[1990] HCA 21
Briginshaw v Briginshaw (1938) 60 CLR 336
[1938] HCA 34
Calvin v Carr [1979] 1 NSWLR 1
Campbelltown City Council v Vegan (2006) 67 NSWLR 372
[2006] NSWCA 284
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
[2000] HCA 47
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Source
Original judgment source is linked above.
Catchwords
[1990] HCA 21
Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34
Calvin v Carr [1979] 1 NSWLR 1
Campbelltown City Council v Vegan (2006) 67 NSWLR 372[2006] NSWCA 284
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194[2000] HCA 47
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26(2003) 77 ALJR 1088
Ex parte Australian Sporting Club Ltdre Dash (1947) SR (NSW) 283
He v Minister for Immigration and Border Protection (2017) 255 FCR 41[2011] HCA 10
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6
Plaintiff M1/2021 v Home Affairs (2022) 275 CLR 582[2022] HCA 17
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217[2018] HCA 16
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[2017] HCA 34
Victorian Stevedoring and General Contracting Co Pty Ltd and Meaks v Dignan (1931) 46 CLR 73[1931] HCA 34
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
HIS HONOUR: The plaintiff, by Summons, seeks judicial review of a decision of the Student Disciplinary Appeals Committee of the University of Sydney issued on 13 March 2023. The plaintiff seeks writs of certiorari and mandamus directed to the Committee quashing the decision of 13 March 2023 and directing the Committee, differently constituted, to determine the applicant's appeal according to law.
Pursuant to the terms of s 69 of the Supreme Court Act 1970 (NSW), the Court is precluded from issuing writs of certiorari and mandamus. Rather, the Court is required to issue orders in the nature of certiorari and orders in the nature of mandamus in lieu of the writs. The Court treats the further amended Summons, filed on 18 January 2024, as seeking orders in the nature of certiorari and mandamus, respectively.
The plaintiff requires an extension of time to commence the proceedings in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "UCPR"), subr 59.10(2). The defendant consents to the extension of time. The extension is granted.
On 27 September 2022, the Vice-Chancellor and President of the University of Sydney (hereinafter "the University") found that the plaintiff had been engaging in student misconduct and expelled the plaintiff from the award course of a Doctor of Philosophy (Medicine) at the University.
The original decision, being the decision of the Vice-Chancellor and President of 27 September 2022 (hereinafter "the Initial Decision"), found that the plaintiff had been guilty of student misconduct and imposed the penalty of expulsion. This was appealed to the Student Disciplinary Appeals Committee (hereinafter "the Appeals Committee") and, by decision of 13 March 2023, the Appeals Committee upheld the finding of misconduct and quashed the penalty imposed as being "excessive and inappropriate in the circumstances". The Appeals Committee substituted a new penalty of a four-year exclusion from the course.
[3]
Background
On or about 25 October 2019, the plaintiff, Sorour Jarrah, submitted her doctoral thesis for examination. After the initial review, the plaintiff was required to revise and re-submit her thesis, which she did on 31 January 2021.
The re-submitted thesis was examined, and concerns were raised by the examiners about referencing and attribution. The matter was referred to the University's Research Integrity Office. The Research Integrity Office made enquiries of the plaintiff, after which it issued a Preliminary Assessment Outcome Report dated 29 November 2021, which recommended a referral to the University's Registrar. This referral was the catalyst for the issuing of the Initial Decision.
[4]
Grounds
As already stated, the amended Summons seeks orders in the nature of certiorari and mandamus quashing the decision of the Appeals Committee, requiring it to determine the appeal by a differently constituted Committee, in accordance with law. The grounds upon which the plaintiff relies can be summarised briefly.
The Summons claims jurisdictional error by virtue of a failure to take into account a mandatory relevant consideration when imposing the penalty on the applicant (Ground 1) and error by failing to consider claims raised by the applicant, and thereby constructively failing to exercise the jurisdiction and to accord natural justice (Ground 2).
[5]
Appeals Committee Decision
The appeal was lodged on 21 November 2022, and the decision of the Appeals Committee was issued on 10 February 2023. After setting out the short background summary of the circumstances before the Appeals Committee and summarising the issues for consideration, the Appeals Committee set out its findings on each of the grounds raised in the internal appeal.
The Appeals Committee accepted that the plaintiff, in these proceedings, may have made an unintentional mistake in the labelling of certain figures in the thesis. The Appeals Committee found that the fact that the mistake may have been unintentional "did not negate the fact that the mistake occurred in the second submission of [the] PhD thesis, having been given an opportunity to revise and [to] re-submit following the original examination".
In those circumstances, the Appeals Committee considered the mistake to be reckless and unacceptable for a published researcher.
Further, while the Appeals Committee accepted the plaintiff's argument that the errors occurred in a minor aspect of the thesis, which did not affect the hypothesis or conclusions therein, the Appeals Committee did not agree that such a circumstance made the issue "less serious", and the Appeals Committee "considered that it was not acceptable for a revised and re-submitted thesis to contain errors of this nature".
Thirdly, the Appeals Committee noted the findings of the Investigator that, with respect to Figure 1.3, the plaintiff "did not merely fail to acknowledge someone else's work, but, by citing herself as the author of data for this Figure, directly claimed the work as her own." [1]
The Appeals Committee noted that each of the examiners, in relation to the first submission of the plaintiff's thesis, had identified multiple instances where the plaintiff had failed to cite and acknowledge a source.
Lastly, in relation to the finding of misconduct, the Appeals Committee considered "that [the plaintiff's] use of multiple incorrect images and lack of referencing in her second thesis submission constituted a significant departure of accepted practice and was reckless, thereby warranting a finding of misconduct." [2]
The second ground raised by the plaintiff to the Appeals Committee related to a breach of procedural fairness. The Appeals Committee did not accept that there had been a breach of procedural fairness. The Appeals Committee noted the granting of extensions of time and the rescheduling of hearing dates to accommodate additional submissions that the plaintiff sought to make on her own behalf. Nor did the Appeals Committee accept that there was a conflict of interest associated with one of the person's roles in the appeal.
[6]
Legislative and Regulatory Framework
The University of Sydney was established by Act 14 Vic No 31 and continued by operation of s 4 of the University of Sydney Act 1989 (NSW). The University consists of a Senate, Convocation, professors , full-time members of academic staff, other members or classes of members of staff as the by-laws may prescribe, and the graduates and students of the University.
The University is a body corporate. The object of the University is the promotion, within the limits of the University's resources, of scholarship, research, free inquiry, the interaction of research and teaching and academic excellence. [4]
Its principal functions are prescribed by s 6(2) of the University of Sydney Act, and it has other functions, some of which are prescribed by s 6(3) of the Act. By s 36 of the Act, the Senate is empowered to make by-laws that are not inconsistent with the University of Sydney Act.
Those by-laws are permitted to deal with any matter that is required or permitted to be prescribed, including the matters outlined in s 36(1) of the Act. The matters prescribed by s 36(1) of the Act include the discipline at the University; the appointment of committees; admission to, enrolment in and exclusion from courses of study; the courses of lectures or studies; the granting of degrees; the admission of students and former students at other universities and institutions; and the making, publication and inspection of rules. A by-law only has effect once it has been approved by the Governor.
Section 37 of the University of Sydney Act allows the by-laws to empower any authority (including the Senate) or an officer of the University to make rules that are not inconsistent with the University of Sydney Act or the by-laws otherwise promulgated by the Senate. There are exceptions to that which may be the subject of rules. Those exceptions are currently irrelevant to the issues before the Court.
By operation of s 5 of the University of Sydney By-Law 1999, the Senate is empowered to make rules not inconsistent with the University of Sydney Act or University By-Law 5 with respect to any matter for which by-laws may be made. The Vice-Chancellor, by operation of the University of Sydney By-Law 5(2), may make a rule for or with respect to the direction and management of the administrative, financial and other business of the University. The University Librarian and Academic Board may make rules in relation to some other subject matters.
[7]
Grounds of Review
I have already summarised the Grounds for the judicial review sought in the Court. However, to be more detailed, I set out the following:
The plaintiff raises three grounds for review:
Ground 1: the Appeals Committee committed jurisdictional error by virtue of failing to take into account mandatory relevant considerations when imposing the penalty on the applicant;
Ground 2: the Committee erred by failing to consider claims raised by the applicant and thereby constructively failed to exercise jurisdiction and failed to accord natural justice;
Ground 3 (although numbered as a second part of Ground 2): the Committee failed to respond to the above substantial clearly articulated arguments, and/or it failed to read, identify, understand, evaluate and bring its mind to bear upon the above claims made by an applicant; and thereby fell into jurisdictional error.
The University filed a defence to the Further Amended Summons, which, amongst other things, raises the time limit specified by the UCPR. In relation to the grounds relied upon for judicial review, and, in particular, in relation to Ground 1, the University pleads that the plaintiff has not identified the basis upon which it is contended that the matters raised are "mandatory relevant considerations", nor the basis upon which it is said they were not considered. Further, the University pleads that the plaintiff has not pleaded or established that a failure to rely on the considerations pleaded was material.
The University pleads, in relation to Ground 2, that the plaintiff does not identify the manner in which it is said this ground gives rise to a jurisdictional error. Nor, in the submissions of the University, has the plaintiff particularised how a failure to respond to any one of the matters raised would vitiate the decision under review. Otherwise, the University relies upon the pleadings in relation to Ground 1.
The extension of time required by the plaintiff is neither consented to nor opposed by the University.
[8]
Submissions of Plaintiff
After setting out the nature of the decision of the Vice-Chancellor and President on 27 September 2022 and the appeal on the decision of the Appeals Committee as part of the background to the proceedings, the plaintiff submits that it is "unclear which documents and material…the [appeal] Committee considered in making the Decision". The background draws attention to the fact that the bundle of documents given to the Appeals Committee did not include all relevant documents lodged and, for example, did not include two sets of written submissions by the plaintiff, which the plaintiff provided to the Appeals Committee. The Appeals Committee Decision (hereinafter "the Decision") does not recite all of the documents and material produced to it or upon which it relied.
In relation to its submissions in support of Ground 1, the plaintiff contends that the Appeals Committee did not take into account a mandatory relevant consideration when imposing the penalty. The plaintiff relies upon cl 5.5(5)(c) of the Rules, which provides that the Appeals Committee will notify the student and the Registrar, in writing, of the outcome of the appeal and the reasons for the Decision.
The plaintiff submits that the terms of cl 3.4(1) are mandatory considerations required to be taken into account by the Appeals Committee and relies on the use of the term "must" in the body of the Rule. The plaintiff then relies upon comments from the Full Court of the Federal Court of Australia in He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206 ("He"), which dealt with the Migration Regulation 1994 (Cth).
Relying upon He, the plaintiff submits that in the same way as the Migration Regulation, the considerations set out in cl 3.4 of the Rules were mandatory relevant considerations "which the decision-maker had to consider by an active intellectual process directed to each of the matters". [13]
The plaintiff submits that the Rule requires not only active consideration but a conclusion and a finding about the relevant consideration, and the requirement that the Appeals Committee have regard to the criteria meant that the Appeals Committee was required to make findings upon each of the prescribed matters.
Further, in accordance with the principles established in He, the plaintiff submits that the failure to deal with the prescribed criteria may lead to an inference that the Appeals Committee considered no such criteria and applied no mental process to that criterion when making the Decision. If, in the plaintiff's submission, no such finding were made in relation to a particular prescribed and mandatory criterion, the Appeals Committee will not have complied with its duties.
[9]
Submissions of the University
The University relies upon a construction of r 5, recited above, to the effect that the right of appeal from a finding of misconduct and the imposition of a penalty is a limited right of appeal and does not allow for a full merits review.
It also relies upon the proposition that the plaintiff bears the onus of proof.
Thirdly, the University submits that the plaintiff has not met the onus of showing that each of the matters listed in r 3.4 is a mandatory relevant consideration, a failure to refer to which would vitiate the decision by the Appeals Committee.
Next, the University submits that the plaintiff must not only show that legal error has been disclosed but that the legal error was "material".
In relation to the submissions that purport to support Ground 2, the University submits that none of them establish any jurisdictional error that would warrant or could warrant judicial review and intervention by the Court.
The University submits that there is sufficient engagement with each of the issues that would affect the plaintiff in the Decision, and there is no jurisdictional error either by want of reasoning, want of reference to the criteria in r 3.4(1), or other legal error. The University submits that no jurisdictional error exists, and each of Grounds 1 and 2 should be dismissed.
[10]
Principles
In Attorney-General (NSW) v Quin [17] , Brennan J (as his Honour then was) said:
"The question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the Courts to protect that individual's legitimate expectations against adverse exercises of the power? I have no doubt that the answer is none. Judicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the Courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.
…
The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure a judicial scrutiny of the merits of a particular case.
There is one limitation, 'Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Limited v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined." [18]
[11]
Determination
While the plaintiff alleged a denial of natural justice in the appeal to the Appeals Committee, procedural fairness is not a basis (leaving aside for the time being issues associated with the judgment in Dranichnikov [42] ) raised in the Summons. Nevertheless, it is appropriate to make some comment on the issue.
First, if there were a denial of procedural fairness associated with the initial decision, it would have been overcome by the appeal process and the decision of the Appeals Committee. However, the submission before the Appeals Committee does not seem to allege a denial of procedural fairness (notwithstanding some comments as to the difference, I shall use the terms procedural fairness and natural justice interchangeably).
The person accused of a conflict was, for the purposes of the initial investigation, the supervisor of the Investigator and has been referred to in these proceedings as the Investigator. The same person, the Supervisor, was appointed to represent the University before the Appeals Committee.
The rules of natural justice, in a very general sense, require that parties (including applicants before administrative tribunals) be provided a fair hearing not infected by a perception of bias. To be afforded a fair hearing, a party must be given a reasonable opportunity to prepare and to present its case. [43] There is no suggestion that the plaintiff was not given a fair and reasonable opportunity to prepare and to present her case.
Further, natural justice involves a number of aspects dealing with the decision-making process, only one or two of which are relevant to this controversy. First, it involves a requirement for reasonable decision, being one that is reasonably open to a decision-maker.
Secondly, it involves the decision-maker taking account of a substantial and clearly articulated argument advanced by a party in support of that party's case. [44] The foregoing are only some of the attributes of natural justice, which may also include equal justice and other such principles.
Nevertheless, the content of the rules of natural justice and/or procedural fairness is very much dependent upon the statute granting the power to the decision-maker and the statutory context of the decision-making process. In the current situation, the role of the Investigator appointed by the Registrar is to investigate the circumstances of the alleged breach from the perspective of the University.
[12]
Endnotes
Ex CB1, p 60.
Ibid.
Ex CB1, p 61.
University of Sydney Act 1989 (NSW), s 6(1).
Ex CB1, p 79.
Ex CB1, p 126.
Ex CB1, p 148.
Ibid, p 171.
Ibid, pp 171-172.
Ibid, pp 192-193.
Ex CB1, p 194.
Ex CB1, p 197.
Ex CB1, p 14.
Ex CB1, p 18.
Ex CB1, p 85.
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16.
Victorian Stevedoring and General Contracting Co Pty Ltd and Meaks v Dignan (1931) 46 CLR 73; [1931] HCA 34; Ex parte Australian Sporting Club Ltd; re Dash (1947) SR (NSW) 283 (Jordan CJ); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 (hereinafter "Coal & Allied").
Ibid, at [12]-[15] (Gleeson CJ, Gaudron and Hayne JJ).
Cf Criminal Appeal Act 1912 (NSW), s 6.
University of Sydney (Student Discipline) Rule 2016, r 5.5(5)(c).
Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [2] (Basten JA).
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [122] (Basten JA, with whom Handley and McColl JJA agreed).
As to the penalty to be imposed, the Appeals Committee accepted the written arguments of the University as to whether there existed a breach of cl 19(2) of the Research Code of Conduct 2019. It accepted the argument of the plaintiff that the penalty of expulsion was not commensurate with conduct that may have been unintentional. However, because the Appeals Committee considered the plaintiff's conduct reckless and that her thesis lacked appropriate referencing even after revision, it was considered that the conduct was serious and that a significant penalty was warranted.
The Appeals Committee then decided to impose a "less severe penalty", being the penalty that is now sought to be reviewed. The Appeals Committee accepted that the only available outcomes of an examination were to award the degree without conditions, award with corrections, and refuse to award with the option to award another degree. In those circumstances, the Appeals Committee considered that "given the academic integrity issues, it would not be appropriate to award [the plaintiff] another degree or to allow her to submit and subsequently make corrections to her thesis but noted that it had no power to do so in any event." [3]
Pursuant to the terms of s 37(1) of the University of Sydney Act, the Senate of the University promulgated a rule dealing with student discipline entitled the University of Sydney (Student Discipline) Rule 2016. It was adopted on 31 October 2016 and was effective on and from 31 March 2017. It was amended on several occasions.
At the relevant time of the decisions by the relevant bodies (including the Vice-Chancellor and/or the Student Disciplinary Appeals Committee), there was in place a Rule, as part of the University of Sydney (Student Discipline) Rule 2016, being r 3.4, which was in the following terms:
"3.4 Matters to be taken into account when imposing a penalty
(1) The Vice-Chancellor, Registrar or Student Disciplinary Appeals Committee must, when imposing a penalty for misconduct, take into account:
(a) the nature, frequency and seriousness of the misconduct;
(b) any previous record of misconduct or major breach of academic integrity by the student or former student;
(c) previous penalties imposed on a student or former student for misconduct, including any penalty suspended in accordance with this Rule;
(d) any requirement imposed on a student or former student as a result of a major breach of academic integrity;
(e) the timing of any admission by the student or former student of the misconduct; and
(f) any relevant mitigating circumstances.
(2) The Vice-Chancellor, Registrar or Student Disciplinary Appeals Committee may take into account such other relevant matters as they consider appropriate." [5]
On 24 June 2019, the Deputy Vice-Chancellor (Research), as a delegate of the Senate of the University, adopted the Research Code of Conduct 2019, cl 20 of which is in the following terms:
"20 Definition of research misconduct
(1) Research misconduct is a serious breach of this policy, which is also:
(a) intentional;
(b) reckless; or
(c) negligent.
(2) Examples of conduct which may amount to research misconduct include any of the following on the part of a researcher:
(a) fabrication, falsification, or deception in proposing, carrying out or reporting the results of research;
(b) plagiarism in proposing, carrying out or reporting the results of research;
(c) failure to declare or manage a serious conflict of interests;
(d) avoidable failure to follow research proposals as approved by a research ethics committee, particularly where this failure may result in unreasonable risk to humans, animals or the environment, or breach of privacy;
(e) wilful concealment or facilitation of research misconduct by others;
(f) misleading attribution of authorship;
(g) intentional, unauthorised taking, sequestration or material damage to any research-related property of another;
(h) deliberate conduct of research without required human ethics committee approval;
(i) conduct of research involving animals without required animal ethics committee approval;
(j) risking the safety of human participants or the wellbeing of animals or the environment; and
(k) deviations from this policy which occur through gross or persistent negligence.
(3) Repeated or continuing breaches of this policy may also constitute research misconduct, and will do so where these have been the subject of previous counselling or specific direction.
(4) Research misconduct does not include honest differences in judgement, and may not include honest errors that are minor or unintentional. Unintentional errors do not usually constitute research misconduct unless they result from behaviour that is reckless or negligent." [6]
The Academic Board first promulgated the Thesis and Examination of Higher Degrees by Research Procedures 2020 on 9 June 2020, and it commenced on 1 July 2020. It regulates the examination of higher degrees and the rules that govern the awarding of such degrees.
By cl 18 of those Procedures, there is a process by which, if the outcome of an examination is that the degree is not to be awarded, but the student is permitted to revise and re-submit the thesis for re-examination, the relevant committee is required: to specify the reasons for the non-award; to prescribe a maximum period of further candidature (normally 2-4 research periods); to set the latest date for the re-submission of a thesis; to detail the additional work or changes required; to prescribe any other conditions that must be met by the student; and to notify the student in writing within one week of the decision. Other processes are prescribed, which are currently irrelevant.
In those circumstances, the student is required to re-enrol while the thesis is being revised, and there are limitations on the period and/or dates upon which such re-enrolment must occur. Then, the original examiners should be invited to re-examine the thesis.
The re-examination is a "new examination of the whole thesis" carried out in accordance with the policy and the Procedure. By subcl 18(8) of the Procedures, a student is prevented from any further opportunity to revise and re-submit the thesis as an outcome of the new examination of the re-submitted thesis. [7]
There was an Investigation Report into the alleged misconduct by the plaintiff. After reciting that the plaintiff submitted her thesis for a Doctor of Philosophy (Medicine), the allegation is summarised as the proposition that the thesis may contain "a figure copied from an online article without appropriate citation and acknowledgement, and it was identified that the thesis contains other figures which may have been falsified". [8]
The detailed allegation is set out at paragraph [11] of the Investigation Report and is in the following terms:
"11. It is alleged that:
On 31 January 2021, Ms Jarrah submitted to the University her thesis entitled, 'Endothelial Cell Senescence' ('Thesis') for academic credit, in circumstances where:
1) She knowingly or recklessly presented the work of others as her own work by copying or reproducing Figure 1.3 within her Thesis without appropriate citation and acknowledgment of the following source:
(a) Associate Professor Katherine Aird (The Wistar Institute), from the article "Shutting down DNA construction: How senescence halts growth of potential cancers (medicalxpress.com)", available on the website https://medicalxpress.com/news/2013-04-dna-senescence-halts-growth potential.html;
2) In preparing and presenting her Thesis, Ms Jarrah manipulated research data such that she incorrectly reported the findings of her research by falsifying the following figures:
(a) Figure 4.14 and Figure 4.12. It was noted that the actin Western blot controls in Figures 4.12 and 4.14 may be the same blot, duplicated and horizontally flipped, with contrast adjusted.
(b) Figure 5.22. The images in (A) for non-infected (i, ii) and EV (iii) conditions are identical to each other.
(c) Figure 3.20 {II, Ill) are identical to Figure 4.4 (II, Ill).
(d) Figure 3.6 (I) is identical to Figure 4.3 (I)." [9]
The findings of the Investigation Report were that Allegations 1 and 2 were substantiated; the reasoning is described in the Investigation Report in Part 8, Clauses [54]-[110]. At [62] of the Investigation Report, the author discusses whether the "misconduct" was accidental or intentional/reckless. The discussion on that issue is at [62]-[90]. The author of the Investigation Report then discusses whether the conduct is a "serious breach" of the Research Code of Conduct, and the author then sets out the findings in the following terms:
"93. For the reasons set out above, I have found that:
(a) Ms Jarrah was reckless in presenting the data of Associate Professor Aird as her own, without appropriate citation and acknowledgement of the source; and
(b) Ms Jarrah intentionally manipulated and falsified certain Figures within the Thesis, thereby incorrectly reported research data and the findings of her research in the Figures.
94. Given that the course of conduct engaged in by Ms Jarrah has been found to be reckless/intentionally rather than just negligent, I consider this to support a finding that the breaches in question were serious in nature." [10]
The author of the Investigation Report refers to the number of falsifications that had been identified in the Report and commented that the number established "a persistence of dishonest conduct" and that some of them "also appeared in [the plaintiff's] first thesis submission, which were brought to her attention, and the repeat of which raises serious conduct issues in circumstances where integrity is at stake and which the plaintiff failed to address.
The failure of the plaintiff to address the issues is the subject of Report in the Investigation Report at [96]-[97]. The author of the Report accepted expert evidence that the conduct was "a substantial and significant departure from accepted practice and established principles of scientific integrity". Further, the evidence of experts, which the author of the Investigation Report described as consistent, was to the effect that the behaviour of the plaintiff rendered her overall research "untrustworthy". [11]
From paragraph [101] to [110], the author of the Investigation Report discussed the explanations provided by the plaintiff. From [110], the author of the Investigation Report discussed the potential penalty and the relevance of her findings to the imposition of a penalty. In the course of those comments, the author of the Investigation Report noted that the plaintiff is an international student from a non-English speaking country, is currently residing in Australia on a bridging Visa and has expressed interest in remaining in Australia and working here and in New York in the United States.
The Investigation Report also noted that the plaintiff does not have a history of reported academic dishonesty or misconduct and has co-operated with the investigation, but her evidence was incorrect and, at times, unreliable, and she had a tendency to minimise her conduct and not to take responsibility for her actions, including by apportioning blame for her circumstances and conduct on others. Further, the Investigation Report included comments that the plaintiff had not "expressed any remorse".
The Report, in the passages dealing with potential penalty, noted that the plaintiff submitted her thesis on two separate occasions; the Figures (being the impugned aspects that were subject to allegations) were incapable of being addressed by the corrections that were made; the original images provided to the investigation were problematic; the original figures were unable to be verified by experts who were consulted and provided material to the author of the Investigation Report; and one at least of the experts recommended that the plaintiff receive a fail result for her thesis and not be awarded a PhD. Such a recommendation was consistent with the proposal of one of the two examiners who reviewed the re-submitted thesis. [12]
The Investigation Report was provided on 15 August 2022, and on 27 September 2022, the Vice-Chancellor and President of the University wrote to the plaintiff advising that he had accepted the findings of the investigation, made a finding of misconduct and decided to impose a penalty of expulsion from the course.
On 21 November 2022, the plaintiff submitted a written appeal to the Appeals Committee, which was listed for hearing on 10 February 2023.
On 29 November 2022, the University representative, Ms Jane Wright, lodged written submissions in response to the appeal. The plaintiff's solicitor made written submissions, and on 2 February 2023, Ms Wright lodged further submissions to the Appeals Committee.
On 6 February 2023, further submissions were made on behalf of the plaintiff and on 10 February 2023, the matter, being the appeal to the Appeals Committee, was heard.
On 13 March 2023, the Appeals Committee released their decision, to which reference has already been made.
The submission draws attention to the failure of the Appeals Committee to refer to each of the criteria and relies upon such failure to request that the Court infer that, if the matter were to have been considered at all, it would have been referred to in the reasons and that, therefore, those criteria have not been considered. Further, the plaintiff submits that mere advertence to a particular criterion, without analysis, may not be sufficient.
The submission then traces through the criteria in cl 3.4(1) of the Rules and the failure of the Decision to deal with each of those matters. In relation to the criteria in cl 3.4(1)(a), the plaintiff submits that, as to the nature of the misconduct, the Decision fails to describe and review each one of the allegations described in the Investigative Report. There was no acknowledgment and consideration of each allegation nor of the explanations given by the plaintiff.
In relation to the frequency of the misconduct, the plaintiff accepts that there is a reference to the conduct occurring in relation to the second submission and the reference to "multiple incorrect images and lack of referencing in [the] second thesis submission", but complains that the Decision fails to consider the plaintiff's submission that the conduct was in the context of research involving hundreds of experiments.
In relation to the seriousness of the misconduct, the plaintiff submits that one can infer from the reduction in the penalty that the Appeals Committee found the motivational mental element less serious than that found by the initial decision-maker, but the Appeals Committee provided no explanation or reasoning.
Next, the plaintiff relies upon the statement by the Appeals Committee that the plaintiff "may have made an unintentional mistake" in the labelling of one of the figures and the Committee's assessment that the mistake was "reckless" but submits that the Appeals Committee failed to provide any sufficient analysis for the departure from the initial determination as to seriousness nor explain the tension that the plaintiff submits exists between the acceptance of a possibility that the plaintiff made an unintentional mistake with a finding of recklessness.
The plaintiff relies upon the absence in the Decision as to any reference to a previous record of misconduct. Further, it relies upon the proposition that these are the first and only disciplinary proceedings ever instituted against the plaintiff. Similarly, the Decision does not refer to any previous penalties, as there were none.
The submission relies upon the failure of the Decision to refer to the timing of admissions by the student of the misconduct and refers to the consistent approach of the plaintiff, stating that the errors were made honestly and unintentionally.
Last, in this respect, the submission relies upon the fact that the Appeals Committee in the Decision, while referring to some mitigating circumstances, did not refer to and respond to all of the mitigating circumstances raised by the plaintiff.
As a consequence of the foregoing analysis, the submission agitates that the Appeals Committee, in its Decision, failed to engage with almost all of the matters raised in cl 3.4(1) of the Rules.
Further, the Appeals Committee, in the Decision, failed "to explain its reasoning of how its finding on seriousness led to the penalty it imposed". [14]
Next, in relation to Ground 1, the plaintiff relies upon the low threshold necessary to show materiality in relation to the error.
To some extent, there is a degree of overlap between the submissions in relation to Ground 1 and in relation to Ground 2. The plaintiff recites the grounds upon which she relied in appealing from the initial Decision. However, according to the plaintiff's submission, submissions before the Appeals Committee, which rely upon Ground 2, are based on the provisions of r 5.1(2), which lists the grounds upon which an Appeal may be agitated. Rule 5.1(2) is in the following terms:
"An Appeal may only be made on one or more of the following grounds:
(a) the finding of misconduct is unreasonable or cannot be supported, having regard to the relevant evidence;
(b) the finding of misconduct was:
(i) made in breach of the requirements of procedural fairness;
(ii) made in breach of a material requirement of this Rule;
(iii) based on a material misunderstanding of the meaning or effect of a provision in this Rule;
(iv) based on a material mistake as to the facts;
(c) new evidence has become available to the student or former student,…
(d) the penalty to be imposed on the student or former student is excessive or inappropriate". [15]
The lack of procedural fairness seems to rest upon the proposition that there is a reference in the initial decision to "additional information", which it is said was not identified or provided to the plaintiff. It is not suggested, as I understand it, that the Appeals Committee had any information before it that was not previously provided to the plaintiff. Secondly, the plaintiff complains that neither the Investigation Report nor the initial Decision made any reference to cl 3.4 of the Rules.
Thirdly, it is submitted that there was "no evidence to establish that the investigator…was appointed by the Deputy Vice-Chancellor (Research)".
Fourthly, the initial submissions to the initial decision-maker sought to rely on the principles in Briginshaw, which was not the subject of determination.
Fifthly, there is a complaint that the Investigation Report, as distinct from the Initial Decision, failed to engage in an explanation given by the plaintiff for the alleged plagiarism.
Sixthly, the submissions to the Appeals Committee omitted what was said to be a favourable report by one of the consultant experts.
Seventhly, the submissions to the Appeals Committee contended that the Investigation Report failed to consider the plaintiff's explanation with respect to one of the figures contained in the thesis.
Eighthly, the original and supplementary submissions to the Appeals Committee put submissions on the seriousness of the conduct and the failure to consider the Preliminary Assessment Outcome Report, which resolved that there was no intention to mislead by the plaintiff. As a consequence, the finding of misconduct is unreasonable and cannot be supported by the evidence.
Ninthly, the submissions to the Appeals Committee contended that allegations were not properly addressed independently and impartially because the plaintiff's explanations were rejected on the basis of the experts' opinion concerning another allegation. This was reliance, according to the submission to the Appeals Committee, on propensity reasoning and was inadmissible.
Tenthly, in her original submissions to the Appeals Committee, the plaintiff sought to rely upon the circumstance that the images could have been reproduced otherwise and in a manner that copied images otherwise supplied by others. As a consequence, the falsification and manipulation of data did not affect the outcome of the findings and conclusions of the thesis.
Lastly, the submissions to the Appeals Committee contended that there was an apprehension of bias because of the conflicting role of the investigator whose Supervisor was also the consultant solicitor to the University and who represented them in the Appeal proceedings before the Appeals Committee.
Having dealt with each of the grounds upon which the plaintiff relied before the Appeals Committee, the plaintiff submits that the Decision is "sparse and lacking in sufficient analysis of the claims". As a consequence, the plaintiff submits that the Appeals Committee has failed to respond to a substantial, clearly articulated argument relying upon established facts and, therefore, constructively failed to exercise the jurisdiction it held.
The plaintiff filed, in this Court, submissions in reply. Those submissions essentially repeat the submissions in chief but do so by reference to what are said to be incorrect submissions of the University. Those submissions in reply deal with the proper construction and mandatory nature of cl 3.4(1) of the Rules; the inference available in circumstances where a matter is not the subject of discussion in an administrative decision; a reference to the University's submission as to onus of proof; and the meaning of materiality.
Further, the reply submissions of the plaintiff rely upon the distinction between the necessity to respond to every point made by an applicant for review and the omission of a claim indicating that the administrative tribunal did not consider the claim to be material and/or did not consider the claim at all.
Apart from contesting some of the University submissions, each of which contest essentially repeats submissions that had previously been adduced, there are two more substantive issues. First, the plaintiff submits that the Appeals Committee "stands in the shoes of the primary decision-maker when determining whether to uphold or dismiss an appeal". Secondly, the plaintiff distinguishes the University's reliance upon the judgment of the High Court in Plaintiff M174/2016 [16] , because the decision there under review was a "fast track decision".
The plaintiff submits that there is no controversy that the Appeals Committee had the "power to review the primary Decision".
Lastly, the plaintiff complains that insignificant attention was paid to its substantial and clearly articulated arguments, which went to the seriousness of the conduct and, therefore, to the critical finding of recklessness.
The plaintiff has put significant submissions on that which it claims are deficiencies in the proceedings and decisions of the initial decision maker. Those deficiencies were the subject of submission before the Appeals Committee, which examined the issues and dealt afresh with the penalty to be imposed upon the plaintiff.
Except to the extent that these issues are raised in order to highlight the allegedly clearly articulated arguments put before the Appeals Committee, which were not addressed or considered by the Appeals Committee, there is limited relevance in the substance of the issues raised as a criticism of the Initial Decision. Further, significant attention was paid by the plaintiff to the "mandatory" nature of the considerations in r 3.4, outlined above.
It is well established that a court or tribunal that fails to take into account a relevant consideration commits jurisdictional error. However, not all probative considerations are relevant in the sense that the term is used in the foregoing expression. In order to be "relevant", in that sense, the consideration needs to be mandatory. The classic expression was that of Mason J (as the Chief Justice then was) in Peko-Wallsend Ltd [19] in which his Honour there said:
"The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision, is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action…
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is "bound to take into account in making that decision…"
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion…
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision...
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role it to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned." [20]
In dealing with judicial review of an administrative decision, it is appropriate for the Court to bear in mind the admonition of the High Court that a court should not be concerned with "looseness of language" nor "unhappy phrasing". [21] Nor, in the words of the High Court, should a court, in an exercise in judicial review, construe the judgment below "minutely and finely with an eye keenly attuned to the perception of error". [22]
The plurality in Wu Shan Liang, before reiterating a passage from Quin, supra (already extracted by the Court in these reasons), said this:
"These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision…must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." [23]
In the separate reasons for judgment issued by Kirby J in Wu Shan Liang, his Honour emphasised that the reasons under challenge must be read as a whole and considered fairly. It would be an error for a court to adopt a narrow approach by combing through the words of a decision-maker with a fine appellate tooth‑comb against the prospect that a verbal slip will be found warranting the inference of an error of law. His Honour went on to say:
"This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others. This is not to condone double standards between the reasons and the decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the law maker." [24]
While the principles associated with the interpretation of statutes and instruments are well known and often recited, they are a necessary starting point for the issues agitated by the plaintiff. In SZTAL v Minister for Immigration [25] , the High Court referred to the principles in the following passage:
"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in this course, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." [26]
While his Honour Gageler J (as his Honour the Chief Justice then was) was in dissent in SZTAL, the approach to statutory interpretation adopted by his Honour was identical. The approach of Edelman J was also to the same effect in relation to construction of a statute.
The modern approach was classically stated by the High Court in Project Blue Sky [27] , in which the High Court clarified that the primary object of statutory construction is to determine from the language of the statute the purpose of the legislature and to ensure that the construction given to any particular provision is not inconsistent with the purpose of the legislature and otherwise gives rise to harmonious goals. [28]
Moreover, the High Court, albeit in the context of preconditions to the exercise of a power, referred to the elusive nature of the dichotomy between directory and mandatory provisions. The determination that a provision renders something mandatory, or obedience to it mandatory, is the end result of the construction of the provision, not the starting point.
It is first necessary to deal with the nature of the appeal. The appeal provided by Pt 5 of the University of Sydney (Student Discipline) Rules is an appeal and not a review. Rule 5.1(1) permits a student or former student to appeal against an initial decision, relevantly of the kind here appealed. Rule 5.1(2) restricts the kind of appeal to one or more of the grounds specified therein.
In relation to issues of liability, relevantly being the finding of misconduct, it depends on error by the initial decision-maker. Thus, the initial decision must be "unreasonable" or unsupported, having regard to the relevant evidence; or, otherwise, made in breach of procedural fairness, the material requirements of the Rule, a material misunderstanding of the effect of a provision of the Rule, or a material mistake of the facts.
Otherwise, an appeal may only be made on the basis of fresh evidence. By fresh evidence, the Rule makes clear that it must be evidence that is relevant, was not available at the time of the original decision and could reasonably be expected to affect the finding of misconduct or the penalty.
The jurisdiction of the Appeals Committee is necessarily granted and confined by the provisions establishing it and providing it with the jurisdiction to hear the appeal. Those provisions are the provisions of the Rules, being r 5.1(2).
There have been many taxonomies that seek, not exhaustively, to define the nature of appeals that exist and the jurisdiction that is granted to a tribunal. Fundamentally, the nature of the appeal depends upon the statutory instrument that establishes it and that controls it.
In Lacey v Attorney-General (Qld), [29] the High Court dealt with that which was described, relevant to those proceedings, as three kinds of appeal and said:
"[57] Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are:
1. Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.
2. Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.
3. Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance."
The above taxonomy was, expressly, qualified by the necessity to examine the statutory scheme in each case. Further, the High Court made clear that the taxonomy was not exhaustive.
Other judgments have identified as many as six varieties of appeal, some of which include judicial review proceedings that are not appeals at all and which, in relation to the jurisdiction of the Appeals Committee, are irrelevant. However, the three varieties to which the High Court referred in the above extract are categories that are often used, albeit differently expressed from time to time. [30]
In Coal & Allied, supra, the High Court referred to the nature of different appeals, and for present purposes, it is informative to extract that further passage, which is in the following terms:
"[12] It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
[13] If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
[14] Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.
[15] The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to "make such order as it [thought] fit". The latter requirement indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it." [31] (Footnotes omitted)
The appeal against a finding of misconduct described by r 5.1(2) is similar in many ways to appeals against conviction. [32] In the Criminal Appeal Act 1912 (NSW), an appeal is allowed on the basis of an unreasonable verdict or one that cannot be supported having regard to the evidence. Plainly, that is similar if not identical to the ground raised by r. 5.1(2)(a).
Similarly, the provisions of r 5.1(2)(b) involve a finding of error on the part of the initial decision-maker.
Lastly, the provisions of r. 5.1(2)(c) only allow "new evidence" if the evidence is truly fresh in that it was not available at the time that the plaintiff responded to the initial allegation and can reasonably be expected to affect the finding of misconduct or the penalty. There was no fresh evidence before the Appeals Committee.
In relation to an appeal against the penalty imposed, apart from the capacity to adduce fresh evidence, in order for the Appeals Committee to allow an appeal against the penalty imposed upon a person, the Appeals Committee is required to be satisfied that the penalty is "excessive or inappropriate". This prescription is not dissimilar to that which applies to sentence appeals in this State in the Court of Criminal Appeal ("CCA").
I return then to the issues raised by the plaintiff and, in particular, the submission that the Appeals Committee did not assess mandatory considerations. It should be noted, from the above extracts, that jurisdictional error occurs when an administrative body fails to take into account a relevant consideration, where the relevant consideration is mandatory.
It is not jurisdictional error to omit taking into account a consideration that is not relevant. Further, on an appeal against penalty, the lodging of the appeal does not place the Appeals Committee in the place of the original or initial decision‑maker. The Appeals Committee is required to find that the error imposed was excessive or inappropriate for the appeal to be successful.
It goes without saying that the plaintiff was submitting a thesis for a PhD, and such an award is the highest academic award issued by the University. When first submitted, one of the examiners raised issues that ultimately formed the basis for the first allegation in the Investigation Report.
It is appropriate to summarise the gist of the Investigation Report. The Investigation Report was authored by Laura Iezza from WorkDynamic Australia. It was conducted at the request of the University Registrar.
The Investigation Report recites the factual background, some of which has already been recited in these reasons. Nevertheless, on 31 January 2021, the plaintiff submitted a thesis on "Endothelial Cell Senescence". The first submission of the thesis gave rise to the expression of concerns that were raised with the Research Integrity Office, alleging that the thesis may contain a figure copied from an online article without appropriate citation and acknowledgment and contained other figures that may have been falsified.
On the foregoing, Allegation 1 arose, which was to the effect that the plaintiff "knowingly or recklessly presented the work of others as her own work by copying or reproducing" certain figures and tables without appropriate citation and acknowledgment.
The second allegation was that, in preparing and presenting her thesis, the plaintiff manipulated research data and incorrectly reported the findings of her research by falsifying certain identified figures.
The plaintiff initially submitted her thesis in 2019 and this was reviewed by three examiners who considered that there were significant issues which required correction before its re-submission. It was decided by the Examinations Committee that the plaintiff not be awarded her PhD, but that she be permitted to revise and re-submit her thesis over a period of six months.
Such a timeframe was unable to be met, and the Faculty approved an extension until 28 February 2021. The final revised thesis was submitted within that timeframe, namely, as earlier stated, on 31 January 2021.
One of the examiners of the re-submitted thesis, who had been an examiner of the initial thesis, raised concerns. There was correspondence between the plaintiff in various guises, to which the Investigation Report refers.
The Investigation Report then deals with relevant University rules and policies and the exchange between the Investigator and the plaintiff and examiners. An expert in cell and molecular biology was engaged for the purpose of reviewing the thesis. During the course of the discussions with the Investigator, the plaintiff complained that the fault in relation to the thesis, arose from the lack of supervision by her designated supervisor.
It is unnecessary to repeat and/or summarise the exchanges between the plaintiff and the Investigator. They are available in the Investigation Report or as summarised in that Report.
Allegation 1 was substantiated and is, in the factual sense, uncontroversial. It is uncontroversial that at least one figure (Figure 1.3) in the plaintiff's thesis was copied and reproduced without appropriate citation and acknowledgment of the source. The Investigator accepted that "such conduct was at least reckless in nature". The figure was reproduced from an article from Associate Professor Aird and was marked in the plaintiff's thesis as "Data by S Jarrah" [the plaintiff].
The Investigator then sets out some comments referred to as context in relation to the initial submission of the thesis. One of the matters raised is a comment by one of the examiners who said:
"Most of the errors although they were so frequent and numerous that after Chapter 3, I stopped making specific comments and just highlighted the issues and focused on the science. This has been the main issue for me, trying to find the science in this often poorly written and formatted document. Overall the description and interpretation of the results lack the details and scientific rigour expected at this level."
As stated by the Investigator, the initial submission of the thesis was subject to comment by examiners which noted extensive examples where the plaintiff had failed to cite or acknowledge a source or where the plaintiff had cited the wrong source or an incorrect or incomplete source. The Investigator noted that one examiner commented that almost every reference that was cross checked was incorrect.
The Investigator then discussed whether the failure to reference and/or acknowledge sources was due to an honest mistake or whether the plaintiff did so knowingly or recklessly. The Investigator sets out the plaintiff's explanation as being that, following comment on the initial submission, the plaintiff decided to include her own image, change the written content in the particular figure citing herself as the author, but forgot to delete the existing image and replace it with her own prior to re-submission.
The Investigator did not accept that explanation or contention. The Investigator concluded the plaintiff's conduct was at least reckless, taking into account a number of considerations: the circumstance that it was a re-submission after prior written direction and reprimand as to referencing errors; notwithstanding that reprimand and comment, the plaintiff failed to rectify the issue; the reprimand included individual figures which were in the same chapter as the figure now under consideration; directed that the plaintiff appropriately cite all sources, particularly the figures in the chapter containing the impugned feature; and the plaintiff cited herself as the author of the data for the figure.
Further, the Investigator considered that a reasonable person in the position of the plaintiff, who is a PhD student, would have been aware of her obligations with respect to referencing and citations and the need to check references for accuracy and completeness as a fundamental element of preparing a PhD thesis for examination.
The Investigator also found allegation 2(a) substantiated in that the plaintiff manipulated research data by duplicating one blot image (horizontally flipping the image and adjusting the contrast), the image duplicated (each of them) being incorrect. The explanation provided by the plaintiff was provided in the Report.
The Investigator rejected the explanation that the duplication resulted from an honest "cut and paste" error in the construction and preparation of the thesis. The Investigator came to the view that it was "highly likely" that the plaintiff deliberately manipulated research data. The Investigation Report refers to the manner in which the allegation arose in the re-submitted thesis.
Part of the rejection of the explanation included a rejection of the proposition put on behalf of the plaintiff that the action does not amount to manipulation or falsification if the effect of the action does not alter the research results of the thesis more generally. Ultimately, the Investigator was satisfied that the plaintiff's manipulation and falsification were "serious in nature given that [the plaintiff] engaged in the conduct with intent to deceive the examiners and noting the persistent nature of her conduct within the 2021 thesis and in her 2019 thesis submission."
The Investigator considered that the plaintiff's explanation was neither credible nor compelling. The Investigator explains why, in her view, such is the circumstance.
Those findings were consistent with the expert on whom reliance was otherwise placed who stated (which statement is quoted in the Investigation Report):
"Moreover, despite the fact that the student claims that the actin duplication issue was an innocent mistake, I cannot see how the student would have accidentally taken the same blot, cropped one area from that blot and used that blot in one orientation for Fig 4.12 and then flip that blot and change the contrast and pasted that blot into Fig 4.14. The fact that the student has flipped the blot indicates to me that this was not an accident".
As for the further explanation that the contrast was altered so as to improve the figure, the Investigator accepted the comment that if the contrast and look was fine in relation to Fig 4.12, why was it not in relation to Fig 4.14 and the alteration in contrast is consistent with deliberate manipulation.
The report, in so far as it deals with Allegations in 2(b), 2(c), and 2(d), merely refers to other figures that are said to have been problematic and are impugned. The discussion in relation to them is in or to the same effect as that which relates to Allegation 2(a) and will not otherwise be summarised in these reasons.
It is sufficient to note that the Investigator did not accept an explanation as to the innocent error. The Investigator concluded that the conduct in which the plaintiff engaged constituted "a serious breach of" the Research Code of Conduct and Australian Research Code. The Investigator found that the plaintiff was reckless in presenting the data of Associate Professor Aird as her own without appropriate citation and acknowledgement, and the plaintiff intentionally manipulated and falsified certain figures within the thesis and thereby incorrectly reported research data and findings.
The Investigator considered that the number and extent of the course of conduct undertaken by the plaintiff established "a persistent pattern of dishonest conduct" by the plaintiff and that some of the falsifications also appeared in the initial submission of the thesis and were repeated in circumstances where integrity issues associated with the initial submission had been raised.
The Investigator made comments on the explanations provided by the plaintiff for the conduct, which it is unnecessary to recite or summarise. The Investigator then made comments relevant to potential penalty.
The comments in relation to penalty referred to the fact that the plaintiff was an international student; did not have a history of reported academic dishonesty or misconduct; has co-operated with the investigation; gave incorrect and unreliable evidence at times; showed a tendency to minimise conduct and not to take responsibility for her actions; that there were two submissions relating to the thesis; and, that the issues in relation to Allegations 2(a)-(d) are incapable of being addressed by corrections; raw images provided by the plaintiff are problematic and are unable to be verified by the experts consulted.
One of the experts recommended that the plaintiff receive a fail result for her thesis and not be awarded a PhD. Such a recommendation is consistent with the earlier mentioned examiner, who examined each of the submissions and commented:
"The thesis does not merit award of the degree and does not demonstrate sufficient ability by the candidate for a re-submitted thesis to achieve this merit. For example, the hypothesis and methods may be fatally flawed, therefore rendering the conclusions completely invalid and not capable of being rectified by an additional period of study."
The second examiner was prepared, subject to corrections being effected, to award a degree, but such a recommendation was made on the basis that the relevant examiner had accepted the plaintiff's research data and analysis. Given the aforementioned basis or qualification and the findings as to the data utilised, this examiner's view had little relevance.
The Investigation Report is undated. The agreed chronology, before the Court dates the Investigation Report as 15 August 2022. On 27 September 2022, the Vice-Chancellor of the University notified the plaintiff of his decision being a finding of misconduct and an expulsion from the Doctor of Philosophy (Medicine) award course.
Before dealing with the decision of the Appeals Committee, it is necessary to make some reference to the grounds upon which the plaintiff appealed to the Appeals Committee against the initial decision. Ground 1 of the appeal to the Appeals Committee was against the finding of misconduct and alleged that the finding was "unreasonable or cannot be supported having regard to the relevant evidence". It refers to the Investigator's finding, to which earlier reference has been made that the Figures were "intentionally manipulated and falsified".
The ground of appeal alleged that the finding does not sufficiently recognise that the errors had little or no impact upon the results, happened within the control groups, which are prone to human errors, and there was no motive actively to mislead anyone. Further, it alleges that the errors "are capable of falling within an acceptable band of practice".
Lastly, it suggests that the Investigator's finding as to manipulation and falsification, cited above, infects the whole of the report and renders its findings "invalid and/or a nullity".
Ground 2 of the appeal to the Appeals Committee alleged that the finding of misconduct was made in breach of procedural fairness because it was undertaken by the Investigator as the nominee of the Registrar; found that the allegations of the alleged misconduct were effectively substantiated on the balance of probabilities; was referred by the Registrar to the Vice-Chancellor, who accepted the findings of the report and, in so doing, relied upon and had available to him "undisclosed, additional information".
Further, the appeal to the Appeals Committee alleged that the nominee of the Registrar did not have the power to conduct an investigation into alleged research misconduct and the Vice-Chancellor's acceptance of the findings was in breach of s 4.6(1)(c) of the Rule.
The appeal to the Appeals Committee raised those issues in a number of ways, which, for the purposes of these reasons, it is unnecessary to summarise beyond that which has already been stated. Lastly, the appeal to the Appeals Committee alleged that the penalty imposed was "excessively inappropriate". The particulars refer to the plaintiff's nationality and the fact that English is not the plaintiff's first language.
Further, it refers to the previous qualifications of the plaintiff in pharmacy and that the plaintiff is on a student Visa, the conditions of which include that the plaintiff must meet satisfactory course progress requirements, maintain her course enrolment and satisfactory course attendance, and ensure satisfactory progress.
As a consequence, the penalty imposed in the Initial Decision involved the plaintiff being in breach of the terms and conditions of her Visa. The plaintiff is therefore at risk of being deported.
The submission below then refers to the fact that the plaintiff has expended between $160,000 and $170,000 (AUD) in pursuing the course and is currently suffering "psychological detriment" as a result of the allegations of misconduct.
The plaintiff described the penalties imposed by the University as including the finding of misconduct and otherwise, the expulsion from the PhD award course, the recording of the alleged misconduct on the plaintiff's internal and external academic transcripts, the forfeiture of fees, and the withdrawal of benefits and alleges that such penalties are "excessive and oppressive".
A further ground of appeal was stated, being a repetition of the allegation that the penalty is quite excessive or inappropriate and cites as a particular, cl 19(2) of the Research Code of Conduct 2019, with submissions in relation to each factor to be considered in determining the seriousness of a breach.
On 13 March 2023, the Appeals Committee issued its decision. As can be seen from the earlier Statement of Student Discipline Rules, the Appeals Committee was required to provide the plaintiff and the Registrar written notice of its reasons for decision. [33] The written reasons are brief.
The foregoing comment as to the brevity of the Appeals Committee Decision (hereinafter "the Decision") is not and could not be a criticism. A requirement to provide reasons for decision should not be understood as requiring lengthy or discursive reasons. [34]
In order to fulfil the usual minimum legal standard, the reasons of an administrative tribunal, even on appeal or especially on appeal, need not be extensive. Rather, those reasons should disclose the basis upon which the decision was reached. [35]
While there may be significant differences between the duties imposed on a judicial officer exercising judicial power to those imposed upon an administrative decision-maker, including on appeal, as to the contents of reasons for judgment or decision, even in relation to a judgment of the court, the duty to provide reasons does not extend to providing reasons in respect of every matter of fact or law which was or may have been raised in proceedings. [36] All that is required is that the decision-maker adequately exposes the reasons for the outcome. [37]
As the High Court has clarified, [38] , once the legislative scheme requires the publication of reasons, it will be an error of law for reasons not to be published. However, there are differences of approach as to the proper remedy where reasons that are published are inadequate.
In these proceedings, no one raises inadequacy of reasons as a ground of appeal or judicial review. However, at least from one aspect, a failure to clarify (as is the submission of the plaintiff) the view of the Appeals Committee on each of the mandatory criteria said to be applicable may merely be a failure, expressly in the reasons for judgment, to provide the reasons that a factor of that kind was not taken into account. It is unnecessary to decide this issue finally in these proceedings.
Returning to the terms of the decision of the Appeals Committee, the Appeals Committee set out the nature of the proceedings and the nature of the appeal that had been lodged, including the grounds upon which the plaintiff relied. The decision then sets out the background to the appeal, including the exchanges between the plaintiff and the Registrar and the Vice-Chancellor. In relation to the finding of misconduct, the Appeals Committee recounted that the plaintiff acknowledged that the data in her thesis had errors but relied upon lack of intention, which, according to the plaintiff, was due to the stress of trying to submit her thesis on time and was not intended to manipulate the data.
Further, the plaintiff claimed that the errors were very minor. The error, it was alleged, in one of the figures was due to a labelling error, and the plaintiff submitted that because her errors were unintentional and she was sorry, a finding of misconduct was not reasonable.
The Decision then summarised the plaintiff's submissions in relation to penalty, which it was said was excessive and inappropriate. Apparently, the plaintiff submitted that she was a published researcher, and a penalty of expulsion was too harsh for an unintentional mistake.
The plaintiff further submitted that a more appropriate penalty would have been either to suspend the penalty of an expulsion and allow the plaintiff to submit and subsequently make corrections to her thesis. The plaintiff submitted that she had dedicated over three and half years of her life to working on the PhD and had lost a further two years of her life to the investigation process.
The Decision then summarised the submissions of the University, which were described as "extensive". It relied upon the evidence available to the Investigator whose report was before the Appeals Committee, and the finding of misconduct was reasonable.
As to the submission that the plaintiff should be allowed to re-submit her thesis again, the University referred to cl 18(8) of the University's Thesis and Examination of Higher Degree by Research Procedures 2020, which provided that only two such submissions were available, which had been exhausted, and a third submission of the thesis was not permitted. [39]
Over and above the foregoing, the Appeals Committee, in the Decision, recounted further submissions by the legal representative on behalf of the plaintiff to the effect that there was no evidence to refute the argument that the mistakes by the plaintiff were honest and, as they were honest, the highest penalty should be a reprimand and an expulsion was not commensurate with the conduct. Further, the legal representative referred to the apprehended bias associated with the dual role played by the Investigator. The Appeals Committee stated that it was aware of the Investigator's roles and was satisfied there was no conflict.
The Appeals Committee Decision recorded that the Appeals Committee accepted that the plaintiff may have made an unintentional mistake in the labelling of one of the figures but took the view that a mistake of that kind did "not negate the fact that the mistake occurred in the second submission of her PhD thesis, having been given an opportunity to revise and re-submit following the original examination. As such, the [Appeals Committee] considered the mistake to be reckless and not acceptable for a published researcher." [40]
The Decision records that the Appeals Committee accepted that the errors occurred in a minor part of the thesis and did not affect the hypothesis or conclusions. However, the Appeals Committee recorded that they "did not agree that this made the issue less serious, and considered that it was not acceptable for a revised and re-submitted thesis to contain errors of this nature".
The Decision went on to accept the findings of the Investigator that in relation to another of the figures in the thesis, the plaintiff not only failed to acknowledge someone else's work but cited herself as the author of the data and directly claimed the work as her own in circumstances where each of the examiners had identified multiple examples of a failure to cite or acknowledge sources in the first thesis submission. The Appeals Committee considered that the plaintiff's use of multiple incorrect images and lack of referencing "constituted a significant departure from accepted practice and was reckless, thereby warranting a finding of misconduct". [41]
The Appeals Committee rejected the procedural fairness submission and described the process as thorough and one in which the plaintiff had been granted extensions of time and a rescheduling of the hearing date to accommodate additional submissions on behalf of the plaintiff. As earlier stated, the Appeals Committee did not accept the bias aspect and the conflict of interests associated with the role of the Investigator.
After accepting the University's written arguments on lack of breach of cl 19(2) of the Research Code of Conduct 2019, the Appeals Committee recorded the following:
"* The [Appeals Committee] accepted [the plaintiff's] argument that a penalty of expulsion was not commensurate for conduct that may have been unintentional. However, the [Appeals Committee] considered that [the plaintiff's] conduct was reckless and noted that her thesis lacked appropriate referencing even after revision. As such, the conduct was serious, and a significant penalty was warranted. Therefore, the [Appeals Committee] decided to impose a less severe penalty of an exclusion from the [course] for four years, with the exclusion to begin in Research Period 1 2023.
* The [Appeals Committee] accepted the University's submission that the only available outcomes of examination were to: award without conditions, award with corrections, and non-award with the option to award another degree. The [Appeals Committee] considered that, given the academic integrity issues, it would not be appropriate to award [the plaintiff] another degree, or to allow her to submit and subsequently make corrections to her thesis, but noted that it had no power to do so in any event."
It is important that the investigation be independent of University personnel involved in the allegations, but, otherwise, the separation from the University is not essential. However, it is not the investigation that is the subject of complaint or was the subject of complaint before the Appeals Committee.
Rather, it is the appointment of the Investigator (or someone associated with the Investigator) as an "advocate" before the Appeals Committee on the appeal. The Appeals Committee may inform itself on any matter relevant to the grounds of appeal and in any manner that it thinks fit, and the "advocate" on behalf of the University is not a member of the Appeals Committee.
By cl 5.3(7) of the University of Sydney (Student Discipline) Rule 2016, the Registrar designates a person to attend an appeal hearing on behalf of the University and present the evidence on which the allegation of misconduct is based and make submissions about the alleged misconduct, the grounds of appeal and the penalty. In other words, the person appointed by the Registrar does no more than emphasise the nature of the Investigation Report already before the Appeals Committee and the contents of which were well known to the plaintiff.
In many respects, having the Investigator as the person representing the University may, given the role of the designate, a perfect choice. The choice does not impact the independence of the Appeals Committee or provide a ground for perceived bias for the members of the Appeals Committee and does not otherwise impact the material before the Appeals Committee, nor the material before the Court.
As a consequence of the foregoing analysis, the issue of bias is untenable and was untenable before the Appeals Committee. In any event, the Appeals Committee dealt with the issue, albeit briefly. It is unclear why the issue was raised before the Court in circumstances where it does not form a ground of judicial review brought in the Summons.
Because of the nature of the issues raised by the plaintiff in Ground 1, it is appropriate to deal with the submissions on such issues after dealing with Ground 2. Ground 2 relies upon the principles outlined by the High Court in Dranichnikov [45] and criticises the Decision for failing to consider claims raised by the plaintiff in the appeal to it.
First, it complains that the primary decision of the Vice-Chancellor referred to "the Investigation Report and additional information" without identifying the additional information. Without accepting that there was information before the Vice-Chancellor that had not been identified to the plaintiff, there is no suggestion that the Appeals Committee had material before it of which the plaintiff was unaware.
If there were to have been material before the Vice-Chancellor that was taken into account by the Vice-Chancellor (a possibility on which I make no comment in the absence of evidence), then the denial of procedural fairness was cured by the assessment of the Appeals Committee. [46]
There is no evidence that the Appeals Committee relied upon material that was not known to the plaintiff. Moreover, at this point, it would be necessary to show that even though the Vice-Chancellor referred to material that was not particularised and/or identified, it was not material of which the plaintiff was unaware and with which the plaintiff could not deal. Neither of those have been satisfied.
The second particular upon which the plaintiff relies in relation to Ground 2 is the same as Ground 1 and will be dealt with later in these reasons. The third particular challenges the validity of the appointment of the Investigator, the effect of which is unclear.
The Investigator's findings were either accurate or not. It is uncontroversial that there were figures in the second iteration of the thesis which were inaccurate and plagiarised from others.
The plaintiff is required to invalidate the decision of the Appeals Committee, which is the operative decision, by disclosing that it made factual errors, applied wrong principles, made an error of law or other jurisdictional error. The circumstance, if it were a circumstance, that the Investigator was invalidly appointed or not appointed at all does not invalidate the finding of primary facts, which, in these proceedings, is uncontroversial.
There is no issue between the parties as to the primary facts. The issue between the parties is the conclusions that should have been reached as a consequence of those primary facts.
Moreover, the proposition refers to the lack of evidence to establish a valid appointment. In the absence of an objection or issue taken during the course of the administrative process, why would evidence ever be adduced to establish the appointment of the Investigator?
There are then complaints about the Investigation Report based upon the lack of the Investigator's scientific qualifications, the non-application of the "Briginshaw standard" (sic), the failure to engage in the Investigation Report with the plaintiff's explanation for the plagiarism, the Investigation Report omitted an interview with a consultant expert, which was contained in Annexure A to the Report; the Investigation Report's failure to consider the plaintiff's explanation for the duplication of a figure at Figure 4.12 and the "flipping" of the figure; the failure to consider a preliminary assessment report; the failure of the Investigation Report to address properly and independently all of the plaintiff's explanation including the "uncritical acceptance" of the opinion of experts; and corroborative material that is said to support the plaintiff's claim that the plagiarism was an honest and unintentional mistake.
The foregoing submission misses the point. It is the decision of the Appeals Committee that is subject to judicial review in these proceedings. The primary facts relating to plagiarism are not in issue. The Investigation Report reaches certain conclusions as to the intention and deliberateness of the plagiarism. Those conclusions were not accepted by the Appeals Committee.
Further to the foregoing, it should be stated that the principles in Briginshaw [47] do not establish a different "standard of proof". In civil matters, the standard of proof remains "the balance of probabilities".
The principles established by the High Court in Briginshaw do not alter that standard of proof. Rather, they establish and/or clarify that when serious allegations are made, the seriousness of the allegation is considered, rendering proof of the allegation more difficult because even the balance of probabilities a fact is more difficult to establish.
The plaintiff complains that the comments of the Appeals Committee were "very scant", but as earlier stated, the Decision need not have been lengthy, and the principles clarified by the judgment of the High Court in Dranichnikov do not require any greater length.
Further, as already stated, the primary facts were uncontentious. The plaintiff initially submitted a thesis. Some of the complaints in relation to that thesis were the failure to acknowledge the work of others and plagiarism. The plaintiff was given an opportunity to re-submit the thesis.
In the final submission of the thesis, having been made aware of the risk associated with failure to acknowledge the work of others and/or plagiarism, the plaintiff proceeded to submit her thesis, which labelled the work of others as her own and rejigged the work of others. If the plaintiff were there committing an honest mistake, the possibility for which was accepted by the Appeals Committee, it does not make the decision of the Appeals Committee, namely that the primary facts amount to misconduct, unlawful, invalid or otherwise not open.
Further, and most importantly, the conclusion of the Appeals Committee deals fully with the argument which, fundamentally, is based upon the motivation of the plaintiff and the proposition that the plagiarism was an honest and unintended mistake.
The plaintiff, in relation to Ground 2, has not disclosed error of law or error of jurisdiction, and Ground 2 should be dismissed.
I turn then to the issues raised by Ground 1. In essence, the plaintiff submits that the provisions of r 3.4 of the University of Sydney (Student Discipline) Rule 2016 are mandatory and the factors there promulgated are required to be taken into account by the Appeals Committee in imposing a penalty and they did not. It is necessary to examine the Decision and read it as a whole.
The terms of r 3.4 have been previously recited. Notwithstanding the earlier stated principle relating to the construction of an instrument such as this, and bearing in mind that one does not start from the proposition that the Rule is "mandatory", the Court as presently constituted accepts that the criteria are criteria that are required to be taken into account when relevant.
As earlier stated by reference to judgments of the High Court, jurisdictional error occurs when an administrative decision-maker fails to take into account a relevant consideration where that relevant consideration is required to be taken into account. It is necessary to deal with the considerations prescribed by r 3.4.
It must be noted that r 3.4 deals with the penalty to be imposed for misconduct. Thus, r 3.4 has no application until the Appeals Committee finds misconduct or misconduct is accepted.
The first criterion in r 3.4 is the nature, frequency and seriousness of the misconduct. The Appeals Committee set out at length the nature of the misconduct, being the plagiarism (by which term I include unsourced material), how often it occurred in the second iteration of the thesis and discussed at length the seriousness of the misconduct in dealing with whether misconduct occurred. It is unnecessary, as a result of the provisions of r 3.4, for the Appeals Committee to reiterate all of that discussion on the sentence aspect in the same decision. Plainly, the Appeals Committee took that into account in determining the appropriate penalty.
I turn then to discuss the criteria expressed in paragraphs (b), (c) and (d). Like all instruments, the Rules must be read as a whole, and each Rule must be read as a whole. The terms of r 3.4(1)(f) require, relevantly, the Appeals Committee to take into account "any relevant mitigating circumstances". It certainly does not express itself as "any other relevant mitigating circumstances".
The terms of paragraphs 3.4(1)(b)-(d) refer to aggravating circumstances. A previous record of misconduct or major breach of integrity, previous penalties imposed, and other requirements imposed as a result of a major breach of academic integrity are aggravating circumstances in the imposition of a penalty. In this case, there was no previous record of misconduct or major breach of academic integrity, no previous penalties were imposed, and no requirement was imposed on the plaintiff as a result of a major breach of academic integrity.
In those circumstances, it is for the plaintiff to establish the relevance of any one of those considerations. The considerations in r 3.4(1) are not a checklist requiring any of the persons who are required to impose a penalty to check off any and all of the criteria there described. None of those considerations apply to the plaintiff.
There are two other considerations prescribed by the provisions of r 3.4(1). Further, the decision-maker, in this case, the Appeals Committee, is entitled to take into account other relevant matters as they consider appropriate. [48] There is no suggestion that a relevant matter that fell within the provisions of r 3.4(2) was argued, which the Appeals Committee failed to take into account and/or to consider. Nor is it suggested that there were "relevant mitigating circumstances" that were addressed to the Appeals Committee with which the Appeals Committee failed to deal.
The only other consideration relates to "the timing of any admission…of the misconduct". The plaintiff has never admitted misconduct.
The plaintiff has argued that the plagiarism was innocent and accidental and did not amount to misconduct. As a consequence, the consideration in r 3.4(1)(e) was also not relevant to the imposition of the penalty.
The plaintiff did admit to the conduct, namely that there was work in the thesis that was not properly credited, acknowledged and sourced but at all times argued that the lack of intention of the plaintiff rendered that conduct other than misconduct.
The principles established by the High Court and followed by all other courts in this country arising from the judgment in Dranichnikov [49] are an aspect of natural justice. There is and has always been an implied intention of the legislature that a power reposed in an administrative body must be exercised reasonably.
A court on judicial review holds invalid an exercise that is legally unreasonable and, in that context, sets aside an administrative decision that fails to have regard to substantial and clearly articulated argument advanced by a party who is adversely affected by the administrative decision. In such circumstances, the administrative decision is unreasonable, and the hearing rule associated with natural justice has been breached.
The circumstances in this case are vastly different. As can be seen from the extract of the two paragraphs of the Appeals Committee Decision above, [50] the Appeals Committee accepted the argument that the penalty imposed by the Vice-Chancellor was excessive or, more accurately, "not commensurate for conduct that may have been unintentional". In other words, the Appeals Committee accepted that the conduct may have been unintentional and imposed the penalty in that context. In so doing, the Appeals Committee considered that the expulsion was "excessive" or "inappropriate".
It also accepted the University's submission that a third iteration of the thesis was not open to the plaintiff. No challenge is made to that determination.
The Appeals Committee took into account all relevant considerations. The plaintiff has failed to establish to the Court, as presently constituted, an error of law or an excess or want of jurisdiction for which orders in the nature of certiorari ought to issue or for which declarations would issue.
The Court makes the following orders:
1. Judgment for the defendant;
2. Summons dismissed;
3. The plaintiff shall pay the defendant's costs of and incidental to the proceedings.
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386, cited with approval in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269 (Mahoney JA at 258 (per Kirby P) and at 280 (McHugh JA).
Ibid.
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2010] HCA 43.
Ex CB1, p 148.
Ex CB1, p 60.
Ex CB1, p 60.
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088.
Sullivan v Department of Transport (1978) 20 ALR 323 at 343.
Dranichnikov, supra [24]-[25]; Plaintiff M1/2021M1 v Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ).
Dranichnikov v Minister for Immigration and Multicultural Affairs, supra.
Calvin v Carr [1979] 1 NSWLR 1.
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
Rule 3.4(2) of the University of Sydney (Student Discipline) Rule 2016, Ex CB1, p 79.
Dranichnikov v Minister for Immigration and Multicultural Affairs, supra.
At [174] infra.
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Decision last updated: 13 September 2024