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[2026] NSWSC 155
General information, not legal advice.
Supreme Court of NSW
2026-02-24
Dhanji J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Carter v University of Wollongong [2026] NSWSC 155
Hearing dates: 23 February 2026 and 24 February 2026
Date of orders: 24 February 2026
Decision date: 24 February 2026
Jurisdiction: Common Law - Administrative Law
Before: Dhanji J
(1) The Court declares that the purported determination made pursuant to section 5, cll 16-22 (“the Urgency Provisions”) of the defendant’s Procedure for Managing Alleged General Misconduct by a Student, on or about 29 January 2026, terminating the plaintiff’s right of access to the University of Wollongong (“the University”) and blocking the plaintiff’s IT access to the University, was not validly made and is of no effect. (2) The Court orders that the defendant be restrained from denying the plaintiff access to the University's campuses and associated facilities including by denying IT access, or otherwise impeding the plaintiff in the pursuit of any course of study in which he is enrolled or otherwise entitled to enrol, based on the purported determination made under the Urgency Provisions on or about 29 January 2026, the purported effect of which denied the plaintiff access to the University including by blocking IT access. (3) The defendant is to pay the plaintiff’s costs, noting that the plaintiff being self-represented, such costs are limited to disbursements.
Catchwords: ADMINISTRATIVE LAW – procedural fairness –University student – allegations of student misconduct – nature of relationship between plaintiff and defendant – whether interlocutory or final orders sought – justiciability – failure by defendant to adhere to misconduct procedure – jurisdictional error established – question of the plaintiff’s entitlement to relief – defendant’s decision to continue to restrict the plaintiff’s access to the University invalid – relief granted
Legislation Cited: Administrative Decisions (Judicial Review) Act 1997 (Cth)
Government Information (Public Access) Act 2009 (NSW)
Judicial Review Act 1991 (Qld)
University of Wollongong Act 1989 (NSW), ss 4, 6.
Cases Cited: Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560; [2026] NSWCA 331
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7
Simon Carter v University of Wollongong (Supreme Court (NSW), Rigg J, 6 February 2026, unrep)
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
“X” v University of Western Sydney (No 3) [2013] NSWSC 1329
Category: Principal judgment
Parties: Simon Carter (Plaintiff)
University of Wollongong (Defendant)
Representation: Counsel:
Self-represented (Plaintiff)
N Olson (Defendant)
Solicitors:
HWLE Lawyers (Defendant)
File Number(s): 2026/35995
Publication restriction: Nil
HIS HONOUR: Simon Carter (the plaintiff) is a postgraduate medical student at the University of Wollongong (“the University” or “the defendant”) having commenced at the beginning of 2025. He has brought these proceedings to challenge the decision of the University to block his electronic access to the University (termed IT access) and his right of access to the University’s campuses, that, in essence, being his physical access.
The decision to deny access is ancillary to a process in place resulting from allegations of misconduct made against the plaintiff. While it is in that sense ancillary, the impact is significant. The IT access block prevents him from enrolling for 2026. The academic year started, with respect to the course in which the plaintiff would otherwise have enrolled, on 27 January 2026. That being the case, the plaintiff has already missed the first four weeks of the course. Today is day two of week five.
What I have said thus far is sufficient to indicate the urgency involved in the determination of this matter which came before me for hearing yesterday, 23 February 2026, and continued this morning. As a result of that urgency, these reasons have been prepared with significantly more haste than the subject matter and complexity of the issues might otherwise have demanded.
By way of background, it seems that at some stage in the middle of 2025 the plaintiff formed a view that disadvantage had been occasioned to him by false or inaccurate reporting of his performance in clinical examinations by employees of the University. This led to the plaintiff making a number of complaints. The differences arising between the plaintiff and the defendant in this regard provide some of the context for what followed.
The plaintiff sought and was granted a leave of absence from his studies for the second half of 2025. It seems that the plaintiff completed all but one clinical exam of the course components covered in the first half of the year. Nonetheless, it is his intention to recommence his course this year from the beginning. This is a matter to which I will return.
In early August 2025, a number of staff and students made complaints to the Safe and Respectful Communities (SARC) team about the plaintiff’s conduct. SARC is a body with a role under the University’s guidelines with respect to allegations of misconduct. In that regard, the University has what it described in its evidence as a “documented procedure for managing allegations of student misconduct”. That description appears to avoid any attempt to grapple with the legal status of that procedure. The document itself is titled “Procedure for Managing Alleged General Misconduct by a Student” (the Procedure). Six allegations were brought against the plaintiff under the Procedure.
Allegations 1 to 3 were notified to the plaintiff by letter of 4 August 2025 from Ms MacKenzie Edgington, the Primary Investigating Officer (PIO) of SARC. Those allegations are:
“Allegation 1: It is alleged that on multiple occasions from the 27th of March 2025, you used your UOW mail account to send emails to UOW staff members that were offensive, defamatory and harassing.
Allegation 2: It is alleged that on multiple occasions from the 9th of July 2025, you wilfully disobeyed reasonable directives given to you by UOW staff to cease contact with the Graduate School of Medicine (GSM) about your complaints.
Allegation 3: It is alleged that on multiple occasions from the 27th of March 2025, you used your UOW mail account to make vexatious claims against UOW staff. Claims include, but are not limited to, accusing GSM staff of ‘“discrimination,’” being ‘“highly inappropriate,’” ‘“setting students up for failure,’” ‘“inappropriate conduct,’” ‘“giving false information,’” ‘“gaslighting,’” ‘“bullying,’” ‘“dishonest[y],’” ‘“unfair treatment,’” ‘“retaliation,’” ‘“biased behaviour’” and ‘“fabricated, false observations’” among others.”
“Allegation 4: It is alleged that on the 4th of August 2025, you wilfully disobeyed a reasonable direction given to you by UOW staff to cease contact with the Graduate School of Medicine (GSM) about your complaints. Specially relating to your email to the Head of Students and Dean of GSM at 4:34pm via your UOW mail following the direction I gave you at 3:30pm.”
“Allegation 5: It is alleged that on the 5th of August 2025, you engaged in offensive, specifically sexist, conduct on the UOW Med Class Facebook Messenger chat.
Allegation 6: It is alleged that on the 5th of August 2025, you made threats to multiple female UOW students via Facebook Messenger following being removed from the UOW Med Class Facebook Messenger group chat. Specifically, it is alleged that you made legal threats of defamation and made threats concerning the “financial welfare” of these students.”
Meanwhile by letter of 6 August 2025, Ms Kylie McElhone, Senior Manager of SARC, wrote to the University Vice-Chancellor recommending a temporary block to the plaintiff’s access to the electronic systems of the University and to the University itself.
By letter of 7 August 2025, Ms Edgington wrote to the plaintiff advising that a temporary block had been placed upon him, enclosing the notice containing allegations 5 and 6. The temporary block placed on the plaintiff on 7 August was based on what are termed the “Urgency Provisions” in section 5 of the Procedure and have in effect remained in place since that time.
Most recently a decision was made by the defendant on 29 January 2026 to continue the block in the same terms. That decision followed a finding by an external investigator, Ms Alina Kaye of The Workplace Employment Lawyers, which was then accepted in full by Ms Jo Braithwaite, Interim Chief Integrity Officer, that two of the six allegations had been substantiated.
As I have said, the plaintiff wants to enrol to continue his studies but is prevented from doing so. The plaintiff’s concern as to his ability to successfully commence and complete his course led to him filing his summons on 27 January 2026. The matter came before Rigg J as duty judge on 3 February and continued before her Honour the next day, 4 February. On 6 February her Honour granted an adjournment to 23 January and provided reasons: Simon Carter v University of Wollongon**g (Supreme Court (NSW), Rigg J, 6 February 2026, unrep). The adjournment was sought by the defendant on the basis that the disciplinary process was ongoing. The defendant’s position remains that the complaints procedure is under way and can be resolved by 31 March 2026.
The defendant has indicated, in an undertaking provided to the Court whilst Rigg J was hearing the matter, that if the plaintiff is successful in the disciplinary process (either by way of finding or penalty) such that he should be allowed to continue with his studies, the defendant is able to facilitate this. In particular, the defendant has given an undertaking that the plaintiff would, in these circumstances, be permitted to enrol on or before 31 March 2026 and that the Graduate School of Medicine will make accommodations to assist him to be “‘caught up’ with the class timetable”. I pause to note that whatever the defendant might do in this regard, it would seem likely to place a significant burden on the plaintiff in that he would be required to catch up on what will, by 31 March 2026, be nine weeks of a medical degree while that course continues on at full pace.
The plaintiff, in his summons, framed the relief sought as an interlocutory injunction directed to the defendant in terms that would require it to remove the block on his access to the University, both physically and electronically. That, however, was the only relief sought. That is, there was no application for final relief to which any interlocutory relief might relate. The plaintiff made clear that he does not, beyond the order sought in this Court, seek to interfere with the disciplinary process currently under way within the University. In these circumstances, it was accepted by both parties that what is in fact sought is in effect a final order directed to, as presently relevant, the decision of 29 January 2026 to continue the block on the plaintiff’s access to the University.
There is a paucity of evidence as to the legal nature of the relationship between the plaintiff and the University. It is not immediately apparent from the material what force the Procedure has and from where that force derives. In the course of discussion as to the nature of the relationship, the defendant submitted that the state of the evidence had the effect that it was not established that the decision to continue the block is justiciable. While the justiciability of the issue had been referred to before Rigg J, the defendant had, in doing so, simply reserved its position in that regard. The first time the issue of justiciability was raised squarely in opposition to the relief sought was in oral argument before me yesterday. The question is not without complexity.
There is a statute that establishes the University: University of Wollongong Act 1989 (NSW), s 4. There are by-laws made under that Act. Section 6 of the University of Wollongong Act sets out the objects and functions of the University. In particular, it includes subparagraph (g):
“[T]he 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.”
That aspect of the University’s objects and functions, as is typical for an introductory provision of its ilk, is at a high level of generality. It is not apparent that the procedures in issue in this matter have any more direct relationship with the statute.
In Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, the majority in the High Court found that a decision by the appellant institution to exclude the respondent was not a decision made “under an enactment” within the meaning of that expression in the Judicial Review Act 1991 (Qld). The question arose in the context of the respondent’s challenge to her exclusion being limited to a challenge under that legislation. It was, as a result, necessary for her to establish that the decision of which she complained was one made “under an enactment”. Gleeson CJ, in the course of finding against the respondent, observed at [3] that the appeal was concerned solely with the application of the Judicial Review Act and noted that:
“… Whether, if the allegations made by the respondent were correct, she would be entitled to a remedy under the common law, for breach of contract, or pursuant to the powers of the Supreme Court of Queensland which are preserved by s 41 of the Judicial Review Act, or otherwise, is not a question that arises...”
His Honour went on to observe that, based on the history of the judicial interpretation of the Administrative Decisions (Judicial Review) Act 1997 (Cth), from the which the language of the Judicial Review Act 1991 (Qld) had been adopted, “it could be that the statutory scheme, in some circumstances, provides a more restricted form of judicial review than is otherwise available”: at [3]. Whether in the present case any public nature that might be ascribed to the University is such that public law remedies are available is not resolved by Griffith University v Tang.
In Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560; [2016] NSWCA 331, Meagher JA, with whom Ward and Leeming JJA agreed, explained that the basis for the exercise of the Court’s power to grant relief, in the nature of certiorari, arises where the decision-maker is exercising a public, relevantly statutory, function. Whilst, as I have said, the University is established by statute and the Act makes reference to governance and procedural rules to be developed by the University, it is not at all clear that the relevant decision in question here was made in the exercise of a “public, relevantly statutory, function”. Whether the decision to block the plaintiff can be described as being of such a character might be doubted, but ultimately the question does not need to be decided.
An alternative basis on which the dispute is potentially justiciable is available based on the private relationship between the parties. A similar issue arose, albeit without it being finally decided, in “X*”* v University of Western Sydney (No 3) [2013] NSWSC 1329. In that matter Beech-Jones J noted, at [43], that “the parties conducted the matter on the basis that the relationship between the University and the plaintiff was governed by some form of contract or agreement between them” and that, in particular, “the common assumption of both parties was that there was a legal relationship which was governed by, inter alia, the Policy”. Of course, it does not automatically follow that because that was the nature of the relationship between the parties in that case, the same relationship exists here. That is all the more so in light of the fact that the position was based on the assumption of the parties.
The evidence here, at the very least, suggests the possibility of such a relationship. It can be safely accepted that the plaintiff went through an enrolment process, paid fees and completed other requirements and, in return, was enrolled by the defendant. How much can be drawn from that is impacted by relevant legal principles. In particular, the defendant, while submitting that the onus was on the plaintiff to establish any contractual relationship, also accepted that the principle in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969; see also Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454 [36]; [2001] HCA 12 applies. That is, the evidence should be weighed according to the proof available to one side and the ability of the other to contradict it.
Here, the defendant is the University and the plaintiff is unrepresented. The University, given its nature and that it is represented, might be expected to have a better understanding of the relationship with its students than the plaintiff. Whilst the plaintiff bears the onus, it was the defendant that raised in oral argument yesterday, for the first time, the issue of justiciability. Ultimately the defendant, through its counsel, fairly and appropriately in my view, submitted that it would be open for me to find that there exists a contractual relationship, analogous to the one described in “X*”* v University of Western Sydney (No 3). I find that such a relationship exists. An incident of that relationship is the agreement to be bound by the Procedure and the associated rules.
In order to consider the plaintiff’s arguments, it is necessary to have regard to relevant parts of the Procedure. The Procedure is divided into “sections” each comprising one or more clauses. The Procedure states in section 1 that it supports and should be read in conjunction with the Student Conduct Rules. Most relevantly for present purposes, those rules include cll 36 and 37 which provide respectively that “[i]nvestigations of alleged student misconduct will observe the principles of natural justice ...” and that “[p]ersons or committees conducting investigations … will act in accordance with the principles of natural justice”.
Central to the present matter are the Urgency Provisions in section 5 of the Procedure. Clauses 16-20 of section 5 provide:
“(16) Where alleged general misconduct by a student:
a. is the subject of investigation by the Police or other civil authorities;
b. may bring the University and its staff and students into disrepute;
c. involves extreme harassment or vilification which breaches the University’s Principles, Statement of Values, Rules, Codes and/or Policies;
d. threatens the welfare or study of other students or staff; or
e. is otherwise considered to be serious enough to warrant immediate action.
(17) A recommendation may be made to the Vice-Chancellor and President that the following action be taken, pending the outcome of the investigation:
a. temporary block of the student’s IT access;
b. limitation of the student’s right of access to the University;
c. termination of the student’s right of access to the University; or
d. immediate suspension of the student from the University.
(18) The following officers may, after preliminary review, make a recommendation as detailed in clause 17:
a. Primary Investigation Officer;
b. Chair of the Student Conduct Committee.
(19) Upon receiving a recommendation under clause 17, the Vice-Chancellor and President or standing nominee of the Vice-Chancellor and President may either:
a. accept the recommendation, impose a temporary block of IT access, limitation or termination of right of access, or immediate suspension, and, where appropriate, direct the officer that made the recommendation to refer the matter to the Student Conduct Committee as soon as possible and within a maximum of ten working days; or
b. not accept the recommendation for immediate suspension, limitation or termination of access, or temporary block of IT access, and refer the matter back to the officer that made the recommendation for further investigation in accordance with section 6.
(20) Where action is imposed under clause 19, the officer that recommended the action to the Vice-Chancellor and President or standing nominee of the Vice-Chancellor and President will:
a. ensure that the student is served with a written notice of the temporary block of IT access, limitation or termination of right of access, or suspension, as a matter of urgency;
b. refer the matter to the Student Conduct Committee via the Safe and Respectful Communities Team for the service of an Investigation Notice in accordance with the appropriate procedures listed in clause 29; and
c. notify the Chief Integrity Officer in writing, for advice to relevant officers.”
It might be noted that the reference to “the Vice-Chancellor and President” in the provisions is a reference to a single position. The Urgency Provisions are not an end in themselves; they are obviously intended and relevantly designed to work with the rest of the Procedure. As the defendant pointed out, engagement of the Urgency Provisions is not itself an “investigation” for the purposes of the Student Conduct Rules referred to above.
Turning then to other relevant provisions, section 3 of the Procedure is headed “Roles and Responsibilities”. It sets out various positions and their roles. The Primary Investigation Officer’s (PIO) role is set out in cl 4 as follows:
“(4) The Primary Investigation Officer (PIO) has a responsibility to:
a. Initiate investigations of alleged general misconduct by a student in accordance with the procedures set out in section 6;
b. Impose low-level outcomes in response to upheld allegations of general misconduct by a respondent;
c. Communicate the progress and outcome of an investigation to the respondent and complainant, using the appropriate notice letter template for advice to the student where necessary;
d. Advise the Safe and Respectful Communities Team to create and maintain a record of each investigation on the Central Register; and
e. Refer cases to the Student Conduct Committee where necessary.”
Clause 12 sets out what are, for different types of misconduct, low-level and high-level outcomes.
Section 3 also sets out the relevant roles of the Investigation Committee Chairs and Members, the Chief Integrity Officer, the Vice-Chancellor and President and the Safe and Respectful Communities Team.
Section 6 is entitled the “Procedure for Managing Alleged General Misconduct by a Student”. In cl 24, an overview of the procedure is provided as follows:
“(24) This Procedure provides a staged investigation and appeal process for dealing with all allegations of general misconduct by a student:
a. Stage 1: Initial determination by Primary Investigation Officer (PIO);
b. Stage 2: Conclusion of investigation by PIO;
c. Stage 3: Investigation by Student Conduct Committee;
d. Stage 4: Consideration of an Appeal by Council Committee of Appeal.”
Clause 24 quite obviously does not require that any allegation must proceed through all four stages. Clearly an allegation could be dismissed prior to Stage 4. Further, an allegation, even if established, does not necessarily progress from Stage 2 to Stage 3. It may be that, at the conclusion of Stage 2 a low-level outcome is determined by the PIO which is not challenged by the student, bringing an end to the process. Even if challenged by the student, that challenge is by an appeal under section 8 of the Procedure and determined accordingly without progressing to Stage 3. Progression from Stage 2 to Stage 3, in the ordinary course, will occur when both the allegation is made out and a PIO determines that a high-level outcome is appropriate: see section 7, cl 47 dealing with the initial investigation by a PIO. That initial investigation, as set out in section 7, requires the PIO to determine, firstly, whether there is sufficient evidence that general misconduct “may have occurred”. If there is not sufficient evidence the allegation will be dismissed and no further action taken: see cll 29-30.
Clause 31 provides that if there is sufficient evidence that general misconduct “may have occurred, the allegation will be upheld and investigated by the PIO.” Clearly the notion of “upheld” is a preliminary finding. At that stage there is a process, under cl 32, by which the PIO will “seek to discuss the allegation with the respondent student and will obtain a response to the allegation”. Clause 33 provides as follows:
“(33) The PIO will provide the following information to the respondent student in writing prior to the discussion, using the appropriate notice letter template:
a. Substance of the allegation;
b. Date, time, location of the discussion;
c. Advice that a support person may be present for both the respondent student and the Subject Coordinator;
d. Reference to related policies.”
“(37) If, after all reasonable efforts have been made to contact and discuss the allegation with the respondent student, the PIO has not been able to do so; they may proceed with the investigation without discussion with the respondent student.”
“(38) Based on the evidence collected, including information gathered during the discussion with the respondent student where this has taken place, the PIO will make a finding of whether general misconduct has occurred. The PIO must make this finding as soon as possible and within a maximum of ten working days of having received the allegation.”
If the allegation is “upheld” at the “Stage 2” point of the process, as I have already indicated, the PIO will determine whether a low-level or high-level outcome is appropriate. If a low-level outcome is appropriate, the PIO will “continue with management of the case in accordance with Stage 2 - Conclusion of Investigation by Primary Investigation Officer”: see cl 46.
Clause 47 provides that if the PIO determines “that a high-level outcome is appropriate, the PIO will refer the case to the Student Conduct Committee, in accordance with Stage 3 - Investigation by a Student Conduct Committee”.
Clause 48 provides requirements on referral to the Student Conduct Committee (the SCC), including information to be provided to the student, as set out in paragraph (a):
“(48) When referring a matter to the Student Conduct Committee, the PIO must:
a. use the Student Misconduct Investigation Form to record full details of the case, including:
i. a detailed explanation of the allegation;
ii. summary of key evidence supporting the allegation;
iii. summary of results of evidence gathering (including discussion or interview with the respondent student); and
iv. supporting materials.”
Section 8 of the Procedure deals with the “Conclusion of Investigation by Primary Investigation Officer”. It is plain, from the provisions in section 8 and its place in the Procedure that it deals with allegations which are upheld but which will not proceed beyond Stage 2 on the basis that a low-level outcome has been determined to be appropriate.
Section 9 is titled “Stage 3 - Investigation by Student Conduct Committee” and makes general provisions in relation to such an investigation.
Section 16 is relevant to the Stage 3 phase of an investigation. It is titled “Service of an Investigation Notice”. By cll 105 and 106:
“(105) Where a matter has been referred to the Student Conduct Committee, the Secretary of that committee must serve the respondent student with a written Investigation Notice within ten working days of the referral.
(106) An Investigation Notice served under clause 106 must include:
a. details of the allegation;
b. reference to any rule, policy or code allegedly breached;
c. advice on withholding assessment results (where relevant);
d. an invitation to attend an interview at a given date, time and location;
e. the option for the respondent student to be assisted by a support person of their choice at the interview;
f. attached copies of any documentation being considered (subject to any requirement to maintain the privacy or safety of another person) and any relevant rule, policy or code;
g. an invitation to the respondent student to provide a written statement of how they wish to answer the allegation and any supporting evidence, including counselling reports in advance of the investigation interview; and
h. advice that, if the respondent student chooses not to attend, the matter will be determined in their absence.”
Section 17 is titled “Investigation Committee Meetings”. It includes cl 110, which requires that “[t]he Committee meeting should be held within twenty working days of the date of service of the Investigation Notice”, subject to any extension on the basis of an application by the respondent student, or the need to collect necessary evidence.
Section 18 is titled “Conduct of Investigation”. It deals with the hearing before the SCC. It includes clauses dealing with the Procedure, including the right of the respondent student to be heard.
Section 19 is titled “Outcome of Investigation”. Clause 117 provides that:
“(117) As soon as practicable after a meeting of the Student Conduct Committee, and within a maximum of ten working days, the Chair of the Student Conduct Committee (or nominee), must serve the respondent student with written notice of the outcome of the investigation using the appropriate notice letter template.”
There is provision for an appeal, which is heard by the “Council Committee of Appeal”: see section 10 of the Procedure.
Importantly, it is clear that the process envisaged is one involving clear and relatively confined time limits. While cl 122 provides that “[a]ny time limit set in this Procedure may be extended at the discretion of the PIO or Chair of the Committee”, it is clear that any such power is exercised in the context of the strict limits otherwise imposed.
Whilst far from complete, that is a sufficient overview of the Procedure for present purposes.
It is necessary then to consider salient features of the process followed in the present case.
As I have indicated, between 4 and 7 August 2025 the plaintiff received notice of allegations of misconduct. Included in the letters advising him of the allegations was, in each case, an invitation to attend a meeting to discuss the allegation with the PIO.
On 10 August 2025 the plaintiff emailed SARC, indicating that he intended to “appeal” the dismissal of a complaint he had made with regard to staff conduct and requested further specifics of the allegations which had been made against him. He indicated that he could not “attend any meeting, or commence any defence” until being given the specifics of the allegations. I pause here to note that the allegations, as I have set out, were lacking in detail. Even if the plaintiff could be expected to know what he had said in general terms, he could not be expected to remember the precise terms of his communications, or the full context in which the communications were made. Nor was he able to access those communications, given the block that had been applied pursuant to the Urgency Provisions. That is not to say that there was necessarily a breach of the requirements of procedural fairness at this stage. As is well-recognised, the requirements of procedural fairness are not fixed. The matter was at an early stage. Whether more was required at this early stage need not be decided.
Following his email of 10 August 2025, the plaintiff sent a further email on 12 August to SARC requesting “particulars” of the allegations and making further complaints about both the allegations and the restrictions that had been put in place.
On 15 August 2025 he sent an application to the University under the Government Information (Public Access) Act 2009 (NSW) seeking information relevant to the determination to block his access to the University.
On 20 August 2025 a letter was sent by Professor Mark Hoffman, the Interim Deputy Vice-Chancellor, addressing concerns raised by the plaintiff and indicating that, as a result, the misconduct investigation by the PIO had been paused and referred to an external investigator. This was the result of the plaintiff’s allegation of bias against the PIO. In the result, an organisation called The Workplace Employment Lawyers were appointed in place of the PIO. By this time the plaintiff had obtained a leave of absence from study for the second half of 2025.
On 29 August 2025 Ms McElhone emailed the plaintiff to ask whether he wished the misconduct investigation to proceed immediately or when he returned from his leave of absence. The plaintiff that same day advised that he wished the investigation to proceed immediately.
Further communications were sent by the plaintiff on 1 September 2025, making complaints in relation to the investigation process.
On 8 September 2025 an email was sent by the plaintiff to Ms McElhone and Professor Hoffman further requesting “particularisation” of the allegations and specification as to the rules violated.
On 14 November 2025 an email was sent to the plaintiff by Ms Kaye of The Workplace Employment Lawyers confirming her appointment by the University as an external investigator. A table setting out the six allegations was provided. The applicant was invited to attend a meeting. This, in essence, replicates the process which occurred in August. It seems no such meeting occurred. I interpolate that this appears to be based on the plaintiff’s ongoing concern with respect to the provision of particulars.
Between 15 December 2025 and 5 January 2026 the plaintiff made attempts to enrol for the 2026 year of study. It was confirmed that his enrolment remained blocked as a result of the invocation of the Urgency Provisions in August 2025.
On 12 January 2026 the plaintiff emailed Ms Kaye complaining that no particulars of the allegations had been provided to him by the University. On 27 January, Ms Kaye provided a summary in her role as internal investigator. That role, I should note, has been taken to be an outsourcing of the role of the PIO. Ms Kaye found that two of the allegations were established setting out her findings as follows:
“1. Summary of findings and observations
(a) The Investigation has concluded, as to Mr Carter’s conduct, that he engaged in student misconduct:
(i) in emails Mr Carter sent that failed to follow reasonable directives given to him on 14 July 2025 and 4 August 2025 (First Misconduct Finding); and
(ii) on 5 August 2025, in messages Mr Carter sent on the UOW Med Class Facebook Messenger chat (Second Misconduct Finding).”
The first misconduct finding appears to be a finding based on the combination of allegations 2 and 4. The second misconduct finding appears to be a finding in relation to allegation 5.
On 29 January 2026 the Interim Chief Integrity Officer sent the plaintiff a letter via email enclosing the report of Ms Kaye and advising that the findings were to be accepted in full and he was to be referred to the SCC. On that same date, 29 January, Ms Eleanor Coleman, the coordinator of SARC, wrote to the plaintiff advising that:
“… the Vice President (Operations), the Standing Nominee for the Vice-Chancellor and President, has approved continuing the operation of temporary access restrictions on your UOW IT access right to access the University pending the outcome of the investigation into your alleged conduct.”
As expressed, the restriction is not entirely clear. It has been taken, perhaps correctly, as a continuation of the block on access in the same terms as had been imposed in August 2025. The plaintiff was told of the availability of an appeal, a right that he purported to exercise. That purported appeal was said to be pursuant to cl 52 in section 8 of the Procedure. As discussed, section 8 deals with the conclusion of investigation by a PIO. What happened here was not the conclusion of the investigation but rather its referral, on the basis that a high-level outcome was appropriate, to the SCC. There was no relevant outcome for the purposes of cl 52 and no appeal available under that provision.
As to the relationship between what happened and the Procedure, I have come to the view that the University failed to follow the Procedure. The Urgency Provisions were invoked on 7 August 2025. There is no question that there was, pursuant to cll 16 and 17, which are effectively to be read as one provision, a power to do so. That having occurred, any one of the persons holding an office referred to in cl 19 was able to accept the recommendation and, as occurred, impose the temporary block.
As is clear, however, on doing so, that person was required to, pursuant to cl 19(a):
“… where appropriate, direct the officer that made the recommendation to refer the matter to the Student Conduct Committee as soon as possible and within a maximum of ten working days.”
It is not entirely clear in what circumstances such a direction would not be appropriate. Whether such a situation might be envisaged, it was accepted by the defendant here that those words had no work to do in this case. In other words, it was accepted, and in my view properly so, that the obligation arose to make a direction to the referring officer to in turn refer the matter to the SCC. Following that referral the various time limits would come into play. By that process, it could be expected that within a relatively short time frame the process before the SCC would be completed. That process would, in the ordinary course, bring about the end of any temporary restriction imposed by operation of the Urgency Provisions within a correspondingly short time.
Further, relevant to the plaintiff’s repeated complaints, there are clear requirements to afford procedural fairness and provisions as to the detail of what is required to be provided to the defendant to an allegation before the SCC. In short, in a case where it is considered necessary to invoke the Urgency Provisions, there is in effect a by-passing of the PIO stage by a referral to the SCC followed by resolution within the anticipated time frames. As I have already observed, in cl 122, there is a power to extend any time limit in the Procedure at the discretion of, I interpolate as relevant, the PIO or Chair of the Committee. Be that as it may, any such extensions would be, firstly, the subject of consideration within the context of the Procedure and, secondly, with a mind to the time limits otherwise prescribed.
What is anticipated by the Procedure is in stark contrast to what happened here. In effect, the investigation stayed at the PIO stage from August 2025 until 27 January 2026. During the entirety of that time the “temporary” block on the plaintiff imposed pursuant to the Urgency Provisions remained in force, excluding the plaintiff from the University. That situation is perhaps less dramatic than as I have expressed it, given that the plaintiff had applied and been granted a leave of absence for the second half of 2025. Be that as it may, by the time of January 2026, at which point the plaintiff sought to enrol, the effect of the block on him was acute.
Whilst, as I have said, cl 122 provides for the extension of various time periods, that cannot justify what occurred here. There was no advertent exercise of that power. Perhaps more fundamentally, the existence of that power could not justify the failure by the defendant to follow the process set out in the Procedure.
The question that arises is whether a remedy is available to the plaintiff. Certainly, he is not entitled to any sort of merits review and nor does he seek one. It was accepted by the parties that relief was dependent upon the plaintiff establishing jurisdictional error.
The defendant submitted in this regard that whatever had happened before, the decision on 29 January 2026 to continue the block on access was a “stand-alone” decision. As such, it was submitted that it was easily justified within cll 16-19 and consequently a decision made within jurisdiction. Whilst framed by the defendant as a “stand-alone” decision, in its terms the decision was to approve “continuing the operation of temporary access restrictions”. Either way, that is whether viewed as a continuation or as a stand-alone decision, the determination is affected by what happened before.
If it is understood as a continuation of the earlier order, it is necessarily infected by the error in the process up until that point. If viewed as a stand-alone decision, it was a decision made based on a power which did not exist. That is because the power had been exercised based on the allegations of misconduct that set in place the required process including, on the acceptance of the recommendation, a requirement to refer the matter to the SCC. Had that occurred the disciplinary process would have then, as I have explained, taken its course.
There was no power, based on the very same allegations, to invoke many months later what are described as “Urgency Provisions”. Section 5 of the Procedure does not, in my view, contemplate a re-exercise of the power. It follows that the decision of 29 January 2026 was not a decision available to the defendant under section 5 of the Procedure. There was, in my view, a misconception of the power being exercised amounting to a jurisdictional error.
Jurisdictional error having been established, it does not necessarily follow that relief will be granted. Relief of the type sought is discretionary. The plaintiff relies on the importance to him of his enrolment in the 2026 academic year.
The defendant makes what I accept to be a number of substantial points. Firstly, the defendant submits that there has in this case been a finding that at least two of the six allegations have been established. Further, based on what has been found, the determination, albeit invalid, was made that the plaintiff should remain barred from access to the University.
While there is persuasive force in the submission, it should also be noted that any finding made to date is of a preliminary nature and has been made without the plaintiff’s participation in the process. As is clear, the plaintiff has repeatedly sought to obtain particulars of the allegations so that he might provide a defence to them. All that should have happened some time ago in the context of a hearing before the SCC. Whilst that point was not made at any stage by the plaintiff, it is to be expected that the defendant would have had a better understanding of its own procedures. The weight to be given to any findings to date in the context of the exercise of a discretion should, in my view, be limited.
The defendant further submits that there is available to the plaintiff an alternative course of action. He apparently remains enrolled in the 2025 course. With respect to the first half of the 2025 year, he has one exam outstanding and two opportunities remaining to pass that exam. On the face of it, it would seem that the most convenient course would be for the plaintiff to take up that existing enrolment and complete the one remaining exam.
The plaintiff, however, in submissions to me is adamant that that course will cause him significant prejudice. In particular, he stresses that doing the exam without the context of engagement in the relevant course at a time proximate to the examination will lead to almost inevitable failure.
Whilst the defendant submits that I would not place any weight on that contention, I take the view that it should be considered, albeit I am not realistically in any position to determine the strength of its foundations. What can be said is that the plaintiff must have some reason to want to undertake the course of study again. Given the obvious commitment and effort that will no doubt require, I am inclined to accept there is at least some force in his submission as to prejudice.
Also significant in the exercise of the discretion is that on entering the 2026 academic year to study the first component of the graduate degree, the plaintiff will necessarily be placed in a different cohort of students. Any concerns with respect to his relationships with students from the 2025 cohort is thereby, if not eliminated, certainly very significantly diminished.
Insofar as the allegations against the defendant might otherwise give rise to concerns with respect to his access to the University, I would make the following observations. The plaintiff has now been through a lengthy process through the University and now through the Court. That has, no doubt, been stressful and difficult for him. He will be aware that any conduct by him outside the norms of what is expected is very likely to result in adverse consequences to him and a potential repeat of the stressful situation he has found himself in over these past months. The plaintiff having been through this process will, no doubt, be aware that any unwelcome communications by him, be it on social media or otherwise, will almost certainly result in fresh action against him, a matter which he will be anxious to avoid.
There is, of course, the reality that it remains for the SCC to determine the allegations currently on foot. That process will need to take its course. The plaintiff would be well advised to cooperate with that process in order to at least enhance his prospects of a favourable outcome. In the meantime, however, I am ultimately of the view that my discretion should not be exercised so as to prevent him from enrolling in the 2026 year.
I make the following orders:
The Court declares that the purported determination made pursuant to section 5, cll 16-22 (“the Urgency Provisions”) of the defendant’s Procedure for Managing Alleged General Misconduct by a Student, on or about 29 January 2026, terminating the plaintiff’s right of access to the University of Wollongong (“the University”) and blocking the plaintiff’s IT access to the University, was not validly made and is of no effect.
The Court orders that the defendant be restrained from denying the plaintiff access to the University's campuses and associated facilities including by denying IT access, or otherwise impeding the plaintiff in the pursuit of any course of study in which he is enrolled or otherwise entitled to enrol, based on the purported determination made under the Urgency Provisions on or about 29 January 2026, the purported effect of which denied the plaintiff access to the University including by blocking IT access.
The defendant is to pay the plaintiff’s costs, noting that the plaintiff being self-represented, such costs are limited to disbursements.
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Carter
University of Wollongong [2026] NSWSC 155
(2016) 340 ALR 560
(2005) 221 CLR 99
(2001) 202 CLR 439