Brewer (a pseudonym) v Swinburne University of Technology [2025] VCC 351

(a) misfeasance in public office;

(b) defamation;

(c) breach of contract;

(d) negligence; and

(e) breach of the Australian Consumer Law ("ACL").

1. In these reasons, I determine three applications:

(a) Mr Brewer's application for an extension of time to bring claims in defamation against the university;

(b) the university's application for summary dismissal of Mr Brewer's claims; and

(c) the university's application for strikeout of Mr Brewer's amended statement of claim.[9]

1. The common thread running through the amended statement of claim and Mr Brewer's submissions is his contention that the exclusion decision was the culmination of a malevolent plan to punish him for complaining to the Ombudsman about the university. He construes the conduct of the university (through its staff members), as an intentional "victimization", "abuse of power", "fabrication", "oppression" and "harassment", designed to "coerce and pressure [Mr Brewer] into abandoning their complaint" (collectively, "the victimisation allegations").
2. After a review of all the evidence, I have concluded this contention has no real prospects of success. Accordingly, summary judgment is granted on all claims which are founded on this contention. This includes the entirety of the claim for misfeasance in public office and those parts of the claims for negligence, breach of contract and breach of the ACL which rely upon the victimisation allegations.
3. I have also concluded Mr Brewer should not be granted an extension of time to bring a claim for defamation. None of Mr Brewer's claims for defamation were brought within one year of the date of publication as required by s5(1AAA) of the Limitation of Actions Act 1958. Without an extension of time, Mr Brewer's claims for defamation cannot succeed. Again, summary judgment is granted on all such claims.
4. However, it does not follow from these conclusions that Mr Brewer has no arguable case. I have found it is arguable that the university breached its own procedures in the manner the investigation was conducted; and in its ultimate conclusion. This finding is not dependent upon the Supreme Court's decision to set aside the exclusion decision as infected with apprehended bias. However, it finds support in it. It is also supported by an earlier decision of Associate Justice Irving[10] (in the same judicial review proceeding) to grant Mr Brewer an extension of time in relation to his claims that the university lacked jurisdiction to exclude the plaintiff because he was not a student at the time; and that the exclusion decision was vitiated by a reasonable apprehension of bias.
5. In particular, I have concluded it is arguable that:

(a) the university lacked power to unilaterally re-instate Mr Brewer's enrolment after his withdrawal from the course on mental health grounds had been accepted;

(b) the university breached due process by taking into account information of which Mr Brewer was not made aware, including confidential medical information obtained from a university counselling service;

(c) the exclusion decision was made before Mr Brewer was given an opportunity to be heard; and

(d) the relevant authorised decision-maker did not genuinely make the decision, but rather was dictated to by one or more other employees of the university.

1. It is further arguable that these breaches of procedure constituted a breach of contract, a breach of duty of reasonable care in negligence, or a breach of the consumer guarantee in s60 of the ACL that a service be rendered with due care and skill. Of course, whether Mr Brewer will actually succeed on these claims is a question to be decided by the trial judge, having considered all of the evidence. It will likely also turn on difficult questions of law, including the terms of any contract with the university, the nature and extent of any duty of care and whether the ACL applies to the services provided by a university to a student (and whether considering whether to exclude a student is a "service"). Even if Mr Brewer is successful in establishing a breach of contract or breach of duty of breach of the ACL guarantee, there may be further hurdles to the recovery of damages, including questions of causation; and the requirement for a significant injury certificate under Part VBA of the Wrongs Act 1958.
2. Nevertheless, I am satisfied Mr Brewer has claims with a real prospect of success for breach of contract, duty of care and the ACL guarantee of due care and skill. However, as currently drafted, the claims for breach of contract and negligence go well beyond the matters outlined above and rely heavily on the victimisation claim, a claim which I have held is unfounded.
3. In light of these findings, Mr Brewer's amended statement of claim will be struck out and he will be required to file a further amended statement of claim which only includes claims for breach of contract, negligence and breach of s60 of the ACL, and which does not include claims for defamation, misfeasance in public office or any allegations of bad faith, fabrication or improper purpose.
4. The further amended statement of claim must:

(a) only include facts relevant to Mr Brewer's claims for breach of contract, negligence or breach of s60 of the ACL;

(b) plead all material facts relied upon by Mr Brewer to establish negligence, including:

(i) the facts said to give rise to a duty of care;

(ii) the facts said to amount to each alleged breach of the duty of care; and

(iii) how it is said that each alleged breach caused Mr Brewer loss or damage;

(c) plead all material facts relied upon by Mr Brewer to establish breach of contract, including:

(i) the particular contractual terms relied upon and any facts relied upon to establish that those terms formed part of a contract between Mr Brewer and the university;

(ii) the facts said to amount to a breach of those contractual terms; and

(iii) how it is said that each alleged breach caused Mr Brewer loss or damage;

(d) plead all material facts relied upon by Mr Brewer to establish breach of s60 of the ACL, including:

(i) the facts said to establish that Mr Brewer acquired services from the university as a "consumer"; and the university supplied services to him in "trade or commerce" within the meaning of the ACL;

(ii) the particular service which it is alleged was not rendered with due care and skill; and

(iii) the facts said to demonstrate a failure to render that service with due care and skill.

(e) specify any particular rules, policies or guidelines relied upon, and state any facts said to amount to a breach of each of those rules, policies or guidelines.

(f) provide particulars of all facts pleaded, including relevant dates, names and locations.

The events that led to the exclusion decision**[11]**

1. It is necessary to set out the facts leading up to the exclusion decision in some detail. These facts are drawn largely from the documents exhibited to affidavits filed by the parties. Mr Brewer was warned of the need to ensure evidence was provided of all material he relied upon in relation to the applications to be decided by the Court. Nevertheless, having regard to Mr Brewer's self-represented status and the finality of summary dismissal, I have also had regard to specific factual allegations in the amended statement of claim of events, such as the occurrence of a meeting, even where not directly supported by affidavit evidence.
2. As outlined above, Mr Brewer commenced his Diploma of Nursing at the university in February 2017. Concerns with Mr Brewer's behaviour appear to have been raised as early as June 2017 in relation to an incident during a mental health exam viewing session. However, no specific evidence was tendered in relation to the nature of this incident and no formal conduct warning was given to Mr Brewer at the time.[12]
3. At some stage, Mr Brewer became aggrieved about what he viewed as a serious error in the recording in his marks. As a result, on 30 October 2017, he lodged a complaint with the Victorian Ombudsman.
4. On 6 November 2017, an incident report was created in the university's Safer Community reporting system under the Class/Category "Behavioural Risk/- Unreasonable Complaining" with the subcategory: "Target - University".[13] The summary of incident read "Referral from CRAM[14] - the student has exhausted the complaints system and has been referred to the Ombudsman". This incident report was given an incident number of "SFC-2017-11-00013". It appears from the exhibited documents that this incident number was then used by the university for all its subsequent dealings with Mr Brewer.
5. Mr Brewer alleges in his amended statement of claim[15] that, on 9 November 2017, Emma Lincoln[16] requested a behavioural assessment on Mr Brewer. He alleges[17] that the same day he received a phone call from Leanne Griffin, a nursing department manager at the university, asking him to attend a "security meeting".
6. On 10 November 2017, Rameeza Barnes, a safer community advisor with the university, emailed Ms Grifffin. In her email, Ms Barnes said:[18]

"I went through some of Angela's old notes on [Mr Brewer] and I have emails between [Mr Brewer and University staff members] till the 27th of June. Beyond this I don't have anything further.

Angela and Helen Smit were discussing a potential misconduct at that stage but I understand that didn't happen as you intended to meet with [Mr Brewer] to discuss his behaviour and expectations of placement going forward. I am wondering if the meeting took place, and what the outcome was?

If there is any recent online communication (August, September, October, November) with [Mr Brewer] it would definitely be useful for me to have that information so that I can go into the meeting fully prepared."

1. On 23 November 2017, Ms Barnes sent an email to Simone McInnes. In that email, she stated:

"I spoke to Mitzi a while back and got some useful information on [Mr Brewer]. He saw Naomi (mental health nurse) last Thursday, and is booked in to see the psychiatrist this Friday.

During the meeting with Naomi he didn't present as psychotic but was full of rage. He got a 3 on his placement which is still a pass but he was furious for not getting a higher mark. During the meeting he was shouting and clenching his fists. He even wanted Naomi to write him a letter stating he should receive a higher mark.

Mitzi disclosed [Mr Brewer's] presentation warrants further assessment as he is so anxious that he presents as irrational. Medication would definitely be beneficial but whether he would agree to be medicated remains to be seen after the appointment with the psychiatrist this Friday.

Of course we can't use any of this information at the meeting next Tuesday as it's confidential, but I am hoping that Leanne Griffin will send through the recent evidence of [Mr Brewer's] inappropriate behaviour. Mitzi advised that Naomi can attend the meeting with us next Tuesday."[19]

1. A meeting[20] was held on 27 or 28[21] November 2017 between Mr Brewer and a number of university employees, including Ms Barnes and Ms Griffin. At the meeting, Mr Brewer alleges[22] he was falsely accused of committing misconduct or harassment at a mental health exam viewing session on 26 June 2017. He also alleges he was read an email from Brendan Cottier stating:

"'His behaviour has been an issue on many occasions. He does not listen when spoken to. Constantly ask questions which already been answered if he does not like or agree with the answer. During lab session [Mr Brewer] not aware of the personal & professional boundaries including maintaining confidentiality privacy and respectful with colleagues. Disruptive in the classroom. Behaving in a rude and disruptive manner. Interrupting.' ... ."[23]

1. Mr Brewer alleges[24] that the following day he received a warning letter from Ms Barnes.
2. On 17 January 2018, Mr Brewer was sent a second warning letter.[25] The letter raised concerns with, among other things:

(a) numerous emails to staff questioning their assessment of his work;

(b) not engaging with Wellbeing staff;

(c) not following the advice of his student advocate;

(d) requesting a meeting with the Vice Chancellor and Chris Pilgrim, which was said to be "not the correct process" for dealing with his concerns.

"We would like to remind you that the University does not tolerate this type of behaviour and any further reports of incidents could result in more severe sanctions and possibly impact your graduation under the University's General Misconduct Regulations: ... ."[26]

1. Mr Brewer alleges[27] that he was given this letter at a second meeting which was held on 18 January 2018 between him and university staff members. He alleges that, at this meeting, he was accused of harassing a teacher by email and of harassing Ms Smit by phone.
2. On 19 January 2018, Ms Barnes emailed Ms Smit and stated:[28]

"I just met with Chris Daley, the mental health nurse from Wellbeing who sat in the meeting with us yesterday. As Emma wanted an assessment of his behaviour last year, some of the things Chris mentioned regarding [Mr Brewer] -:

Very narcissistic, he won't acknowledge how his behaviour is inappropriate or how it impacts other people

He won't respond unless very firm boundaries are put in place for him

He is unlikely to engage with Wellbeing moving forward- Wellbeing is reluctant to do phone counselling with him as they feel they won't be able to establish strong boundaries with him over the phone

He downplays his aggression by excusing it with smiles and explanations that his inappropriate behaviour is a cultural misunderstanding: this is calculated on his part.

Chris brought up the notes of the psychiatrist who saw [Mr Brewer] last year and said Dr Suji was having a very hard time trying to bring [Mr Brewer] back to the issue at discussion as [Mr Brewer] kept unravelling and talking in circles.

Although this is conjecture, Chris mentioned [Mr Brewer] will most likely be involved in other incidents. He expressed concern about [Mr Brewer] going out into the world and specifically into nursing, as there could be concerns people have regarding their safety around [Mr Brewer]."[29]

1. On 23 January 2018, the university received an email from Tanya Harding, the undergraduate coordinator at Cabrini. The email stated, in relation to Mr Brewer:[30]

"On another note, we have a few concerns around one of the students, [Theo Brewer]. He has struggled slightly with professionalism, argumentative with his nurses, and facilitator, about various things. He was unable to accept that a condition like pain could be both acute and chronic. He argued about how bed corners were done. They are small issues, but the professional side of things is lacking and his insight is lacking. Attitude and mannerisms like this will quickly turn nursing staff against a student, or co-worker.

On a more concerning note, he was doing observations on patients. One of the patient's reported pain of 7/10. He didn't complete further assessment, but continued on with normal obs and didn't address that issue. He didn't report it to the nurse until about 40 minutes later, after completing the rest of his patient's observations. His rationale for this was that the patient had chronic pain anyway.

Another patient had sats of 88%. He didn't report. When confronted about it later, he rationalised that it was OK because the patient had AF.

A third patient had sats of 91%, also unreported. He put off telling anyone about that because he saw his facilitator was on the ward and would want to talk.

His facilitator, Kim, has had a long talk with him about all of these matters. He will need ongoing monitoring and may need to be escalated if he doesn't improve.

Can you make sure to put him on your 'to visit' list for when you come out? I'll keep you updated as things progress."

1. On 30 January 2018, the university received a further email from the clinical liaison nurses at Cabrini, expressing concerns about Mr Brewer:

Day 2 of placement [Theo] did not escalate patient observations that were out of normal range

Feedback from Nurse in charge to say that patients have complained about [Theo's] bed side manner (comes across awkward and not engaging)

Lacks the ability to listen to what he is being told and continuously interrupts whilst he's being spoken to (particularly around issues of care). We have received feedback this afternoon from ward staff to say that they do not want to buddy with him if this behaviour continues.

Does not understand what precautions entail - walks into patients room with history whilst gloved and gowned. Advised by buddy nurse why this is not correct but proceeded to contaminate outside area

Unable to understand the importance of mobilising patients - even though working on a surgical ward and completing surgical care plans which incorporates mobility

We appreciate your support throughout this challenging time. Please let us know if you would like any further feedback."[31]

1. On 6 February 2018, a staff member at Cabrini lodged a complaint about Mr Brewer's behaviour.
2. On 7 February 2018, Cabrini notified the university that Mr Brewer could not continue with his placement with them.[32]
3. On 8 February 2018, Mr Brewer lodged an application to withdraw from his course on medical grounds.[33]
4. On the same day, there was internal university email correspondence in relation to whether there were grounds for a finding of misconduct against Mr Brewer.[34]
5. On 10 February 2018, Mr Brewer uploaded a supporting letter from his counsellor and an application for special consideration.[35]
6. On 12 February 2018, the following was recorded by Ms Barnes in the university's Safer Community reporting system:

"Emma Lincoln would like [Theo Brewer] to be excluded from his course as he is a potential risk to the community. I agree with this approach.

[Theo Brewer] has submitted a course withdrawal form, but is also asking about enrolment dates, fees, and has applied for SPX so I am not sure that he actually intends to leave Swinburne altogether. Leanne Griffin will be drafting the exclusion notification, and Helen has asked that Leanne run it through her."[36]

1. On 14 February 2018 at 10.35am, a staff member from Student Administration and Library Services at the university emailed Mr Brewer informing him that "your application to withdraw from the course HLT54115 - Diploma of Nursing has been processed and approved, and you have now been officially withdrawn".[37]
2. On the same day, Simone McInnes, a process integrity officer, emailed Mr Brewer at 3.48pm, informing him that:

"The university has been notified of an incident that occurred on Tuesday 6th February 2018 whilst you were on your placement at Cabrini hospital. You were reported to have engaged in an aggressive and abusive manner towards a (sic) receptionist staff and were subsequently notified that you were not permitted to continue with your placement.

A week after this incident, on Tuesday 13th February 2018, you proceeded to email the Education Manager at Cabrini hospital to express your own versions of the events that occurred. In this email, you also made accusatory comments towards the education staff.

It has also been noted that you have behaved in an inappropriate manner towards both Swinburne University staff members and staff members at Swinburn Student Life. You have previously been issued a warning notice regarding your communications with staff members, however, this behaviour has continued.

Your behaviour is considered to be very serious and could result in suspension or exclusion. We are therefore requesting that you attend a meeting so that this matter can be investigated further."[38]

1. On 15 February 2018 at 10.50am, Ms McInnes emailed Mr Brewer stating that:

"I have been advised that you were notified yesterday morning that your withdrawal application for HLT54115 has been processed. Please note that as you currently have a misconduct investigation pending, your enrolment has been reinstated for the time being. Your withdrawal will be dependent on the outcome of the misconduct investigation."

1. The University's Student Management System shows an enrolment processed against Mr Brewer's file for "Reinstatement as a result of misconduct interview".
2. A meeting between Mr Brewer and university staff members was held on 22 February 2018. After this meeting, Mr Brewer received a document outlining the allegations of general misconduct made against him.[39] He then provided a written submission dated 2 March 2018.[40]
3. On 19 March 2018, Ms Barnes sent an email to Kirsten Jeffrey and other university staff members, in which she referred to arrangements for a meeting with Mr Brewer to be held on 22 March 2018 and continued:

"Kirsten, my apologies but would you please be able to sign the letter with it dated for the 21st of March? Helen, I don't have a MS word version of the letter- would you please be able to send Kirsten an amended version for her to sign?"[41]

1. Mr Brewer was then provided with a written notice dated 21 March 2018, signed by Kirsten Jeffrey, director of the facilities and services group, informing him that he had been found to have engaged in general misconduct and that as a result he would be excluded from the university effective from the date of the notice.

Should an extension of time be granted on the defamation claims?

1. Under s5(1AAA) an action for defamation "must not be brought after the expiration of 1 year from the date of the publication of the matter complained of".
2. S23B provides for an application for an extension of the limitation period to be made. At the time of the alleged defamatory publications, s23B of the Limitation of Actions Act provided as follows:

(1) A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.

(2) A court, on an application under subsection (1), must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 5(1AAA) to a period of up to 3 years from the date of the publication.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)."

1. Section 23B was amended by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020. Under s23D of the Limitations of Actions Act, these amendments only apply to publication of defamatory matters after the commencement of the amendments (1 July 2021). This was after the allegedly defamatory publications relied upon in this proceeding. Accordingly, the version of s23B extracted above applies to Mr Brewer's application for an extension of time.[42]
2. The interpretation of this version of s23B was considered by the Court of Appeal on an application for leave to appeal in John Casley v Australian Broadcasting Corporation.[43] Hansen JA confirmed[44] that the task of the Court was to apply the statutory test without gloss - ie: to consider whether in the particular circumstances of the case it was not reasonable for the application to have commenced an action within the required time. Nevertheless, examples of factors which may be relevant to this enquiry may be drawn from previous cases. One such factor, considered to be of particular relevance in John Casley, is the extent to which the plaintiff has chosen an alternative pathway to suing for defamation.

1. Mr Brewer relies upon seven allegedly defamatory publications in his amended statement of claim:

(a) an alleged statement by Leanne Griffin made 7 February 2018, at a dismissal meeting, that Mr Brewer harassed the information booth staff of Cabrini on 6 February 2018;[45]

(b) an alleged statement by Ms Smit to Rameeza Barnes on 12 February 2018 that she would like Mr Brewer to be excluded from his course as he was a potential risk to the community;[46]

(c) an email sent by Brendan Cottier,[47] which was relied upon in the security meeting on 28 November 2017;

(d) the creation by Rameeza Barnes of the Incident Report in the Safer Community Reporting system on 6 November 2017 for "unreasonable complaining";[48]

(e) an alleged statement by Rameeza Barnes, at the security meeting on 28 November 2017, that Mr Brewer had breached privacy during a mental health exam viewing session on 26 June 2017 (Mr Brewer refers to this as the "screaming incident");[49]

(f) an alleged statement by Rameeza Barnes on 18 January 2018, at a security meeting, that Mr Brewer had harassed a lecturer or teacher;[50] and

(g) an alleged statement by Christopher Daley, a mental health nurse, on 19 January 2018, that Mr Brewer was very narcissistic and not fit and not safe to society to become a nurse.[51]

1. Mr Brewer commenced these proceedings by Writ and Statement of Claim filed in the Supreme Court on 12 March 2019 ("Original Writ").[52] Of the claims for defamation which Mr Brewer now seeks to make in the amended statement of claim, the only claim squarely raised in the Original Writ relates to the email from Brendan Cottier to university security, which Mr Brewer alleges was read out at the first security meeting.[53] Some of the other alleged publications are pleaded as having occurred, but none as founding a cause of action in defamation.[54] Thus, all claims for defamation other than the claim in relation to the Brendan Cottier email were made for the first time when the amended statement of claim was filed on 27 August 2024.
2. The maximum duration of an extension of time under s23B of the Limitation of Actions Act is three years. There is no power to extend the limitation period so as to permit the bringing of a claim for defamation in relation to a publication which occurred more than four years prior to the claim being made (i.e.: the one-year limitation period, plus a possible three-year extension). All of the publications which Mr Brewer relies upon in his amended statement of claim occurred in late 2017 or early 2018. The Court has no power to extend the limitation period so as to permit these claims to be brought on 27 August 2024, more than six years after the alleged publications. Unless Mr Brewer's claims in defamation can be viewed as having been commenced in the Original Writ, an extension of time would be futile.
3. A claim for defamation in relation to the email from Brendan Cottier was included in the Original Writ. Accordingly, it is arguable that the limitation period would only need to be extended to the date of filing the original statement of claim on 12 March 2019.[55] This would be less than the three-year maximum extension. However, the Court can only extend the limitation period under s23B if it is satisfied that it was not reasonable, in the circumstances, for Mr Brewer to have commenced the proceeding within one year from the date of publication. The onus of proof is on Mr Brewer. The test is objective: the question is not whether Mr Brewer believed he had a good reason not to bring proceedings for defamation, it is whether it was reasonable, in the circumstances, not to bring proceedings for defamation.[56]
4. Having considered all the circumstances, I am not satisfied it was "not reasonable" for Mr Brewer to have commenced a claim for defamation within one year:

(a) first, in determining what is "reasonable", regard must be had to the statutorily-expressed intention that defamation claims should be brought in a timely fashion. This intention is expressed through the limitation period in the Limitation of Actions Act, which provides a one-year limitation period with an extension being the exception to the rule. It is also expressed through the structure of the Defamation Act 2005, which includes provision for concerns notices and offers to make amends. These provisions recognise that damages can be a poor balm for an injured reputation; and that a claim for defamation, whose only goal is the award of a monetary sum, a costly and risky investment. Often, apologies, swift retractions or (if those are not forthcoming) timely vindication by the judgment of the Court, are the more effective remedies for a damaged reputation than a monetary sum. Further, reputational damage is an ephemeral and temporally specific event, more susceptible than other causes of damage to fading memories and unavailable witnesses. Accordingly, claims of damage to reputation are best determined very soon after the damage is alleged to have occurred;

(b) second, Mr Brewer alleges that the Brendan Cottier email was read to him on 28 August 2017 at a security meeting. This is not a case where he was unaware that the defamatory publication had been made until much later;

(c) third, Mr Brewer is effectively seeking to sue the university for a publication made by one of its staff members to other university staff members. Mr Cottier is not a defendant to the claim in defamation, and it is too late now to make him one. Mr Brewer has not articulated in his statement of claim how it is that the university is liable for Mr Cottier's email (whether directly or vicariously) and if, it is liable, how it can be liable in defamation for a publication made only to university employees, in their capacity as university employees.

(d) fourth, Mr Brewer's explanation for not bringing proceedings within the one-year period appears to be that he did not consider the defamation serious enough. Thus, Mr Brewer says, in his submissions, that the "main defamatory publication" was a description of the event at the Cabrini information booth. He continues "The remaining defamatory publications, while harmful to [Mr Brewer's] reputation, did not directly cause harm significant enough to warrant the court's attention in isolation";[57]

(e) fifth, I have taken into account the fact that Mr Brewer did not have the advice of a lawyer. However, he had the demonstrated capacity to seek out legal information and the time and energy to pursue multiple complaints, including with the Ombudsman, VCAT and the Supreme Court. He made the choice to pursue other avenues in preference to any defamation claim;

(f) sixth, I have also taken into account that, although not squarely pleaded in support of defamation, there are other alleged publications which are common to both the Original Writ and the amended statement of claim (for example allegations about statements made by Leanne Griffin on 22 February 2018), however Mr Brewer has been given ample opportunity to clearly articulate how he seeks to make his claims in defamation and comes to the Court seeking an extension of time in relation to the claims in his mended statement of claim (and only those claims);

(g) sixth, Mr Brewer seeks to couple his decision to bring defamation proceedings with the quashing of the exclusion decision by the Supreme Court on 23 June 2023. However, that decision cannot be reasonably viewed as pivotal to his decision to bring proceedings for defamation, as:

(i) Mr Brewer included claims for defamation in his Original Writ filed 12 March 2019;

(ii) there is no logical link between the quashing of the exclusion decision and the question of whether or not the Brendan Cottier emails (or any of the other alleged defamatory publications) were defamatory; and

(iii) the Originating Motion seeking judicial review was not filed in the Supreme Court until 9 June 2021.

1. I have considered all the circumstances. Mr Brewer has not satisfied me that "it was not reasonable in the circumstances for [Mr Brewer] to have commenced an action in relation to the matter complained of within 1 year from the date of the publication". Mr Brewer's application for an extension of time to bring his claims for defamation is dismissed.

1. Under s63 of the Civil Procedure Act 2010 ("CPA"), the Court may give summary judgment if satisfied that a claim, or part of the claim, has no real prospect of success. Inherent in the words "real prospect" is a recognition of the overarching purpose of the CPA and the County Court Civil Procedure Rules 2008 ("the Rules") "to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute".[58]
2. The power to grant summary judgment must be exercised with caution - it is a drastic remedy, which has the effect of terminating a proceeding without a trial.[59] However, the word "real" in the phrase "real prospect" of success, must be given work to do. It is not necessary to show that a claim is absolutely hopeless or bound to fail, or there is no conceivable way it could succeed (no matter how fanciful).[60]. Rather, the question for the Court is whether any prospect of success is "real". What is "real" must, in turn, be interpreted, having regard to the overarching purpose of the CPA and the Rules, which is "to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute".[61]

1. I have not granted an extension of time under s23B of the Limitations of Actions Act to bring the defamation claims. None of these claims were made within the statutory limitation period of one year. Accordingly, they have no real prospect of success. Summary judgment is granted in relation to all claims for defamation.

1. Misfeasance in public office has been described as "a very peculiar tort".[62] It is not a tort of carelessness. It does not supplant negligence, nor impose a duty of care separate to the tort of negligence. Nor is it akin to the cause of action for breach of statutory duty. Rather, it is specifically concerned with imposing personal liability for damages upon public office holders who abuse their public powers. The public policy underlying such a tort has been described as the:

"... obvious public interest in bringing public servants guilty of outrageous conduct to book. Those who act in such a way should not be free to do so with impunity."[63]

(a) first, the tort is limited to exercises of public power; and

(b) second, the primary concern of the tort is with deliberate wrongdoing, as opposed to mere incompetence - either acting with intent to cause harm, or knowingly acting beyond power. It remains an open question in Australia whether the tort extends to conduct committed with reckless indifference to the existence of power. Clearly, it does not extend to carelessness.

1. The university submitted that Mr Brewer had failed to identify a "public office" or "public power" which could enliven the tort. As a pleading point, in support of an application for strikeout, this submission has some merit. Mr Brewer fails to clearly identify who it is that he contends held the public office and what is it that he contends were the public powers that they were exercising. Is it the university, or is it one or more of the university staff about which he makes allegations? Is the power sourced from statute, delegation legislation, university rules and guidelines or implied, and if so, how? Without this information, it is impossible for the university to adequately understand or plead to Mr Brewer's claim.
2. However, this point is not sufficient to found an application for summary judgment. The precise requirements of a public office or public power for the purposes of tort of misfeasance in public office have not yet been clearly defined by the courts. The powers of a university may be viewed as a medley of public and private powers. The university was originally established by the Swinburne University of Technology Act 1992. Its continued existence, purpose, powers and interests are now prescribed by the Swinburne University of Technology Act 2010 ("the Act"). The university is described in s6 of the Act as both a body politic and a body corporate. Powers may be conferred upon it by the Act or any other Act; and by a university statute or regulation. The powers given to it under the Act include a power to enter into contracts and employ staff. In this context, it is not easy to sharply delineate the extent to which powers exercised by it are "public powers". However, the Supreme Court (without opposition by the university) made orders in the nature of certiorari setting aside the exclusion decision. In this context, there are real prospects of Mr Brewer establishing that the university, or a person appointed to make a decision in relation to Mr Brewer's enrolment as a student, would be exercising a "public power" or holding a "public office".
3. The university also submitted that Mr Brewer had no real prospects of establishing the element of malice for the purposes of the tort of misfeasance in public office.
4. The precise limits of this tort have not yet been clearly defined. However, at a minimum,[64] the primary tortfeasor must act either:

(a) with malice, in the sense of an intention to cause harm; or

(b) knowing or being recklessly indifferent to whether they lacked the power to act, in circumstances where it was at least foreseeable that harm would result.

1. Mr Brewer contends that, taken together, the following facts lead to an inference of either bad faith or, acting in the knowledge that there was no power to do so. More specifically, he alleges that these facts establish that all the relevant university staff members had a common improper purpose of expelling him because he had complained to the ombudsman.[65] He relies upon

(a) the temporal nexus between his complaint to the Ombudsman and the instigation of an investigation into his conduct;

(b) the description of him as having engaged in "unreasonable complaining", with the "target" described as the university;[66]

(c) the making of the decision to expel him as early as 6 November 2017, before he had a chance to respond to any allegations[67];

(d) discussion of how to charge him with misconduct on 10 November 2017;[68]

(e) the "trawling" through his emails and documentation to find a potential misconduct when there was no reason to do so, including looking at emails between himself and his lecturer;[69]

(f) the "false" mental health diagnosis and the "unlawful" access to his health record;[70]

(g) proceeding with a misconduct, notwithstanding it was a "first" to misconduct someone based on termination of a placement;[71]

(h) the re-instatement of his enrolment without power at a time when there was not yet a misconduct investigation;

(i) the fact that the expulsion letter purported to be sent by Ms Jeffrey was not drafted by her;[72] and

(j) the decision of the Supreme Court to set aside the exclusion decision as infected with ostensible bias.

1. However, a close analysis reveals each event relied upon by Mr Brewer has either been misinterpreted by Mr Brewer in his submissions, or is equally consistent with an innocent explanation. Thus:

(a) a Safer Community report about Mr Brewer was created on 6 November 2017 and in the category of "Unreasonable Complaining" [73]. Mr Brewer claims that this incident report was created in response to his complaint to the Ombudsman and as a form of victimisation for complaining to the Ombudsman. However, there is nothing in the report to suggest this was the case. In fact, the report refers to being created on referral from "CRAM" (the complaints, reviews, appeals and misconduct department of the university). The report goes on to describe Mr Brewer being "referred to the Ombudsman" by the university. This is not consistent with the Incident Report being created specifically to victimise Mr Brewer for complaining to the Ombudsman (as opposed to a concern about a general pattern of unreasonable complaining). The mere temporal nexus between the complaint and the Incident Report, without more, is not sufficient to give rise to an inference of victimisation for complaining to the Ombudsman;

(b) the third page of that report[74] includes the words "student to be excluded". However, it is apparent from the dates on that page that the Incident Report had been updated since being first created on 6 November 2017 and as recently as 23 February 2018. There is nothing to suggest that the words "student to be excluded" were added at the time the Incident Report was created. Given the other correspondence in evidence, it is highly unlikely that this was the case;

(c) in her email of 10 November 2017, Ms Barnes refers to earlier discussions about a potential misconduct against Mr Brewer around June of that year. The email is part of an attempt by her to obtain more information about Mr Brewer and his history of engagement with the university. It does not support an inference of victimisation or other bad faith;

(d) internal emails of 23 November 2017 and 19 January 2018 relay information about Mr Brewer which appears to have been provided by mental health nurses at the Wellbeing centre of the university. It is possible this was confidential medical information about Mr Brewer which ought not to have been disclosed by the relevant nurses.[75] However, the emails do not support an inference that Mr Brewer was being victimised for complaining to the Ombudsman or that the university was otherwise acting in bad faith. Rather, they are consistent with an attempt by Helen Smit and Rameeza Barnes to investigate and understand Mr Brewer's behaviour, and its impact on the university and any future career he might have as a nurse;

(e) similarly, obtaining information about Mr Brewer's interactions with university staff and students is consistent with endeavouring to obtain more information about an unfolding situation;

(f) a case note of 8 February 2018[76] is described by Mr Brewer as the "Malicious idea to impose misconduct". However, the actual text of the note contradicts the view that this note demonstrates maliciousness or any predetermined plan to victimise Mr Brewer. The note effectively records the workshopping of possible responses to the news that Mr Brewer had been excluded from his placement by the Cabrini Hospital. It begins with the words "Leanne is at a loss at what to do as without passing placement Mr Brewer won't pass the course". It concludes with Ms Smit stating that it would be a "first" to misconduct someone for termination of their placement due to behavioural grounds and agreeing that it would be worthwhile to pursue that course. However, the mere willingness to consider a "first" in response to the exclusion of Mr Brewer from his placement does not demonstrate bad faith;

(g) the note is followed up with an email from Ms Barnes to Helen Smit extracting the Swinburne Student Charter and recording "I think there are grounds for misconduct".[77] Again, this does not demonstrate victimisation;

(h) on 12 February 2018, Ms Barnes makes a record in the university's Safer Community reporting system that "Emma Lincoln would like [Mr Brewer] to be excluded from his course as he is a potential risk to the community". The note goes on to record her concerns that although Mr Brewer had submitted a course withdrawal form she was not sure he intended to leave the university altogether. As discussed below, this email may evidence prejudgment or bias, which may be relevant to a claim for breach of contract, negligence or breach of an ACL guarantee. However, it is not consistent with an intention to victimise Mr Brewer for lodging a complaint with the Ombudsman or deliberate acting without power;

(i) the decision to reinstate Mr Brewer's enrolment is also not consistent with victimisation, particularly in the context of the explanation for doing so provided in the note of 12 February 2018. Although the university has not referred to any express power to reinstate, there is no evidence that the university of its staff acted conscious that they had no power to reinstate Mr Brewer's enrolment;

(j) in an email of 19 March 2018, Ms Barnes appears to ask the nominated decision-maker to sign a pre-drafted letter excluding Mr Brewer from the university. As discussed below, this may evidence prejudgment or bias, however, in and of itself, it does not establish victimisation or a deliberate acting without power.

1. AsJ Irvine provides a good overview of the relevant governing legislation, regulations and policies of the university. In a context where neither party took me in depth to those provisions, I do not propose to repeat that process. However, I note that:

(a) section 24 of the Academic and Student Affairs Statute 2012 provides Swinburne with the power to exclude a student if, in the reasonable opinion of the university, the student is likely to harass or cause emotional disturbance to other persons; disrupt the provision of university facilities or services or university activities; or cause health or safety risks to university staff or students;

(b) section 22 provides that a person found to have committed student general misconduct is liable to the sanction determined under the regulations;

(c) regulation 4 of the Student General Misconduct Regulations 2012 provides that it is general misconduct if a student, while engaging in university activities, engages in improper behaviour including harassment, threatening or intimidating behaviour, disorderly behaviour or abusive language. A student will also commit general misconduct if the student engages in conduct which is detrimental to the reputation of the university or engages in a pattern or sequence of conduct which places substantial demand on the university's resources, vexatiously or without proper justification; and

(d) regulation 6 provides that an authorised officer may exclude a student who they are reasonably satisfied has engaged in general misconduct.

1. The tort of misfeasance in public office is one of personal liability. Liability is imposed upon individuals for excesses of public power which would not be imposed on an individual for an excess of private power. Extending the tort of misfeasance in public office to cover mere failures to follow procedure or errors of law, where there is no evidence of malice or deliberate or reckless excess of power, would be an impermissible invasion of the sphere of decision-making by the Courts. Such an extension would have significant policy implications for the capacity of the holders of public power to make decisions free from influence. There is simply no evidence that there Mr Brewer's exclusion was part of a deliberate, or even reckless abuse of power by the university or its staff with the intent to punish him for complaining to the Ombudsman.
2. The documents relied upon by Mr Brewer are consistent with an attempt by university staff to address an unfolding situation which raised significant occupational health and safety concerns, not just for students and staff, but also for Cabrini employees and patients. Concerns about Mr Brewer's behaviour had not only been raised internally, but also by staff at Cabrini. As discussed below, the documents relied upon by Mr Brewer may evidence a failure to follow proper procedures, however they fall well short of establishing the kind of malicious conspiracy to punish Mr Brewer for complaining to the Ombudsman which is the essence of Mr Brewer's victimisation allegations. Mere negligence or failing to exercise due care is not sufficient to found a cause of action for misfeasance in public office.
3. Mr Brewer's claims for misfeasance in public office have no real prospect of success.

The claims for negligence, breach of contract and breach of ACL guarantee

1. As currently pleaded, Mr Brewer's claims for negligence, breach of contract and breach of the ACL guarantees rely heavily upon the victimisation allegations. I have found that these allegations have no real prospect of success. The claims made by Mr Brewer also suffer from a lack of clear articulation of the specific statutes, regulations, policies and guidelines that are alleged to have been breached and how any such breaches feed into breach of duty of care, breach of contract or breach of an ACL guarantee. For example, the only contractual term which Mr Brewer expressly relies upon in his amended statement of claim is an implied term that the university would ensure its education service was reasonably safe and fit for purpose.
2. However, these three causes of action do not require the establishment of malice or knowledge. They are not reliant upon the victimisation allegations to succeed. As this is a summary judgment application, I do not propose to traverse the evidence in detail. However, it is enough to say that, for the following reasons, it is arguable that there were significant breaches of procedure in the manner in which the university (or its staff) actually reached the exclusion decision; and that these may be sufficient to found a claim in tort,[78] contract[79] or for breach of the ACL[80] guarantee that a service will be provided with due care and skill.
3. First, it is arguable that university employees impermissibly obtained confidential medical information about Mr Brewer from counsellors employed by the university,[81] and then used that information without allowing Mr Brewer an opportunity to respond to it.
4. Second, it is arguable that the university had no power to reinstate Mr Brewer's enrolment once his application to withdraw had been accepted.[82] It has not referred to any express power which enabled it to do so. It is arguable that without such a power, Mr Brewer's reinstatement was not valid.
5. Third, it is arguable that a decision had already been made to expel Mr Brewer before he was given an opportunity to respond to the allegations made against him, or that the decision to expel Mr Brewer was not made by the appointed decision-maker Kristen Jefferey but rather was made by Ms Lincoln, Ms Barnes or Ms Smit.[83]
6. A difficulty is that Mr Brewer has not clearly articulated these claims in this manner. To the extent that they are articulated, they are inadequately particularised and buried in claims based on the victimisation allegations and other matters which are not relevant to these causes of action. Given this, the amended statement of claim should be struck out with liberty to re-plead the claims for breach of duty of care, contract and breach of the ACL guarantee.

1. Summary judgment is given on Mr Brewer's claims in defamation and misfeasance in public office and his claims for breach of duty of care, breach of contract and breach of an ACL guarantee to the extent that they rely upon the victimisation allegations. Mr Brewer's amended statement of claim is struck out, with liberty to replead claims for breach of duty of care, breach of contract and breach of the ACL guarantee that services will be provided with due care and skill, that do not rely upon the victimisation allegations.

[2] Exhibits to Affidavit of Matthew Smith described as affirmed 24 January 2024 (but dated 24 April 2024) ("Smith affidavit"), page 89

[3] Exhibits to Smith affidavit, page 107-108. The letter was relied upon by Mr Brewer in support of his application to withdraw from the course; and also in this proceeding in support of his application for an extension of time

[4] Either 27 or 28 November 2017. The amended statement of claim pleads that he was provided with a formal warning letter after this meeting, although it was not in evidence.

[5] Exhibits to Smith affidavit, page 72-73

[6] Exhibits to Smith affidavit, page 77

[7] Exhibits to Smith affidavit, page 78-79

[8] Exhibits to Smith affidavit, page 86

[9] Dated 26 August 2024 and accepted for filing pursuant to an order made 30 September 2024.

[10] IJW (a pseudonym) v Swinburne University of Technology [2023] VSC 75 (AsJ Irving)

[11] Largely drawn from documentary evidence exhibited to affidavits, however also based on allegations made in the amended statement of claim which were not supported by evidence, bc SRL.

[12] See amended statement of claim, paragraph 12(f)(i); email dated 10 November 2017 on page 9 of the exhibits to Affidavit 3.

[13] Exhibits to the affidavit of Theo Brewer (a pseudonym) sworn 10 November 2024 ("affidavit 3"), pages 6 and 7

[14] CRAM stands for "complaints, reviews, appeals and misconduct" - see Part 6.7 of the People, Culture and Integrity Policy, Exhibit C15 of affidavit 4, page 14.

[16] Unless stated otherwise, all people named in these reasons are University employees.

[17] Amended statement of claim paragraph 12(c)

[20] Mr Brewer refers to it as a "security meeting". The university refers to it as a "conduct meeting".

[21] The university's letter of 17 January 2018 (page 72 of the exhibit to the Smith affidavit) states the meeting was held on 27 November 2017. The amended statement of claim alleges the meeting occurred on 28 November 2017. The difference is not relevant to my decision.

[22] Amended statement of claim , paragraph (f)(i)

[23] Amended statement of claim, paragraph (f)(ii)

[24] Amended statement of claim , paragraph 12(g)

[25] Exhibits to defendant's affidavit, pages 72-73

[26] Exhibits to Smith affidavit, page 73

[27] Amended statement of claim , paragraph 12(h)

[30] Exhibits to Smith affidavit, page 74

[31] Exhibits to Smith affidavit, page 76

[32] Exhibits to Smith affidavit, page 77

[33] Exhibits to Smith affidavit, page 78-79

[35] Exhibits to Smith affidavit, page 80-82

[37] Exhibits to Smith affidavit, page 85

[38] Exhibits to Smith affidavit, page 83-84

[39] Exhibits to Smith affidavit, page 87

[40] Exhibits to Smith affidavit, page pages 87-91

[42] The parties assumed in their written submissions that s23B, as currently in force, applied to Mr Brewer's application. On 6 February 2025, the Court sent the parties an email offering them the opportunity to make further written submissions on the question of whether an extension of time should be granted under s23B of the Limitation of Actions Act, as in force at the time of the alleged defamatory publications. As a result, Mr Brewer submitted further written submissions dated 16 February 2025.

[43] [2013] VSCA 182; (2013) 39 VR 526 ("Casley")

[45] Amended statement of claim paragraph [38]

[46] Amended statement of claim, paragraph [48]

[47] Amended statement of claim, paragraph [56]

[48] Amended statement of claim, paragraph [66]

[49] Amended statement of claim, paragraphs [67]-[68]

[50] Amended statement of claim, paragraphs [69]-[70]

[51] Amended statement of claim, paragraph [84]

[52] The proceeding was subsequently transferred to the County Court under the Courts (Case Transfer) Act 1991

[53] Statement of claim to the Original Writ, paragraph [3] and [7](3); amended statement of claim, paragraph [56]

[54] Although a number of similar, but not identical claims are made.

[55] The issue is not straightforward, as it appears form the Court file that Mr Brewer subsequently abandoned his claims in defamation.

[56] Casley v ABC [2013] VSC 251; leave to appeal refused: Casley; Johnston v Holland [2017] VSC 448 at paragraph [14]

[57] Plaintiff's Submission dated 16 February 2025, paragraph [1b)] at page 1

[58] S1(c) of the Civil Procedure Act

[59] Lysaght Building Solutions Pty Ltd t/as Highline Commercial Constructions v Blanalko Pty Ltd (2013) VSCA 158, 42 VR 27 ("Lysaght") at 40, paragraph [35](d)

[61] CPA, s7-8

[62] Mark Aronson, 'Misfeasance in Public Office: A Very Peculiar Tort' [2011] MelbULawRw 1; (2011) 35 Melbourne University Law Review 1 at 2

[63] Watkins v Secretary of State of the Home Department [2006] 2 AC 395 at 403, paragraph [8], cited in Mark Aronson, 'Misfeasance in Public Office: A Very Peculiar Tort' [2011] MelbULawRw 1; (2011) 35 Melbourne University Law Review 1 at 7.

[64] The elements identified in these reasons may not be sufficient to establish liability for misfeasance in public office. As this is a summary judgment application, I am concerned with what has a real prospect of being established as the elements of the tort at trial, rather than the actual outer limits of the tort.

[65] Mr Brewer's oral closing submissions

[66] Exhibits to affidavit 3, pages 6 and 7

[70] Exhibits to affidavit 3, page 11; Exhibits to affidavit 3, page 10

[73] Exhibits to affidavit 3, pages 6-7

[75] Without knowing the basis on which that information was obtained by the mental health nurse.

[78] See, eg: Elisha v Vision Australia Limited [2024] HCA 50

[79] See, eg: Bayley-Jones v University of Newcastle (1990) 22 NSWLR 424

[80] Assuming the Australian Consumer Law applies to the services provided by the university to Mr Brewer, which has not yet been decisively determined, but see, eg: Mbuzi v Griffith University [2014] FCA 1323 at 116

[81] See exhibits to affidavit 3, pages 9, 10 and 11

[82] See further IJW (a pseudonym) v Swinburne Univesrity of Technology [2023] VSC 75 at [92]- [93]

[83] Exhibits to affidavit 3, page 14 - 15