Mbuzi v The University of Queensland [2010] QSC 153

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY - where Applicant seeks judicial review of various decisions made by the University of Queensland - where Applicant relies on numerous grounds of review including breach of natural justice, failure to follow applicable procedures, excess of authority, improper exercise of power, error of law, absence of evidentiary foundation for decisions made, bad faith or improper motive or of one officer acting as the cipher or at the behest of others - where Respondents contend that Applicant's application for Judicial Review is vexatious - whether grounds of review are made out - whether Applicant's application is vexatious

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY - FAILURE TO OBSERVE STATUTORY PROCEDURE - where Applicant seeks judicial review of various decisions made by the University of Queensland - where application made beyond 28 day period prescribed by s 26(2) Judicial Review Act 1991 (Qld) - where Applicant seeks extension of time - where Respondents seek dismissal of Applicant's application on the basis that it was made beyond the prescribed 28 day period - whether extension of time should be granted

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY - FAILURE TO OBSERVE STATUTORY PROCEDURE - where Applicant seeks judicial review of various decisions made by the University of Queensland - where Respondents seek dismissal of Applicant's application pursuant to s 13 Judicial Review Act 1991 (Qld) on the basis that the Applicant had been entitled to a review hearing before the University of Queensland's Discipline Appeals Committee and did not pursue that appeal - whether Applicant should have pursued the appeal before the Discipline Appeals Committee

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY - OBSERVANCE OF PROCEDURES - where Applicant raised a new matter in the course of oral submissions in reply - where matter not raised as a ground of review in the Applicant's application - where Applicant contends that proceedings before the University of Queensland's Disciplinary Board were out of order because they were commenced more than 28 days following the University's receipt of complaints against the Applicant - whether matter appropriately raised in reply - whether Applicant's construction of University of Queensland Statute No. 4 (Student Discipline and Misconduct) 1999 should be adopted

Judicial Review Act 1991 (Qld), s 13, s 20, s26(2), s 49(4)

University of Queensland Act 1998 (Qld), s 52(2)(c), s 53

University of Queensland Statute No. 4 (Student Discipline and Misconduct) 1999

Hoffman v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369, applied

Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, applied

[1] CHIEF JUSTICE: By his application filed 27 August 2009 naming the University of Queensland as sole respondent, the applicant sought, under the Judicial Review Act 1991 (Qld):

(a) a review of the University's "decision without reason...not to provide (him) with transcript of proceedings of their Disciplinary Board meeting at which (his) doctoral candidature was suspended; and

(b) a declaration that the respondent's "defamatory and guilt statements" about him were baseless.

[2] On 26 February 2010, the applicant filed an amended application, to which the only parties are Professor Michael Keniger, the Deputy Vice Chancellor (Academic) at the University of Queensland; secondly, Associate Professor Lawrence Gahan, Acting Chair, Disciplinary Board; and third, "The University of Queensland Secretary and Registrar". That amended application seeks review under the Judicial Review Act of the following:

(i) Professor Keniger's decision on 17 April 2007, termed a decision "to resurrect previous allegations...for which determinations had already been made...";

(ii) Professor Keniger's alleged decision "without facts or reasons...not to restore (the applicant's) status quo even after the period of suspension";

(iii) the alleged decisions of the Secretary and Registrar:

A. "to constitute deliberations of the...Disciplinary Board",

B. to furnish the Board with the report of an investigation,

C. to implement the decision to suspend the applicant;

(iv) Associate Professor Gahan's alleged decision to suspend the applicant for 12 months;

(v) the alleged decision of Associate Professor Gahan and the Secretary and Registrar finding the applicant guilty of sexual harassment;

(vi) the alleged failure of the Secretary and Registrar to provide the applicant with a transcript of the Disciplinary Board proceeding.

[3] The applicant relies on a raft of grounds, including breach of the rules of natural justice, failure to follow applicable procedures, in the case of Associate Professor Gahan - acting beyond his authority, improper exercise of power, error of law, absence of evidence supporting the decision made, bad faith, that Associate Professor Gahan acted at the behest of Professor Keniger and the Secretary and Registrar, and improper motive. They reflect many of the grounds set out in s 20 of the Judicial Review Act.

[4] On 12 February 2010, the respondents filed an application seeking the dismissal of the applicant's application on three grounds:

(a) that it was made beyond the 28 day period prescribed by s 26(2) of the Act;

(b) that insofar as it sought the review of a decision of the Disciplinary Board, the applicant had been entitled to a review hearing before the Discipline Appeals Committee, but did not pursue that appeal; and

The respondents also then filed an application for directions.

[5] On 18 February 2010, the applicant filed a second application, in which he sought summary dismissal of the applications by the respondents referred in paragraph 4 above, and judgment on his primary application for judiciary review.

[6] On 23 February 2010, Byrne SJA granted leave to the applicant to amend his primary application to add a claim for an extension of time under s 26 of the Judicial Review Act, and that was done.

[7] At the commencement of the hearing before me on 4 May 2010, the applicant sought an adjournment so that he could read the documents on his University file, to prepare to cross-examine Ms Bird, a deponent. He also submitted he should be permitted to cross-examine Ms Bird, in person, for up to 15 minutes on each of the four applications, necessitating the construction of Byrne SJA's orders of 23 February 2010. I ruled against the applicant's submissions, for reasons expressed at the time, and they may be transcribed as necessary.

[8] (a) In April 2007, the applicant was enrolled at The University of Queensland as a part-time PhD student in the School of Social Work and Applied Human Sciences. The University received complaints from fellow students, alleging that the applicant had been guilty of sexual harassment.

(b) By letter dated 10 April 2007, Professor Keniger notified the applicant of the fact that the complaints had been made, and proposed a meeting on 12 April. That meeting occurred. The applicant swears that Professor Keniger said at the end of the meeting that the allegations "had been made on mere perceptions and that they were not going to be pursued any further". Following the meeting, Professor Keniger wrote to the applicant on 16 April saying that while he had not formed a judgment on the complaints which, for the moment, he had set aside, he proposed to move the applicant to another work area as a "circuit breaker". He asked the applicant in that letter "not to seek to establish the identity of the complainants who are entitled to confidentiality". That is the letter involved in the first challenge (Section A para [2](i) above).

(c) On 17 April 2007, the applicant wrote to Professor Keniger asking him to withdraw his letter of 10 April, communicate that withdrawal to others who may have become aware of it, or face the prospect of a $50,000 defamation suit. On 14 May 2007, Professor Keniger wrote in response, observing that because the applicant apparently did not wish to accept the conciliatory approach he (Professor Keniger) had offered, he was activating the formal process for consideration of the complaint. He enclosed a copy of the complaint and invited a response.

(d) A Disciplinary Board met on 24 August 2007. It considered the statements of the complainants, and heard from the applicant. The Board found the applicant guilty of misconduct, and the Acting Chairperson suspended him for 12 months, from 31 August 2007 to 1 September 2008. On 29 August 2007, Associate Professor Gahan notified the applicant of the decision. Professor Gahan advised the applicant of his right of appeal to the Discipline Appeals Committee.

(e) The applicant replied on 1 September 2007 demanding that the suspension be lifted. The suspension remained in place. The applicant instituted an appeal to the Discipline Appeals Committee, on 12 September 2007. There were subsequent communications between the applicant and officers of the University. On 10 October 2007, Mr Taylor, the Secretary of the Discipline Appeals Committee, wrote to the applicant referring to the applicant's earlier intimation that he intended to withdraw his appeal. Mr Taylor reminded the applicant that the hearing was scheduled for 31 October 2007. On 18 October 2007, the applicant wrote to Mr Taylor advising in essence that he would be pursuing his challenge before a court of law, saying that he no longer had confidence in the University process.

(f) Following the end of the 12 month period of the applicant's suspension, the applicant was advised on 14 October 2008 that his PhD candidature had been re-activated, and of steps he needed to take to update his "advisory team details" and to revise his "research project plan". He did not take those steps. On 1 December 2008, the applicant was advised that if he failed to do so by 15 December 2008, his candidature would be withdrawn and his enrolment cancelled. He did not respond. His candidature was withdrawn by the University.

(g) The applicant's next contact with the University was the service of his judicial review application which he had filed on 27 August 2009.

(h) It remains to mention that on 16 October 2008, the applicant requested a copy of a transcript of the Disciplinary Board hearing of 24 August 2007, and a record of its proceeding was emailed to him on 30 October 2008, at his student e-mail address, which the respondents' solicitor swears was then still accessible.

[9] The challenged decisions or proceedings occurred at the following times, as may be drawn from the recitation of the factual circumstances in section B of this judgment. I adopt the numbering in paragraph 2 of section A of the judgment.

(i) Professor Keniger's decision based on complaints subsisting though in abeyance: 17 April 2007.

(ii) Professor Keniger's alleged failure to reinstate the applicant after the 12 month suspension: 1 September 2008.

(iii) the alleged decisions of the Secretary and Registrar:

a. constituting a Disciplinary Board hearing: prior to 24 August 2007.

b. furnishing the Board with the investigative report: prior to 24 August 2007.

c. implementing the decision as to suspension: 31 August 2007.

(iv) the alleged decision of Associate Professor Gahan in relation to the suspension: 29 August 2007.

(v) the alleged decision, allegedly of Associate Professor Gahan and the Secretary and Registrar, re the applicant's guilt on the complaint: 29 August 2007.

(vi) alleged failure to provide transcript: no later than 30 October 2008.

[10] It will be seen that in filing the originating application on 27 August 2009, the applicant was well out of time. In that application he did not seek most of the relief now pursued in the amended application. That amended application was not filed until 26 February 2010.

[11] The applicant has not given evidence explaining his failure to apply within time, or of any reason sufficient to justify an extension of time, let alone an extension of the substantial proportion he needs. The evidence shows he was speaking of judicial review as long ago as 10 September 2008. See Ex 7 to applicant's affidavit, doc 15, p 3. The absence of any explanation is at least a persuasive factor against granting an extension: Hoffman v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369 at 372; Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663 at 665.

[12] The University refers to the following arguable prejudice were time now extended:

(a) The first decision challenged resulted in the appointment of an independent investigator to gather evidence, of which the applicant was advised, and the proceeding before the Disciplinary Board, all of which could have been avoided were Professor Keniger's decision to proceed successfully challenged in a timely way.

(b) Because the applicant did not bring a proceeding within time, and because he served out the period of the suspension, the University is now left in a position where, if time were extended and the challenge upheld, no effective remedial action could be taken.

[13] In the exercise of the discretion to extend time, the absence of any explanation for the delay which has occurred here, the very substantial magnitude of that delay, and though less tellingly, there being some possible prejudice were time to be extended now, combine to warrant the refusal of the extension of time which has been sought.

[14] In any event, for reasons I will now express, the applicant's application for judicial review is devoid of merit.

D. The fundamental problem with the applicant's application

[15] All of the issues now raised could have been raised before the Discipline Appeals Committee, save those which arose subsequently ("transcript" issue, and withdrawal from course). The applicant chose not to pursue the appeal he instituted before that Committee.

[16] Section 13 of the Judicial Review Act provides that the court must dismiss an application, if in the interests of justice, where provision is made by law under which the applicant may seek the requisite review before another authority.

[17] Such review was available to him before the Discipline Appeals Committee constituted under the University of Queensland Statute No. 4 (Student Discipline and Misconduct) 1999 (Ex 1). That statute was made under s 52(2)(c) of the University of Queensland Act 1998 (Qld), so is a "law" for the purposes of s 13 of the Judicial Review Act, because s 53 gives a university statute the status of subordinate legislation.

[18] There is no reason why the applicant should not reasonably have been required to pursue that appeal. The interests of justice did not tell otherwise.

[19] The applicant's central contention is that Professor Keniger's early decision to instigate the complaints process was infected by bad faith. If that contention had substance, there might arguably have been ground for court proceedings in lieu of the appeal to the university committee.

[20] The applicant's first complaint is that having said at the meeting on 12 April 2007 that "he had concluded that the allegations had been made on mere perceptions and that they were not going to be pursued any further", Professor Keniger wrote on 16 April 2007 as if the complaints were subsisting. That was the letter in which Professor Keniger proposed the "circuit breaker" - relocation of premises. In the letter he said this:

"I emphasised that I had not formed a judgement concerning the complaint that I had received and for the moment had set the complaint aside.

While there is some difference between that and what the applicant says Professor Keniger said at the conclusion of the meeting, Professor Keniger was not barred from changing his mind on further consideration, and he was apparently motivated to resolve the difficult position which confronted him, hence the constructive proposal which he put forward.

[21] The applicant contended that he complied with Professor Keniger's basis for his conciliatory approach - his request that the applicant move to other premises at the University and not disclose the identity of the complainants (the condition was actually that he not seek to establish those identities), and that consequently, Professor Keniger's letter of 14 May 2007 amounted to an act of "revenge" because the applicant had "asserted the right to clear (his) name before a court of law".

(In response to a submission made by the applicant, I should say that I take the view that it was Professor Keniger's letter of 14 May 2007 which set the complaint process in train, not the letter of 9 May 2007 from the Secretary and Registrar.)

[22] Professor Keniger's instigation of the complaint procedure was motivated by two circumstances: first, his interpretation of the applicant's querulous letter of 17 April 2007 as evidencing the applicant's unwillingness to cooperate in the so-called "conciliatory approach"; and second, the wish of the complainants to have their complaints processed (see p 10 exhibit to affidavit of Ms Bird, doc 7).

[23] As to the former, it is sufficient for the determination of this application to note that the applicant's letter was reasonably susceptible of that interpretation, especially noting the threats on page 3 of the letter.

[24] The latter was plainly a relevant, and arguably dominant, consideration.

[25] I consider there is no basis for the applicant's contention as to bias and improper motivation. Accordingly, there was no arguable reason why he should not have pursued his appeal in respect of those matters before the Discipline Appeals Committee.

[26] In section D above I dealt with the challenge to the decision of Professor Keniger to which the applicant mounts his primary challenge, being the decision referred to in paragraph (2)(i) in section A. I now turn to the other challenged decisions, adopting the numbering in section A, paragraph 2.

[27] On the evidence before me, the applicant's candidature was in fact re-activated following the expiration of the 12 month suspension. See affidavit of Ms Bird, doc 7, p 46 of exhibit. What then occurred was that the applicant was required to follow steps to bring his "advisory team details" and "research project plan" up to date. He did not follow those steps, and following warnings, was withdrawn from the course.

[28] The withdrawal was the action of the University. See pp 51, 52 of exhibit to Ms Bird's affidavit. The applicant complained before me that the University appeared deceitfully to be suggesting that he, the applicant, voluntarily withdrew from the course. But an examination of the evidence shows that this was not so. The letter withdrawing his candidature was addressed to him at his street address. I mention the address because of suggestions that he did not receive documentation sent to his email address. Also, there is the circumstance that the University would appear amenable to receiving an application for reinstatement, which runs against any suggestion that it was, for improper reasons, bent on excluding the applicant from the course come what may. (See p 1 of the exhibit to Mr Bartley's affidavit filed by leave.)

Decision (iii): the constituting of the Disciplinary Board

[29] This is a standing board. Clause 13 of the University Statute constitutes it. It is not constituted by the Secretary and Registrar, as contended by the applicant, whose complaint is misconceived.

[30] The applicant's contention is that the Disciplinary Board made only a recommendation to Professor Keniger and the Secretary and Registrar, so that they were the final decision makers (tying into the alleged bias of Professor Keniger allegedly informing the process from the start). The contention cannot be sustained. Under clause 10(7) of the Statute (Ex 1), it is the Chairperson of the Board who actually orders suspension ("the chairperson of the board, on the advice of the board"), and that is in fact what occurred here. Associate Professor Gahan was the acting chairperson, as contemplated by cl 13(6) of the Statute. In imposing the suspension, he constituted the Board.

Decision (v): finding of guilt of charges under complaints

[31] The applicant complains that the Board should not have proceeded, absent independent evidence, on the evidence of the complainants alone. That is itself unsustainable. But even apart from that, the Board's expression of its reasons shows that the Board was influenced, probably substantially, by its adverse view as to the credit-worthiness of the applicant, who had given his account, or parts of it, orally before the Board. (He was given a full opportunity to present his case before the Board.) See p 17 of the exhibit to Ms Bird's affidavit. The Board was entitled to take that approach.

[32] The respondents' solicitor's affidavit swears that the "transcript" was provided. See affidavit of Mr Bartley, doc 3, paras 4(c), 7. The applicant labelled the solicitor's sworn statement about that as a "lie". There was no cross-examination of Mr Bartley.

[33] In his closing address, the applicant relied on the circumstance that what was from time to time referred to as the "transcript" of the proceedings before the Disciplinary Board (and is actually headed "Transcript of Proceedings") was in fact a synopsis, albeit a comprehensive synopsis. It is a closely-typed seven page document.

[34] In her affidavit, Ms Bird acknowledged that no full transcript was prepared of hearings before the Disciplinary Board.

[35] There is no ground for the claims of deceit which were advanced by the applicant. There was no lack of frankness of the part of the University or its solicitor. See additionally Ex 2, Mr Bartley's letter of 2 November 2009, para 1.

[36] For present purposes, the relevant point is that the only available record of the proceeding before the Disciplinary Board, being the comprehensive record of proceedings, was in fact provided by the University to the applicant.

[37] In the course of his oral submissions in reply, the applicant raised for the first time a contention that the proceedings before the Disciplinary Board were out of order because they were commenced more than 28 days following the University's receipt of the complaints. Clause 8 of the Statute (Ex 1) provides:

(1) A decision-maker must not proceed against a student unless an allegation notice has been given to the student within 28 days of the facts necessary to establish misconduct first coming to the notice of a decision-maker.

(2) A decision-maker must decide the case within 28 days of the day notice was given, or within a longer period if the student and the secretary and registrar agree.

(3) Before a 28 day period runs out, a decision-maker may apply in writing to the vice-chancellor for a waiver of the need to comply with subsections (1) and (2).

(4) The vice-chancellor may issue a written waiver of the need to comply with subsections (1) and (2) if satisfied that the decision-maker has made a reasonable attempt to consult the student about an extension of the 28 day period and that the student's ability to address the allegations is not impaired."

In this case the "decision-maker" was the Disciplinary Board (cl 10(7)).

[38] The applicant said that on about 3 August he was told the matter would proceed to the Disciplinary Board. He said he received notice of the allegations on 9 August 2007. The Board met on 24 August 2007.

[39] The applicant submitted that the 28 day period prescribed by cl 8(1) ran from the date when the complaints were originally made to any university authority, that is, 22 March 2007. The clause provides, however, that the 28 day period commences when the facts necessary to establish the misconduct first come to the notice of the "decision-maker", in this case the Disciplinary Board.

"If a decision-maker decides to proceed against a student the decision-maker must given an allegation notice to the student, providing details of the alleged misconduct."

[41] It may be that the Disciplinary Board "decided to proceed" on about 3 August, when the applicant was told that the matter would be proceeding before the Board. The Disciplinary Board was then obliged to give the applicant an "allegation notice". It appears that that occurred six days later on 9 August. Inferentially, "the facts necessary to establish misconduct" came to the notice of the Board when it decided to proceed on the complaints. On that basis, the allegation notice would have been given to the applicant within time.

[42] However, the difficulty in determining the issue whether there was compliance with cl 8(1) is that there is no direct evidence of when the Board decided to proceed against the applicant. Had the point been raised as a "ground" in the applicant's application, it may be the University would have addressed it factually - albeit the applicant bore the onus of proof. Section 25 of the Judicial Review Act provides that an application "must...(b) set out the grounds of the application".

[43] What is clear is that the basis advanced by the applicant, that the 28 day period commenced when any university authority was first apprised of the complaints, is unsustainable. It is when the Disciplinary Board learnt the facts which matters.

[44] This matter was not appropriately raised in reply. As I have said, it should have been particularized as a ground of the application, to afford the University an opportunity to make a comprehensive factual and legal response.

[45] Further, it is a point which, again, could have been taken before the Appeals Committee, although the applicant would contend that because unaware at the time of the content of Ex 1 (a point he asserted only, from the Bar table), the interests of justice (s 3 Judicial Review Act) would run the other way.

[46] Had the applicant sworn to not having read the University misconduct statute until the first day of the hearing before me, Mr Bradley (for the respondents) would I expect have explored that in cross-examination, because the applicant otherwise displayed an acute awareness of his rights. It seems unlikely that the applicant, faced with these proceedings before the Disciplinary Board and the Discipline Appeals Committee, would not have been concerned to read the charter under which those bodies operate. (It is accessible on the Internet.) It is notable that the applicant refers to the Statute in para 5 of his affidavit filed as long ago as 23 November 2009.

[47] It was, as I say, most unsatisfactory that the applicant raised this challenge first in reply. When he did so, Mr Bradley demurred, though no doubt in recognition of the circumstance that the applicant was legally unrepresented, he did subsequently, if briefly, address the question of the construction of the statute.

[48] My primary approach is that the issue should not be considered. But alternatively, and in any event, I adopt the construction of the University statute set out above, which reflects Mr Bradley's submission. This demonstrates that the challenge mounted by the applicant, focusing on any university authority's first knowledge of the complaints, is untenable.

[49] There is nothing in the conduct of the University authorities in this case which could give rise to even suspicion that they were not committed to the proper discharge of their responsibilities in the matter. I have read all of the correspondence and carefully considered the applicant's complaints. They are without foundation. The University officers were apparently scrupulous in determining to process the matter with fairness, and they did so. The applicant was afforded every reasonable opportunity to answer the complaints, and to cooperate in the process which led to suspension.

[50] None of the grounds advanced by the applicant was established. There was no evidence of breach of natural justice, failure to follow applicable procedures, excess of authority, improper exercise of power, error of law, absence of evidentiary foundation for decisions made, bad faith or improper motive or of one officer acting as the cipher or at the behest of others.

[51] The applicant's application is properly characterized as vexatious.

[52] It remains to mention three miscellaneous considerations:

(i) The applicant raised the question whether the investigation report which was prepared before the Disciplinary Board hearing was placed before the Disciplinary Board, and if so, as to the correctness of that. It appears that only the recitation of the complainants' accounts was placed before the Board. See pp 12, 14 of the exhibit to Ms Bird's affidavit, doc 7.

(ii) I mentioned during the hearing my curiosity that the individual officers of the University (which is a body corporate) were named as respondents. My view was that the relevant respondent should really have been the University of Queensland itself, because the named respondents were acting in the matter on its behalf. But in the absence of objection, the hearing proceeded on the basis it was properly constituted.

(iii) The respondents' deponent Ms Bird was cross-examined by the applicant. The cross-examination took place on the basis of time limitations imposed by Byrne SJA in his order of 23 February 2010. Against an ordered limitation of 15 minutes, I allowed the applicant considerable leeway, and the cross-examination ended up lasting about 40 minutes. I did not consider that anything of utility to the applicant's case emerged through that cross-examination, and come the end of it, there was nothing sufficiently promising in the course being followed to warrant any further extension. In case it assumes significance, I confirm that I accepted the oral evidence of Ms Bird.

[53] The respondents sought orders that the applicant pay the costs of their application for dismissal of the judicial review application. Costs are in the general discretion of the court (s 49(4) Judicial Review Act). There is no reason why costs should not follow the event, and my conclusion that the primary application was vexatious positively supports the making of such an order.

(a) On the respondents' application filed on 12 February 2010, order that the applicant's amended application for judicial review filed 26 February 2010 be dismissed.

(b) Dismiss the applicant's application filed 18 February 2010.

(c) Dismiss the respondents' application for directions filed 12 February 2010.

(d) On all applications, order that the applicant for judicial review, Mr J Mbuzi, pay the costs of all other parties, to be assessed on the standard basis.