discrimination in education — The genesis of the Ms Huang’s complaints is the decision by her PhD supervisors not to support her re-enrolment as a PhD candidate in 2002 - lack of academic progress - recommendation of termination of candidature - applicant’s PhD enrolment cancelled — allegations of harassment by PhD supervisors — allegations of discrimination on the basis of inadequate English language ability and mental disabilities — alleged victimisation: Huang v University of New South Wales and Ors [2008] FMCA 11.

• Disability Discrimination - Alleged: “... [5]  His Honour identified the cause of action as arising initially from a complaint that Mr Rana had been marked down in assessments in a study unit MPE711 (Global Trade and Markets) because of his race or because of a disability. At a later point, Mr Rana extended his complaint to a failure to re-mark his work in the study unit MPK732 (Marketing Management). Mr Rana had undertaken those courses at Deakin University. [6]  Mr Rana is of Nepalese origin, and claimed to have a psychiatric disability and diabetes. He alleged to the Australian Human Rights Commission (AHRC) that the conduct he complained of contravened unspecified sections of the Racial Discrimination Act 1975 (Cth) (the RD Act) and the Disability Discrimination Act 2006 (Cth) (the DD Act). … [61]  The proposed appeals have no prospect of success. The applications for leave to appeal from the orders of the Federal Magistrate made on 20 July 2012 are refused. Mr Rana must pay the costs of Deakin University of the applications.”: Rana v Deakin University [2013] FCA 59.

• HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – VICTIMISATION – where Applicant was studying a medical course offered by First Respondent (university) – where Applicant raised with staff of First Respondent that rumours were circulating within the student cohort about Applicant – where no formal complaint lodged by Applicant – where Applicant approached various students about the rumours – where Applicant suspended from course – where suspension lifted subject to conditions contained in Student Agreement following review by a review panel – where Applicant subsequently wrote a Facebook post demeaning of another student – where Applicant subsequently excluded from course and university – whether Respondents engaged in direct discrimination, indirect discrimination or victimisation against Applicant as prohibited under the Anti-Discrimination Act 1991 (Qld) – where treatment of Applicant concerned an alleged failure to investigate (or properly investigate) the Applicant’s complaints, the Applicant’s suspension, the imposition of conditions under the Student Agreement, and the Applicant’s subsequent exclusion – whether discrimination by Respondents on the basis of the attributes of race and religious belief or religious activity or on the basis of an alleged presumption of an impairment (mental illness) by staff of First Respondent – meaning of ‘presumed’ in s 8(c) of the Act – whether ‘victimisation’ of Applicant - Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 8, s 9, s 10, s 11, s 39, s 114, s 123, s 129, s 130, s 131, s 166, s 174A, s 174C, s 204, s 205, s 206, s 208, s 209, s 210: JCN v James Cook University & Ors [2023] QCAT 538.

• Medical Condition - Indirect Discrimination - Scheduling of OSCE Exam: Patel v University of Queensland & Anor [2019] QCAT 108.

• PhD Thesis - discontinuance of his PhD candidature at UTS: Kitoko v University of Technology Sydney (No 4) [2025] FCA 1474.

• HUMAN RIGHTS — Application made pursuant to the AHRC Act alleging unlawful discrimination — Alleged breaches of the Racial Discrimination Act 1975 (Cth) — Alleged breaches of the Disability Discrimination Act 1992 (Cth) — Lack of satisfactory progress - Mr Kitoko’s research had “ceased to progress”, that the final few chapters of the thesis were “lack[ing] original contribution”, and that he thought it was unlikely that Mr Kitoko would finish his thesis “within the next six months” - Whether the discontinuation of the applicant’s PhD candidature was an unlawful act — Application dismissed: Kitoko v University of Technology Sydney [2018] FCCA 699.

Compliance with University Statute and Delegated Regulations

• Appeals statute and rules made under provisions of the ANU Act 1991 (Cth) - University Statutes - Disciplinary action - exclusion from university - ordinary judicial review application under s 39B of the Judiciary Act 1903 (Cth) - ADJR Act - Scope of review - standard of review: Australian National University v McGary [2025] FCAFC 164; AWX24 v Australian National University (Separate Question) [2024] FCA 1075.

• HUMAN RIGHTS — Political discrimination — University statute prohibits denial of progression within university because of students’ religious or political affiliations, views or beliefs — University nursing degree requires students to complete clinical placements approved by university — Student expresses scepticism about safety of Covid-19 vaccination — University cancels student’s clinical placements — Internal university disciplinary tribunal makes reinstatement of placements conditional on student making written acknowledgement of unprofessional conduct — Whether discrimination “because of” student’s views or beliefs about Covid-19 vaccination — Nursing and Midwifery Board of Australia Code of Conduct — Whether student’s views or beliefs about Covid-19 vaccination are “religious or political”: Thiab v Western Sydney University [2022] NSWSC 760.

• Review of decision to exclude appellant from DMD degree or alternatively to refuse or prevent his enrolment in the units necessary for him to complete the degree - Judicial Review - University Policy on Academic Progress - allegations of a breach of procedural fairness and inadequate reasons for the decision: “[30]  A proper understanding of the relevant provisions having legislative effect is central to the resolution of this appeal. The most relevant provisions are referred to below. … [31]  The University is established by s 3 of the UWA Act, and under s 4 of that Act, consists of a Senate, Convocation, staff and students. Section 5 of the UWA Act provides that the Senate shall be the governing authority of the University. [32]  Section 7 of the UWA Act provides for the Governor to be the Visitor of the University, with all of the functions that Visitors usually have. There is no suggestion by any party in the present case that the subject matter of this litigation falls within the exclusive jurisdiction of the Visitor.13 This may be accepted on the basis that, by reason of the involvement of the Health Service, the dispute in the present case does not concern a matter which is purely internal to the University. [33]  Under s 29(1) of the UWA Act, the Senate may relevantly cause to be provided to students courses of study appropriate to a university and grant degrees in any branch of knowledge appropriate to a university. Under s 29(2) of the UWA Act, s 29(1) is relevantly subject to any provision of the Statutes relating to the grant or conferral of a degree. [34]  Section 31 of the UWA Act empowers the Senate to make Statutes with respect to matters which include, under s 31(1)(a), the management, good government, and discipline of the University and, under s 31(1)(i), the granting of degrees. [35]  Section 78(1) of the UWA Statute, made under s 31 of the UWA Act, provides that the admission and enrolment of students must be conducted in accordance with the University Legislation. ‘University Legislation’ is defined in s 6 of the UWA Statute relevantly to include the UWA Act, Statutes made under s 31 of the UWA Act, and ‘rules and policies’. ‘Student’ is relevantly defined in s 6 of the UWA Statute to mean a person enrolled in the University as a student. [36]  Section 78(2) of the UWA Statute provides that a person will not be enrolled in any program for any Award (which includes a degree) unless the person has complied with the enrolment requirements set out in the University’s handbook, policies and procedures. Section 78(3) provides that, on enrolment, a student is bound by the University Legislation. [37]  Counsel for the University provided this court with extracts of student rules contained in the University’s Handbook 2024 (Student Rules). There was no dispute that these reflected the rules in 2021. [38]  Under cl 5 of the Student Rules, before first enrolling in a course, a person must have applied for, and been granted, admission to the University. Clause 6 provides for limited, presently immaterial, grounds on which the Registrar may refuse to confirm an offer of admission or reject a person’s enrolment. Under cl 7(1), a person who has been granted permission to enrol in a course at the University is responsible for enrolling. Later provisions of cl 7 deal with the manner of enrolling. [39]  Clause 9 of the Student Rules applies to a student who is permitted by the rules that apply to their course to add a unit to their enrolment in a teaching period. The clause provides that a student may add the unit to their enrolment no later than the relevant ‘addition date’, or after the relevant addition date in certain circumstances. [40]  Under cl 46 of the Student Rules, a student who, as part of their course, undertakes a period of study or practical work in another institution or organisation must comply with the regulations, rules and other requirements of that institution or organisation as they apply to that period of study or practical work. [41]  Under cl 4.2 of the University Policy on Academic Progress, made by the Academic Board on 21 July 2021, a progress status is assigned by the relevant school or board to each student once every standard teaching period or equivalent. A student who does not make satisfactory progress may be assigned a status which includes ‘Excluded — not permitted to re-enrol in the course’. The rules for a course must specify the progress status that is assigned to students who do not make satisfactory progress and the circumstances under which each status is assigned. Under cl 4.2(8) and (9) of the policy:14 (8)The University recognises that mitigating circumstances can lead to capable students making unsatisfactory progress. A student who believes that illness or other significant circumstances have had or will have an adverse effect on their academic performance in, or preparation of, work for assessment may apply to the relevant school or board for special consideration in accordance with the University Policy on Special Consideration. (9)Students who have been assigned a progress status of ‘Suspended’ or ‘Excluded’ may, in accordance with the University Policy on: Review and Appeal of Academic Decisions Relating to Students provide details of mitigating circumstances relating to their academic performance and of any measures that have been or are being taken to address these so that there is a reasonable likelihood that the student would make satisfactory progress if permitted to re-enrol. [42]  The University Policy on: Review and Appeal of Academic Decisions Relating to Students dated 12 October 2021 (Appeals Policy) provides for reviews of and appeals against ‘academic decisions’, defined to mean:15 a decision made with respect to a student in relation to aspects of teaching and learning, research or administration of the student’s course, normally under the University’s statutes, regulations, rules or policy. Clause 1.2 of the Appeals Policy provides that an academic decision may include decisions relating to progress status. [43]  In broad terms, the Appeals Policy provides for a review of a decision relating to progress status by the relevant board.16 A student who is dissatisfied with the review may appeal to the appeals committee of the Academic Board, the decision of which is final within the University, under cl 3 of the Appeals Policy. … [58]  The primary judge identified the critical issue as being whether the appellant would be able to undertake clinical placement and said that the University made no decision about that issue.19 However, the decision which was made by the University, purportedly through the Academic Board, was a decision that the appellant was not allowed to enrol in the second-semester units required to complete his DMD degree. Considered as a whole, that is the substantive effect of Professor da Silva Rosa’s letter of 31 August 2021, set out at [16] above. That is the way the decision was characterised in the application for judicial review in the UWA proceedings. [59]  Section 78 of the UWA Statute required the appellant’s enrolment to be conducted in accordance with the University Legislation, including rules and policies made by the University. The appellant had been granted admission to the University and permission to enrol in the course for the DMD degree under those rules and policies. The rules and policies discussed above provided for a student to be excluded from enrolling in units of the course by being assigned a status of ‘excluded’ after failing to make satisfactory progress. However, the rules and policies also provided for a student who had failed to make satisfactory progress to be permitted to re-enrol in certain circumstances. The rules and policies also provide for a student to appeal against a decision relating to their progress status to the appeals committee of the Academic Board, the decision of which is final within the University. The appellant exercised this right and was given permission to re-enrol in the units required to complete his degree. The appeals committee having made that final decision, the University Legislation provided for no other basis on which the appellant could be excluded from re-enrolling in those units. [60]  The appellant’s ability to successfully complete those units depends upon him being able to complete the CP program at the Health Service’s Premises. However, upon the decision of the appeals committee permitting the appellant to enrol in the units required to complete his degree, there is nothing in the University Legislation that provides for the appellant to then be excluded by a decision of the Academic Board from enrolment in the units on the basis of advice received from the Health Service as to his participation in a CP program, or otherwise. [61]  Further, as discussed below, Dr Glick’s email response to Professor Ngo’s letter of 7 July 2021 did not constitute a decision to exclude the appellant from the Premises. That was a matter which might arise for decision if the University and the Health Service entered into an SCPA and the appellant was enrolled in units of which clinical placement at the Health Service was a component. It would certainly have been appropriate for the University to have informed the appellant of the Health Service’s indicated attitude at the time he sought to enrol in the units. It would also have been appropriate for the University to inform the appellant that his ability to complete the requirements of the units would depend on him convincing the Health Service not to exclude him from the Premises. However, there was nothing in the University Legislation which provided for the appellant to be excluded from enrolment in the units on the basis of the Health Service’s indicated attitude, so as to deprive the appellant of the opportunity to attempt to convince the Health Service not to exclude him. [62]  The exclusion of the appellant from enrolment in the second semester units required to complete the course for the DMD degree, based on the attitude indicated by the Health Service, was not conducted in accordance with the University Legislation as required by s 78 of the UWA Statute. That constitutes a material error of law in making the decision to exclude the appellant from enrolment in those units, which in the case of a non-curial body such as the University is jurisdictional in nature.20 In our view, that error falls within the scope of ground 1 of the appellant’s application for judicial review in the UWA proceedings (reproduced at [19] above). The primary judge erred in not upholding that ground of judicial review. [63]  Ground 2 of the UWA appeal, which contends that the primary judge erred in finding that the actions of the University did not amount to a decision which was capable of being reviewed, is established. The primary judge erred by focussing on a decision about whether the appellant should be permitted to attend or undertake further clinical placements.21 While the University did not make that decision, it did decide that the appellant was not allowed to enrol in the second semester units required to complete his DMD degree. That decision, which the University did make on 31 August 2021, is susceptible to judicial review and was infected by jurisdictional error of law. [64]  The success of ground 2 of the UWA appeal means that it is unnecessary to determine the other grounds of that appeal. [65]  If the appeal is allowed, the appellant seeks a declaration that the University’s decision is void and of no effect, and an order of mandamus. [66]  In our view, it is not appropriate for this court to make a coercive order requiring the University to permit the appellant to enrol in the second semester units required to complete his DMD degree. Over two years have passed since the impugned decision was made, and it has been over four years since the appellant last took part in the course of the DMD degree. That delay has the potential to raise issues as to the enrolment which might be permitted in the second semester of 2024. There is also no evidence as to the current course structure. In oral submissions, senior counsel for the appellant did not press for mandamus and indicated that declaratory relief would be sufficient.22 [67]  A declaration that the decision is void and of no effect appears to us to lack utility, given that the decision related to permitting the appellant to enrol in units in the second semester of 2021. Any legal effect of the decision is long since spent. A more appropriate form of declaratory relief would appear to us to be a declaration that the decision by letter dated 31 August 2021, that the appellant would not be allowed to enrol in the second semester units required to complete the course for a DMD degree, was taken otherwise than in accordance with the University Legislation and so was taken contrary to the requirements of s 78(1) of the UWA Statute. However, we would hear from the parties as to the appropriate form of declaratory relief after publication of these reasons. …”: Hove v University of Western Australia [2024] WASCA 37. 

> See also, Hove v University of Western Australia [2023] WASC 12.

• Judicial Review — Order 56 Supreme Court (General Civil Procedure) Rules 2005 (Vic) — Statute 6.2 under Monash University Act, 2009 — Academic Progress Committee — Student excluded from candidature for law degree — apprehended bias — waiver — procedural irregularity — whether correct question addressed — whether relevant considerations taken into account — Procedural Irregularity - Appeal to Exclusion Appeals Committee — Whether material before committee not disclosed to student — whether denial of possibility of successful outcome — Relief refused: “[Unreasonableness] … Was the Wrong Question Addressed? [78]  With respect to the first ground raised by the plaintiff, there are certain well-established principles which I must bear in mind. Minister for Aboriginal Affairs v Peko-Wallsend Ltd13 establishes that the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision. What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. Not every consideration that the decision-maker is bound, but fails, to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. [79]  The court has a limited role; its function is not to substitute its own decision for that of the committee by exercising a discretion which the statute has vested in the committee. The court’s role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned. Having regard to the terms of the applicable statute in this case, it is for the committee and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the power to exclude. [80]  Thus, for a court to set aside an administrative decision, which has been reached by failing to give weight to a relevant factor of great importance or giving excessive weight to a relevant factor of no great importance, requires an assessment of whether the decision can be characterised as manifestly unreasonable, meaning that no reasonable academic progress committee could have reached it. [81]  The plaintiff contended that the committee’s error on the first ground fell within the description to be found in a passage in the judgment of Dixon J in Avon Downs Pty Ltd v FCT.14 In the passage to which I was taken, his Honour was, I consider, dealing with a different point. Review of a decision to determine whether extraneous reasons were taken into consideration or whether relevant factors were excluded from consideration is not prevented where the decision-maker has not made known the reasons for the decision. His Honour stated: The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law. Relevant to the circumstances to be considered in this proceeding I do not see any tension between Peko-Wallsend and Avon Downs. Whether the decision can be characterised as manifestly unreasonable, meaning that no reasonable academic progress committee could have reached it may, in appropriate circumstances, be identified by inference from false supposition as much as from analysis of expressed reasons. [82]  The powers of an APC, as defined by the University statute, are to either exclude the student from candidature or to permit the student to continue candidature whether absolutely or subject to terms and conditions. An APC is a committee of the Faculty and exercises such powers where a student’s academic progress is unsatisfactory. I reject the plaintiff’s contention that the proper inference in all of the circumstances is that the committee did not address itself to the right question. The committee is not excluded from considering explanations for past poor performance, nor is it directed by the statute to conclude that academic progress is satisfactory if it finds an acceptable basis to excuse, or possibly justify, past unsatisfactory performance. The committee is entitled to consider whether a student has the capacity to progress satisfactorily to complete a degree if her candidature continues. [83]  It is clear on the evidence before me that the members of the 2010 APC accepted the explanation based on psychological and medical conditions but addressed, appropriately, the issue of whether the plaintiff could progress to complete the degree. Other considerations which also featured in their deliberations included, for example, the plaintiff’s poor record in compulsory or core subjects and evidence that she suffered anxiety in examinations. It is not for this court to weigh these various factors in the balance and exercise afresh the discretion of an academic progress committee. I find no basis to infer it to be a false supposition that the committee addressed the right question and took into account all the relevant considerations and no irrelevant considerations. I have reached this conclusion after carefully reviewing the evidence given by the members of the committee of their deliberations and the written material placed before them, which I do not propose to set out in detail in this judgment. For my part, I do not consider that it necessarily follows from acceptable academic performance in 2007 that, once the information provided by the plaintiff concerning her poor performance in 2008 and 2009 is accepted, there is no other conclusion open other than an expectation that the plaintiff’s academic progress is, and/or will continue to be, satisfactory. [84]  Accordingly, I would not grant the plaintiff the relief she seeks on the first ground advanced. … Procedural Irregularity Before the EAC [85]  In Kioa v West15 the High Court was dealing with an appeal against the decision of a delegate where information, which was damaging to the prospects of the appellants being allowed to stay in Australia, was never put to them by the delegate for comment. It appears that the delegate did not rely upon the allegation in making his decision but nevertheless it was contained in the material before him. Brennan J identified the applicable principle that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to her interests which the repository of the power proposes to take into account in deciding upon its exercise. The opportunity does not extend to commenting on every adverse piece of information, irrespective of its credibility, relevance or significance. His Honour continued:16 It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. [86]  Here, Dr Nagtzaam’s March memorandum to the EAC, which was not disclosed to the plaintiff, was taken into account. The memorandum contained material which was in response to the bias allegation put by the plaintiff, not to the 2010 APC, but in her prior email to Ms Pillai and later in the plaintiff’s appeal notice. [87]  The University reminded me of the principle in Stead’s case.17 This principle is well known. Not every departure from the rules of natural justice at a hearing will entitle the aggrieved party to a new hearing, particularly where that denial relates to the opportunity of making submissions on a question of law. All that an applicant needs to show is that the denial of natural justice deprived her of the possibility of a successful outcome. To negate that possibility it is necessary for the appellate court to find that a properly conducted trial could not possibly have produced a different result. [88]  The application of these principles was subject to careful analysis by the Court of Appeal in Ucar v Nylex Industrial Products Pty Ltd,18 a decision which both parties cited in support of their position. In refusing an application for leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 to bring common law proceedings for damages against his employer, the trial judge had made observations about the demeanour of the plaintiff in court from which he drew inferences adverse to the plaintiff. One issue in the appeal concerned the trial judge’s failure to draw these observations to the attention of counsel, thereby depriving the plaintiff of the opportunity either to give evidence or make submissions to explain the events. … [91]  Following lodging an appeal to the EAC, a package of documents is put together for consideration by the Chair of the EAC. The Chair has power under the Statute to determine whether there are prima facie grounds for the appeal or the appeal is dismissed. Included in the material in the plaintiff’s appeal were two internal memos. One memorandum, dated 16 March 2010 prepared by Dr Nagtzaam, was addressed to the Secretary of the Appeals Committee. It provided Dr Nagtzaam’s response to the allegations of bias on his part, which had been made by the plaintiff. A second memorandum, dated 17 March 2010, had been prepared by Ms Pillai. It stated Ms Pillai’s recollection of her dealings with the plaintiff about the possible rescheduling of the APC hearing, matters to which I have referred above. It is common ground that neither of these memoranda were provided to the plaintiff. [92]  When cross-examined about his use, in the memorandum, of the words “through my bias towards Ms Neav”, Dr Nagtzaam agreed that he used an unfortunate choice of words. He explained that what he intended was to refer to the allegation that was being made against him. Dr Nagtzaam agreed that those words could be construed as an admission that he had been biased but denied that that was an appropriate or an intended construction of the words he used. [93]  The plaintiff contends that the fact that a memorandum was so prepared and submitted to the appeal committee was relevant on the issue of whether a fair-minded observer might have considered there was a possibility of bias. It is a denial of procedural fairness not to have afforded the plaintiff an opportunity to respond to that memorandum. The plaintiff put that had she received a copy of the memorandum, and had the opportunity to think about it, her attention would have been directed to the fact that Dr Nagtzaam was seeking to agitate the issue of bias and she may well have raised with the appeal committee the pre-judgment statement that she was to later allege had been made at the 2009 APC. I cannot accept this submission. [94]  On 24 March 2010, the Secretary of the EAC wrote to the plaintiff formally advising her that her appeal had been dismissed, as the Chair of the EAC found there was insufficient evidence to establish either ground, new evidence or procedural irregularity. The letter enclosed the reasons for decision of the Chair of that committee. In summary, this reasoning was as follows: (a)The fact that the Chair of the Faculty APC had previously taught the student or chaired a previous APC hearing involving the student does not automatically sustain a claim of bias. Referring, by way of example, to pre-judgment by reason of a previous unfavourable decision such as one involving an adverse finding about credit, the distinction was noted that the apprehension of bias by the student was drawn from a decision in her favour. While that fact alone does not preclude the possibility that the decision-maker might not bring an impartial mind to the matter at hand, mere involvement and nothing more was all that was being alleged in this instance. (b)It was then noted that aspects of the conduct of the Chair were asserted as specific evidence of bias. The reference was to the assertions of interruption and denial of a fair opportunity to present. In concluding that no prima facie ground of procedural irregularity was established, the Chair referred to the memorandum of 16 March 2010, which had not been disclosed to the plaintiff. The Chair draws from that memorandum the fact that Dr Nagtzaam voted in favour of the decision to allow the student to continue her studies in the 2009 APC and concludes that there is no basis to explain how the matters asserted, if accepted, could evidence a departure from impartiality, having regard to the decision reached. (c)The mere fact that the student believed Dr Nagtzaam was not impartial was not of itself sufficient to make good a claim of a reasonable apprehension of bias. (d)If an apprehension of bias could be established it would have been found to have been waived in this case by reason of the student’s decision to decline the offer of a different panel that would hear the case, and her failure to respond to an invitation given to the student in the hearing to raise any concern about the constitution of the panel. (e)The further medical evidence provided to the EAC was not new evidence. It did not add anything substantially new to the issues raised before the 2010 APC. Further, the student chose to proceed with the APC hearing either because she did not believe the further medical documentation was crucial or she was prepared to proceed without it. [95]  The University submitted that the information contained in the memorandum was not “adverse” to the plaintiff. It says nothing about her credibility, her academic performance, or her health issues. It is unnecessary for me to inquire into the probative impact of that memorandum. [96]  There are two reasons why there will be a want of procedural fairness where an adjudicator hears evidence or receives argument from one side behind the back of another, regardless of its probative impact. These reasons were succinctly identified by Mason P in Seltsam Pty Ltd v Ghaleb.21 First, the appearance of fairness has been shattered in a material respect, for, as Lord Denning put it on behalf of the Judicial Committee of the Privy Council in Kanda v Government of Malaya:22 The court will not inquire into whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe that he has been fairly treated if the other side had access to the judge without his knowing. [97]  The second reason is that there is virtually no means of discovering the impact of the secret material upon the minds of the adjudicator without transgressing the very assumptions underlying the doctrines of procedural fairness and of judicial review. [98]  The University submitted that the material in the memorandum was not used in a way adverse to the interests of the plaintiff. I cannot accept this submission. To do so requires me to speculate upon the impact of the information contained within the memorandum upon the decision-maker. It was submitted that the memorandum simply stated an incontrovertible fact that allowed the EAC to evaluate the persuasiveness of the plaintiff’s allegation of bias upon the grounds then being advanced. It is plain upon reading the memorandum that it goes much further than this, seeking to challenge allegations of fact about the conduct of Dr Nagtzaam which might be thought to go to a question of whether he had conducted the 2009 APC in a manner which might suggest pre-judgment. Although the reasons published by the Chair disclose that he noted how Dr Nagtzaam voted in 2009, how other material in the memorandum was used is a matter of speculation. [99]  But that is not the end of the matter. Mr Hanks submitted that this is one of those exceptional cases where the decision-maker’s omission to disclose information used, when deciding adversely to the plaintiff, had not deprived the plaintiff of the possibility of a successful outcome. The question is whether giving the plaintiff an opportunity to respond to the memorandum could have made a difference. Did the loss of an opportunity to respond go to an issue that was in controversy and was material to the EAC’s decision? [100]  Dealing with the allegation of bias as it had been articulated to him, the Chair of the EAC rejected the notion that the conduct of the 2009 APC could have been unfair to the plaintiff because it resulted in a decision that the plaintiff be permitted to continue her candidature for a law degree. To achieve a successful outcome before the EAC, the plaintiff needed to establish a prima facie case of procedural irregularity constituted by a reasonable apprehension of bias. That allegation of bias was based upon the conduct of Dr Nagtzaam as a tutor and assertions that his conduct, by interruption and abruptness, denied the student a fair opportunity to present her position in a previous hearing when then outcome delivered by the apparently biased member was favourable to the student. [101]  Applying the first limb of the Stead principle, the Chair of the EAC reasoned that accepting the plaintiff’s allegations, irrespective of any disputed question which could arise about them, the uncontroverted fact was that the decision of the 2009 APC was favourable to the plaintiff. Thus, those allegations could not ground a reasonable apprehension of pre-judgment adverse to the plaintiff on a later occasion. He did not use the memorandum as evidence which contradicted the position of the plaintiff. The applicant could not possibly have obtained a different outcome. [102]  The second limb of the Stead principle would come into play were the plaintiff to assert that the opportunity to respond to the memorandum was an opportunity to raise, for the first time, Dr Nagtzaam making the pre-judgment statement at the 2009 APC. The inability to respond to the secret memorandum, by alleging the pre-judgment statement, would be a circumstance where the procedural unfairness touches upon an issue in dispute that was material to the decision. It would be futile for there to be a further hearing of the EAC to permit procedural fairness as the result would inevitably be the same. There is no possibility that the plaintiff could now obtain a different outcome due to the findings I have made concerning the pre-judgment statement. [103]  For these reasons, the third ground, upon which the applicant seeks relief, also fails. … [107]  Clearly circumstances may have changed in the time it has taken to resolve this proceeding. Having obtained this stay, the plaintiff has now undertaken studies towards her degree during the 2010 academic year. She may, or may not, have successfully completed an acceptable course load. Appropriately, no evidence about matters subsequent to the decisions under review has been lead before me. In any event, I ought not, and will not, enter upon a consideration of the merits of the plaintiff’s continuing enrolment in the Law Faculty. No matters which might have gone to the exercise of the discretion were put to me. [108]  Having determined to refuse the plaintiff the relief she seeks in the proceeding, for the reasons I have articulated, any discretionary considerations which might go towards the granting or refusal of such relief are not relevant. [109]  Accordingly, I will make orders refusing the relief the plaintiff seeks by her Originating Motion and I will hear counsel in respect of costs.”: Neav v Monash University [2010] VSC 563.

• ADMINISTRATIVE LAW — Judicial review — Exclusion of respondent from PhD candidature programme conducted by appellant — Where appellant is a body created by statute — Power of appellant to function as a university and to confer higher education awards derived from statute — Whether exclusion was a decision to which the Judicial Review Act 1991 (Q) applied — Whether exclusion was a decision made under an enactment — Relevance of nature of relationship subsisting between parties. WORDS AND PHRASES — "decision", "under an enactment", "of an administrative character", "required or authorised", "aggrieved by": Griffith University v Tang [2005] HCA 7.

> Where the respondent was excluded from her PhD candidature by the University Academic Committee — where that exclusion was upheld by the University Appeals Committee — where respondent applied for judicial review of the decision — where applicant University applied to have the respondent's application for judicial review dismissed — whether the decision to exclude was subject to review under the Judicial Review Act 1991 (Qld) — whether the decision was of an administrative character — whether the decision was one made under an enactment - Academic Misconduct: Tang v Griffith University [2003] QSC 022.

[C] Healthcare Degrees - OSCE Exams 

• Medical Condition - Indirect Discrimination - Scheduling of OSCE Exam: “[8] It was alleged by the applicant that he had several “disagreements” with the Faculty of Medicine over his medical condition and this resulted in several University of Queensland Senate appeals. [9] Despite having commenced in 2012, by October 2016 the applicant had not passed all the necessary subjects for him to progress in the degree. At this time, he alleged that he had one last course requirement; a single remaining exam that was a practical exam referred to as an  OSCE. [10] The  OSCE  was described as a complex clinical practice assessment with the aim of replicating real-life scenarios that may be faced by medical practitioners. The evidence of Professor Ward was that it was seen as a barrier exam as it was placed at the end of the first phase of study because phase two of the program involved working with what were described as real patients and it was important that the student had the capacity to work with real patients. … [88] It was alleged by the applicant that the first respondent imposed a term, namely that if a person in the applicant’s position wished to pass the course they needed to be able to attend and pass the  OSCE  exam on the specified day (relevantly, 25 January 2017). [89] It was alleged that the applicant had an attribute within the meaning of s 7 of the Act being an impairment, namely his psychiatric conditions including bipolar disorder and that at the time of 25 January 2017 the applicant was an inpatient of a psychiatric ward at the Royal Brisbane and Women’s Hospital and as such was suffering an acute exacerbation of his impairment, in particular his bipolar disorder (manic episode). It was submitted that the applicant was a person with an attribute and as such was not able to comply with this term and that a higher proportion of people without the applicant’s psychiatric conditions would be able to comply with the term because they would not have a disturbed thought process due to an episode of mania, nor would they be recovering from a manic episode, nor would they be on medication to resolve the episode. Further it was submitted that the term was not reasonable because the University could have rescheduled the exam to a later date such as June 2017.[23] [90] It was alleged that the first respondent contravened s 39(a), (b) and (c) of the Act on 24 January 2017 when it denied the applicant's request to defer the exam. It was further submitted that the first and second respondents did not comply with s 39 (a), (b) and (c) of the Act when they subsequently terminated the applicant's enrolment in reliance upon his performance in the  OSCE  undertaken on 25 January 2017.[24] The Tribunal finds that the evidence supports the allegations regarding this indirect discrimination and finds that the first respondent alone was responsible for this indirect discrimination. [91] Post a successful appeal to the University of Queensland’s Senate Student Appeals Committee, the applicant was allowed to sit another  OSCE  which was scheduled for 14 October 2017. The applicant submitted that this attempted remedy was insufficient because the applicant was forced to engage in a lengthy appeals process and that meant that the applicant had to wait till October 2017 to undertake the  OSCE  again. Additionally, it was alleged the applicant had not been given access to all course materials and resources that would ordinarily be available to a student. It was submitted that these factors caused the applicant to be materially disadvantaged in the October 2017 exam. It has been the finding of the Tribunal that the evidence did support a material disadvantage as described by the applicant. It was also alleged that the rescheduling did not overcome the issue as the applicant was “singled out” by the second respondent by her subjecting him to a personal observer in his examination in October 2017.[25] The Tribunal reiterates that the second respondent has not been found to be responsible for any discrimination or victimisation of the applicant based on the evidence. The Tribunal has found that the use of an observer was based not on the applicant’s impairment but to enable the process of examination to be rigorous and to address the perception that the applicant had lost trust in the institution and its processes. … [106] On balance, all of the information before the Tribunal leads to the finding that there is a lack of satisfactory evidence to enable it to conclude that the offer to allow Mr Patel to sit the examination again in June 2017 was conveyed to Mr Patel and his father at the meeting of 24 January 2017. This finding impacts upon assessment of the term relied upon namely that for a student to pass the  OSCE  they would be required to attend the  OSCE  on 25 January 2017. It is accepted that the criteria of indirect discrimination is met in these circumstances because: (a) The applicant has an attribute within the meaning of s 7 of the Act, being an impairment namely his psychiatric/psychological conditions; (b) The first respondent imposed a term that if the applicant wished to pass the course they needed to be able to attend and pass the  OSCE  exam on the specified date, relevantly 25 January 2017; (c) The applicant, who is a person with an attribute, was not able to comply with the term; (d) A higher proportion of people without the applicant’s psychiatric/psychological conditions would be able to comply with the term because they would not have a disturbed thought process due to an episode of mania, be recovering from a manic episode or be on medication to resolve the episode. [107] The Tribunal is satisfied that the applicant has discharged the burden of proof found in s 204 of the Act and finds that the term relied upon was imposed by the University upon students. The first respondent is the only party that imposed such a term and the second respondent attracts no liability in relation to this particular term. [108] In cases of indirect discrimination the respondent must prove on the balance of probabilities that a term complained of is reasonable. In these circumstances the Tribunal finds that the first respondent did not discharge this onus. Further the Tribunal finds that the term was not reasonable due to the first respondent’s ability to have rescheduled the exam to a later date e.g. June 2017. [109] Following on from the above, the Tribunal finds that the first respondent contravened to ss 39(a), (c) and (d) of the Act. [110] The applicant submitted that as part of this event of indirect discrimination the first and second respondents did not comply with ss 39(a), (c) and (d) of the Act when they terminated the applicant’s enrolment in reliance upon his exam performance on 25 January 2017. The date for this occurring was listed in submissions by the applicant as 24 January 2017, however it would appear that the applicant was not advised of the termination of his enrolment until the later date of 2 February 2017, when the first respondent notified him via letter that because he had failed the  OSCE  on 25 January 2017 he was being refused further enrolment. [111] It was submitted by the applicants that although the first respondent attempted to remedy this indirect discrimination by rescheduling the exam later in 2017, this attempted remedy was insufficient because it required that the applicant engage in a lengthy appeals process. Additionally, it was submitted that because of the length of time it took to undertake the appeal, the applicant missed the June/July exam block and had to wait till October 2017 to sit another  OSCE , also the applicant was not given access to all course materials and resources that would have been made available to a students enrolled in the subject in that semester. The applicant submitted that he was materially disadvantaged due to this. [112] The applicant bears the onus of proving the allegation of indirect discrimination and has done so with regard to the allegation relating to the requirement to sit the examination on 25 January 2017. [113] The applicant made allegations that amounted to him having been inadequately able to prepare for the exam in October 2017 due to his lack of access to resources. The submissions were made in reference to the University’s attempts to remedy the issue caused by requiring that the applicant sit an examination in January 2017 when he was so unwell. This included the lengthy appeals process and also the issue of lack of access to resources. The resourcing issue raised by the applicant was not borne out by the evidence. There was evidence of the applicant accessing some of the resources of the University via its online services.[34] Dr Smith indicated that the applicant had accessed the UQ blackboard site which was the gateway to online resources on multiple occasions. It was also noted that the Clinical Coaching Summative Assessments to which the applicant requested access were not resources but were exams that students completed as part of their assessment in year one of the clinical practical courses. It was submitted that the applicant had been given prior access to the course materials in 2016 and tutored in that year. The University refuted that the applicant had not had sufficient resources to prepare himself for the examination and based on the evidence before the Tribunal it would appear that the applicant did have access to many of the resources he stated that he did not have access to, although it was taken into account that the access to some of these resources had occurred in 2016 and not 2017. [114] Therefore, whilst the Tribunal did find that the term imposed upon the applicant regarding the requirement to sit his examination on 25 January 2017 was indirect discrimination within the meaning of the Act, such a finding amounts to a somewhat Pyrrhic victory for the applicant. What is meant by this term is that although indirect discrimination did occur by the University’s own processes, that included appeals and a subsequent resitting of the examination, the Tribunal cannot conclude that the applicant should be compensated beyond nominal compensation. [115] In considering what loss is compensated for under this finding of indirect discrimination the Tribunal has to consider the overall circumstances of the case. One factor is that the calculation of examination attempts does not include the 25 January 2017 attempt in the overall number of attempts. Therefore this particular attempt has not contributed to the number of failed examinations that lead to the applicant’s final disenrollment from the course in December 2017. Ultimately it would appear that the applicant’s disenrollment was caused by his multiple failures of  OSCE , a piece of assessment described as a barrier exam due to the importance of making sure that any student that progressed to phase two of the course was competent to deal with patients. Therefore whatever loss was caused by the term imposed that the student sit the examination on 25 January 2017, it did not play a starring role in the overall narrative of his disenrollment from the University. The first respondent’s own appeals process attempted to correct the wrong caused by the applicant being required to sit the examination when he was so medically unwell. This occurred by the exam being rescheduled to October 2017. The applicant alleged that he could not prepare due to a lack of resources however on the balance of probabilities the evidence before the Tribunal did not support this allegation.”: Patel v University of Queensland & Anor [2019] QCAT 108.

• Peter Yeates et al, ‘Inter-school variations in the standard of examiners’ graduation-level OSCE judgements’ (2025) 47(4) Medical Teacher 735 <https://www.tandfonline.com/doi/full/10.1080/0142159X.2024.2372087#abstract>. 

• Claire L Donohue et al, ‘Is There Variability in Scoring of Student Surgical OSCE Performance Based on Examiner Experience and Expertise?’ (2020) 77(5) Journal of Surgical Education 1202 <https://www.sciencedirect.com/science/article/pii/S1931720420300751>.  

[D] University Visitor

• Judicial review — Termination of candidature of student — Review by visitor of university — Supervision by Supreme Court — Whether termination ultra vires — Nature of jurisdiction of visitor — Power to award damages: “HEADNOTES - The Doctoral Degree Committee of the University of Newcastle recommended that the candidature of the plaintiff as a PhD student at the University be terminated. The committee gave 2 reasons. First, the plaintiff, who had spent substantial time overseas and had received an adverse annual report from her supervisor, was in breach of regs 3 and 4 of Sch II of the Doctoral Degree Regulations of the University of Newcastle, relating to performance of her work under supervision. Second, the plaintiff's concurrent candidature for a PhD at Loughborough University in the United Kingdom constituted a breach of regs 6 and 10. When making its decision, the committee had before it an opinion from its solicitors that the regulations did not prohibit dual enrolment. The vice-chancellor determined the candidature on the same bases. The plaintiff then petitioned the visitor to the University of Newcastle, the Governor of New South Wales, seeking reinstatement of her candidature and compensation for the loss she had incurred. The visitor, ruling on the preliminary question as to whether the grounds for the vice-chancellor's decision were legally valid, declared that the candidature had been wrongfully terminated and remained current. He ordered that the committee determine afresh whether to accept the plaintiff's thesis for examination and ordered the university to pay as compensation by way of “solatium” for injured feelings the sum of $6000. The plaintiff sought an order quashing the compensation award. Held: (i) Where a wrong has been done by the misinterpretation or misapplication of the rules of the university the role of the visitor is to rectify that wrong, and there will be circumstances in which rectification could not justly be achieved without the awarding of damages. Thomas v University of Bradford [1987] 1 AC 795 , applied (ii) The visitor has power to choose the form of relief by which the regulations of the university should be upheld, taking into account the welfare of the university as a whole. Thomas v University of Bradford [1987] 1 AC 795 , considered R v University of London Visitor [1988] QB 322 , applied (iii) The visitor had erred in arbitrarily selecting a figure by way of “solatium”, rather than righting the wrong against the plaintiff as to its financial consequences by determining whether the plaintiff had suffered compensable harm and assessing damages therefor. (iv) It was arguable that if the allegations in the petition were made out, the university was guilty of misfeasance in public office or negligence or breach of contract. Re Wislang's Application [1984] NI 63 ; Bourgoin SA v Ministry of Agriculture [1986] QBD 716 ; Thomas v University of Bradford [1987] 1 AC 795 , referred to (v) The visitor had therefore misconceived his jurisdiction or at least erred in law on the face of the record. The judgment of Allen J in relation to these findings reads as follows: It is the order as to compensation which is the subject of the proceedings in this court.”: Bayley-Jones v University of Newcastle (1990) 22 NSWLR 424; (1990) 21 ALD 746.

• Academic Integrity Issues - Pseudonym Order - Ombudsman: IJW v Swinburne University of Technology [2021] VSC 846.

[E] Consumer Law

• Jim Jackson, 'The Marketing of University Courses under Sections 52 and 53 of the Trade Practices Act 1974 (Cth)' (2002) 6 SCU Law Review 106 <https://www.austlii.edu.au/au/journals/SCULawRw/2002/4.pdf>. 

• ** Patty Kamvounias and Sally Varnham, 'Getting what they paid for: Consumer Rights of Students in Higher Education' (2006) 15(2) Griffith Law Review 306 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/GriffLawRw/2006/16.html>. 

• Therese Wilson and Nicola Howell, 'The Role and Effectiveness of Regulation in Consumer Protection ' (2006) 15(2) Griffith Law Review 239 <https://www.austlii.edu.au/au/journals/GriffLawRw/2006/13.pdf>. 

• Stephen Corones, 'Consumer Guarantees and the Supply of Educational Services by Higher Education Providers' (2012) 35(1) UNSW Law Journal 1 <https://www8.austlii.edu.au/au/journals/UNSWLJ/2012/1.pdf>. 

• Bruce Lindsay, 'Complexity and Ambiguity in University Law: Negotiating the Legal Terrain of Student Challenges to University Decisions' (2007) 12(2) Australia & New Zealand Journal of Law & Education 7 <https://www8.austlii.edu.au/au/journals/ANZJlLawEdu/2007/10.pdf>. 

• Francine Rochford, 'The Relationship Between the Student and the University' (1998) 3(1)  Australia & New Zealand Journal of Law & Education 28 <https://www.austlii.edu.au/au/journals/ANZJlLawEdu/1998/3.pdf>. 

• Rorke, Francine, 'The Application of the Consumer Protection Provisions of the Trade Practices Act 1974 (Cth) to Universities' (1996) 12 Queensland University of Technology Law Journal 176 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/QUTLawJl/1996/12.html>. 

• Lisa Goldacre, 'The Contract for the Supply of  Educational Services and Unfair Contract Terms: Advancing Students’ Rights as Consumers' (2013) 37(1) UWA Law Review 176 <https://classic.austlii.edu.au/au/journals/UWALawRw/2013/10.pdf>. 

• Norman Katter, 'Misrepresentation and the Liability of Universities' (2006) 33(1) Education Research and Perspectives 128 <https://erpjournal.net/wp-content/uploads/2020/01/ERPV33-1_Katter-N.-2006.-Misrepresentation-and-the-liability-of-universities.pdf>. 

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