Alajmi v Macquarie University

Supreme Court of NSW|2019-06-05|Before: Payne J

ssion (2000) 199 CLR 135; [2000] HCA 5 Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; 155 LGERA 230 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Dornauf v The Stewards of the Harness Racing Board [1994] VR 302 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Graham v Minister for Immigration and Border Protection [2017] HCA 33; 91 ALJR 890 Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kruger v The Commonwealth (1997) 190 CLR 1 at 36; [1997] HCA 27 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; 329 ALR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 R v Panel on Take-overs and Mergers; Ex parte Datafin PLC [1987] QB 815 Re Day [2017] HCA 2; 91 ALJR 262 Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 Thomas v University of Bradford [1987] AC 795 Wilkie v The Commonwealth [2017] HCA 40; 91 ALJR 1035 Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) JD Heydon QC, Heydon on Contract (2019, Thomson Reuters) P Kamvounias and S Varnham, "In-house or in Court? Legal Challenges to University Decisions" (2006) 18(1) E&L 1 E Lim and C Chan, "Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law" (2019) 135 LQR 88 Category: Principal judgment Parties: Sharaf Alajmi (Plaintiff) Macquarie University (Defendant) Representation: Counsel: B K Nolan (Plaintiff) H El-Hage (Defendant)

Solicitors: Pacific Maritime Lawyers (Plaintiff) Bartier Perry (Defendant) File Number(s): 2018/00060623 Publication restriction: None

Judgment

PAYNE J: Mr Alajmi, a former PhD student at Macquarie University, brought proceedings in this Court against the University about a number of aspects of the conduct of the University concerning Mr Alajmi's doctoral thesis.
On 7 January 2015, Macquarie University received an anonymous complaint relating to Mr Alajmi's thesis, then in final draft, in these terms: "I learned that a friend of mine has purchased his thesis from an online essay company called allanswers.co.uk. This student is Sharaf Alajmi and he is my friend. …I am ashamed to say that I looked at his computer. There were two years of exchanges with this company, all relating to the chapters of the thesis. In the latest exchanges he was saying 'please ask the statistician to find a way to make the regressions significant'. He said his supervisors would not be happy with the results and he would be happy to pay more to get true results. He was asking the writer to change the model in chapter 3 and to make sure that the next chapter discusses the limitations of the model etc. He has employed a writer and someone to do his stats. … He has not written a single word of anything himself, and he hasn't done the analysis. He has spent A LOT of money with this company."
Mr Alajmi admitted to the University that he used "allanswers.co.uk" [1] to assist him in relation to his thesis. Exactly what work "allanswers.co.uk" did for Mr Alajmi was, however, controversial. Accordingly, the University decided to conduct an investigation into the anonymous complaint. In a variety of ways, Mr Alajmi complains about the decision to conduct the investigation, the content of the "Final Report" of the investigation and the fact that his PhD thesis supervisor, Associate Professor Wright, refused to certify under the relevant Macquarie University policy that she was satisfied that the thesis was all Mr Alajmi's "own work". In reaching that state of non-satisfaction, the thesis supervisor took into account the "Final Report" on the plagiarism complaint and submissions made by Mr Alajmi's lawyers about that report.
Mr Alajmi's case was framed as an administrative law complaint attacking two decisions styled the "Final Report" and the "non-certification decision". The case was filed by his lawyers in the administrative law list of the Court. As a result, only a summons and, eventually, points of claim were filed. In hindsight, it is clear that this is a case in which a properly articulated statement of claim was required.
The points of claim identified the two impugned decisions and sought declaratory relief and certiorari in relation to each of those decisions. There was also a claim of estoppel. The estoppel claim received virtually no mention in the oral and written submissions on behalf of Mr Alajmi.
The points of claim did not address any claim in contract. Written submissions filed by Mr Alajmi almost immediately before the trial, and 10 days after the date originally ordered by the Court that they be filed, however, identified a claim based in contract. In the oral submissions made by Ms Nolan, on behalf of Mr Alajmi, most attention was given to that contract claim. Mr El-Hage, who appeared for Macquarie University, complained that the contract claim was not pleaded. Nevertheless, he was content to address the contract case propounded by Mr Alajmi on the merits and defer my ruling about the availability of the claim until this judgment.
I have concluded that the contract claim was not pleaded, but that I should address the claim made rather than dismiss it as not having been pleaded in circumstances where: 1. the contract claim was articulated by Mr Alajmi in written submissions before the hearing; 2. no additional evidence was sought to be filed by either party to address that claim; and 3. Macquarie University understood the claim being made and had an opportunity to address that case and make detailed submissions about it. Judgment Evidence Mr Alajmi's evidence Macquarie University's evidence Joint court book Factual findings Issues to be determined Submissions of the parties Mr Alajmi's submissions Administrative law Contract Estoppel Macquarie University's submissions Administrative law Contract Estoppel Discretion to refuse relief Consideration Framework in which this case is to be determined Consideration of issues Administrative law Contract Estoppel Discretion to refuse relief Conclusion and orders

Mr Alajmi's evidence

Mr Alajmi read the affidavits of Sharaf Alajmi sworn on 18 September 2018 and Anthony John Stanton sworn on 23 February 2018. There was no cross-examination.
Mr Alajmi's affidavit sets out, at length, the steps he took in preparation of his thesis and the events relating to the investigation into the allegations against him. Objections were made by the defendant to the admissibility of substantial parts of the affidavit on the ground of relevance. Paragraphs 14, 17, 18 (first and third sentence), 19, 20, 21, 22 and 24 were not pressed by Mr Alajmi. In relation to the remaining paragraphs to which objection was taken, 6-11, 25-48, 50-65, 67-79, 81-86 and 88-91, I made a ruling admitting those paragraphs provisionally pursuant to s 57 of the Evidence Act 1995 (NSW).
I have decided that the paragraphs which were provisionally admitted are admissible. The only objection, relevance, provides a low hurdle to admissibility. I have concluded that the evidence may be relevant to the estoppel claim which was advanced. No fall back limitation pursuant to s 136 of the Evidence Act was sought by Macquarie University. I reserve the question of the weight to be attached to that evidence. I should note, at this stage, that virtually none of the evidence to which objection was taken was referred to, at least in any detail, in the extensive written and oral submissions made by Ms Nolan.
Mr Stanton is a solicitor acting for Mr Alajmi. His affidavit sets out some relevant facts and outlines aspects of the governance framework. Paragraphs 3, 4, 5, 6, 7, 14, 18 and 19 of Mr Stanton's affidavit were permitted to be read, subject to a s 136 Evidence Act limitation, as submissions only. There was virtually no reference to Mr Stanton's evidence in the written or oral submission of either party.

Macquarie University's evidence

Macquarie University read the affidavits of Alan Kilgore sworn on 27 November 2018, Louise Dwyer affirmed on 24 October 2018, Zoe Williams affirmed on 24 October 2018 and James Mattson sworn on 31 May 2019. There was no cross-examination.
Professor Kilgore was employed by Macquarie University from July 2001. From March 2011 to December 2014, he was Mr Alajmi's primary PhD thesis supervisor. Prior to his retirement in December 2014, Professor Kilgore was the Deputy Head of the Department of Accounting and Corporate Governance. From December 2014 to December 2016, he held an honorary appointment with the University. Paragraphs 11 and 40 of his affidavit were not pressed by the defendant. Paragraph 33 was rejected. I provisionally admitted paragraphs 14 to 27 of the affidavit on the same s 57 basis as the evidence of Mr Alajmi. I am persuaded that these paragraphs (which are responsive to Mr Alajmi's evidence which I have admitted) should be admitted.
Ms Dwyer is employed by Macquarie University as the Deputy Director, Governance and Operations. She has held this role since March 2016. Her key responsibilities include oversight of a team that looks after the operations of higher degree research students, including admission, from enrolment to completion.
Ms Williams is employed by Macquarie University as the Head of Governance Services. She has held this role since April 2012. Her key responsibilities include leading the development and implementation of a strategic framework for student and academic governance. Paragraph 21 of her affidavit was admitted as a submission only.
Mr Mattson is a solicitor acting for Macquarie University in these proceedings. His affidavit sets out correspondence between Mr Alajmi and Macquarie University's previous solicitors.

Joint court book

The joint court book comprised seven volumes and was marked Exhibit A. The documentary evidence was voluminous. A number of draft versions of Mr Alajmi's thesis were tendered.
The documents at tab 25 were materials produced under a notice to produce dated 4 July 2018 issued to Macquarie University. Those documents were received as provisionally relevant in that they related to passages in Mr Alajmi's affidavit to which objection was taken. These documents principally go to an issue, alleged apprehended bias, which was not clearly pleaded in the points of claim and addressed only fleetingly in the written submissions filed before the hearing. Oral submissions were made about those documents by both parties. The documents were also said to go to the issue of legally unreasonable decisions made by Macquarie University and Associate Professor Wright. I have decided to admit in evidence the documents behind tab 25 of Exhibit A despite their principally relating to an unpleaded issue. I am satisfied that Macquarie University had a sufficient opportunity to address the unpleaded issue.
The documents at tab 29 of Exhibit A were tendered by consent. They are a compilation of documents which were exhibited to the affidavit of Robert Johnston, the defendant's previous solicitor, sworn on 14 May 2018. Rather than read Mr Johnston's affidavit, the parties sensibly agreed that the documents at tab 29 should be tendered.

Factual findings

My principal factual findings are as follows. Where necessary I will make additional factual findings when addressing various aspects of the parties' arguments.
Mr Alajmi is a Kuwaiti national. Macquarie University is: 1. a body corporate established under s 4 of the Macquarie University Act 1989 (NSW); 2. a public office within the meaning of the State Records Act 1998 (NSW); and 3. a public authority within the meaning of the Ombudsman Act 1974 (NSW) and Independent Commission against Corruption Act 1988 (NSW).
On 3 February 2011, Macquarie University offered Mr Alajmi a position in its Doctor of Philosophy in Accounting and Corporate Governance program. A term of the offer was that Mr Alajmi agreed "to abide by the By-laws and Rules of Macquarie University". On 8 February 2011, Mr Alajmi accepted the offer. On 8 February 2011, the Kuwait Public Authority for Applied Education and Training certified that Mr Alajmi had been granted a scholarship to obtain a Doctor of Philosophy in Accounting from Macquarie University.
Between 21 March 2011 and March 2015, Mr Alajmi was engaged in work in respect of his PhD thesis. During his PhD candidature, Mr Alajmi's primary supervisor was Professor Kilgore and his associate supervisor was Associate Professor Wright. Mr Alajmi met regularly with his supervisors. Mr Alajmi made notes during those meetings. There is some debate in the affidavit evidence about Mr Alajmi's capacity to read, speak and write in English. I am in no position to make a finding about that subject. I do, however, find to the extent that it is relevant that Mr Alajmi's PhD supervisors believed that he read, spoke and wrote English well and was well-versed in English grammar.
It was standard practice in the Accounting and Corporate Governance Department at Macquarie University to provide each PhD student with a specified amount of money, some of which would be used to engage a copy editor in the final stages of preparation of a doctoral thesis. In April 2013, Mr Alajmi was not at the stage where his thesis was completed or nearing completion such as to require a copy editor. That this is so was demonstrated by an exchange between Professor Kilgore and Mr Alajmi some months later. On 23 August 2013, Professor Kilgore sent Mr Alajmi an email regarding the timeline for reviewing the draft chapters of Mr Alajmi's doctoral thesis. In this email, he stated: "Following this review you will probably need to make further changes to the thesis. This process is likely to need repeating until the thesis is completed to our satisfaction. This stage was not included in your schedule. Once this is completed you will then be able to have the document professionally edited." (Italics added.)
Later on 23 August 2013, Mr Alajmi responded and stated: "Thank you for your email. I agree with you."
Some months earlier, however, Mr Alajmi had already retained "All Answers". The scope of that engagement and the work done by All Answers remains in dispute between Mr Alajmi and Macquarie University. Although framed in traditional administrative law and contract terms, many, if not all, of the submissions advanced by Mr Alajmi in this case were predicated on an assumption that the Court could itself determine the merits of this debate between Mr Alajmi and Macquarie University. I do not propose to embark upon a process of impermissible merits review.
On 17 May 2013, Mr Alajmi emailed All Answers to engage them to assist him with his doctoral thesis: "Dear Customer Service Team, I would like to know if you provide professional editing services for doctoral thesis. I have completed my thesis and the only service I need is professional editing. Please advise. Kind regards, Sharaf Alajmi"
In April 2014, Mr Alajmi returned to Kuwait and decided to remain living in Kuwait whilst completing his PhD thesis.
On or about 13 October 2014, Professor Kilgore completed the 2014 Annual Progress Report for Mr Alajmi which included the following notation: "Sharaf has had some difficulty in his thesis writing. His command of English is very good, however, at times he has had some difficulty in articulating his arguments. This has improved following specific/detailed reviews by his supervisors and a more disciplined and focused approach to his revisions. He is now nearing the end of his candidature and is very focused on completion of his thesis."
Mr Alajmi never informed Professor Kilgore or Associate Professor Wright that he was using All Answers, or any other organisation, to provide him with assistance.
On 15 December 2014, Associate Professor Wright replaced Professor Kilgore as Mr Alajmi's primary supervisor.
On 7 January 2015, Professor Kilgore received an email entitled "Student plagiarism" from an anonymous source. The email alleged that Mr Alajmi had engaged in academic misconduct by employing All Answers to contribute to the intellectual content of his doctoral thesis. The email stated: "I learned that a friend of mine has purchased his thesis from an online essay company called allanswers.co.uk. This student is Sharaf Alajmi and he is my friend. … I am ashamed to say that I looked at his computer. There were two years of exchanges with this company, all relating to the chapters of the thesis. In the latest exchanges he was saying 'please ask the statistician to find a way to make the regressions significant'. He said his supervisors would not be happy with the results and he would be happy to pay more to get true results. He was asking the writer to change the model in chapter 3 and to make sure that the next chapter discusses the limitations of the model etc. He has employed a writer and someone to do his stats. … He has not written a single word of anything himself, and he hasn't done the analysis. He has spent A LOT of money with this company."
On 14 January 2015, Associate Professor Evans, Higher Degree Research Coordinator for Macquarie University, emailed Mr Alajmi informing him of the allegation and inviting him to respond as soon as possible. The email stated: "Because of the serious nature of these allegations and the university's obligation to follow up, I am letting you know the particular issues raised by the email: 1. The writing of your thesis (and the analysis) was by an online essay company called all answers.co.uk; 2. There has been two years of correspondence with the company in relation to the thesis; and 3. There were specific instructions to the company about receiving help from a statistician about "making the regressions significant", "to change the model in Chapter 3" and "make sure that the next chapter discusses the limitations of the model"."
On 15 January 2015, Mr Alajmi responded to Associate Professor Evans' email, confirming that he had worked with All Answers and stating that All Answers had "been helping with things like proofreading, feedback on the work and general support". The email stated: "I can confirm that I have worked with an online company called All Answers for the past year and half. However I have not had my thesis written by All Answers and they have not completed the analysis in my thesis. All Answers produce model answers and provide assistance that has helped me do my own work. After completing my first draft of the thesis, a lot of issues were raised but at the time my supervisors were very busy and I could not get the level of support I really needed. At this point I contacted All Answers who have been helping with things like proofreading, feedback on the work, and general support. ... I have spoken recently with a statistician who provided advice on the possibility of changes to the work and specifically the model. All analysis was designed by myself and a major flaw with the thesis is that results are not as significant as expected. I needed to make a change to the model or do additional tests, and advice was given about this."
In February 2015, Professor Pretorius, Deputy Vice-Chancellor (Research), established an Internal Institutional Misconduct Inquiry to investigate the allegation and appointed a panel consisting of Professor Mansfield (Chair), Dr Alter and Professor Quinn ("the Panel").
Between March 2015 and November 2016, the Panel investigated the following allegation: "Mr Sharaf Alajmi engaged an organisation(s) and/or individual(s) to create intellectual content to be included in his doctoral thesis in breach of the Higher Degree Research Thesis Preparation, Submission and Examination Policy, The Macquarie University Code for the Responsible Conduct of Research 2015 and the Academic Honesty Policy"
On 26 February 2015, Associate Professor Wright emailed Professor Quinn a draft of Mr Alajmi's thesis.
On 4 March 2015, the Research Integrity Office sent an email to the anonymous informant's email address. No response was received. Macquarie University was unable to confirm the identity of the informant.
On 4 March 2015, Professor Mansfield, Dean of Higher Degree Research and Chair of the Panel, wrote to Mr Alajmi notifying him that the University had received an anonymous allegation of research misconduct against him relating to his alleged engagement of All Answers or its related companies. The allegation was expressed as follows: "That you engaged an organisation(s) and/or individual(s) to create intellectual content to be included in your doctoral thesis in breach of the Higher Degree Research Thesis Preparation, Submission and Examination Policy, and the Macquarie University Code for the Responsible Conduct of Research".
On 16 March 2015 at 3.26pm, Professor Quinn emailed Associate Professor Wright, stating: "I can't really find any evidence that the candidate has done other than take your advice in fixing his statistical analysis. In particular, I can't find any evidence that he has sought the advice of a statistical expert to redo his analysis. For example, he keeps on talking about running a model to test a hypothesis. No statistician would do this."
Later that day at 3.41pm, Associate Professor Wright replied to Professor Quinn: "I won't comment on your conclusion because it's not my position to do so."
At 3.45pm, Professor Quinn replied to Associate Professor Wright: "I just wanted to run this past you as a courtesy before I wrote to the panel. I didn't want to write anything that upset you. If my conclusions had been different, I may not have consulted you first!"
At 3.51pm, Associate Professor Wright replied to Professor Quinn: "I do not preten[d] to be a statistician, so I'm not upset by your comments. I'm not impressed by his latter analysis, for reasons that are related to the ones you describe, but never as clearly articulated. The comment I would make as long as it doesn't change your report is, you can only determine if he has had assistance from an expert, not a non-expert. It is equally as wrong to get assistance from a non-expert, but it's not as likely to assist him in passing."
At 3.56pm, Professor Quinn emailed Professor Mansfield, stating: "I can't find any evidence that the candidate has done other than take his supervisors' advice in fixing his statistical analysis. In particular, I can't find any evidence that he has sought the advice of a statistical expert to redo his analysis. For example, he talks about running a model to test a hypothesis. No statistician would say this."
On 17 March 2015, Professor Quinn wrote a memorandum to Professor Mansfield: "In conclusion, if Mr Alajmi did obtain statistical help, I believe it was of a minor and non-expert nature. The explanations of his SPSS-computed tables are correct, but, for example, he has not explained what a logistic regression actually is, and how it relates to the problem he is examining."
On 18 March 2015, Mr Alajmi submitted his PhD thesis for examination with a form titled "Submission of a HDR Thesis for Examination" ("Submission Form"). Mr Alajmi signed under section 7 of the Submission Form, which provided: "7. Declaration by the Candidate I hereby submit my thesis for examination in accordance with the regulations and declare that: 1. The thesis is my own composition, all sources have been acknowledged and my contribution is clearly identified in the thesis."
On 19 March 2015, Associate Professor Wright signed under section 9 of the Submission Form, which provided: "9. Certification by the Supervisor and the Head of Department I hereby certify: 1. that the thesis has been prepared and bound in a form approved by the Higher Degree Research Committee and includes a summary of approximately 200 words for a Masters and 300 words for a Doctoral degree; 2. that the length of the thesis conforms to the requirements as to the length prescribed by the Head of Department; 3. that any instances of inadequate presentation and content were pointed out to the candidate and corrected before the thesis was bound; 4. that the candidate has completed the approved program of advanced study and research as set out above. 5. that the abstract submitted above for the purpose of Australian Higher Education Graduation Statement is accurate and is a true reflection of the candidate's thesis and area of research. [Supervisor's Signature] [Head of Department's Signature]"
The bottom of section 9 of the Submission Form, which required the signature of the Head of the Department, was unsigned. Section 10 of the Submission Form, which required the signature of the Associate Dean (HDR), was unsigned. It stated: "10. Certification by the Associate Dean (HDR) of Faculty: ... I hereby certify: 1. that the examiners have already been approved or submitted to the Higher Degree Research Office for this thesis, OR 2. that Faculty has provided advice to the candidate where there are areas of concern. [Associate Dean (HDR)'s Signature]"
On 20 March 2015, Mr Alajmi emailed Professor Mansfield attaching his written response to the allegation. In his written response, Mr Alajmi stated: "Please explain the nature of your relationship with All Answers. I initially contacted All Answers (specifically their website UK Essays) in 2013 following the completion of the first draft of my thesis. At this stage, I had completed my first complete draft, and received a large amount of editorial comments from my supervisors. After a conversation with my supervisors regarding this issue, it was agreed that I could have the thesis professionally edited. At this point in time, I was finding it very difficult to make significant progress on the thesis for a number of reasons. The comments/feedback I received was very general regarding the editorial work needed and was hand-written. I felt I really needed to have my thesis professionally edited because these editorial comments were distracting me from making progress on other work the thesis might need before finalizing my thesis. I was under the impression that I would get my thesis closer to be submitted to the examiners when I contacted the company. I felt that I needed to motivate (push) my supervisors to get them involved in my research by showing them my progress after the editorial work. At this point (with my supervisors agreement I could have my thesis proofread and professionally edited) I approached All Answers with a complete draft of my thesis. Everything about the thesis at this point was fully developed and confirmed with my supervisors. The entire thesis had been written, and the reference list was fully complete. The main data analysis and additional analysis was fully complete and I sought editorial assistance only, because the comments were general in nature and editorial only. I would like to confirm that I am the sole author of my thesis and I did not include any intellectual content created by others in my doctoral thesis and my thesis is free from any deception and plagiarism. After my initial engagement with the company, work commenced with an editor who worked in track changes and editorial comments in Microsoft Word. Every change was recorded and manually approved or declined by myself. The work was edited over four reviews. Editorial work consisted of spelling and grammar checking and formatting. I took extreme care with the work to make sure nothing was added or changed. No references were added to the thesis. The editorial work I received from All Answers gradually reduced over the year and half period. As I completed in depth reviews with my supervisors of each chapter and addressed in depth comments and small changes to the work to improve it, the editorial work from All Answers provided reduced. My supervisors' feedback became much more targeted as their reviews went on, providing track change comments in Word rather than handwritten comments, and being more directive. This, alongside the editorial work allowed me to develop a greater understanding of how to push myself closer towards completion of the thesis on my own. Towards the middle of December 2014, closer to completing the third review of my thesis by my supervisors, when reviewing the later chapters, my supervisors and I discussed some additional tests that may have been beneficial to my thesis. The current results were not giving me a significant enough amount of material to discuss in the main analysis. Following the comments from my supervisors, I developed some additional tests to provide additional material for discussion. At this point, I needed my thesis to be professionally edited. It was then that I was recommended the services of a statistician, by All Answers, however I refused this because I had already developed my own additional test and analysis. I have provided the last editorial draft I received from All Answers, from 12th December. This demonstrates the editorial review that was undertaken. I had just completed amendments to Chapter 5 and a draft of Chapter 6 was being reviewed by the supervisors. I had therefore passed Chapters 1-4 to All Answers for editorial review, which was completed and sent to me on the 12th along with the suggestion of using the services of a statistician. I declined, and on the 14th December passed my own suggestions onto the supervisors for approval. I was due to send a final draft of all chapters to All Answers for editorial review in late January, but following the allegations, decided against any further contact with the company. How long have you been in correspondence with All Answers Ltd? I have been in contact with All Answers Ltd since late May, 2013 until mid-December, 2014. To be clear, I had a further review for editorial work on the entire thesis scheduled in January, but due to the allegations I received, I did not contact All Answers again. Therefore, my last contact was December, but I officially ceased the relationship in January. To confirm exactly, the exact schedule of work with All Answers was as follows: Editorial Review 1 - A full review of the entire thesis prior to individual chapter reviews (between May and December 2013) Editorial Review 2 - Chapters 1 and 2 (between January 2014 and April 2014) Editorial Review 3 - Chapters 1, 2,3 (between May 2014 and October 2014) Editorial Review 4 - Chapters 1,2,3,4 (between November and 12th December 2014) Editorial Scheduled Review 5 - Chapters 1, 2, 3, 4, 5, 6 and 7 (January 2015) - Cancelled My communication has always been with individuals working for All Answers as part of the customer service team there, not directly with an editor or a statistician. All communication, including correspondence and draft work was conducted over Skype during this time, and as a result there is little correspondence I can provide. I have provided my most recent editorial draft from All Answers to demonstrate the type of assistance I received from them. I was recommended the company by international PhD students studying in Australia, who had used the company themselves. I contracted the company initially via e-mail, and never dealt with an editor or a statistician directly. The only service I received was editorial - no ghost-writing, custom writing, or statistical assistance. As stated, I was offered assistance with the statistical part of my thesis, but I refused this. I took great care in researching the company beforehand, reading their privacy policy and terms and conditions, and consulting external review sites. I understand how using a company such as this can be seen as not acceptable, and that it is down to the individual user of the service offered to make sure that plagiarism does not occur. I made it very clear from the beginning of my communication with All Answers Ltd that I had no interest in services that would involve adding any intellectual content or changing the thesis. Please detail the statistical assistance that you received. All Answers recommended the services of a statistician, when the editor was professionally editing chapters 1 to 4. At the time, I was working on chapters 5, 6 and 7, and All Answers were aware I was exploring this issue. The company suggested I could make changes to the model components, by changing or removing variables to completely change the model. This would never have been suitable for me, as it would lead to a change to my hypothesis and thesis as a whole. At this point, I declined these services. I knew this kind of assistance was not acceptable. I had already decided upon my own additional tests to add to the thesis, which had been passed onto my supervisors for approval. Following approval of this from my supervisors, I completed my additional tests - a Wald backwards elimination model and Kruskal-Wallis test and added them into my thesis. No data was passed to the statistician or All Answers at any point - the data is the property of the university and cannot be shared."
On 26 March 2015, Associate Professor Wright wrote to Ms Botros of the Kuwait Culture Office, stating that Mr Alajmi had "submitted his doctoral thesis on time, on March 18th 2015. His thesis is awaiting examination".
On 8 April 2015, Professor Mansfield wrote to Mr Alajmi, requesting his email correspondence with All Answers, any record of the agreement he entered into with All Answers, copies of the requests he made to them and the work they undertook to do.
On 14 April 2015, Mr Alajmi responded to Professor Mansfield's email, stating that there was only email correspondence sent by Mr Alajmi to All Answers, that no written contract existed between Mr Alajmi and All Answers and that Mr Alajmi did not have earlier drafts of his thesis: "I can confirm to you that I only have one email and it is regarding the inquiry of their service I made to All Answers. I enquired about the service through this email, and immediately called All Answers through the Skype contact provided in their website. During this phone conversation, I was asked if communication over Skype would be preferable. After that, all communication was through Skype, including the exchange of the files containing my thesis. I do not know anything about the significant email correspondence that you mention. … I can also confirm to you that there is no written contract outlining the work between All Answers and myself. Terms & Conditions for the service were provided to me via the website. The only service requested and agreed over the initial Skype conversation to be provided to me by All Answers was editorial and there was no need for significant amount of correspondence. As I have previously mentioned, after I sent the inquiry email, I called All Answers via Skype and a customer care staff member from All Answers spoke with me to explain the editorial work that they could do and their prices. We agreed that I was going to be charged a flat fee per review. I am providing pdf files containing the invoices for each review. At that point we also agreed to the following: that the work I needed was merely editorial, that we will always work through Skype since it would be easier for me to revise the editorial work while they were on the phone. … I have 4 editorial reviews as part of the service I received from All Answers, and I have provided my most recent editorial draft to demonstrate the type of assistance I received. Unfortunately, I do not have earlier drafts of my thesis for a number of reasons. Firstly, I had a previous bad experience with working on the wrong file, causing me a setback with the work. At one point, I accidentally worked on an old draft file and did not realise until submitting the work to my supervisors, meaning my work was in large parts incorrect. After this, I made the decision to only keep one singular version of the file at any one time, and work continually within that file, to make sure no further mistakes were made. Secondly, I was provided with a laptop via Macquarie to use and did the majority of my work on this. I had a significant number of issues with the computer crashing and loosing data and files. I filed several tickets with the IT department to try and solve the issue, and it was only ever solved temporarily. Since I have moved back to Kuwait and had to change computers, I have lost data, another reason keeping a singular file of the thesis was easier for me. The only files I still have are the files containing my supervisors' comments. The files from my supervisors are the ones I used to work on improving my thesis according to their comments - I would take each comment and address it in my single draft file of the work, keeping just one working draft. After addressing my supervisors' comments and finalizing my thesis myself, I then sent the work to the editor for editorial review."
On 24 June 2015, Ms Davies, Chief Information Officer, granted the Research Integrity Office permission to access Mr Alajmi's student email account and student data backup folder to retrieve relevant documents.
On 23 July 2015, Professor Mansfield wrote to Mr Alajmi, inviting him to comment on extracted files retrieved from the folder named "42403472". The folder enclosed 12 files which included: two files named "chapter6 instructions.docx" authored by Mr Alajmi; a file named "Sam instruction_15-05-2013.docx" authored by Mr Alajmi; and a file named "Literature Review 352002 c.doc" last saved by a person identified as "Paul Lines". "We have reason to believe that you are not being honest with us for the following reasons: 1. In our possession, we have copies of files that have been backed up on university IT equipment that provide evidence of your dealings with a third party. These backup files were stored in a folder titled "42403472". These files appear to include instructions to another person directing changes to the intellectual content of your thesis which go well beyond simply requesting professional editorial assistance. Could you please explain these instructions and identify who they were directed to? For example: a. In the file titled "chapter6instructions.docx" your first comment reads "I have listed all the results and findings in this chapter. The purpose of this chapter is to write about the results and findings of my study. Please see explanations for each table/subsection in order to write about them. Format the tables based on the dissertation format. At the end of this chapter, you will discuss and summarise the results and finding."; and b. In the file titled "Sam_instruction_15-05-2013.docx", your third comment reads "Please write the introduction using these points and use the figures to develop the story." 2. Further, you claim in your written response on 23 March 2015, that you had no direct communication with either an editor or a statistician. We believe that you did have direct contact with an individual known as Paul Lines. It appears that Mr Lines has contributed directly to the content of your thesis. We would appreciate it if you would please advise us as to Mr Lines' role in the editing of your thesis. We also request that you provide us with copies of your correspondence with Mr Lines, or any other person who was engaged to provide editorial or writing services to you. 3. We also believe that the invoices you have sent through to us as evidence of your payments to All Answers Ltd are fraudulent. A recent enquiry with the company directly has informed us that All Answers Ltd does not send through invoices in the format presented by you but, rather, requests payment through an online security system. We request that you provide us with the proper evidence of your payment/s to All Answers Ltd. 4. Finally, a recent enquiry with All Answers Ltd directly has informed us that all individuals who engage the services of All Answers Ltd are required to sign a confidentiality agreement at the outset. We request that you provide us with a copy of your original confidentiality agreement with All Answers Ltd."
On 24 July 2015, Mr Alajmi emailed Professor Mansfield and the Research Integrity Office, responding to Professor Mansfield's letter of 23 July 2015. In that email, Mr Alajmi denied that instructions to another person directing changes to the content of his doctoral thesis went beyond editorial assistance. The email stated: "1) ... I can say that the files that "appear to include instructions to another person directing changes to the intellectual content of your thesis which go well beyond simply requesting professional editorial assistance" are not my files. I have never directed any instruction regarding changing or completing my work to anybody else. I have only original files with instructions from my supervisors to me. The instructions you referred to in the letter are the instructions from my supervisors. 2) I can reassure to you that I have never had any direct or indirect contact with any editor or statistician. I do not know who "Mr. Paul Lines" is. I would not even know if he was part of the editors' team from All Answers. All Answers does not disclose the names of their editors. Thus, I never exchanged any kind of communication with such person. 3) Regarding the invoices, All Answers Ltd requests payment through an online security system however I requested an invoice for each payment for my own records, which All Answers Ltd were happy to provide. These are the invoices they have provided me. 4) As I had previously explained to you in another letter, I have never signed any contract with All Answers. Terms & Conditions for the service were provided to me via the website. I have contacted All Answers and requested to speak with a Manager to clarify the invoices and the contract issues. I was then transferred to Mr. Daniel Dennehy, the senior manager at All Answers Ltd, and he is happy to speak with you directly regarding this if you wish. He has confirmed no formal confidentiality agreement or contract is ever signed between customers and the company, and the Terms & Conditions act as a contract. I also did not deal with Mr. Dennehy at all during the time I was corresponding with All Answers, so he is able to speak from that perspective. It may be beneficial to speak directly with the company and ask these questions, as they will be able to confirm my responses for points 3 and 4 you have mentioned. I suspect that they would not be able to confirm the identity of "Mr Paul Lines" due to the data protection mentioned in their Terms & Conditions, as I was never able to obtain details about any editor. As I stated previously, I dealt only with the customer service representatives working at All Answers. I would speak to the person who answered the call over Skype, and exchange any files over Skype during the call. There were many customer services representatives that I spoke with and I did not have a fixed point of contact. I was never able to speak directly with any editor or writer. I have contacted All Answers today regarding this and to give them my permission to be honest about any questions you wish to ask, as I really do not have any further evidence to provide to help support my statements. They can confirm to you that these invoices are not fraudulent."
On 17 September 2015, Professor Mansfield emailed Mr Alajmi, enclosing copies of the files retrieved from the folder named "42403472" and inviting him to comment: "On 3 August 2015, we informed you that we would provide you with the opportunity to review and comment upon the evidence we have obtained in relation to the research misconduct investigation regarding your thesis. Please find attached to this email a copy of the files we have been provided with by the Macquarie University IT department. The file names have been listed in the table below along with the date and time they were created and the author of each file. These files were located in a backup folder under your student number 42403472. File Name Date and time created Author chapter6 instructions.docx 16/07/13 8:43:34 PM Sharaf Alajmi chapter6 instructions.docx 23/07/13 8:22:02 PM Sharaf Alajmi Literature Review Template.xls 22/07/13 3:00:34 PM Sharaf Alajmi My_WorkingpPaper.docx 20/05/13 6:06:08 PM Sharaf Alajmi early__Comments_Clarks_Research_Paper_Short.docx 17/05/13 4:34:06 PM Sharaf Alajmi Literature Review 352002 c.doc 22/05/13 1:59:46 PM Last saved by Paul Lines Sam_instruction_15-05-2013.docx 06/07/13 11:53:00 AM Sharaf Alajmi Sirca_Workshop_Sharaf.docx 16/06/13 12:32:52 PM Sharaf Alajmi Research Overview.docx 15/05/12 8:13:18 PM (modified 22/06/15 4:47:15 PM) Sharaf Alajmi April.01,2013_Ph.D._Dissertation.doc 14/07/13 7:59:10 PM Sharaf Alajmi Literature Review Template for CG factors and manager turnover.xls 02/07/13 10:21:48 AM Unknown Note for the literature review section.docx 12/02/13 8:40:32 PM Sharaf Alajmi

Upon reviewing each of these files, the inquiry panel has reason to believe that the following is true: 1. That you have instructed another person to make changes to the intellectual content of your thesis which go well beyond simply requesting professional editorial assistance; 2. That the instructions to another person mentioned in the first point above are not instructions or comments to or from your supervisor/s; and 3. That you have had direct contact with an individual known as Paul Lines and that Mr Lines has had a role in contributing directly to the content of your thesis."

I will address the contents of these documents, and in particular the comments in the margins which were authored by Mr Alajmi, when I address the substance of his complaints below. To the extent that Mr Alajmi, as part of his complaint of unreasonableness, sought findings from the Court about the content of those documents, it is sufficient to note at this stage that I find that a large number of comments in the above documents were plainly drafted by Mr Alajmi in the form of directions to a third person about the substantive content of the draft thesis and there were comments from third parties, including from a person named Paul Lines, who I find was one of the recipients of those instructions, contained in the documents.
On 19 September 2015, Mr Alajmi emailed Professor Mansfield again asserting that the comments written in the third person were instructions directed at himself. He denied knowing a person named Paul Lines. The email stated: "I do not understand how this evidence acts as proof for any of the points you have made. I have never heard of or dealt with an individual named Mr. Paul Lines. The comments within the documents are those for myself, they are not written for another person and I cannot see how this can be classed as significant correspondence. … 1) Comments that you can see within the files are simply those written by myself to tell myself what to do later. I made these comments in supervisors reviews to instruct myself on the changes I would need to make later. I concede and understand how you can read these as if they are instructions to somebody else, but this is just my way of writing these. 2) The files in question are very old, and I do not know how you can confirm that they are not instructions to or comments from my supervisors. Many are notes I made myself in meetings and conversations. 3) I have not had any direct or indirect contact with a Mr. Paul Lines and do not know who this person is or recognise this name at all. I see where this has come from, but this name is only in one document. During my time working on the thesis I attended seminars and conferences and often used other laptops at this time. I cannot speculate how this name may have entered my document. ... This process has now been ongoing for 8 months, and while I appreciate the need for the investigation to take as much times as necessary, I am eager to resolve this. At this point, and with all due respect, I would like to express my desire to sit down and speak with the committee in order to clear any remaining doubts."
On 9 November 2015, the Panel conducted a 30 minute Skype interview with Mr Alajmi. The transcript of the interview records the following: "[Professor Mansfield]: ... All our questions are focused on the issues that we raised when we wrote to you and we received your response from you on September the nineteenth. So our focus will be on a series of comments in the draft versions of your PhD thesis ... what I intend to do is simply look at a series of examples from your thesis. There are five marginal comments that we want to look at and just ask if you can provide us with an explanation as to what these comments actually are. The first is from a file named "April 2013 Dissertation" and I'll read out the comment. The comment reads "could you please make my idea more clear in this section to show how directors' independence effectiveness could affect the advisory role. As it is the writing does not show any relevance. Please link this section to my research questions emphasising that board effectiveness are not only important to strategic decisions in the context of the monitoring role but also to the strategic decisions in the context of the advisory role of any deeds". What we'd like to know about this comment and the other comments is this reads to us as if it's phrased as part of a conversation, a direction that you're issuing to a third party. Could you please respond to that? [Mr Alajmi]: … I needed to distinguish my comments from my supervisors okay, and I found it a way, maybe it's a strange way ... that I could use a third party or third person write in academic writing in order for me to say I incorporated all the comments that I need before I start writing. ... these files are, you know, just notes for myself. … [Professor Mansfield]: … So the first sentence again is "could you please make my idea more clear in this section to show how directors' independence effectiveness could affect the advisory role." That sounds to me like you have your own idea and you're passing it over to someone else to rewrite in a way that achieves a certain goal. The second sentence is "to describe my data in the tables, you could use the work in my research paper". Again that seems to be that you have a research paper but you're asking somebody else to rework it to another form. ... it really does read like a direction you're giving about your work which you describe in the first person as "my" to someone else who you describe in the second person as "you". That's where we're confused." … [Mr Alajmi]: … So when I say that "my", when I use "my" in this sentence I'm showing that I already reviewed it and I added my own ideas in these comments. Okay. So this how I [filed] these comments. So it's coming from my supervisors - they're asking me to do something in these comments ... so I'm combine it from you know the feedback from my supervisors from the recording and my own so when I listen to them I try to generate these comments. ... [Professor Mansfield]: ... we also have a document called "Literature Review 352002c doc" and it contains the following comments - one comment "yes this has been published. See reference" and the author of that comment is Paul Lines. There is also a comment "but is there any?" from FBE Admin and a response to FBE Admin "I can't find any" and later there's another comment from Paul Lines "I cannot find a copy of this article free on the net". Can you say who Paul Lines is and what your relationship with him is? [Mr Alajmi]: I don't know who's this person and I cannot you know recognise this name at all. … [Professor Mansfield]: There is a person Paul Lines who runs a company called RE and D which is and also which is on a website called read essays.com who runs an essay and dissertation writing service. From the UK. … [Mr Alajmi]: … So Paul Lines I told you I don't know this person at all. At all. I never had any communication with this person or I don't know him actually. Okay, the second part is how did his name comes to the property of my document? That's a mystery. ... it could be that I was writing some comments in some computers, you know, computer machines and it picked the property of this person. I use different, I have problems with my, with my laptop and I have, I lost [my laptop] ... There are reasonable expectations, okay, for that is, you know, is that I opened one of these machines while I'm in a conference or seminar or somehow and I was working on my files because always I generate ideas in terms of comments. Okay, so the property of the, of this person could be picked by the file while, when I saved it at the end. … [Professor Mansfield]: Okay, but your explanation would depend on the fact that someone else had used one of the computers you'd had access to who had that name? [Mr Alajmi]: It could be I have no idea. But what I'm saying, I have no idea exactly how is it, how this happened, you know."
On 2 March 2016, Dr Pitcher, Research Integrity Officer, telephoned Mr Dennehy, Customer Service Experience Manager at All Answers, requesting information about Mr Alajmi's engagement of All Answers. On 3 March 2016, Dr Pitcher wrote to Mr Dennehy requesting further information about Mr Alajmi's engagement of All Answers. On 8 March 2016, Dr Pitcher emailed "Re&d Research Essays & Dissertations" requesting that Mr Lines provide information about his involvement with the preparation of Mr Alajmi's doctoral thesis. No response was received from Mr Lines.
On 28 June 2016, Ms Montague of the University's Office of the General Counsel wrote to Mr Alajmi's solicitors enclosing the Panel's Draft Report ("Draft Report"). That letter stated: "Under clause 26.2 of the Macquarie Code for the Responsible Conduct of Research, [Mr Alajmi] is to be provided with an opportunity to examine, comment upon the draft report, and has a period of five days from receiving the draft report to provide comment. In the circumstances, we would like to offer [Mr Alajmi] further time (such further time to be reasonable) to consider and make any submissions in respect of the report that he may wish to make."
On 30 June 2016, Mr Alajmi's solicitors wrote to Ms Montague, requesting that Mr Alajmi have until 29 July 2016 to provide his submissions in relation to the Draft Report. That same day, Ms Montague responded to Mr Alajmi's solicitors, agreeing to the requested date.
On 7 July 2016, Mr Alajmi wrote to Ms Montague, enclosing his formal response to the Draft Report. The response was 14 pages in length and included Mr Alajmi's submissions in relation to procedural fairness and jurisdictional error and his response to the draft findings and submissions on the next steps. Mr Alajmi stated in summary: "In essence, [Mr Alajmi] submits that the Inquiry Panel was not properly constituted and was clearly biased against him. Further, the panel had no probation [sic probative] evidence to make the findings, took into account irrelevant considerations and in any event misdirected themselves as to the appropriate issue. Finally, it is submitted that the appropriate way forward is to properly examine [Mr Alajmi] as that is the mechanism provided for in University Policy."
On 17 August 2016, Ms Montague emailed Mr Alajmi's solicitors, stating: "1. After taking into consideration the submissions made by [Mr Alajmi] in relation to certain draft findings of the Panel (namely, the submissions set out in Section 2 "Responses to Findings" of your letter dated 7 July 2016), the Panel is preparing a list of written questions for [Mr Alajmi] to address. I expect to be in a position to send those questions to you on or before Monday 22 August 2016. 2. The Panel proposes to give [Mr Alajmi] 14 days to respond to those questions in writing, or such further time that he requires. 3. Subject to paragraph 4 below, on receipt of [Mr Alajmi's] response to those questions, the Panel intends to finalise the investigation report within 14 days and a copy of the report will be provided to the relevant parties in accordance with section 26.3 of the Code. 4. If any fresh evidence is taken into consideration by the Panel in the final report, [Mr Alajmi] will, of course, be given an opportunity to respond to that evidence before the report is finalised, and the above timeframes will be adjusted as necessary. Finally, the Panel has now received correspondence from All Answers advising that they are awaiting confirmation from [Mr Alajmi] that he is willing to allow All Answers to provide the Panel with information it holds in relation to [Mr Alajmi's] engagement of them. The Panel would appreciate if [Mr Alajmi] could provide that confirmation (such consent can be provided by way of email) so the Panel can seek such further information."
That same day, Mr Alajmi's solicitors replied to Ms Montague, stating: "For clarity, it appears from your email that the Panel consider the inquiry ongoing and are have reopened evidence gathering. If so, we find that surprising given the issues raised by [Mr Alajmi] of actual and ostensible bias and procedural defect that are so obvious on the documents. We infer therefore that the Panel has made a decision to disregard or reject [Mr Alajmi's] submissions on these issues, and to blithely charge on regardless."
On 23 August 2016, Ms Montague emailed Mr Alajmi's solicitors with a list of questions from the Panel, noted that the Panel awaited Mr Alajmi's consent for the Panel to contact All Answers with some questions and requested that Mr Alajmi respond within 14 days.
On 1 September 2016, Mr Alajmi requested an extension of time to respond to the list of questions. On 2 September 2016, the Panel agreed to grant an extension of time to 20 September 2016 and again asked whether Mr Alajmi had provided his consent to All Answers responding to the Panel's questions. Mr Alajmi had asserted on 24 July 2015 (quoted at [55] above) that he had told All Answers that he gave permission for them to answer any questions.
On 7 September 2016, Mr Dennehy of All Answers emailed Dr Pitcher, confirming that Mr Alajmi had been a customer of All Answers, that the invoice obtained from Mr Alajmi had been generated by All Answers and that they do not supply invoices as standard practice and only by request.
On 13 September 2016, the Research Integrity Office on behalf of the Panel emailed Dr Rieschild, a former lecturer in the Department of Linguistics at the University, with enquiries about the Arabic language and specifically about the relevance of English being Mr Alajmi's second language. That same day, Dr Rieschild responded to the Research Integrity Office, stating: "In sum, it is the use of "please" and "you" that is most strongly suggestive of these being notes to someone else and not notes to self. Given our knowledge of Arabic first language English speakers, the reasons the individual gives for these being notes to self are not reasonable."
On 13 September 2016, Ms Montague emailed Mr Alajmi's solicitors about Dr Pitcher's correspondence with Mr Dennehy, attaching the email correspondence and requesting Mr Alajmi's comments about Mr Dennehy's response.
On 21 September 2016, Mr Alajmi requested a further extension of time to respond to the Panel's list of questions. On 23 September 2016, the Panel agreed to grant a further extension of time to 30 September 2016. On 30 September 2016, Mr Alajmi requested a further extension of time to respond to the list of questions. That same day, the Panel agreed to grant a further extension of time to 5 October 2016.
On 5 October 2016, Mr Alajmi's solicitors emailed Ms Montague with Mr Alajmi's response to the Panel's list of questions dated 23 August 2016.
On 11 October 2016, Ms Montague emailed Mr Alajmi's solicitors a copy of the transcript of the Skype interview with Mr Alajmi on 9 November 2015.
On 20 October 2016, Ms Montague emailed Mr Alajmi's solicitors regarding the opinion that the Panel had received from Dr Rieschild on 13 September 2016. That email stated: "- that a further issue relevant to the Inquiry had been the subject of recent consideration by them; - that is, on or around 6 October 2016, the Panel received an opinion from Dr Verna Rieschild, who is a former lecturer from the Department of Linguistics at the University (contained in an email exchange spanning the period 8 to 13 September 2016) in relation to certain of the margin comments/annotations in the context of English being [Mr Alajmi's] second language (the language issue); - that Dr Rieschild retired in or about July 2015, and since the start of 2016, she has not been a lecturer at the University, but she continues to provide research supervision to her remaining Higher Degree Research students at the University; - that the Panel regards that information as relevant to its considerations; and - as a matter of procedural fairness, to now enclose the relevant email exchange for [Mr Alajmi's] consideration. The Panel invites [Mr Alajmi] to provide any written response in relation to that material that [Mr Alajmi] wishes to provide by 28 October 2016 (noting it is working towards the finalisation of its report by 4 November 2016 - as to this see further below). If [Mr Alajmi] requires further time to respond, please let me know as soon as possible."
The Panel decided not to have regard to the opinion of Dr Rieschild in the circumstances, including after consideration of the objection by Mr Alajmi to the Panel doing so.
On 10 November 2016, the Panel released the Final Research Integrity Investigation report ("the Final Report"). The Final Report made the following findings: "On the balance of probabilities, the Inquiry Panel finds that, on consideration of the totality of the relevant information and evidence, it is more likely than not that the allegation that [Mr Alajmi] engaged an organisation(s) and/or individual(s) to create intellectual content to be included in his doctoral thesis is sustained. Specifically, the Inquiry Panel finds that on the balance of probabilities, it was more likely than not that: i. [Mr Alajmi] engaged one or more third parties (one of which it finds was All Answers) to create intellectual content to be included in his thesis; ii. [Mr Alajmi] has admitted to engaging All Answers; and iii. the scope of [Mr Alajmi's] engagement of one or more third parties (one of which it finds was All Answers) included services beyond what a professional editor may provide when editing a doctoral thesis."
On 10 November 2016, Ms Montague emailed Mr Alajmi's solicitors with the Final Report and appendices. The email stated: "A copy of the report will now be provided to the Deputy Vice-Chancellor (Research) for his consideration in accordance with Section 27.1 of the Macquarie University Code for the Responsible Conduct of Research 2015 (Code). To accord [Mr Alajmi] procedural fairness, [Mr Alajmi] is invited to provide any written submissions to the Deputy Vice-Chancellor (Research) in relation to the actions available to him under section 27.1 of the Code, by 25 November 2016. Any written submissions provided by [Mr Alajmi] will be provided to the Deputy Vice-Chancellor (Research) for his consideration."
On 24 November 2016, Mr Alajmi formally responded to the Final Report, rejecting entirely its findings. The response stated: "For the reasons we briefly set out below, it is [Mr Alajmi's] submission that you cannot rely on the Final Report to make the decision or recommendation urged upon you by the Panel in accordance with Paragraph 27 of the Code because: • The discretion of the Director, Research Ethics miscarried in characterising the allegation as research misconduct on the information available; • The Panel was not properly constituted in accordance with the Code; • The Panel has been dilatory in the conduct of the inquiry, causing delay contrary to the Code and the principles of procedural fairness, to [Mr Alajmi's] detriment; • The Panel's and its advisors' actual and apprehended bias; and • The burden of proof has not been met in the circumstances."
On 12 January 2017, the Deputy Vice-Chancellor (Research) wrote a memorandum to Dr Yi of the Higher Degree Research Office with his recommendation. That same day, the Deputy Vice-Chancellor (Research) wrote to Mr Alajmi advising him of his recommendation: "4. Under section 27.1 of the Code, having reviewed the findings of the Inquiry Panel and taken into account your submissions, on 12 January 2017 I made the following recommendation to the Higher Degree Research Office pursuant to section 27.1(b) of the Code: Recommendation to Higher Degree Research Office 1. I refer to the Final Investigation Report dated 10 November 2016 with respect to a research misconduct investigation undertaken by the Research Integrity Office in respect of PhD candidate, Mr Sharaf Alajmi, pursuant to the Macquarie University Code for the Responsible Conduct of Research (Code). 2. Pursuant to section 27.1(b) of the Code, I recommend that the Final Investigation Report, together with the letter dated 24 November 2016 from Mr Alajmi's lawyers, be provided to Mr Alajmi's Principal Supervisor, Associate Professor Susan Wright, so that Associate Professor Wright may have regard to them as part of her assessment as to whether or not Mr Alajmi's thesis should be certified that it meets the University's preparation requirements." …Right of Appeal under section 30 of the Code 5. In accordance with sections 27.3 and 30.2 of the Code, you may appeal the findings of the Inquiry Panel to the Chair of the Academic Senate which appeal must be made in writing and in accordance with section 30.3 of the Code within 10 working days of you ([Mr Alajmi]) receiving my decision in relation to the findings of the Inquiry Panel. Further actions under the Code I reserve any rights to take any further action under the Code."
Mr Alajmi did not seek a review of the Final Report under s 30 of the Macquarie University Code.
On 16 January 2017, Dr Yi wrote a memorandum to Associate Professor Wright regarding the Deputy Vice-Chancellor (Research)'s recommendation on 12 January 2017. That memorandum stated: "The actions required by you 8. As Principal Supervisor of a PhD candidate, you are required under the Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014 (HDRTPSE Policy) to certify whether [Mr Alajmi's] thesis has met the University's preparation requirements. 9. In the course of considering whether or not to certify that [Mr Alajmi's] thesis meets the University's requirements, we hereby provide you with a copy of the following material which you may have regard to: a. Final Report - Research Integrity Investigation Report - Research Misconduct Case Number 2015-0002 dated 10 November 2016; and b. Letter from MER Solutions addressed to Professor Sakkie Pretorius dated 24 November 2016 setting out [Mr Alajmi's] submissions in relation to the Final Report. 10. Please let me know in due course in writing the outcome of your assessment and whether or not you have decided to certify that [Mr Alajmi's] thesis has met the University's preparation requirements."
On 20 January 2017, Mr Alajmi's solicitors wrote to Macquarie University's solicitors regarding the Deputy Vice-Chancellor (Research)'s recommendation.
On 24 January 2017, Mr Alajmi received an email from Associate Professor Wright. In that email, she advised: "I am moving universities to University of Newcastle (Australia) effective 1st February 2017, and I can no longer be your PhD supervisor from this date. I propose a change of supervisor … Please note that in the meantime I am completing my assessment of whether your thesis meets the University's preparation requirements in accordance with the Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014 and will advise you of the outcome shortly."
On 27 January 2017, Mr Alajmi's solicitors wrote to Macquarie University's solicitors explaining that Mr Alajmi opposed the actions proposed by Associate Professor Wright in her email of 24 January 2017. That letter stated: "It is implicit in A/Prof Wright's email that she will be making the assessment of [Mr Alajmi's] thesis without any further regard to him. Such an approach does not seem to be in accordance with the principles of procedural fairness, and we reiterate our questions in our letter sent [20] January 2017. … A/Professor Wright's resignation from Macquarie University completely changes the character of Professor Pretorius' recommendation, and [Mr Alajmi] must reserve his rights to bring an appeal against the recommendation as a consequence. Given that A/Professor Wright's email contains new information and describes circumstances completely outside [Mr Alajmi's] control, [Mr Alajmi] seeks an extension of time for the submission of an appeal, if that is required, until such time as this latest issue has been resolved. Consequently, we seek [Mr Alajmi's] confirmation that [Mr Alajmi's] rights under the Code are preserved in these changed circumstances."
On 31 January 2017, Macquarie University's solicitors wrote to Mr Alajmi's solicitors, responding to their letters dated 20 January 2017 and 27 January 2017. That letter stated: "Incomplete certification process commenced in 2015 2. We confirm that Associate Professor Wright partially completed Section 9 (Certification by the Supervisor) of a 'Submission of a HDR Thesis for Examination' form, which was signed and dated by her on 19 March 2015 (2015 Submission Form) (see attached for your records). You will note that the matters listed in Section 9 of the 2015 Submission Form do not address all of the matters that are expressly required by the Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014 (2014 Policy) to be considered as part of the certification process to be undertaken by a Supervisor 3. Specifically (and contrary to the assertion in your letter dated 20 January 2017), Section 9 of the 2015 Submission Form does not address whether your client's thesis is 'his own work'. 4. You will also note that the 2015 Submission Form is incomplete, as the required certification from the Head of Department and the Associate Dean (HDR) of the Faculty has not been provided. 5. We are instructed that the certification process and the 2015 Submission Form were never completed because the Research Integrity Investigation with respect to your client was underway. 6. Now that the investigation has been finalised with the delivery of the Final Report, that certification process can now be resumed and finalised ... There is not, as you have sought to characterise it, a "re-certification" process being undertaken. 7. We are instructed that given the incomplete nature of matters recorded on the 2015 Submission Form, Associate Professor Wright has considered it more appropriate to withdraw Section 9 of the 2015 Submission Form, to now complete the certification assessment as recommended by the Deputy Vice-Chancellor (Research) on 12 January 2017 and in accordance with the specific requirements of the 2014 Policy and issue a final certification assessment."
On 2 February 2017, Macquarie University's solicitors wrote to Mr Alajmi's solicitors advising that Associate Professor Wright could not certify that Mr Alajmi's thesis met the University's preparation requirements: "3. We are instructed that Associate Professor Wright has reviewed the following documents: a. [Mr Alajmi's] thesis; b. the Research Integrity Investigation Report (Case No. 2015-0002) dated 10 November 2016 (including [Mr Alajmi's] written submissions dated 7 July 2016 and 24 November 2016); and c. the 2014 Policy [Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014] and advises that she cannot certify that [Mr Alajmi's] thesis meets the University's preparation requirements on the basis that she is unable to satisfy herself that [Mr Alajmi's] thesis is [Mr Alajmi's] 'own work', as is required of her by the 2014 Policy. Next steps 4. If, notwithstanding the advice of the Principal Supervisor, [Mr Alajmi] still wishes his thesis to be submitted for examination, we note that the 2014 Policy provides that 'a candidate may submit a thesis for examination against the advice of the Principal Supervisor, for consideration by the HDRC'."
On 16 February 2017, Mr Alajmi's solicitors wrote to Macquarie University's solicitors requesting an extension of time in respect of Mr Alajmi's submission of his thesis, notwithstanding the assessment of Associate Professor Wright. On 20 February 2017, Macquarie University agreed to an extension of time for Mr Alajmi to determine if he would submit his PhD thesis for examination.
Mr Alajmi did not submit his thesis within the time allotted and has not subsequently submitted it. Mr Alajmi's PhD sponsorship was subsequently cancelled and he has repaid the cost of the program to his sponsor being AUD 529,845.52 (Kuwaiti Dinar 121,130.455).
Mr Alajmi's enrolment at Macquarie University has ceased and he cannot now submit his PhD thesis for examination. This is a consequence of Mr Alajmi not submitting his thesis to be examined within the maximum enrolment period and not having an approved application for extension. Mr Alajmi has been treated by Macquarie University as having discontinued his PhD and would need to apply for re-admission to the degree of Doctor of Philosophy were he to resume his candidature.
On 22 May 2018, Associate Professor Wright provided reasons for her decision that she was unable to certify that she was satisfied that Mr Alajmi's PhD draft thesis was his "own work": "Statement of Reasons Decision not to certify that Mr Sharaf Alajmi's thesis meets Macquarie University preparation requirements 1. On 12 January 2017, the Deputy Vice-Chancellor (Research) made the following recommendation: 1. I refer to the Final Investigation Report dated 10 November 2016 with respect to a research misconduct investigation undertaken by the Research Integrity Office in respect of PhD candidate, Mr Sharaf Alajmi, pursuant to the Macquarie University Code for the Responsible Conduct of Research (Code). 2. Pursuant to section 27.1(b) of the Code, I recommend that the Final Investigation Report, together with the letter dated 24 November 2016 from Mr Alajmi's lawyers, be provided to Mr Alajmi's Principal Supervisor, Associate Professor Susan Wright, so that Associate Professor Wright may have regard to them as part of her assessment as to whether or not Mr Alajmi's thesis should be certified that it meets the University's preparation requirements. 2. For the purposes of assessing whether Mr Alajmi's thesis should be certified that it met Macquarie University's preparation requirements as set out in the Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014 (2014 Policy), I was provided with: (a) Mr Alajmi's thesis; (b) a memorandum from Dr Ren Yi dated 19 January 2017 (which is Annexure 1 to this Statement of Reasons); (c) the research integrity investigation report (case number 2015-002) dated 10 November 2016 which included Mr Alajmi's submissions dated 7 July 2016 (the Report) and submissions dated 24 November 2016 of Mr Alajmi's lawyer; and (d) the 2014 Policy. 3. I understood that the Report found that Mr Alajmi's thesis failed to meet the requirement of the 2014 Policy that it be his "own work". In the light of that finding, I was unable to satisfy myself that Mr Alajmi's thesis was his "own work" and was therefore unable to certify that Mr Alajmi's thesis met the University's preparation requirements. 4. I understood from the documents before me that the Report was the product of an investigation into these matters by the University's Inquiry Panel and that appropriate procedures had been followed. I had no reasons to disagree with either the process of the investigation or its findings, and I therefore considered it appropriate to rely on the findings made in the Report. 5. I recorded my decision by signing a memorandum dated 25 January 2017 (which is Annexure 2 to this Statement of Reasons)."
Annexure 2 to the Statement of Reasons was an internal memorandum dated 25 January 2017 by Associate Professor Wright: "I refer to the "Submission of a HDR Thesis for Examination" (Submission Form) completed, signed by Mr Alajmi and dated 18 March 2015. I completed Section 9 (Certification by the Supervisor) of the Submission Form, signed and dated it 19 March 2015. The matters listed in section 9 do not address all the particular matters I must take into account when certifying that the thesis meets the University preparation requirements in accordance with the Higher Degree Research Thesis Preparation, Submission and Examination Policy 2014 (2014 Policy). Specifically they do not address whether the thesis is Mr Alajmi's own work. The Submission Form was not completed (that is, the required certification from the Head of Department and Certification by the Associate Dean (HDR) of the Faculty was not given). I revoke my certification in the Submission Form. Mr Alajmi's thesis has been the subject of an investigation pursuant to the Macquarie University Code for the Responsible Conduct of Research. I have been given a copy of the Research Integrity Investigation Report (Case No. 2015-002) dated 10 November 2016 (Report) which resulted from that investigation, Mr Alajmi's written submissions dated 24 November 2016, and the 2014 Policy. I accept the findings of the inquiry panel set out in that Report and therefore cannot certify that Mr Alajmi's thesis is his own work."

Issues to be determined

As noted at the outset, Mr Alajmi's pleaded case was framed as an administrative law complaint attacking the decisions styled as the "non-certification decision" (being the decision by Associate Professor Wright that she was not satisfied she could certify in accordance with a Macquarie University policy requirement that Mr Alajmi's thesis was his "own work") and the determinations contained in the "defendant's Research and Integrity Investigation Report made on 16 November 2016" (the correct date of the report is 10 November 2016), referred to in these reasons as the Final Report. In addition, the summons sought to rely upon what was styled a "thesis certification" by Associate Professor Wright on 19 March 2015, addressed at [47] above, and associated documents, apparently in support of the estoppel claim.
The case was filed by Mr Alajmi's lawyers in the administrative law list of the Court. The summons filed on 23 February 2018 sought the following relief: "1 A declaration that the purported determinations contained in the Defendant's Research and Integrity Investigation Report issued in case number 2015-0002 made on 16 November 2016 were not validly made and are of no effect. 2 An order restraining the Defendant from relying upon the purported determinations and findings contained in the Defendant's Research and Integrity Investigation Report issued in case number 2015-0002 made on 16 November 2016. 3 In the alternative, a declaration that the Defendant is estopped from relying upon the purported determinations and findings contained in the Defendant's Research and Integrity Investigation Report in case number 2015-0002 made on 16 November 2016. 4 Further and/or in the alternative, an order that the determinations contained the in the Defendant's Research and Integrity Investigation Report issued in case number 2015-0002 made on 16 November 2016 be set aside. 5 A declaration that the determination of Associate Professor Dr Sue Wright of the Defendant made on 19 March 2015, certifying as Mr Alajmi's Supervisor that Mr Alajmi's submitted Doctoral Thesis met university preparation requirements, in accordance with the requirement of the Defendant's Higher Degree Research Thesis Preparation, Submission and Examination Policy, was a valid and complete certification under the Policy and is binding on the Defendant. 6 A declaration that the purported determination of Associate Professor Dr Sue Wright of the Defendant made on or about 2 February 2017 was not validly made and is of no effect. 7 An order that the purported determination of Associate Professor Dr Sue Wright of the Defendant made on or about 2 February 2017 be set aside. 8 An order that the Defendant be restrained from relying upon any subsequent purported certification purportedly made under the Higher Degree Research Thesis Preparation, Submission and Examination Policy than the determination of Associate Professor Dr Sue Wright of the Defendant made on 19 March 2015. 9 Further, and/ or in the alternative, an order that the Defendant be restrained from relying upon the Research and Integrity Investigation Report issued in case number 2015-0002 made on 16 November 2016 in any future determination of the question of whether Mr Alajmi's thesis is his "own work" for the purposes of the Higher Degree Research Thesis Preparation, Submission and Examination Policy. 10 The Defendant pay Mr Alajmi's costs. 11 Such further and other order as the Court deems fit."
The points of claim filed on 9 April 2018 were sparse. They provided, relevantly: 1. The non-certification decision was infected by error of law, was a decision made in excess of statutory power, and/or was in breach of the common assumption that decisions made under the Higher Degree Research Policy would be lawfully made. This is because, in taking into account the Final Report in making the non-certification decision, Associate Professor Wright took into account an irrelevant consideration because: 1. the Final Report was infected with error of law and was thereby itself unlawful and of no effect. This is by reason of the fact that the Panel: 1. failed to follow proper procedure in acting on the anonymous allegation; 2. acted in a way which constituted a denial of natural justice by basing its conclusions on untenable circumstantial evidence or no evidence at all; 3. approached its task in a manner which a fair-minded lay observer would apprehend that the Panel might not bring an impartial mind to its task; 4. misunderstood its task and asked itself the wrong question in assessing the allegation further to the Academic Honesty Policy; 5. reached a decision which was contrary to law; and 6. otherwise reached a decision which was such that no reasonable Panel, acting with a due appreciation of its responsibility, could have arrived at it; and 1. the conclusions in the Final Report were not capable of informing a certification as to whether or not Mr Alajmi's thesis was his "own work" for the purposes of the Higher Degree Research Policy. Further, the non-certification decision was a decision that no reasonable supervisor, acting with due appreciation of her responsibility could have arrived at. For these reasons, the non-certification decision is vitiated by jurisdictional error, invalid and ought to be set aside, or is unlawful. 1. Further, and/or in the alternative, Mr Alajmi relies upon: 1. the thesis certification by Associate Professor Wright on 19 March 2015 that Mr Alajmi's thesis had been submitted in accordance with the Higher Degree Research Rules requirements; 2. a representation of the thesis certification in the letter dated 26 March 2015 from Associate Professor Wright to Mr Alajmi's sponsor stating that Mr Alajmi's thesis was submitted on time and awaiting examination; 3. a representation, expressly or impliedly made, that Mr Alajmi's thesis met all of the University's preparation requirements; 4. a common assumption derived from the Higher Degree Research Policy that only theses which met the Higher Degree Research Rules requirements would be submitted for examination; and/or 5. a common assumption that decisions made under the Higher Degree Research Policy would be lawfully made. On these bases, Mr Alajmi assumed, reasonably, that Associate Professor Wright had already reasonably satisfied herself as to the Higher Degree Research Rules requirements, including that Mr Alajmi's thesis was his "own work", and thus he did not avail himself of the University's internal appeal procedures to challenge the findings contained in the Final Report and agreed that Associate Professor Wright review the Draft Report. Associate Professor Wright, and thereby, the University, knew, or ought to have known, that Mr Alajmi would rely upon each or one or more of them. By the non-certification decision, the University departed from the identified representations by failing to act to avoid the detriment that was occasioned to Mr Alajmi.
It is tolerably clear that the only causes of action identified in the summons and the points of claim related to administrative law relief (attacking the "non-certification decision" and, on a generous view of the pleadings, the Final Report) and an estoppel claim based on alleged detrimental reliance on the representations identified in 94 above made by Macquarie University.

Submissions of the parties

Before descending into the detail of the submissions I have already noted that a number of written and oral submissions made on Mr Alajmi's behalf related to issues that were not pleaded. Whilst, as I have earlier made clear, I propose to address the very substantial claim in contract on the merits, despite it not having been pleaded, I do not propose to permit Mr Alajmi to rely upon allegations made orally that were not squarely dealt with in his written submissions. Despite the considerable leeway I have adopted in Mr Alajmi's favour, unless a claim was clearly addressed in Mr Alajmi's written submissions, it would be unfair to the University to permit Mr Alajmi to rely on that claim.

Administrative law

Mr Alajmi submitted that the "non-certification decision", which is how he styled the decision by Associate Professor Wright that she was not satisfied she could certify in accordance with a Macquarie University policy requirement that Mr Alajmi's thesis was his "own work", involved the exercise of public power conferred by statute which was amenable to judicial review.
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).
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.
Mr Alajmi submitted that: 1. Sections 28(a) and (q) of the Macquarie University Act expressly empowers the University Council to make by-laws, not inconsistent with the Macquarie University Act, for or with respect to any matter that is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the Macquarie University Act and, in particular, for or with respect to, relevantly, the management, good government and discipline of the University and the courses of lectures or studies for, the assessments for and the granting of degrees, diplomas, certificates and honours and the attendance of candidates for degrees, diplomas, certificates and honours. 2. Section 29 of the Macquarie University Act provides that the by-laws may empower any authority (including the Council) or officer of the University to make rules (not inconsistent with the Macquarie University Act or the by-laws) for or with respect to any or all of the matters for or with respect to which by-laws may be made. 3. By-law 35 of the Macquarie University By-Law 2005 (NSW) empowers the Vice-Chancellor to make rules for or with respect to any or all of the matters for or with respect to which rules may be made under the Macquarie University Act. 4. By-law 35(4) of the By-Laws provides that the Rules of the Vice-Chancellor must be published on the internet by means of the website of the University, or in another official University publication. 5. Pursuant to this regime the University publishes on its internet page rules for each year. In 2014, the University published the Higher Degree Research Rules, clause 12 of which dealt with thesis requirements, examination of theses and lodgement and provided that "[a]ll matters to do with a thesis, including submission and examination are governed by the [HDR Thesis Rules]".
In oral submissions Ms Nolan relied on s 42 of the Interpretation Act 1987 (NSW) which provides, relevantly: 42 Matters for which statutory rules may make provision (1) If an Act authorises or requires provision to be made for or with respect to any matter by a statutory rule, such a rule may make provision for or with respect to that matter by applying, adopting or incorporating, with or without modification, the provisions of any Act or statutory rule or of any other publication, whether of the same or of a different kind. (2) A statutory rule may: (a) apply generally or be limited in its application by reference to specified exceptions or factors, (b) apply differently according to different factors of a specified kind, or (c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body, or may do any combination of those things. …
It was submitted that the Higher Degree Research Rules and Higher Degree Research Policy are incorporated into statutory rules as requirements for preparation, submission and examination of higher degree research theses at Macquarie University. Orally, Ms Nolan submitted: "So the Interpretation Act authorises circumstances I submit occurs in this case whereby the rules which are authorised or the purpose of which is to outline thesis requirements relevantly. So this rule outlines thesis requirements and the way in which thesis requirements are dealt with under r 12 "Is a force of law incorporating by reference the HDR thesis preparation submission examination policy. That is why throughout my submissions … vis [the] HDR rules because in my submission although not annexed or as sometimes may be the case they are nonetheless incorporated and they too were published on the Internet so their validity is unquestionable in my submission."
It was submitted that the Court should "also" grant relief under the principle explained in R v Panel on Take-overs and Mergers; Ex parte Datafin PLC [1987] QB 815. Mr Alajmi submitted that the decision to certify that a thesis is the candidate's "own work" is an exercise of public power and that this makes it relevantly different to all the cases where the Datafin principle has been said not to apply in Australia. Whether the Datafin principle applies requires a consideration of not only the source of the power but the nature of the power. Even if the University were to be considered a private entity in certifying PhD candidates for their doctoral degree, it is exercising a public function which has public law consequences, so as to "bring the body within the reach of judicial review": Datafin at 847. The effect of the non-certification was that it unilaterally affected the rights of Mr Alajmi and was not in the nature of the exercise of a private right by the University.
The principal basis for the claimed administrative law relief was legal unreasonableness as explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. This aspect of the case may be summarised thus: 1. It was submitted that the most preponderant error in Associate Professor Wright's decision-making process was, despite having been Mr Alajmi's supervisor and having earlier been satisfied and certified that the thesis was suitable for examination under the Higher Degree Research Rules, Associate Professor Wright, "without rational reason", accepted the conclusions in the Final Report. 2. It was submitted that in taking into account the Final Report, Associate Professor Wright took into account an irrelevant consideration in the sense discussed in Bromley London Borough Council v Greater London Council [1983] 1 AC 768, in so much as Associate Professor Wright erroneously considered herself bound to implement the findings of the Final Report. It was submitted that Associate Professor Wright's decision was also legally unreasonable. 3. It was submitted that Associate Professor Wright acted unreasonably in making the certification decision in accordance with the Final Report, rather than on the basis of "other countervailing considerations of which she had direct personal knowledge". 4. It was submitted that Associate Professor Wright's "error" was compounded by the fact that in March 2015 she sought advice from Professor Quinn about whether Mr Alajmi's thesis contained the work of a third-party statistician. Mr Alajmi's submissions on this point were difficult to follow but it seems that the principal conclusion which he submits should be drawn was that (as was submitted in writing) "what Professor Quinn said following on from Dr Wright's question could not assist the University". Jones v Dunkel (1959) 101 CLR 298 at 308; [1959] HCA 8 and Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [64] were cited. 5. As an apparently separate point, it was submitted that "this interaction between Dr Wright and Professor Quinn, are calamitous for, not only the apprehension of bias which might [be] imputed to the Panel, and indeed, might properly be imputed to Dr Wright, but to the reasonableness of both the Panel's findings and the non-certification decision".
The remaining submissions on administrative law grounds were advanced under the rubric of ground (a), which was to the effect that by taking the Final Report into consideration, Associate Professor Wright took into account an erroneous decision and thereby acted extraneously to the purpose devised by the Higher Degree Research Policy and/or asked herself the wrong question and/or made an unreasonable decision.
First, it was submitted that the Macquarie University Code provided that the University will not normally act on an anonymous allegation launched against individuals although a discretion resided to pursue such allegations, if they contained sufficient information to enable the assessment of the allegations and the credibility of the facts and evidence on which the complaint was based, i.e. without the need for further information from the source of the allegation: Macquarie University Code, 19.1.c. An anonymous allegation of breach was said ordinarily to not initiate formal review, but depending on the specifics of the allegation it may prompt professional development activities in the relevant area or a review of processes: Macquarie University Code, 19.1.e. It was submitted to be relevant, or perhaps dispositive, that the Panel's decision to proceed from its inquiries to a formal investigation was made on 4 March 2015. This decision would appear to have been made before Mr Alajmi's supervisors were approached. Neither Professor Kilgore nor Associate Professor Wright traversed this issue in evidence.
Secondly, it was submitted that an essential ingredient of procedural fairness and natural justice is the requirement to proceed on evidence, which is cogent and probative. In proceeding to conduct the investigation on the basis of what was characterised as "spurious and poorly substantiated anonymous allegations" the Panel also contributed to the apprehension of its pre-judgement as to the issues. It was submitted that Antoun v The Queen [2006] HCA 2; 80 ALJR 497 established that if the Panel exhibited pre-judgement it is capable of giving rise to the apprehension that the Panel might not be bringing an impartial mind to bear on the matter to be decided.
Thirdly, it was submitted that much of the so-called "relevant" evidence upon which the Panel relied was capable of reasonably admitting of other possibilities, such that the Final Report should be found to be predicated on mere conjecture and speculation, rendering the findings of the Final Report unreasonable. It was submitted to be significant that the Final Report does not rely upon any direct evidence that established the allegations made against Mr Alajmi. It was submitted that the use of the words "please", the various pronouns in comments in drafts of Mr Alajmi's thesis and the assumed identity of Paul Lines, provided "no direct link" with All Answers. It was submitted that the evidence relied upon by the Panel and Associate Professor Wright was "circumstantial, speculative, and lacked cogency". It was submitted that the findings made in the Final Report were not adjudicated to the correct standard. It was submitted that "no direction has been made to the Briginshaw standard": Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It was submitted that Re Day [2017] HCA 2; 91 ALJR 262 at [15] per Gordon J was apposite: "… the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether an issue has been proved to the reasonable satisfaction of the tribunal. Where, as here, fraud is alleged, "reasonable satisfaction' is not produced by inexact proofs, indefinite testimony, or indirect inferences. This does not mean that the standard of persuasion is any higher than the balance of probabilities. It does mean that the nature of the issue necessarily affects the process by which the reasonable satisfaction is reached." (Footnotes omitted.)
Fourthly, it was submitted that the findings of the Final Report "do not equate and cannot subsume the considerations which would inform the satisfaction that Mr Alajmi's thesis was his 'own work'". It was submitted that Associate Professor Wright subjugated her state of satisfaction to the findings in the Final Report. Mr Alajmi claimed that it "could not be" (given her experience and background as Mr Alajmi's supervisor) that Associate Professor Wright could reasonably and rationally arrive at the conclusion that the thesis was not Mr Alajmi's "own work". It was submitted that Associate Professor Wright asked herself the wrong question - the question addressed by the Final Report does not answer the question posed by the requirements of which she was to be satisfied under the Higher Degree Research Rules.

Contract

Mr Alajmi submitted that there was a contract between Mr Alajmi and the University set out in the offer and acceptance of the PhD candidature. Mr Alajmi "agree[d] to be bound by the By-laws and Rules of the University" and the University, implicitly, agreed to be bound by those rules. Mr Alajmi submitted that it is not necessary to imply any term in that contract. It was submitted that the task of this Court is to intervene where a tribunal unilaterally exercises power which has adverse consequences on the rights of a party to the contract, and that power is exercised in a manner that is unreasonable. Mr Alajmi submitted that there does not need to be a breach of contract established. Nevertheless, if a breach were required, Mr Alajmi submitted that the relevant breach was the failure to exercise a power reasonably. Mr Alajmi submitted that the "non-certification decision" was reviewable on the basis that it involves the exercise of a unilateral contractual discretion, which, as a matter of law, must be exercised reasonably.
Mr Alajmi submitted that the "non-certification decision" required Associate Professor Wright to reach a state of satisfaction about whether Mr Alajmi's thesis was his "own work". In reaching the requisite state of satisfaction, Associate Professor Wright was required to act reasonably and fairly. The obligation of good faith and reasonableness in the performance of her obligation to determine whether to provide a certification is implied as a matter of law and as a legal incident of both the regulatory framework and the contract, which governed the exercise of her duty.
Regrettably, the way Mr Alajmi's written and oral submissions were presented, effectively fusing the administrative law and contact complaints, meant that there was a high degree of overlap and repetition in his submissions. Nevertheless I will attempt to disentangle the strands of the argument and address them separately. At the risk of repetition, those submissions were: 1. First, Associate Professor Wright took into account an irrelevant consideration, by taking into account the Final Report, which was infected by errors of law, in the sense that it was made contrary to law, involved breaches of natural justice and was itself unreasonable. 1. The University failed to follow proper procedure in acting on the anonymous allegation because it commenced the investigation contrary to s 19 of the Macquarie University Code and without cogent and probative evidence. Given the Macquarie University Code's aversion to commencing an investigation on the basis of an anonymous allegation, a fair and reasonable decision would have been to seek the views of Mr Alajmi's supervisors as to the issues arising from the anonymous allegation prior to commencing the investigation. This constituted an error in the exercise of the University's discretion to commence the investigation. The anonymous allegation was not sufficient to satisfy the University, acting reasonably, to commence the investigation. 2. The Panel acted in a way which constituted a denial of natural justice by basing its conclusions on untenable circumstantial evidence or no evidence at all. The evidence relied upon by the Panel was purely circumstantial, speculative and lacked cogency. The Final Report did not rely upon any direct evidence that established the allegations made against Mr Alajmi. The apogee of the evidence was the use of the words "please" and various pronouns in comments in drafts of Mr Alajmi's thesis and the assumed identity of Mr Lines based on an unverified LinkedIn profile. There was no direct link between these two matters. Rather, this was a case where the circumstances appearing in the evidence gave rise to conflicting inferences of equal degrees of probability. 3. The Panel's findings were not adjudicated to the correct standard. No direction was made to the Briginshaw standard and what that standard means, with the exception of a reference to the cognisance of the import of the seriousness of the allegations. Orally, Mr Alajmi submitted that the Panel's reasoning process was not available to it exercising a self-imposed Briginshaw standard and that the Panel was required to rely upon cogent and probative evidence in order to make such a serious decision. While the language of the Panel's findings was couched in terms of the Panel's "opinion" and "logical and rational" inferences, the findings did not reach the requisite standard. In particular, finding (iii) ("the scope of Mr Alajmi's engagement of one or more third parties (one of which it finds was All Answers) included services beyond what a professional editor may provide when editing a doctoral thesis") cannot amount to anything more than conjecture. It could not rationally and reasonably be the case that, based on this conjecture, Mr Alajmi's thesis was not his own work. 4. A fair-minded lay observer might have apprehended that the Panel might not bring an impartial mind to its task. The Panel's decision to commence the investigation on the basis of the spurious and poorly substantiated anonymous allegation and without following proper procedure, and the lack of cogency in the evidence relied upon to draw its conclusions contributed to the apprehension of bias. If the Panel exhibited pre-judgement, it does not matter that, at the time or in retrospect, the case for that judgement was strong; it nonetheless is capable of giving rise to the apprehension that the Panel might not be bringing an impartial mind to bear on the matter to be decided. 5. The conclusions in the Final Report were not capable of informing a certification as to whether Mr Alajmi's doctoral thesis was his own work. The impoverished findings in the Final Report do not equate and cannot subsume the considerations which would inform the satisfaction that Mr Alajmi's thesis was his own work. Notwithstanding this, Associate Professor Wright subjugated her state of satisfaction to the findings in the Final Report. 6. The question answered by the Final Report does not answer the question posed by the University's policy requirements of which Associate Professor Wright was to be satisfied. By subjugating her reasoning process to that employed in the Final Report, Associate Professor Wright fell into error. 1. Secondly, the non-certification decision was a decision that no reasonable supervisor, acting with due appreciation of her responsibility, could have arrived at, such that the non-certification decision was unlawful or invalid. This was for the following reasons. 1. Despite having been Mr Alajmi's supervisor and having earlier been satisfied and certified that the thesis was suitable for examination under the Higher Degree Research Rules, an element of which certification was necessarily that the thesis was Mr Alajmi's own work, Associate Professor Wright, without rational reason, accepted the findings of the Final Report in substitution for reaching her own state of satisfaction. 2. It was entirely wrong for a supervisor in Associate Professor Wright's position to regard herself as bound to exercise her discretion in relation to the certification decision in accordance with the Final Report, regardless of the other countervailing considerations of which she had direct personal knowledge. 3. Associate Professor Wright reasonably ought to have been deterred from accepting as indubitable the findings of the Final Report by the fact that in March 2015 she received advice from Professor Quinn regarding the statistical analysis in Mr Alajmi's doctoral thesis. Absent an explanation or any reference to this matter in the Final Report and Associate Professor Wright's statement of reasons, the inference to be drawn is that what Professor Quinn said following on from Associate Professor Wright's questions could not assist the University. This interaction is "calamitous" for the apprehension of bias which might be imputed to the Panel and to Associate Professor Wright, and to the reasonableness of the Panel's findings and the non-certification decision. 4. Given Associate Professor Wright's experience and background as Mr Alajmi's supervisor, the certification on 19 March 2015 and her interaction with Professor Quinn, Associate Professor Wright's reasoning is devoid of the intelligible justification properly expected of a supervisor acting reasonably in all the circumstances. 1. Thirdly, Mr Alajmi submitted that Associate Professor Wright impermissibly fettered the exercise of her discretion in her non-certification decision of 2 January 2017. It was submitted that she premised her decision on an erroneous assumption that the Final Report found that Mr Alajmi's thesis had failed to meet the requirements of the Higher Degree Research Policy. It was submitted that the Final Report had directed its investigation to a specific allegation and none of its findings answered the relevant question asked by the Higher Degree Research Rules and the Higher Degree Research Policy. 1. Mr Alajmi submitted that Associate Professor Wright shut out from her consideration, unreasonably, the fact that she had previously "certified" the thesis. 2. Associate Professor Wright, by virtue of what she erroneously understood the Final Report to conclude, considered herself bound not to certify that Mr Alajmi's thesis had met the University's requirements preparation requirements. 3. Associate Professor Wright erroneously stated that she had no reason to disagree with the process of the investigation and the Final Report's findings. It was submitted that she had more than ample reasons to disagree with its findings based on her experience.

Estoppel

Mr Alajmi sought relief based upon an alleged estoppel by convention. It was submitted orally that, as the University's regulatory framework is incorporated in the contract between the parties, there was a conventional basis for relations between Mr Alajmi and the University. The parties accepted that their relationship was governed by the University's By-Laws, Rules, Code and policies. This founded a common assumption between them that an investigation into Mr Alajmi's alleged academic misconduct and any state of satisfaction reached as to whether his thesis met the University's preparation requirements would be conducted lawfully and in accordance with the requirements of the regulatory framework.
Mr Alajmi also sought relief based on an alleged equitable estoppel. Mr Alajmi relied upon what he said was the representation contained in Associate Professor Wright's "thesis certification" on 19 March 2015. Mr Alajmi allegedly relied upon this representation to his detriment because he elected not to apply for internal review of the Final Report and allowed the Final Report and his response be provided to Associate Professor Wright so that she may have regard to those documents in certifying whether his thesis met the University's preparation requirements.
Orally, Mr Alajmi submitted that it was unreasonable, in circumstances where Associate Professor Wright had already given her "thesis certification" on 19 March 2015, that she later "purported" not to be satisfied on 2 January 2017. Mr Alajmi submitted that even though the Submission Form on 19 March 2015 omits the words "own work", Associate Professor Wright made her decision against the landscape of the rules as they stood at the relevant time which required the thesis to be Mr Alajmi's own work.
Mr Alajmi submitted that he had a reasonable and legitimate expectation that in making her certification decision on 2 January 2017 Associate Professor Wright, who had before her thesis drafts, "track changes" edits and interactions with Mr Alajmi and who had made no suggestions of any difference in "authorial voice", would take into account this history and the fact that she had earlier "certified" the thesis.

Macquarie University's submissions

Macquarie University submitted that Mr Alajmi has not established a basis for relief in respect of the "Final Report" or the "non-certification decision" and that even if the Court finds a basis for relief, the Court should, in its discretion, refuse to grant the relief.

Administrative law

Macquarie University submitted that the Final Report and the "non-certification decision" are not amenable to relief under s 69 of the Supreme Court Act. 1. The relief sought in the nature of certiorari is not available unless the decision-maker is exercising a public, relevantly statutory, function. Neither the Final Report nor the non-certification decision involved an exercise of a public or statutory power or function. 2. The investigation that led to the Final Report was conducted under the auspices of an internal University policy, namely the Macquarie University Code. The Macquarie University Code is not a statutory instrument and was not made pursuant to the Act or By-law. The fact that the Macquarie University Code was approved or brought into being by bodies who might be said to be ultimately under the auspices of, or are subject to, the Act or the By-law does not mean that the Inquiry involved an exercise of public power. 3. The "non-certification decision" was made under two internal policies of the University, namely the Higher Degree Research Policy and the Higher Degree Research Procedure. These policies are not statutory rules or by-laws and, as such, are not delegated legislation. The fact that the Higher Degree Research Policy and Higher Degree Research Procedure were approved or brought into existence by bodies who might be said to operate ultimately under the auspices of, or subject to, the Act or the By-law does not mean that decisions made under those policies involve an exercise of public power. In making the non-certification decision, Associate Professor Wright was not exercising a public or statutory function and owed no public duty. The fact that the non-certification decision was made by an employee of a body established by the Act does not elevate it to a public or governmental level. 4. Even if the Datafin principle is accepted as good law in Australia, the principle has no application in the present proceedings. It is unclear what "public function with public law consequences" the University is said to have exercised. A staff member of the University determining for the purposes of the University's own internal requirements whether a doctoral thesis met the requirements to be assessed involves no public function.
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".
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.
Macquarie University submitted that the complaints made in relation to the Final Report should be rejected: 1. Mr Alajmi's complaint that the Inquiry should never have taken place given that it was initiated by an anonymous complaint should be rejected. A failure by a decision-maker to follow a non-statutory policy is not necessarily a ground of judicial review. In any event, the steps taken by the University were not inconsistent with the Macquarie University Code and did not give rise to any practical injustice. 2. Mr Alajmi's complaint, that the Panel's findings were based on untenable circumstantial evidence, speculative evidence or no evidence at all, does not raise any ground of judicial review, cannot lead to a finding of an error of law and impermissibly engage in merits review. 3. Mr Alajmi's complaint that the Panel did not apply the Briginshaw standard should be rejected. The Briginshaw standard is not relevant to the question of the weight to be attributed to potentially competing items of evidence. In circumstances where the Panel was tasked with undertaking a process where the rules of evidence do not apply and where there is no onus of proof, there was no applicable standard of proof. In any event, the Panel applied the standard of comfortable satisfaction (which is derived from Briginshaw) and found that the standard was met. Mr Alajmi's submission, that the standard required is one of cogency, persuasiveness and the need for direct evidence, should be rejected. Even in administrative law cases involving statutory tribunals, the required standard is logically probative evidence. The Panel is far from being a statutory tribunal. In any event, the Panel's findings met that standard. 4. Mr Alajmi's claim of apprehended bias by the Panel should be rejected because it impermissibly invites the Court to engage in merits review and is not supported by evidence in circumstances where Mr Alajmi participated in the Inquiry, provided material and submissions to the Panel, and commented on a Draft Report before it was finalised. That Professor Quinn stated that he could not see anything which suggested plagiarism in March 2015 was not a basis for a finding of apprehended bias, but indicative only of him having an open mind to the issues in the investigation. After careful consideration of the evidence during the course of the Inquiry, Professor Quinn joined in the Panel's conclusion in the Final Report. Mr Alajmi's complaint seems to be in effect that the Panel was biased because it reached a conclusion that was not favourable to him. 5. Mr Alajmi's complaint that the Panel misunderstood its task and asked itself the wrong question in assessing the allegation should be rejected. Mr Alajmi did not identify how the Panel misunderstood its task, what question the Panel asked, why it was wrong and what the right question was. In any event, the Panel undertook the task required of it by the Macquarie University Code. 6. Mr Alajmi's complaint that the Panel otherwise reached a decision that no reasonable Panel could have reached should be rejected. The Panel's conclusion was not unreasonable. It was based on evidence, including Mr Alajmi's evidence, on logic and reason and on the Panel members' own experience. It is not a decision which could be described as a series of merely speculative findings.
Macquarie University submitted that if Mr Alajmi's challenge to the Final Report fails then his challenge to the non-certification decision also fails. As with the complaints about the Final Report, the complaints about the non-certification decision are nothing more than a complaint about the factual conclusion reached by Associate Professor Wright and should be rejected: 1. Associate Professor Wright considered the relevant material and reached the conclusion that she was unable to satisfy herself that Mr Alajmi's thesis was his own work. Even if reasonableness is the applicable standard, in these circumstances, it cannot be said that the non-certification decision was an act that no reasonable person would have committed. Further, even if reasonableness is the applicable standard, it was reasonable for Associate Professor Wright to rely on facts found by others. 2. Associate Professor Wright did not certify that the thesis was Mr Alajmi's own work on 19 March 2015. In any event, even if she had so certified, she did so at a time before the Inquiry had been completed and without knowledge of the findings in the Final Report, and she was not bound by the certification on 19 March 2015. 3. Mr Alajmi did not plead in the points of claim (or particularise upon the defendant seeking particulars) the claims regarding Associate Professor Wright seeking advice from Professor Quinn, a Panel member, as to whether Mr Alajmi's thesis contained the work of a statistician. Mr Alajmi should be precluded from raising the claims at this late stage. In any event, the claims cannot take matters further given that Professor Quinn was a member of the Panel and a co-author of the Final Report. Mr Alajmi also cannot rely on Jones v Dunkel given Mr Alajmi's failure to particularise such claims.

Contract

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.
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.
Macquarie University submitted that the standard of legal reasonableness will necessarily draw upon the contractual framework and can only be answered by reference to the context in which the legal unreasonableness is imposed. The Academic Honesty Policy, which defines plagiarism in a broad and inclusive way, forms part of that contractual framework. In light of that policy, a narrow view should be taken about what constitutes legal unreasonableness in the present context. Macquarie University submitted that the standard that Mr Alajmi relies upon is drawn from the context of insurance contracts, which is a separate field of discourse.
Macquarie University submitted that in so far as the By-laws and Rules made by the University have an effect on its actions or decisions, it is by force of the statutory instrument under which they are made, not by reason of the contractual obligations said to arise between the University and Mr Alajmi.
Macquarie University submitted that Mr Alajmi's complaint that the anonymous allegation was not sufficient to satisfy the University, acting reasonably, to commence the investigation, should be rejected. The University put the anonymous allegation to Mr Alajmi and he immediately confirmed that he had been using All Answers. By so doing, Mr Alajmi confirmed the key aspect of the allegation against him and this was a sufficient basis for the University to commence its investigation.
Macquarie University submitted that the proposition that Associate Professor Wright fettered the exercise of her discretion was not pleaded by Mr Alajmi. In any event, Associate Professor Wright clearly formed her own view and did not simply defer to the Final Report. She formed her view in circumstances where she had participated in the Inquiry to some extent and where she took into account Mr Alajmi's submissions which contained many of the allegations that have been made in these proceedings.
Macquarie University submitted that if the Court were to address the merits of the contract case, for essentially the same reasons as in relation to the administrative law issues, it should find that the complaints are without substance.

Estoppel

Macquarie University submitted that the claim of estoppel by convention was not sufficiently elaborated in Mr Alajmi's submissions to permit any meaningful response.
In relation to the alleged equitable estoppel, Macquarie University submitted that the representations alleged were not made and that Mr Alajmi had not shown detrimental reliance on any pleaded representation.

Discretion to refuse relief

Macquarie University submitted that, even if the Court finds that Mr Alajmi had established a basis for relief in respect of either the Final Report or the non-certification decision, the Court should, in its discretion, refuse to grant the relief sought in the summons.
Macquarie University submitted that Mr Alajmi had other internal and external avenues of review which he did not avail himself of. By reason of not pursuing those avenues of review and delaying the commencement of proceedings his candidature has ended. The relief he now seeks lacks utility.
Macquarie University submitted that there was an unreasonable delay in the commencement of proceedings. The summons was filed over a year after the non-certification decision was made and about 15 months after the Panel issued the Final Report. This is outside the three month period stipulated by r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW).
Macquarie University submitted that, having regard to the purpose of limitation periods, the absence of any allegation of practical injustice, the failure to provide a reasonable explanation for the delay, the availability of internal appeal avenues and the other discretionary factors weighing against the relief sought being granted, including the jurisdictional difficulties faced by Mr Alajmi and the lack of utility in the relief sought, no extension of time ought to be granted to Mr Alajmi.

Framework in which this case is to be determined

Macquarie University is governed by the Macquarie University Act 1989 (NSW) ("the Act") and the Macquarie University By-Law 2005 (NSW) ("the By-law").
The Macquarie University Act provides, relevantly: [2] 4 Establishment of University A University, consisting of: (a) a Council, (b) Convocation, (c) the professors and full-time members of the academic staff of the University and such other members or classes of members of the staff of the University as the by-laws may prescribe, and (d) the graduates and students of the University, is established by this Act. 5 Incorporation of University The University is a body corporate under the name of the Macquarie University. 6 Object and functions of University (1) The object of the University is the promotion, within the limits of the University's resources, of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence. (2) The University has the following principal functions for the promotion of its object: ... (g) the development of governance, procedural rules, admission policies, financial arrangements and quality assurance processes that are underpinned by the values and goals referred to in the functions set out in this subsection, and that are sufficient to ensure the integrity of the University's academic programs.
Section 28 of the Macquarie University Act provides: 28 By-laws (1) The Council may make by-laws, not inconsistent with this Act, for or with respect to any matter that is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to: (a) the management, good government and discipline of the University, … (q) the courses of lectures or studies for, the assessments for and the granting of degrees, diplomas, certificates and honours and the attendance of candidates for degrees, diplomas, certificates and honours, … (2) A by-law has no effect unless it has been approved by the Governor.
Section 29 of the Macquarie University Act provides: 29 Rules (1) The by-laws may empower any authority (including the Council) or officer of the University to make rules (not inconsistent with this Act or the by-laws) for or with respect to any or all of the matters for or with respect to which by-laws may be made, except the matters referred to in sections 3 (2), 8D (2) (c) (i) and (3) (a), 8E (4), 8F, 9 (1) (c) and (d), 10 (2), 14 (1), 16 (1) (d) and (e), 23 and 28 (1) (k) and clause 3 of Schedule 1 (to the extent it relates to appointments). (1A) Despite subsection (1), only the Council may be empowered to make rules for or with respect to which by-laws may be made concerning matters referred to in sections 8D (3) (b), 8E (2) (a) and 28 (1) (b) and clause 3 of Schedule 1 (to the extent it relates to elections) (election rules). … (2) A rule: (a) has the same force and effect as a by-law, and (b) may, from time to time, be amended or repealed by the Council (whether or not the Council is empowered to make such a rule), or by the authority or officer of the University for the time being empowered to make such a rule, and (c) takes effect on the day on which it is published or on such later day as may be specified in the rule, and (d) must indicate the authority or officer who made the rule and that it is made under this section. (3) In the event of an inconsistency between a by-law and a rule, the by-law prevails to the extent of the inconsistency. (4) The fact that a provision of this Act specifically provides for a matter to be the subject of by-laws (without mention of rules) does not prevent the matter from being the subject of rules made in accordance with this section.
By-law 35 of the Macquarie University By-law provides: [3] 35 Making of rules by Council and Vice-Chancellor (1) The Council may make rules for or with respect to any or all of the matters for or with respect to which rules may be made under the Act or this By-law. (2) The Vice-Chancellor may make rules (not inconsistent with the rules of the Council) for or with respect to any or all of the matters for or with respect to which rules may be made under the Act. (3) Despite subclause (2), the Vice-Chancellor may not make rules for or with respect to any matter for or with respect to which the Council (alone) is empowered to make rules under any other clause of this By-law. Note. Section 29 (1) of the Act provides that the by-laws may empower any authority (including the Council) or officer of the University to make rules (not inconsistent with the Act or the by-laws) for or with respect to matters for which by-laws may be made, except the matters referred to in sections 3 (2), 8D, 8E, 8F, 10 (2), 14 (1), 16 (1) (d) and (e), 23 and 28 (1) (b) and (k) of the Act and clause 3 of Schedule 1 to the Act. (4) A rule made by the Council or the Vice-Chancellor must be published: (a) on the Internet by means of the website of the University, or (b) in another official University publication. (5) Failure to comply with subclause (4) does not invalidate a rule.
It was alleged by Mr Alajmi that "pursuant to this regime" the Rules he relied upon were published each year. The relevant "rules, policies and procedures" the subject of this case in force in February 2015 were the: 1. Higher Degree Research Rules 2015 as approved on 5 December 2013 ("Higher Degree Research Rules"); 2. Academic Senate Rules 2015 as approved on 4 December 2011 ("Academic Senate Rules"); 3. Higher Degree Research - Thesis Preparation, Submission and Examination Policy as approved on 25 July 2014 ("Higher Degree Research Policy"); 4. Higher Degree Research - Thesis Preparation, Submission and Examination Procedure as approved on 3 October 2008 ("Higher Degree Research Procedure"); 5. Macquarie University Academic Honesty Policy as approved on 13 November 2012 ("Academic Honesty Policy"); and 6. Macquarie University Code for the Responsible Conduct of Research as approved on 28 January 2015 ("Macquarie University Code").
The relevant parts of the Higher Degree Research Rules provide: "2. Enactment These are the Rules made by the Council of Macquarie University under section 29 of the Macquarie University Act 1989." 3. Commencement These Rules take effect in the day on which they are published on the Internet by means of the website of the University or in another official University publication under section 29(c) of the Macquarie University Act 1989 and section 35(4) of the Macquarie University By-law 2005. 4. Application The Higher Degree Research Rules apply to all Doctoral, Joint Research and Master by Research degrees at Macquarie University. 5. Purpose The purposes of these Rules are to outline the admission; degree; supervision; and thesis requirements; and connected matters of Higher Degree Research at Macquarie University. … 11. Period of candidature (1) The period of candidature for a: a. Doctor of Philosophy is: i. a minimum period of two years which may be reduced to one year with the approval of the Committee; ii. a maximum period of three years full-time and six years part-time. … (2) Candidature for the Doctor of Philosophy and Master of Philosophy beyond the maximum period of candidature will be considered in accordance with the Out-of-time Policy. (3) In exceptional circumstances, leave of absence of up to twelve months may be granted by the Committee. 12. Thesis requirements, examination of thesis and lodgement (1) All matters to do with a thesis including a submission and examination are governed by the HDR Thesis Preparation, Submission and Examination Policy."
The Higher Degree Research Policy relevantly states: "Purpose To outline requirements for the preparation, submission and examination of higher degree research (HDR) theses at Macquarie University. Policy THESIS PREPARATION … The thesis must - be the candidate's own work and any contribution by other people, including co-authors of papers, must be clearly stated in the thesis ... THESIS SUBMISSION 1. The Principal Supervisor must certify in writing that the thesis meets University preparation requirements. 2. A candidate may submit a thesis for examination against the advice of the Principal Supervisor, for consideration by HDRC. … COMPLIANCE AND BREACHES The University may commence applicable disciplinary procedures if a person to whom this Policy applies breaches this Policy (or any of its related procedures)."
The Higher Degree Research Procedure relevantly states: "Purpose To outline the required actions for the submission and examination of a Higher Degree Research Thesis. … Principal supervisor … Certify that the following thesis preparation requirements have been met by the candidate: - that copies are prepared and bound in a form approved by HDRC and include an abstract of approximately 200 words. - that the length of the thesis conforms to the requirements as to length prescribed by the Executive Dean of the Faculty in which the candidate is enrolled and approved by HDRC. - that the thesis is the candidate's own account of the work and it is written in English, or approval have been obtained from HDRC to submit a thesis or part thereof in a language other than English, and it reaches a satisfactory standard of literary presentation. If you decline to certify that thesis preparation requirements have been met by the candidate and the candidate wishes to submit the thesis, refer the matter to the Faculty Associate Dean HDR and then, if necessary, to the University Dean HDR for resolution. … Obtain signature of approval from the Faculty Associate Dean Higher Degree Research and forward to HDRO."
The Academic Honesty Policy provides that: "Overview The nature of scholarly endeavour, dependent as it is on the work of others, binds all members of the University community to abide by the principles of academic honesty. Academic honesty is integral part of the core values and principles contained in the Macquarie University Ethics Statements. Its fundamental principle is that all staff and students act with integrity in the creation, development, application and use of ideas and information. This means that: - all academic work claimed as original is the work of the author making the claim - all academic collaborations are acknowledged - academic work is not falsified in any way - when the ideas of others are used, these ideas are acknowledged appropriately. … Examples of some dishonest behaviours are deception, fabrication, obstruction, plagiarism and sabotage. DEFINITIONS … Plagiarism: Using the work or ideas of another person, whether intentionally or not, and presenting this as your own without clear acknowledgement of the source of the work or ideas. This includes, but is not limited to, any of the following acts: - copying out part(s) of any document or audio-visiual material or computer code or website content without indicating their origins - using or extracting another person's concepts, experimental results, or conclusions - summarising another person's work - submitting substantially the same final version of any material as another student in an assignment where there was collaborative prepatory work - use of others (paid or otherwise) to conceive, research or write material submitted for assessment (eg ghost writing) - submitting the same or substantially the same piece of work for two different tasks (self-plagiarism). … Policy The key principles of this policy are that the University will - require all students and staff to undertake their academic work honestly … - establishing and applying appropriate, consistent procedures for detecting and investigating alleged academic dishonesty; - providing and communicating the appeal process … COMPLIANCE AND BREACHES The University may commence applicable disciplinary procedures if a person to whom this policy applies breaches this policy (or any of its related procedures)"
Section 10.12 of the Macquarie University Code provides: "10. Authorship … 12. All staff and students must comply with the University's Academic Honesty Policy. Staff and students must act with integrity in the creation, development, application and use of ideas and information. When the ideas or work of others are used, these ideas must be appropriately and accurately cited or acknowledged."
Section 19.1 of the Macquarie University Code states: "19. General Principles for Handling and Resolving Allegations 1. The handling of allegations of breaches of The Macquarie Code and/or the Australian Code for the Responsible Conduct of Research (2007) and of allegations of research misconduct at Macquarie University will be based upon the following principles: a. The response to allegations will be fair, transparent and policy-based. The arrangements for handling alleged breaches of The Macquarie Code and/or The Australian Code and allegations of research misconduct are to be based upon the principles of procedural fairness, natural justice and transparency and will follow institutional policies. … c. Macquarie University is committed to the principle of natural justice (i.e. giving individuals the right to respond to specific allegations made against them). The University will not normally act on anonymous formal allegations lodged against individuals. However, anonymous allegations of research misconduct may be acted upon if they contain sufficient information to enable the assessment of the allegations and the credibility of the facts and evidence on which the complaint is based (i.e. without the need for further information from the source of the allegation)."
Section 24 of the Macquarie University Code states: "24. An Internal Institutional Research Misconduct Inquiry 1. If the Deputy Vice-Chancellor (Research) determines that the allegations should be referred to an Internal Institutional Research Misconduct Inquiry (Internal Institutional RMI), she/he will appoint an Internal Institutional RMI in accordance with section 24.2. The Internal Institutional RMI will convene within 15 working days of its appointment. 2. The Internal Institutional RMI will comprise at least three persons, one of whom shall be appointed the Chair by the Deputy Vice-Chancellor (Research). The panel will: a. consist of at least one member with knowledge and experience in the relevant field of research; b. consist of at least one member who is familiar with the responsible conduct of research; c. consist of at least one member who has experience on similar panels, or has relevant experience or expertise; d. be comprised of either, exclusively Macquarie University staff or a combination of Macquarie University staff and external members. It shall not however be exclusively external members; e. for Higher Degree Research Candidate matters, consist of the Director, Higher Degree Research Office and the Dean, Higher Degree Research and at least one other member; … g. declare any relevant expert knowledge held by members of the panel to the respondent. 3. The terms of reference of the Internal Institutional RMI are to report to the Deputy Vice-Chancellor (Research) on the facts relating to the alleged research misconduct and any mitigating circumstances raised by the respondent in their response. The Internal Institutional RMI is to make a finding of fact to determine if there has been a failure to comply with The Macquarie Code. 4. During the proceedings of the inquiry the respondent is entitled to be accompanied to any meeting by a support person; however, there should not be legal representation. The respondent and their support person may withdraw to consult if required. The support person may participate in the meeting but may not answer for the respondent. 5. If, during the course of an inquiry, the Internal Institutional RMI discovers that the potential extent of the allegations are more serious than originally thought it must provide an interim report to the Deputy Vice-Chancellor (Research). The Deputy Vice-Chancellor (Research) may choose to disband the internal inquiry and establish an external inquiry. 6. The inquiry will follow the process set out in section 26."
Section 26 of the Macquarie University Code provides: "26. The Research Misconduct Inquiry Process 1. The inquiry will: a. allow the respondent a reasonable opportunity to attend an interview and provide him/her the opportunity to respond to the allegations; b. make all reasonable efforts to interview any person, and review any evidence, it thinks fit to establish the facts of the particular case; c. provide the respondent and the University with a reasonable opportunity to make submissions and present evidence to the inquiry; d. conduct the investigation as expeditiously as possible consistent with the requirements of this procedure; e. take into account other material or information it believes is relevant to the case; f. declare any conflicts of interest that may arise immediately to the panel and as soon as practical to the Deputy Vice-Chancellor (Research) in writing. The Deputy Vice-Chancellor (Research) should then consider the best course of action to manage the conflict of interest; g. if it forms the opinion that a matter relates to a matter that should be dealt with under the Reporting Wrongdoing: Public Interest Disclosures Policy, follow the Reporting Wrongdoing: Public Interest Disclosures Procedure; and h. keep a record of proceedings. 2. Prior to finalising their report, the inquiry will provide the respondent with an opportunity to examine upon the inquiry's Draft Report. The respondent shall be given a period of five days from receiving the draft report to provide comment. The report provided to the Deputy Vice-Chancellor (Research) may be accompanied by any written rebuttal or observations the respondent may wish to make; and 3. Once finalised, the inquiry will provide a report of its findings and a copy of proceedings to the respondent, complainant and to the Deputy Vice-Chancellor (Research) within ten working days of completion of the proceedings. A copy should also be forwarded to the Director, Research Ethics and Integrity."
Section 27 of the Macquarie University Code states: "27. Subsequent Actions on Completion of an Inquiry 1. The Deputy Vice-Chancellor (Research) will review the findings of the inquiry panel and: a. advise the relevant Office, Department or Faculty in an appropriate course of action and review process; b. make a recommendation to the Higher Degree Research Office; c. make a recommendation to Human Resources to consider appropriate actions; or d. dismiss the original allegations on the grounds that there was no research misconduct. 2. The Deputy Vice-Chancellor (Research) will advise the respondent, complainant and the Director, Research Ethics and Integrity of his/her decision in 27.1 in writing. 3. The respondent may appeal the findings of the inquiry panel on one or more of the grounds set out in section 30. 4. Where allegations are shown to be unfounded, the Deputy Vice-Chancellor (Research) should consider if there is a need to reinstate the good reputation of the accused researcher and their associates, and take appropriate action."
Section 30 of the Macquarie University Code states: "30. Appeals 1. The Respondent may appeal the findings of the inquiry panel on one or more of the following grounds: a. the Respondent was not given a reasonable opportunity before the findings of the inquiry panel were made to present his or her case as to what the findings should be; or b. that the inquiry panel in making their findings were biased against the Respondent; or c. that procedures that were required to be followed in making their findings were not followed, so as to cause substantial injustice to the Respondent; or d. the inquiry panel in making their findings took an irrelevant consideration into account. 2. An appeal must be made in writing to the Chair, Academic Senate and lodged within ten working days of the Respondent receiving the decision of the Deputy Vice-Chancellor (Research) in relation to the findings of the inquiry panel. … 4. In determining any appeal under this section, the Chair, Academic Senate: a. May follow any procedure he or she consider appropriate; b. Is not bound by any rules of evidence or other legal forms, and may inform himself/herself in relation to any matter in any manner they think fit; c. Must act fairly in all the circumstances, having regards to the requirements of natural justice 5. The Chair, Academic Senate may: a. dismiss the appeal; or b. uphold the appeal and refer the allegation back to the original inquiry panel to be reheard, or establish a new inquiry panel to hear the allegation in accordance with the procedure set out in section 23. 6. The decision of the Chair, Academic Senate and the reasons for the decision must be given in writing to the Respondent within ten (10) working days of the decision. 7. The decision of the Chair, Academic Senate is final. 8. Any person has right to appeal to the NSW Ombudsman and/or to the Australian Research Integrity Committee in accordance with the Australian Research Integrity Committee Framework (2011)."
Rules 10 and 11 of the Academic Senate Rules provide: "10. General functions of Academic Senate 1) Advise the Council and the Vice-Chancellor on: a. academic matters and related activities of the University; … 11. Specific functions of Academic Senate 1) Approve policies on academic matters."

Administrative law

The first issue is whether the "Final Report" and/or what Mr Alajmi styled the "non-certification decision" are amenable to relief under s 69 of the Supreme Court Act.
In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Spigelman CJ at [3] explained: "The supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 can be invoked with respect to the exercise of statutory powers and the conduct of statutory procedures, whether or not the person to whom any orders equivalent to the prerogative writs are to be directed is a public officer."
In the same case, Basten JA at [65]-[66] stated: "It is clear from this statutory regime that an adjudicator is not an officer of the government, is not nominated by an officer of the government and is not paid by the government for exercising statutory functions. Nor does the government have any power to control an adjudicator, either when exercising statutory functions, or otherwise. It follows that, for the adjudicator to be amenable to relief in the nature certiorari, such relief must be available on the basis only that the adjudicator is exercising a statutory function."
Neither the Final Report nor the "non-certification decision" involved the exercise of statutory powers or the conduct of statutory procedures. This is for the following reasons: 1. The investigation which culminated in the Final Report was carried out under the Macquarie University Code. The Panel was established by, and carried out its functions pursuant to, the Macquarie University Code. The Macquarie University Code is a policy approved by the Deputy Vice-Chancellor (Research) and endorsed by the Academic Senate. The Deputy Vice-Chancellor (Research) may make policies in relation to higher degree research and the Academic Senate may approve such policies. The Macquarie University Code is not a statutory instrument. It was not made pursuant to the Macquarie University Act or the By-Law. Neither the Deputy Vice-Chancellor (Research) nor the Academic Senate has been delegated the power to make rules under the Macquarie University Act or the By-Law. 2. The "non-certification decision" was made under the Higher Degree Research Policy. The Higher Degree Research Procedure was also relevant to the extent that it provided a mechanism for review if, as here, a thesis supervisor declined to certify that the thesis requirements under the Higher Degree Research Policy had not been met by the candidate. These policies are not statutory rules or by-laws and are not delegated legislation. The Higher Degree Research Policy was approved by the Academic Senate. The Higher Degree Research Procedure was approved by the Higher Degree Research Committee. Neither the Academic Senate nor the Higher Degree Research Committee has been delegated the power to make Rules under the Macquarie University Act or the By-Law. 3. The Higher Degree Research Policy and the Higher Degree Research Procedure were not incorporated as a statutory rule by operation of s 42 of the Interpretation Act. I reject Mr Alajmi's submission that the Higher Degree Research Rules and the Higher Degree Research Policy were incorporated as statutory rules. It is true that the Higher Degree Research Rules were made under s 29 of the Macquarie University Act. It is not, however correct that r 12 of the Higher Degree Research Rules (set out at [142] above) operates to incorporate by reference the terms of the Higher Degree Research Policy as statutory rules. The Higher Degree Research Policy does not have an equivalent enactment provision to cl 2 of the Higher Degree Research Rules. It was not made or approved by the Council but approved by the Academic Senate which is empowered to advise the Council and the Vice-Chancellor and approve polices on academic matters: Academic Senate Rules 2015, rr 10, 11. The Academic Senate was not given the statutory authority to make or approve statutory rules. The Higher Degree Research Policy, unlike the Academic Senate Rules and the Higher Degree Research Rules, also does not state "Note: The Interpretation Act 1987 of New South Wales applies to these Rules". The fact that the Higher Degree Research Policy was published on the internet does not mean it is a statutory rule. 4. No different conclusion arises from consideration of the cases relied upon by Mr Alajmi, Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; 155 LGERA 230 at [67] per Biscoe J and Dornauf v The Stewards of the Harness Racing Board [1994] VR 302 at 307, 309 per Tadgell J. Currency Corporation involved a quite different context of Model Provisions potentially applying to all Local Environmental Plans being adopted in a particular Local Environmental Plan. In Dornauf the ratio of Tadgell J's decision, with which I respectfully agree, was that "where a regulation contains a reference to some other document the question whether or not the requirement just stated is fulfilled must depend upon a consideration of the particular regulation and of the nature and contents of the incorporated document". There is no reason to think, based on the scheme of the Macquarie University Act and the Higher Degree Research Rules, that the Higher Degree Research Policy and the Higher Degree Research Procedure were incorporated by reference as part of a statutory rule.
In making the "non-certification decision" Associate Professor Wright was not exercising a public or statutory function. The "non-certification decision" did not involve the exercise of any power conferred by statute or subordinate legislation. Further, in making the "non-certification decision", Associate Professor Wright owed no public duty. She determined, for the purposes of the University's internal policies, whether she was of the opinion that the thesis met the University's preparation requirements.
The fact that the Higher Degree Research Policy and the Higher Degree Research Procedure were approved or brought into being by bodies which ultimately operate under the auspices of, or subject to, the Macquarie University Act or the Macquarie University By-Law does not mean that decisions made under those policies involve an exercise of public power.
It follows that the "non-certification decision" (and if it matters, the Final Report) are not amenable to relief in the nature of certiorari, or any other relief pursuant to s 69 of the Supreme Court Act. As will become apparent, however, against the possibility that Mr Alajmi will take this case further, in the remainder of this judgment I will proceed on the assumption that this conclusion is not correct.
There are formidable hurdles to acceptance of Mr Alajmi's alternative case based on the principle in R v Panel on Take-overs and Mergers; Ex parte Datafin PLC [1987] 1 QB 815. The English Court of Appeal in that case decided that a decision of a private body which was not made in the exercise of a statutory power, may be amenable to judicial review if the decision is, in a practical sense, made in the performance of a "public duty" or in the exercise of a power which has a "public element": Datafin at 838, 847 (Lloyd LJ). It was significant, in the context of that case, that the private body in question exercised "immense power" and had "enormously wide discretion": Datafin at 826-827 (Lord Donaldson MR).
In NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35, the High Court elected not to determine, on the facts of that case, the "question whether public law remedies may be granted against private bodes": at [49]-[50] (McHugh, Hayne and Callinan JJ).
In Chase Oyster Bar, Basten JA, with whom Spigelman CJ agreed, said that "there is an absence of authority in Australia addressing the question of whether or not Datafin applies". Basten JA at [81] said: "The result of this analysis suggests that there is an absence of authority in Australia addressing the question of whether or not Datafin applies. The authorities relied upon in Grocon Constructors do not support the proposition that it is applicable and, to the extent that it extends public law remedies to private bodies which do not exercise functions conferred by government, whether under statute or otherwise, it is not necessary to rule on its application in the present case. Suffice it to say that there is no authority in the High Court which supports its application and statements of general principle in that Court might be thought to adopt a more limited scope for the operation of public law remedies."
This issue has also been addressed by Leeming JA in Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; 340 ALR 560: "[89] … it is not difficult to see how awkwardly Mr Christie's submission sits within the Australian legal system. Perhaps the most obvious point is one which was advanced at first instance (both orally and in writing) and on appeal, namely, the highly uncertain status in this country of the reasoning of the Court of Appeal in R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] QB 815. Datafin authorised the judicial review of a private body which exercised the regulatory functions of government - a narrower proposition than that for which Mr Christie contends. There can be no doubt that whether or not Datafin is part of the law of Australia is controversial. [90] In this State, Basten JA (with whom Spigelman CJ agreed in this respect) demonstrated the difficulties in its application in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [73]-[81], concluding that "there is no authority in the High Court which supports its application and statements of general principle in that Court might be thought to adopt a more limited scope for the operation of public law remedies". The same point was made by Beech-Jones J in Amos v Western New South Wales Local Health District [2016] NSWSC 1162 at [93]. [91] Appellate courts in other States have made the same point: see Khuu & Lee Pty Ltd v Corporation of the City of Adelaide (2011) 110 SASR 235; [2011] SASCFC 70 at [26]-[31] and Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456; [2012] VSCA 185 at [31]-[33]. (Contrast the position in New Zealand; as Barrett JA observed in Bird v Ford [2014] NSWCA 242 at [22], "The tendency sanctioned by the New Zealand Court of Appeal is to treat as reviewable the exercise of any power having public consequences, even if the power is exercised by a private organisation", a position which has more recently been confirmed in Ririnui v Landcorp Farming Ltd and The Attorney-General [2016] NZSC 62 at [89].) [92] The undoubted uncertainty in Australia of the amenability to judicial review of private bodies exercising the regulatory functions of government demonstrates that the considerably larger principle advanced by Mr Christie, according to which private bodies are amenable to judicial review irrespective of whether they are exercising the regulatory functions of government, cannot be the law. One difficulty with Datafin is that it has "proven to be notoriously difficult to find a coherent method of delineating public from private power": J Boughey and G Weeks, "'Officers of the Commonwealth' in the Private Sector: Can the High Court Review Outsourced Exercises of Power?" (2013) 36 UNSWLJ 316 at 333-334. That difficulty does not arise in the present case. Counsel for Mr Christie properly and correctly acknowledged that "I'm not suggesting there's any government power involved here." There can be no suggestion that ASC was performing a governmental regulatory function. That is not to belittle the importance of the show day activities to participants, spectators and others involved; there are many activities in modern society, important and unimportant, which are extraneous to governmental power, and fall outside the jurisdiction of courts to protect against such power. Even in the United Kingdom, judicial review is not available of the decisions of racing authorities whose powers derive from contract as opposed to statute: see for example R v Disciplinary Committee of the Jockey Club; ex parte Aga Khan [1993] 1 WLR 909, Mullins v The Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin) and Mullins v McFarlane [2006] EWHC 986 (QB)."
In Christie, Leeming JA expressly addressed, albeit in obiter remarks, considerable doubts about the application of the Datafin principle in Australia in a closely analogous context: "[93] … there are other ways in which Mr Christie's broad principle lacks coherence with Australian law. Take a subject matter with a much closer connection with modern governmental functions: education. Very important decisions affecting reputation and livelihood are made by private schools and universities. Bird v Ford shows how problematic judicial review (as opposed to a contractual claim) is in such a case. But if Mr Christie's claim that he was denied natural justice when he was suspended from competitive horse riding at agricultural shows organised by members of ASC is justiciable, then why would not a decision by a private school to suspend or expel a student also be justiciable? It may be noted that while Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 ultimately turned on the construction of the Judicial Review Act 1991 (Qld), neither the reasoning nor the result supports Mr Christie's principle."
I agree with Leeming JA. The lack of a coherent framework for the application of the principle advanced in Datafin alongside Australian administrative law, and the constitutional setting of that law, tends against acceptance of the Datafin principle in Australia.
That this is so is illustrated by the decision of the High Court in Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7. In Tang the High Court dealt with an application for judicial review of a decision to exclude a student from the PhD programme conducted by the appellant. Whilst the claim for relief in that case was limited to one under the Judicial Review Act 1991 (Qld), the majority judgments covered a wide scope of relevant administrative law principles in this area. As in Tang, the Macquarie University Act contains no provision for there to be a Visitor to the University. Accordingly, there is no occasion for the consideration of the case law concerning the content and exclusivity of the jurisdiction of a Visitor, in particular, Thomas v University of Bradford [1987] AC 795. [4]
The judgment of the Chief Justice in Tang contains a useful statement of principle relevant to the present question: "[11] The structure of the Griffith University Act follows a familiar form. In all Australian jurisdictions there are statutes which establish or incorporate particular institutions, such as schools, or hospitals, or universities, or charitable organisations, describe their functions, confer on them powers appropriate to those functions, and provide for their governance. Whatever the principal functions of such an institution may be, the statute by which it is established ordinarily confers upon some governing authority general powers appropriate to the discharge of those functions. It does not follow that any administrative decision made in the exercise of those powers is a decision made under the relevant enactment for the purposes of the AD(JR) Act, or legislation expressed in the same terms."
In the judgment of the plurality, Gummow, Callinan and Heydon JJ, a number of things relevant to the questions raised in this case are said: "[81] If the decision derives its capacity to bind from contract or some other private law source, then the decision is not "made under" the enactment in question. Thus, in Lewins, a decision not to promote to Reader a member of the staff of the Australian National University was not 'made under' the Australian National University Act 1991 (Cth) (the ANU Act). Lehane J explained: "In this case, the relevant statutory power (in s 6(2)(k) of the ANU Act) is simply one 'to employ staff'. Obviously that, taken together with the general power to contract, empowers the University to enter into contracts of employment, to make consensual variations of employment contracts and to enter into new contracts with existing employees. But I cannot see how it is possible to construe a mere power to employ staff as enabling the University unilaterally to vary its contracts with its employees or to impose on them, without their consent, conditions which legally bind them - except, of course, to the extent that contracts of employment may themselves empower the University to make determinations which will be binding on the employees concerned." … [96] The decisions of which the respondent complains were authorised, albeit not required, by the University Act. The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act. But that does not mean that the decisions of which the respondent complains were "made under" the University Act in the sense required to make them reviewable under the Review Act. The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former." (Footnotes omitted.)
Even if I were free, following Chase Oyster Bar and Christie, to follow Datafin I would respectfully decline to do so absent clear guidance from the High Court or an intermediate Australian Court of Appeal. I am not persuaded that Datafin forms part of the law of Australia. The approach of Beech-Jones J in Amos v Western New South Wales Local Health District [2016] NSWSC 1162 at [93]-[105] to a different but related question is persuasive.
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.
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.
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.
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".
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.
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.
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.
The suggestion that the Final Report was an irrelevant consideration for Associate Professor Wright in making the "non-certification decision" should be rejected. It would be perverse if an administrative decision-maker in the position of Associate Professor Wright, who was required to reach a state of satisfaction about whether a thesis submitted for examination was the candidate's "own work", was not permitted to take into account the results of a detailed report of an investigation, conducted by a Panel with the relevant expertise and experience, which addressed the relevant subject matter.
In the classic statement of Mason CJ in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40: "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 is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. MacKellar; CREEDNZ Inc. v. Governor-General; Ashby v. Minister of Immigration. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider"." (Footnotes omitted.)
There is nothing in the Macquarie University Act or any delegated legislation or any policy requiring that Associate Professor Wright not take into account the Final Report. This ground is really an attempt to have the Court perform impermissible merits review.
Mr Alajmi's next complaint concerns the decision to commence an investigation on the basis of an anonymous complaint. In this case there was no failure to follow proper procedure in causing an investigation to be commenced into the anonymous allegation. Section 19.1.c of the Macquarie University Code states: "19. General Principles for Handling and Resolving Allegations 1. The handling of allegations of breaches of The Macquarie Code and/or the Australian Code for the Responsible Conduct of Research (2007) and of allegations of research misconduct at Macquarie University will be based upon the following principles: … c. Macquarie University is committed to the principle of natural justice (i.e. giving individuals the right to respond to specific allegations made against them). The University will not normally act on anonymous formal allegations lodged against individuals. However, anonymous allegations of research misconduct may be acted upon if they contain sufficient information to enable the assessment of the allegations and the credibility of the facts and evidence on which the complaint is based (i.e. without the need for further information from the source of the allegation)."
That Code was followed here. An anonymous complaint "may be acted upon if [it] contain[s] sufficient information to enable the assessment of the allegations and the credibility of the facts and evidence on which the complaint is based". The detail in the anonymous complaint fell within that description.
In effect, Mr Alajmi's complaint is an appeal for a merits review, attacking the sufficiency of the information available to Macquarie University in the anonymous complaint and the relevance of Mr Alajmi's concession that he had consulted All Answers at a time long before any proofreading of his thesis was required.
In written and oral submissions Mr Alajmi's principal complaint was that Associate Professor Wright's state of satisfaction (or lack thereof) about whether Mr Alajmi's thesis was his "own work" was legally unreasonable because the Final Report was itself "barren of information" and also allegedly inconsistent with things Associate Professor Wright herself "knew".
In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [34], the plurality explained that the formation of a state of satisfaction or of non-satisfaction, in that case by a Minister, the Minister's delegate or the Tribunal on review, is in each case conditioned by a requirement that the Minister or his or her delegate or the Tribunal forming its own conclusion on review, must proceed reasonably and on a correct understanding and application of the applicable law: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]-[137]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [34]; Graham v Minister for Immigration and Border Protection [2017] HCA 33; 91 ALJR 890 at [57]; Wilkie v The Commonwealth [2017] HCA 40; 91 ALJR 1035 at [109].
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 the High Court explained this area of discourse. French CJ at [30] said: "[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence." As Professor Galligan wrote [DJ Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford University Press, 1986) at 140]: "The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed." A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions." (Footnotes omitted.)
The plurality, Hayne, Kiefel and Bell JJ, at [63] held that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably: Attorney-General for the States of New South Wales v Quin (1990) 170 CLR 1 at 36; [1990] HCA 21; Kruger v The Commonwealth (1997) 190 CLR 1 at 36; [1997] HCA 27; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [126]; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [15]. Their Honours went on: "[65] In Sharp v Wakefield [[1891] AC 173 at 179], it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by "according to law". It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be "exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself". It is pointed out in Wade and Forsyth [Administrative Law (10th ed, 2009, Oxford University Press) at 293-294] that the legal conception of discretion dates from at least the 16th century. In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke's Case [(1597) 5 Co Rep 99b at 100a; 77 ER 209 at 210], in which it was stated that the discretion of commissioners of sewers "ought to be limited and bound with the rule of reason and law". [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested. … [68] Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area." (Footnotes omitted.)
Gageler J at [90] said: "[90] Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty: R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; [1944] HCA 42; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 150 [34]; [2000] HCA 5. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute: Sharp v Wakefield [1891] AC 173 at 179, cited in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 431 and in Shrimpton v The Commonwealth (1945) 69 CLR 613 at 620. See generally R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; [1965] HCA 27; Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 17-18; [1976] HCA 20; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 529 [62]; [2001] HCA 17."
There was also a complaint of denial of natural justice in "basing [the] conclusion on untenable circumstantial evidence" or "no evidence at all". The "no evidence" ground is related closely to the unreasonableness ground and I will deal with them together.
The relevant questions are whether there was evidence available from which the Panel constituted to investigate Mr Alajmi's alleged plagiarism could draw the inferences leading to the conclusions in the Final Report and whether there was evidence available from which Associate Professor Wright could form a state of non-satisfaction in that she was not satisfied that the thesis was Mr Alajmi's "own work".
Whether the evidence referred to was sufficient was a matter for the Panel and Associate Professor Wright respectively to determine, so long as the evidence they each took into account could be described as rationally probative of the existence of a fact in issue. In Amaba Pty Ltd (Under NSW Administered Winding Up) v Booth; Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth [2010] NSWCA 344 (in a passage referred to with approval in Ballina Shire Council v Knapp [2019] NSWCA 146), Basten JA explained the "no evidence" ground thus: "[21] That question aside, it is necessary to address the respondent's argument that, once the medical evidence tendered on behalf of Mr Booth is held to be properly admitted, it will not be open to the appellants to challenge findings based on that evidence because it will be impossible for them to say that there was no evidence capable of supporting the findings of the trial judge. In accordance with statements by Glass JA (Samuels JA agreeing) in this Court in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 and the statement of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 it was submitted that no broader claim is permitted. As explained by Mason CJ at 356: "Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." [22] However, as I noted recently in Goodwin v Commissioner of Police [2010] NSWCA 239 at [12], some doubt has been cast on the scope and operation of that principle by reference in later judgments to the need for findings or inferences of fact to be supported by "logical grounds": see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [52] (McHugh and Gummow JJ, Callinan J agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [40] (Gummow and Kiefel JJ, dissenting); cf [113], [119] and [129]-[130] (Crennan and Bell JJ). [23] Implicit in the statement that there is no evidence to "support" a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of "relevance", on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding": Evidence Act 1995 (NSW), s 55(1). As explained by Gleeson CJ, Heydon and Crennan JJ in Washer v Western Australia [2007] HCA 48; 234 CLR 492 at [5]: "The word 'rationally' is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury's assessment of the probability of the existence of a fact in issue at the trial." [24] Whether an inference is reasonably open, in the sense of being logically available, involves an evaluative judgment, which is to be assessed by the court exercising appellate or supervisory jurisdiction."
The inferences drawn by the Panel in this case and by Associate Professor Wright in making the "non-certification decision" were reasonably open, in the sense of being logically available. My evaluative judgment, exercising the Court's supervisory jurisdiction on the contingent hypotheses I have identified, is that the inferences drawn by the Panel and by Associate Professor Wright were open and logical. There was nothing in either the findings of the Panel or the decision of Associate Professor Wright which was legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li. Even accepting Mr Alajmi's submission, that the standard of evidence required to reach conclusions in the Final Report and to make the "non-certification decision" is one of cogency and persuasiveness, that standard was met here.
In expressing this conclusion I take into account the material in evidence upon which the detailed findings of fact I have made above were made and need only give a few examples of cogent material available to the Panel and Associate Professor Wright which was taken into account. There are many more examples.
First, within at least five of the electronic files pertaining to Mr Alajmi's draft thesis available to the University, there were at least 68 marginal notes identified as containing what are obviously instructions to a third party. The Panel and Associate Professor Wright also had available Mr Alajmi's responses upon being confronted with those marginal notes: 1. By a letter dated 23 July 2015, Mr Alajmi was asked about two files retrieved named "chapter6 instructions.docx" and "Sam_instruction_15-05-2013.docx". 2. On 24 July 2015, by email in response Mr Alajmi stated "I can say that the files that 'appear to include instructions to another person directing changes to the intellectual content of your thesis which go well beyond simply requesting professional editorial assistance' are not my files. I have never directed any instruction regarding changing or completing my work to anybody else. I have only original files with instructions from my supervisors to me. The instructions you referred to in the letter are the instructions from my supervisors". 3. On 23 August 2016, the University responded, "Could Mr Alajmi please explain why he stated in his letter to Professor Mansfield dated 24 July 2015 that these files 'are not my files' when the metadata of those files record 'Sharaf Alajmi' as the author?" 4. On 5 October 2016, Mr Alajmi sent a lengthy reply, the effect of which was that he denied that he ever gave "such instructions", that the anonymous complainant had access to his computer and was motivated by malice and that, therefore, "the Panel cannot rely on such documents as being complete or authentic".
It was open to the Panel and Associate Professor Wright to take into account the 68 marginal notes containing what are obviously instructions to a third party and to reject Mr Alajmi's strained and somewhat incredible explanations for those instructions to a third party. The determination that the thesis was not Mr Alajmi's "own work" was logically available. It was not legally unreasonable. The suggestion made at various times in oral address by Ms Nolan that direct rather than circumstantial evidence was required in this case should be rejected. Even in criminal cases, requiring the most exacting proof, circumstantial evidence may give rise to a strong case.
Secondly, the Panel and Associate Professor Wright had available a significant body of material comprising examples of editorial work received by Mr Alajmi from All Answers: 1. The Panel and Associate Professor Wright had available a document entitled "Editorial draft - CH1.docx". That document contained 12 marginal notes and a series of "track changes" edits. Examples of the marginal notes include: "• Suggestion: thus lend themselves to being used as. • You have used it as 'decision making' in the majority of the paper. I believe this format 'decision-making' is the correct use as stated in the Oxford dictionary. If you agree, amend where necessary." 1. The Panel and Associate Professor Wright had available a document entitled "Editorial draft - CH2.docx". That document contained 3 marginal notes and a series of "track changes" edits. The marginal notes are: "• Suggestion: external. • Suggestion: 'to an external resource' or 'to external resources'. • 'Not only … but also' can be used in many forms as a correlative conjunction. See if you agree with my amendment." 1. The Panel and Associate Professor Wright had available a document entitled "Editorial draft - CH3.docx". That document contained 9 marginal notes and a series of "track changes" edits. Examples of the marginal notes include: "• Suggestion: which was revised/revived by. • Suggestion: external auditors. • Use a different term." 1. The Panel and Associate Professor Wright had available a document entitled "Editorial draft - CH4.docx". That document contained 1 marginal note and a series of "track changes" edits. The marginal note is: "• Did you mean NED/CEO power?" 1. The Panel and Associate Professor Wright had available a document entitled "April.01,2013_Ph.D._Dissertation.doc". The following marginal comments are recorded as being made by "Sharaf Alajmi" on 18 April 2013: "• Add an abstract before the Table of the Content. • Explain the diversity. • Arrange this section so that my contribution reads: • 1- Theory • 2- Literature • 3- Practice • 4- Regulation • Please write a complete introduction to this section. • How do these theories inform the relation between independent directors attributes and monitoring effectiveness? • How does my study fills in the gaps in the theories (if there are any)? • Please arrange and list theories from 2.2.1 to 2.2.8 in order according to their view: 1- Theories that view the board as a whole. 2- Theories that view board member individually. Both • Summarize and come to overall conclusion. • I don't see how this type of decisions are relevant to board independence. In this section, NEDs' attributes (tenure, busyness, industry experience, and age and gender heterogeneity) are linked/associated with board's effectiveness pointing this by referencing this literature. Could you please make my idea more clear in this section to show how directors' independence/effectiveness could affect the advisory role? As it is, the writing does not show any relevance. Please link this section to my research questions emphasizing that board effectiveness are not only important to strategic decisions in the context of the monitoring role but also to the strategic decisions in the context of the advisory role of NEDs. • What does this mean? Please elaborate on this. • Please clarify/elaborate. • Please rephrase this paragraph and make it clear and relevant to my research questions. • Make this section more clear and relevant to my research questions. Please add an informative conclusion. • Please rephrase. • Please conclude as opposed to summarize. • Make a clear link between this chapter and the literature chapter (chapter2). • Rephrase please. • Please make it more clear and rephrase to be fit in this section. • Write please • use the paper from Donoher and Reed 2007 to write about research design, models and models' results • Please write • Write more here. • Rewrite this paragraph. • Please complete • Based on the table, provide more discussion. Find support from the literature for the findings. • Provide support for the use of this method. • Use recent studies to write about models, and models' results • Use this section to write about the result section in the paper. • You used the changes in the log-odds of CEO dismissal (For every one-unit increase in IV, I expect a B increase in the log-odds of DV, holding all other independent variables constant.) You could use the Exp(B) instead. However, exp(B) is very small for this CV. • Make clearer please. • Articulate more. Find more literature support for the result. • However, the interaction variable was negative and significant. How could you explain this? • Use the Donoher and Reed 2007 and a handbook by Carpenter 2011 to write about this section. • Conclude please" 1. This document contains a series of marginal notes, as well as sections of text in red and sections of text in black. In the 69 marginal notes in this document there are 16 instances of the use of the word "please", 5 instances of "my", 3 instances of "you", 1 instance of "your" and 1 instance of "I". Examples of these phrases include: "• Arrange this section so that my contribution reads: • 1- Theory • 2- Literature • 3- Practice • 4- Regulation • Please write a complete introduction to this section. • How does my study fills in the gaps in the theories (if there are any)? • Please rephrase this paragraph and make it clear and relevant to my research questions. • Make this section more clear and relevant to my research questions. Please add an informative conclusion. • Write please" 1. On 23 August 2016, the Panel stated to Mr Alajmi that the following note in the file "April.01,2013_Ph.D._Dissertation.doc" appears to be a commentary by one person about another person's writing and that "it is Mr Alajmi who is in fact commenting on the writing of another person": "I don't see how this type of decisions are relevant to board independence. In this section, NEDs' attributes (tenure, busyness, industry experience, and age and gender heterogeneity) are linked/associated with board's effectiveness pointing this by referencing this literature. Could you please make my idea more clear in this section to show how directors' independence/effectiveness could affect the advisory role? As it is, the writing does not show any relevance. Please link this section to my research questions emphasizing that board effectiveness are not only important to strategic decisions in the context of the monitoring role but also to the strategic decisions in the context of the advisory role of NEDs." 1. When asked to comment on this text Mr Alajmi replied on 5 October 2016: "Mr Alajmi says that the Panel's pre-conceived current opinion that 'it is Mr Alajmi who is in fact commenting on the writing of another person' is wrong for the reasons set out in his response to the draft investigation report dated 23 July 2016 at paragraph 2.2. Mr Alajmi reiterates that the marginal comments were written solely by him as instructions to himself." 1. The Panel and Associate Professor Wright had available a document entitled "chapter6 instructions.docx". The following marginal comments appear to be instructions to a third party made by "Sharaf Alajmi" on 22 July 2013: "• I have listed all the results and findings in this chapter. The purpose of this chapter is to write about the results and findings of my study. Please see explanations for each table/subsection in order to write about them. Format the table based on dissertation format. At the end of this chapter, you will discuss and summarise the results and finding. • To describe my data in the tables, among other sources, you could use the work in my research paper (file name: My_WorkingPaper in Extra Information). In addition to my research paper, use papers that focus on poor performance samples such as Denis and Kruse (2000); Sofia Larmou and Nikos Vafeas (2010); and papers from the Literature Review Template excel file. • For the sub-sample of 170 firm-yearly observations for firms with CEO replacements, this table presents the means, 25th percentiles, medians, 75th percentiles, and standard deviations for the 15 control variables used in the regression models. Please describe the sample using the data from this table. Use similar studies that focus on poor performance samples such as Denis and Kruse (2000); Sofia Larmou and Nikos Vafeas (2010); and papers from the Literature Review Template excel file. • For the sub-sample of 170 firm-yearly observations for firms with CEO replacements, this table presents the means, 25th percentiles, medians, 75th percentiles, and standard deviations for the independent (main) variables used in the regression models. This table reports also the average and standard deviation of each of the NEDs' characteristics for tenure, busyness, diversity, and industry experience in both the voluntary replacements' subsample (59 firm-yearly observations) and CEO dismissals' subsample (111 yearly observation) from 1998 to 2010. T-statistics is used for difference in means to determine whether the test variables are different between the two subsamples. Please use these data to write about the sample. • This table shows the Pearson correlations between the variables used in the empirical tests. The sub-sample used is 170 firm-yearly observations of firms with CEO replacements. The dependent variable in this sample equals 1 for CEO replacements and 0 for voluntary replacement (111 observations with CEO dismissals). The variables of interest, NEDs' attributes/characteristics, are not significantly correlated with CEO dismissal. • Please talk also about the correlations between CEO dismissal and the control variables. The only correlation between 0.35 is among some of the accounting variables. A preliminary multiple Linear Regression was conducted to evaluate multiccollinearity among the twenty five continuous predictors. With the exception of the obvious collinearity, between the linear and quadratic terms for each independent variable, tolerance for all variables is greater than .1 (the highest variance inflation factor (VIF) is only 2.583), indicating that multicollinearity is not a problem. • Please, fix the format of all tables. • You would look at my research paper in the EXTRA INFORMATION for more details in order to write about the results. Also, remember the method I used in this analysis is described in more detail in section 5.4 (empirical model) • Please give a short introduction paragraph for the purposes of the additional analysis which is to check for robustness. Robustness in term of sample selection and dependant variable measurement. • Both voluntary and forced replacements are included in the replacement subsample. See dependant variable subsection for more details. There are no death or health related replacements in this subsample because they are not related to firm performance. Please provide literature support for this claim. • In here, I conducted the same analysis as in table 6.3. The only difference is the sample used. The sample here is CEO replacement vs. no CEO replacement sample. When writing about the results/findings in this table, please keep it short and focus only on the differences as opposed to table 6.3 results/findings. • In here, I also conducted the same analysis as in table 6.3 and 6.4.1. The only difference is the sample. Here, the sample used is the CEO dismissal vs. no CEO dismissal, excluding 59 voluntary replacements. When writing about the results/findings in this table, please keep it short and focus only on the differences as opposed to tables 6.3 and 6.4.1 results/findings. • The purpose of this section is to summarise and discuss my findings. List all the relevant literature in order to support your discussion. Pay special attention to the significant results from each model from both the main and the additional analyses. • In this section, you will answer the question: Why are there differences between the results in the main and additional analyses with regards to the main NEDs' attributed (significant variables) in term of the dependent variable? Keep in mind that sample selection or dependent variable measurement might have an influence on these differences. Find literature support based on the following: When comparing findings from the main vs. additional analyses, there is no consistency regarding the findings of main variables (the tenure heterogeneity and NEDs' industry experience). Therefore from findings in the main analysis I cannot conclude that there is an association between above variables and the probability of CEO dismissal. On the other hand, in the findings, there are some consistencies regarding the control variables PERCENT NED ATTENDING AT LEAST 75 PERCENT OF MEETING, NED PERCENT OVER 70 YEARS OF AGE, and CEO AGE) in the three analyses." 1. The Panel and Associate Professor Wright had available a document entitled "Literature Review 352002 c.doc" which was authored by "Paul Lines" and created on 23 August 2011. The document contains 3 comments, 2 by "Paul Lines" and 1 by "FBE Admin" (note that the comment by "FBE Admin" was dated 31 July 2011, suggesting that it was created prior to the document itself and copied into a new document on 23 August 2011): "Comment 1: Paul Lines, 23 August 2011 "yes this has been published. See reference" Comment 2: FBE Admin, 31 July 2011 "But is there any? I can't find any" [Note: The statement "I can't find any" is in blue text in the comment and the question "But is there any?" is in black text.] Comment 3: Paul Lines, 23 August 2011 "I cannot find a copy of this article free on the net"." 1. When asked about those comments Mr Alajmi replied on 5 October 2016: "The question is irrelevant to the allegation concerning authorship of his thesis and Mr Alajmi declines to answer the question. In the circumstances where the anonymous complainant has clearly had access to Mr Alajmi's computer (see Appendix 1 of the Draft Investigation Report dated 28 June 2016), and the anonymous complainant appears to be motivated by malice, Mr Alajmi says that the Panel cannot rely on such documents as being complete or authentic."
The inferences drawn by the Panel (quoted in [76] above) in this case and by Associate Professor Wright in making the "non-certification decision" (quoted in [86] and [90] above) were reasonably open, in the sense of being logically available. My evaluative judgment, exercising the Court's supervisory jurisdiction on the contingent hypotheses I have identified, is that the inferences drawn by the Panel and by Associate Professor Wright were obviously open and were logical. It follows that there was no denial of natural justice in "basing [the] conclusion on untenable circumstantial evidence" or "no evidence at all". The decisions, even on the contingent hypotheses I have identified, were not legally unreasonable. If it is not clear from what I have already said, the extravagant language used in the submissions by Mr Alajmi, for example, that the critical finding upon which the Final Report was premised is "equivalent to meaningless", is completely unjustified.
The assertion that it "could not be" that Associate Professor Wright "could reasonably and rationally" arrive at the conclusion she did needs merely to be stated to be rejected. The Final Report contains a powerful series of findings pointing objectively to gross academic misconduct by Mr Alajmi. It is not the role of the Court to opine about whether those findings were correct, merely to determine that they were reasonably open and not legally unreasonable in the way I have earlier explained. Plainly they were. A supervisor in the position of Associate Professor Wright was entitled to take all of that material into account in deciding whether she was satisfied that Mr Alajmi's thesis was his "own work".
I do not regard the email correspondence between Professor Quinn and Associate Professor Wright in March 2015 as leading to any different conclusion. The effect of those communications was that Professor Quinn, who was one of the members of the recently constituted Panel, expressed a view to Associate Professor Wright that at that time he could not "find any evidence that [Mr Alajmi] has sought the advice of a statistical expert to redo his analysis". That limited conclusion does not cause me to think that those emails are, as was submitted by Mr Alajmi, "calamitous" for the reasonableness of both the Panel's findings and the "non-certification decision". There was no finding by the Panel that Mr Alajmi had sought the advice of a statistical expert to assist in his analysis. The failure by the Panel to refer to a non-dispositive conclusion, explained by Professor Quinn to Associate Professor Wright at an early stage of the inquiry, does not lead me to conclude that the decisions of the Panel and Associate Professor Wright, even on the contingent hypotheses I have identified, were legally unreasonable.
There was nothing legally unreasonable in the conclusions in the Final Report that: 1. on the balance of probabilities, Mr Alajmi engaged one or more third parties (one of which it finds was All Answers) to create intellectual content to be included in the doctoral thesis (it should be observed that nowhere in the Final Report is the character of the so-called "intellectual content" defined); 2. Mr Alajmi admitted to using All Answers; and 3. having regard to the totality of the information and evidence it was more likely than not that All Answers completed (unspecified) work which contributed "at least in part" to the intellectual content of Mr Alajmi's thesis. It found that the services provided by All Answers went beyond what a professional editor may provide when editing a doctoral thesis (which, for example, includes appropriate copy editing and proofreading).
I reject Mr Alajmi's submissions about the Panel's failure to apply the Briginshaw standard. The rules of evidence did not apply to the Panel's deliberations. There was no onus of proof or applicable standard of proof for the Panel's findings. The Panel was not required to apply the Briginshaw standard before reaching its conclusions. Notwithstanding this, the Panel instructed itself to apply the standard of comfortable satisfaction, which is derived from Briginshaw and found that this standard was met. Even if the Panel were required to be satisfied to the Briginshaw standard, that standard was applied and met in this case.
The next complaint made by Mr Alajmi is that the emails between Professor Quinn and Associate Professor Wright just discussed lead to a reasonable apprehension of bias on the part of the Panel and "perhaps" Associate Professor Wright. The allegation of apprehended bias made in relation to the Panel, in Mr Alajmi's written submissions, was expressed in four paragraphs, which I will set out in full: "62. … a further matter which ought have reasonably have deterred Dr Wright from accepting as indubitable the findings of the Report: the fact that in March 2015 she sought advice from Panel member, Professor of Statistics, Barry Quinn, as to whether Mr Alajmi's thesis contained the work of a statistician or a statistical expert as was alleged by the anonymous allegation. This was refuted, with reasons by Professor Quinn, conveyed to Dr Wright and conveyed to Professor Nick Mansfield by email dated 16 March 2015 and Memo dated 17 March 2015. It in no way features in the report, which is dated 10 November 2016. Indeed, Professor Quinn stated to Dr Wright: "Sue, I really cannot find any evidence that the candidate has done other than take your advice in fixing his statistical analysis. In particular I cannot find any evidence that he has sought the advice of a statistical expert to redo his analysis…". To which Dr Wright replied, the same day: "The comment I would make is you can only determine if he has had assistance from an expert, not a nonexpert. It is equally wrong to get assistance from a non-expert, but its not as likely to assist him in passing." 63. Despite this, on 19 March 2015, Dr Wright, certified Mr Alajmi's Doctoral Thesis had been submitted in accordance with the requirement of the HDR Thesis Rules. 64. Absent an explanation or any reference to this matter in Dr Wright's reasons, the inference to be drawn is that what Professor Quinn said following on from Dr Wright's question could not assist the University. Both Dr Wright and Professor Quinn were presumably able to put "the true complexion on the facts relied on as the ground for the inference": Jones v Dunkel (1959) 101 CLR 298 at 308; see also Kuhl v Zurich Financial Services Australia Ltd (2011) 85 ALJR 533 at [64]; but neither has given evidence. 65. It is also perhaps so palpable that it need not be stated that these comments by Professor Quinn and this interaction between Dr Wright and Professor Quinn, are calamitous for, not only the apprehension of bias which might imputed to the Panel, and indeed, might properly be imputed to Dr Wright, but to the reasonableness of both the Panel's findings and the non-certification decision."
The test for apprehended bias is well established. The Court must be satisfied that "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. The "double might" test is future-looking, about a decision to be made in the future. Even in the context of judicial proceedings, tentative rather than final statements of a judge's views about critical issues made by a judge do not necessarily demonstrate a reasonable apprehension of bias: Johnson v Johnson at [13]-[14].
In a judicial context, requiring the highest standard of procedural fairness, the application of the apprehension of bias principle requires two steps. The first is to identify what it is said might lead the judge to decide a case otherwise than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified and the apprehension that the case might not be decided on its merits. Thus a bare assertion that a judge appeared to be biased is of no assistance unless the nature of the conduct relied on is identified and the connection between that conduct and the possibility of departure from impartial decision-making is articulated: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [63]; Bezer v Basan [2017] NSWCA 333.
No fair-minded observer of the Panel's process, taking into account the initial emails, the abundant material available to the Panel and the meticulous consideration of Mr Alajmi's submissions about all of the material, might conclude that the members of the Panel, including Professor Quinn, might have brought a prejudiced mind to their deliberations. The emails between Professor Quinn and Associate Professor Wright which are the foundation of this apprehended bias allegation do not evidence any pre-judgement. A reasonable observer, armed with knowledge of those emails, in their proper context, would conclude that professional colleagues were seeking and providing information about certain technical details in the context of the recently commenced investigation. If it matters, the tentative views expressed by the participants in the emails were favourable to Mr Alajmi.
The connection between the conduct here relied on (the email exchange) and the possibility of departure from impartial decision-making has not been established. It is clear that nothing was being prejudged in the exchange of emails. A fair-minded observer of the email exchange would conclude that Professor Quinn had not prejudged the complaint against Mr Alajmi. The same fair-minded observer would conclude that Associate Professor Wright had not prejudged the decision she was to be asked to make some time in the future in relation to the "certification" of Mr Alajmi's thesis. I reject the submission made by Mr Alajmi that an inference unfavourable to the University should be drawn from the failure of Professor Quinn or Associate Professor Wright to give evidence about this matter. Such evidence would only have been required to rebut an inference arising from the material that does not fairly arise. In any event, even if the conclusion were reached that the evidence of Professor Quinn or Associate Professor Wright would not have assisted the University it would make no difference to my determination of this issue.
Finally, the submission made that Associate Professor Wright impermissibly fettered her discretion or subjugated her state of satisfaction to the Final Report must be rejected. This allegation was not pleaded and was only briefly addressed in Mr Alajmi's written submissions. The submission finds no support in the evidence. Associate Professor Wright said in her reasons "I had no reasons to disagree with either the process of the investigation or [the Final Report's] findings".
Associate Professor Wright understood the certification she was being asked to provide. She plainly took into account everything that she knew on that topic. Unsurprisingly, given the wealth of primary material on that topic in the Final Report and not having any reason to disagree with the process of information gathering or the conclusions in Final Report, Associate Professor Wright could not be satisfied that the thesis was Mr Alajmi's "own work". If it is not already clear from what I have said, I reject the submission that Associate Professor Wright, "without rational reason", accepted the conclusions in the Final Report. She did not fetter her discretion. The detailed evidence inculpatory of Mr Alajmi's conduct contained in the Final Report is reason itself to accept the conclusions in the Final Report. Having considered her own knowledge of the subject, Associate Professor Wright was entitled to accept the evidence contained in the Final Report in making the "non-certification decision".
Mr Alajmi's submission that the Court should itself read the drafts of Mr Alajmi's thesis and determine that Associate Professor Wright had failed to appreciate that he spoke with a single "authorial voice" is really an impermissible invitation to conduct merits review.
I also reject the submission made by Mr Alajmi that "absent any evidence from Associate Professor Wright other than her reasons, there is nothing to suggest that the conclusions in the report were founded from her experience. There is nothing to suggest there was any intellectual content being introduced. She has just abandoned all of that and relegated her decision making to the findings in the report and impermissibly ignored her experience as a supervisor in this process".
The inference that Mr Alajmi invites the Court to draw is simply not open. No part of the assumption that Associate Professor Wright "knew" that Mr Alajmi's draft thesis contained no different "authorial voice" in the various drafts was established.
As I have said, there is no basis shown for concluding that Associate Professor Wright subjugated her state of satisfaction to the Final Report. The pre-condition to that finding, that she "knew" that Mr Alajmi's draft thesis contained only one "authorial voice" such that it should be concluded that Associate Professor Wright knew that "fact" was not established. The attempt to have the Court fill that gap in Mr Alajmi's case was an appeal to merits review.
Mr Alajmi's administrative law claim must be dismissed.

Contract

I have explained at the outset that despite it not having been pleaded I propose to determine the contract claim advanced in written submissions by Mr Alajmi.
I accept that there was a contract between Mr Alajmi and Macquarie University set out in the offer and acceptance of his PhD candidature on 8 February 2011. Mr Alajmi there agreed to be bound by "the By-laws and Rules of Macquarie University". Macquarie University, implicitly, agreed to be bound by those "By-laws and Rules".
The reference to "By-laws" is to By-laws made under s 28 of the Macquarie University Act. The reference to "Rules" in the contract is plainly a reference to Rules identified in s 29 of the Macquarie University Act and made by the Council of Macquarie University or the Vice-Chancellor under By-law 35 of the Macquarie University By-law. Relevantly, the Higher Degree Research Rules are "Rules" within the meaning of the contract.
A problem at the outset for Mr Alajmi is that the essence of his contract complaint concerns the application of the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure, and in particular the exercise of a discretion under the Higher Degree Research Policy. The rights and obligations referred to in those documents are not express terms of the contract Mr Alajmi identified. That contract was evidenced by the offer and acceptance of his PhD candidature on 8 February 2011. The express terms of the contract comprised "the By-laws and Rules of Macquarie University".
I have earlier rejected the submission that the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure were either expressly or by operation of s 42 of the Interpretation Act incorporated in the Higher Degree Research Rules. Other than in relation to the argument about s 42 of the Interpretation Act, no submission was made on behalf of Mr Alajmi that requirements contained in the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure were (in whole or in part) implied in the contract between the parties.
Whether terms should be implied in the identified contract raises potentially difficult issues. Each of the bases upon which a term may be implied in a contract raises different issues: JD Heydon QC, Heydon on Contract (2019, Thomson Reuters) at [10.10]. One of the undesirable things about the way this case was advanced by Mr Alajmi is that there was no statement of claim and the usual process of identifying the express and implied terms of the contract did not occur. Particularly in the absence of any submission that terms should be implied in the identified contract, I would not conclude that a term in the identified contract should be implied to the effect that the parties agreed to be bound by the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure.
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 contract [5] or was obvious to both parties [6] 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.
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.
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."
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".
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.
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.
It was submitted that the task of this Court is to intervene where a "tribunal" unilaterally exercises power which has adverse consequences on the rights of a party to the contract, and that power is exercised in a manner that is unreasonable. Mr Alajmi submitted that there does not need to be a breach of contract established. Nevertheless, if a breach were required, Mr Alajmi submitted that the relevant breach was the failure to exercise a power reasonably. Mr Alajmi submitted that what he described as the "non-certification decision" was reviewable on the basis that it involves the exercise of a unilateral contractual discretion, which, as a matter of law, must be exercised reasonably.
There is an interesting and developing relationship between unreasonableness in administrative law and in contract. It has been the subject of recent academic analysis: see E Lim and C Chan, "Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law" (2019) 135 LQR 88. As Aronson, Groves and Weeks state in Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at [3.180]: "… even if the common law's judicial review procedures and remedies would not be available, one would surely expect a court to be able to grant declaratory or injunctive relief as appropriate: see more generally P Vincent-Jones, "Citizen Redress in Public Contracting for Human Services" (2005) 68 MLR 887; ACL Davies, "Ultra Vires Problems in Government Contracts" (2006) 122 LQR 98; S Bailey, "Judicial Review of Contracting Decisions" [2007] PL 444."
This principle is perhaps discernible in the decision of Finn J in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 180, 195-196, 261 and 264 where it was held that the terms and procedures of requests for tender might sometimes be contractual and that, where that is the case, a duty of fair dealing might be more readily implied into the contract if the requesting party is a government entity. Public law principles would inform the requirements of fair dealing, but not the remedy.
There is no rigid formula permitting identification of what "manifest unreasonableness" means in all contexts. In the context of a contract, in order properly to determine the standard which ought to be applied to the statutory scheme, the entire contractual scheme informs what might be manifestly unreasonable in the context of that regime. On the assumption I am wrong about the implication of a term that the parties agreed to be contractually bound by the terms of the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure, I accept the submission of the University that the relevant contractual framework here included the Macquarie University Academic Honesty Policy. That policy identified an ongoing obligation on students not to engage in plagiarism. "Overview The nature of scholarly endeavour, dependent as it is on the work of others, binds all members of the University community to abide by the principles of academic honesty. Academic honesty is integral part of the core values and principles contained in the Macquarie University Ethics Statements. Its fundamental principle is that all staff and students act with integrity in the creation, development, application and use of ideas and information. This means that: - all academic work claimed as original is the work of the author making the claim - all academic collaborations are acknowledged - academic work is not falsified in any way - when the ideas of others are used, these ideas are acknowledged appropriately. Examples of some dishonest behaviours are deception, fabrication, obstruction, plagiarism and sabotage."
It is and was a fundamental principle that all staff and students act with integrity in the creation and development, application and use of ideas and information. Examples of dishonest fabrication and plagiarism were given. "Plagiarism" is defined in an inclusive way as using or extracting another person's concepts, experimental results or conclusions: "Plagiarism: Using the work or ideas of another person, whether intentionally or not, and presenting this as your own without clear acknowledgement of the source of the work or ideas. This includes, but is not limited to, any of the following acts: - copying out part(s) of any document or audio-visual material or computer code or website content without indicating their origins - using or extracting another person's concepts, experimental results, or conclusions - summarising another person's work - submitting substantially the same final version of any material as another student in an assignment where there was collaborative prepatory work - use of others (paid or otherwise) to conceive, research or write material submitted for assessment (eg ghost writing) - submitting the same or substantially the same piece of work for two different tasks (self-plagiarism)."
On the contingent hypotheses I am addressing Mr Alajmi's contract claim, the Academic Honesty Policy is part of the contractual framework by which legal unreasonableness is to be judged in the case of Associate Professor Wright's "non-certification decision" and the Panel's Final Report. In light of the Academic Honesty Policy, a narrow view of what would constitute "unreasonableness" in addressing alleged plagiarism is appropriate.
Gummow J in Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 at 94 explained that: "Where one party has an express power the exercise of which will significantly affect the interests of the other party (eg by cancellation of their supply contract) if the holder of the power is satisfied that a certain state of affairs exists, the words of the contract are fairly readily construed (and the more so when the parties have given such a power to a third party) as requiring a reasonable as well as honest state of satisfaction: see the authorities referred to by Priestley JA and Handley JA in Renard Constructions (supra) at 260, 279-280, and see also Amann Aviation Ply Ltd v Commonwealth (1990) 22 FCR 527 at 532, 542-543; and in the High Court, Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 95-97. But this is a result arrived at by a process of construction of the express terms in the setting of the contract as a whole. It is best not seen at all as the implication of a further term."
In Bartlett v Australia & New Zealand Banking Group Ltd (2016) 92 NSWLR 639; [2016] NSWCA 30 at [39]-[49] it was explained and accepted that broad contractual discretions must be exercised reasonably. In Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233, Gleeson JA (Macfarlan and Meagher JJA agreeing) explained: "[108] Bartlett v ANZ involved a contract of employment which provided that the employer could dismiss an employee for any reason without notice if, in the employer's opinion, the employee engaged in serious misconduct, serious neglect of duty or serious breach of the employment contract. After considering a number of authorities dealing with obligations of good faith and fair dealing, as well as Braganza, this Court (Macfarlan JA, Meagher JA and Simpson JA, relevantly, agreeing) held (at [49]) that in forming the opinion that the employee had engaged in serious misconduct, the employer was obliged to act reasonably, at least in the Wednesbury sense and at least so far as its process, as distinct from the result, was concerned. … [113] In Braganza at [31], Lady Hale observed that the implication of the reasonableness term in a contract will depend on the terms of the contract and the context of the particular contract involved. Such terms are specific to the contract in question. The implication of a reasonableness term reflects the well-established principles governing the implication of terms into contracts to provide for "business efficacy": BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. The well-known conditions for implication of such a term which must be satisfied are: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that it "goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express terms of the contract."
In Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; 329 ALR 1 at [1012] and [1014]-[1015] Edelman J (quoting Lady Hale in Braganza v BP Shipping Ltd [2015] 1 WLR 1661 at [28]) noted that the concept of "reasonableness" was one which was "drawing closer and closer to the principles applicable in judicial review". On this point, I am bound by the Court of Appeal in Hannover Life Re of Australasia Ltd v Jones where Gleeson JA (Macfarlan and Meagher JJA agreeing) stressed: "[100] It is necessary to say something briefly about the label "Wednesbury unreasonableness", and how that criterion for judicial review of administrative discretion is now understood in Australia following the High Court's decision in Minister for Immigration and Citizenship v Li. [101] First, as Gageler J explained in Li at [106]: The label "Wednesbury unreasonableness" indicates "the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion". Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken "attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground". [citations omitted] [102] Further and in contrast to the approach now taken in England (see Braganza at [30] (Hale LJ) and [52] (Hodge LJ)), the use of the term "irrationality" as a separate or differently formulated concept from "unreasonableness" has not been adopted in Australia: Li at [30] (French CJ) and [68] (Hayne, Kiefel and Bell JJ)."
In addressing Mr Alajmi's contract case on the hypotheses I have identified, I will proceed by making the assumptions favourable to Mr Alajmi that: 1. the obligations identified in the Higher Degree Research Policy formed part of the contract between Mr Alajmi and Macquarie University; and 2. as was submitted by Mr Alajmi, the standard of review for the unreasonable exercise of a contractual discretion was the same standard required to judge unreasonableness in administrative law.
Without repeating all that I have said at [183]-[211], which applies with equal force to the contract claim and is incorporated here by reference, the inferences drawn by Associate Professor Wright in making the "non-certification decision" (quoted in [86] and [90] above) and to the extent it is relevant in the contract case, by the Panel in the Final Report (quoted in [76] above), were reasonably open, in the sense of being logically available and not legally unreasonable.
My evaluative judgment is that the inferences drawn by Associate Professor Wright were obviously open and were logical. It follows that there was no denial of procedural fairness in "basing [the] conclusion on untenable circumstantial evidence" or "no evidence at all". The Briginshaw standard did not apply to the Final Report. Even if it did, that standard was acted upon and met in the Final Report. The decision to refuse certification, even on the contingent hypotheses I have identified, was not legally unreasonable.
At the risk of repetition, the assertion that it "could not be" that Associate Professor Wright "could reasonably and rationally" arrive at the conclusion she did must be rejected. The Final Report contains a series of findings pointing objectively to gross academic misconduct by Mr Alajmi. A supervisor in the position of Associate Professor Wright was entitled to take those findings into account. As I have found, Associate Professor Wright did not subjugate her decision-making to the Final Report.
As I have said, I do not regard the email correspondence between Professor Quinn and Associate Professor Wright in March 2015 as leading to any different conclusion. The failure by the Panel to refer to a non-dispositive observation, reached by Professor Quinn at an early stage of the investigation, does not lead me to conclude that the findings of the Panel and the "non-certification decision" of Associate Professor Wright, even on the contingent hypotheses I have identified, were contractually unreasonable in the sense I have explained.
It follows that Mr Alajmi's contract case must be dismissed.

Estoppel

There was virtually nothing said in support of the estoppel claim in the almost two days spent on submissions in this matter. That was for good reason. The estoppel claims are unsustainable.
The elements of estoppel by convention are not made out: 1. The first common assumption asserted by Mr Alajmi, that decisions made under the Higher Degree Research Policy would be lawfully made, is not supported in the evidence. In any event, I have found that the decisions made under the Higher Degree Research Policy were lawfully made. 2. The second common assumption asserted by Mr Alajmi, that only doctoral theses which meet the University's preparation requirements may be submitted for examination, is contradicted by the Higher Degree Research Policy itself. The Higher Degree Research Policy states that a candidate may submit a thesis for examination against the advice of their supervisor. 3. The third common assumption asserted by Mr Alajmi, that Associate Professor Wright in filling in part of the "Submission of a HDR Thesis for Examination Form" on 19 March 2015 represented that Mr Alajmi's thesis met all the University's preparation requirements, cannot form the basis of estoppel. Associate Professor Wright did not certify that the thesis was Mr Alajmi's "own work". In any event, whatever representation or act that might have been engaged in by Associate Professor Wright, the assumption was not shared by the University, given the ongoing investigation into that very subject. Mr Alajmi's evidence reveals that he did not rely on any such representation and knew that the investigation was ongoing. It was never represented that Associate Professor Wright would not come to a different view following the outcome of the inquiry. In any event, Associate Professor Wright revoked the alleged certification.
Relief is also sought in the nature of restraint based upon an equitable estoppel arising from the representation contained in the so-called "thesis certification". Mr Alajmi, relying on the conventions, which underpinned the common assumption derived from the contract between the parties discussed above, and the representation said to arise from the "thesis certification" on 19 March 2015, elected not to apply for internal review of the Final Report and acquiesced in the Deputy Vice-Chancellor (Research)'s recommendation that the Final Report and Mr Alajmi's response be provided to Associate Professor Wright.
This estoppel claim must be rejected: 1. First, as I have already stated, on 19 March 2015 Associate Professor Wright did not certify that the thesis was Mr Alajmi's "own work". More than that she left blank the place on the Submission Form where such a certification would have been made. The Submission Form was incomplete in other respects. Section 9 had not been signed by the Head of Department and section 10 had not been signed by the Associate Dean (HDR) of the Faculty. It was never represented that Associate Professor Wright would not come to a view adverse to Mr Alajmi about whether the thesis was his "own work" following the outcome of the inquiry. 2. Secondly, Mr Alajmi's evidence reveals that he did not rely on this "representation". At [99] of his affidavit he states in part: "My solicitors had informed me of my right to seek an internal review of the Final Report. I chose not to seek an internal review, and chose to accede to the recommendation that Dr Wright be provided a copy of my thesis and the Final Report together with the submissions made by solicitors, to certify whether my thesis met the University's Higher Research Degree preparation requirements. I made this decision on the basis of my belief that Dr Wright would again certify my thesis was my own work and was ready for examination as she had on 19 March 2015." 1. The balance of [99] discusses the involvement Associate Professor Wright had in the development of Mr Alajmi's thesis, which led him to believe that she would certify the thesis as his "own work". It is clear from his evidence that Mr Alajmi knew that Associate Professor Wright on 19 March 2015 did not make a representation that would bind the University regardless of the outcome of the Inquiry. He knew that any "certification" on 19 March 2015 was not irrevocable. He knew that Associate Professor Wright would have to decide whether to certify the thesis as his "own work" once the Final Report was issued. He hoped that she would form a view that was different to the Final Report's conclusions. This is not detrimental reliance on the relevant "representation".
None of the suggested elements of an estoppel was proved here. The estoppel claim must be rejected.

Discretion to refuse relief

Given the conclusion reached, it is strictly unnecessary for me to address the discretionary bases of relief. If I were otherwise persuaded that Mr Alajmi was entitled to succeed under any of his grounds, I would not refuse relief on discretionary grounds.
Whilst Mr Alajmi's delay in commencing proceedings is regrettable, if I were otherwise satisfied that this was an appropriate case for relief under administrative law principles, contract or estoppel, I would not refuse relief on discretionary grounds.
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.
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 and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ).
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.
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.
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.

Conclusion and orders

For the foregoing reasons I make the following orders: 1. Summons dismissed. 2. Plaintiff to pay the costs of the defendant as agreed or assessed.

Endnotes

Also referred to in these reasons as "All Answers Pty Ltd" and "All Answers".
Version for 26 August 2014 to 7 June 2017.
Version for 1 January 2013 to 7 January 2015.
Noting that the Higher Education Act 2004 (UK) c 8 abolished the role of Visitor in those United Kingdom universities where the role continued to exist: see P Kamvounias and S Varnham, "In-house or in Court? Legal Challenges to University Decisions" (2006) 18(1) E&L1.
See the cases referred to in Heydon on Contract (2019, Thomson Reuters) at [10.740]-[10.750].
See the cases referred to in Heydon on Contract (2019, Thomson Reuters) at [10.760]-[10.790]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2019

Corruption Act 1988(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (76)

Cited By (2)