Monash University v Murthi

Federal Court of Australia|2024-06-21|Before: Wheelahan J

Introduction 1 Monash University has conducted investigations into an allegation that an academic member of staff, Dr Padma Murthi, engaged in plagiarism in breach of the Australian Code for the Responsible Conduct of Research 2018 (the Research Code). Dr Murthi denies this allegation, and claims that the University's conduct of its investigations has involved, amongst other things, a denial of procedural fairness in breach of the University's obligations under certain clauses of the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 (the Agreement). Dr Murthi has referred a dispute to the Fair Work Commission in relation to the claimed contraventions by the University, and seeks arbitral determinations including, relevantly, that in conducting its investigations the University did not comply with the Agreement, that Dr Murthi did not breach the Research Code, and that the allegation of plagiarism be dismissed. 2 In this Court, Monash University seeks a declaration that the Fair Work Commission does not have "jurisdiction" to determine whether Dr Murthi breached the Research Code, or otherwise to determine the merits or outcome of such an allegation, in the context of arbitrating a dispute about the application of the Agreement. The University also sought an interlocutory injunction directed to the Commission, restraining it from taking any further steps in relation to the determination of the dispute. However, because I listed the matter for an expedited final hearing, this application fell away. 3 For the reasons that follow, the University has not established that it is entitled to the declaration it seeks, and the proceeding will be dismissed.

The question in issue in this proceeding 16 The ambit of the issue raised by the University in this proceeding is whether the matters raised by Dr Murthi before the Commission involve a dispute "as to the application of [the] Agreement or any matters arising from it", being the relevant terms of clause 12.1(a) of the Agreement.

Further background 17 Until 31 December 2023, Dr Murthi was employed by the University as a Senior Research Fellow within the Department of Pharmacology. Since then, she has periodically been employed by the University in other casual academic roles. Dr Murthi is a reproductive biologist and placentologist with a doctorate from the University of Melbourne in extracellular matrix proteins in diabetic nephropathy. 18 In April 2019, an allegation was made against Dr Murthi by a former honours student that Dr Murthi had plagiarised some of that student's work in a published review article, and thus breached the Research Code, which is referred to in clause 62.1 of the Agreement. This allegation was then investigated by the University. The University's investigations involved a preliminary assessment and subsequently a first adverse finding in May 2020, and then upon a request by Dr Murthi that the University consider new evidence, a second adverse finding in March 2022. The new evidence relied on by Dr Murthi took the form of electronic documents on a USB device which Dr Murthi claimed showed that files that she had authored long before the student's honour's thesis was written contained the text and figures she was alleged to have plagiarised. Dr Murthi claimed that the new evidence showed that she could not possibly have plagiarised the student's honours thesis. 19 By a letter dated 11 July 2022, the solicitors acting for Dr Murthi notified the University of a dispute in accordance with clause 12.1 of the Agreement. Dr Murthi alleged that in conducting the second investigation, the University did not give her the opportunity to comment on the significance of her new evidence, nor invite her to comment on evidence upon which the University subsequently relied. The letter requested that the outcome of the review be "quashed", and that the review be conducted again. The letter of notification also foreshadowed a claim for an award of damages for breach of the Agreement. 20 In November 2022, Dr Murthi referred the dispute to the Commission. By a Form F10 lodged with the Commission, Dr Murthi claimed that in conducting an investigation and review the University did not comply with clauses 58 and 62 of the Agreement. In particular, in describing what the dispute is about, Dr Murthi stated in the Form F10 that one of the issues was "whether the [University's] conduct of the First Investigation and the Review resulted in a wrong and unfair final outcome". That claim was made in the following terms under the heading, "What is the dispute about?" - 3. The dispute is about: a. whether the Respondent complied with clauses 58 and 62 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 (Enterprise Agreement) in the conduct of the First Investigation and the Review; and b. whether the Respondent's conduct of the First Investigation and the Review resulted in a wrong and unfair final outcome. 21 The Form F10 also stated that the dispute was further detailed in correspondence between the parties, and referred to the letter from Dr Murthi's solicitors to the University dated 11 July 2022, to which I have already referred. In that letter, Dr Murthi's solicitors made the following claim, which concerned procedural fairness, as well as the evidence that could have been available to the University if it had afforded Dr Murthi procedural fairness - Had the University given her the opportunity, Dr Murthi could have similarly put forward relevant evidence and responses to the balance of the Review Findings. A decision-maker properly informed following a procedurally fair investigation would have no basis to substantiate a Code breach. The evidence available demonstrates that Dr Murthi has not plagiarised any material from [the honours student]. 22 Pausing there, it is reasonably clear from the statements of Dr Murthi's claims that they involve claimed contraventions of the Agreement that have resulted in a wrong and unfair final outcome. Addressing Dr Murthi's case before the Commission may thus involve addressing the correctness of the findings made by the University through the investigative processes that were followed. These claims are made by reference to forensic evidence supplied by Dr Murthi to the University which, she alleges, contradicts the conclusions of the University's investigation and review. 23 The relief sought by Dr Murthi, as set out in the Form F10, is as follows - The Applicant seeks an arbitral determination in the following terms: 1. The conduct of the First Investigation and the Review did not comply with clauses 58 and 62 of the Enterprise Agreement. 2. The Applicant has not breached the Code and the Allegation is dismissed. 3. Within 7 days from the date of this order, the Respondent must: a. Notify the National Health and Medical Research Council of the making of this order and retract any previous notification that the Applicant breached the Code; and b. Notify the editors of the Journal of Biochimica et Biophysica Acta of the making of this order and retract any previous notification that the Applicant breached the Code. 24 As I will come to, the University disputes that the Commission has "jurisdiction" to consider the question whether Dr Murthi breached the Research Code, or otherwise to enter upon the merits of the allegation of plagiarism made against her. 25 In January 2023, the University stated its intention to conduct yet a further review of the allegation made against Dr Murthi. In March 2023, Dr Murthi delivered her laptop and USB devices to the University for the purposes of forensic analysis. For reasons that it is unnecessary to recount, the University's further review has not been completed, and steps have been ongoing. Dr Murthi's position expressed in correspondence from her solicitors is that the University's conduct of the further investigation "does not in itself resolve her dispute and nor does it properly address the adverse impact of the University's previous conduct of this matter". 26 During this period of further review, the Commission sought updates from the parties from time to time. The Commission listed the matter for a telephone mention on 7 May 2024, following which, over the objection of the University, it issued directions listing the matter for a "jurisdictional and merits hearing" on 24, 25, and 26 July 2024.

The declaration sought by the University 27 The Commission has power to form an opinion as to its own jurisdiction: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [24] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). The Commission's decision on 7 May 2024 to order that the matter be listed for a "jurisdictional and merits hearing" on 24, 25, and 26 July 2024 was a decision relating to a matter of practice and procedure within the Commission's jurisdiction, which is not in itself assailable in this proceeding. 28 About three weeks after the Commission's procedural orders were made, the University commenced this proceeding seeking declaratory and interlocutory relief. I referred to the nature of the relief sought at the outset. The actual terms of the declaration sought are important. I will now set out the terms of the declaration sought by the University, which accommodates an amendment that was made during the course of the hearing, which is underlined - Pursuant to s 562 of the Fair Work Act 2009 (Cth) and s 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that the Second Respondent does not have jurisdiction to determine whether an academic employee of Monash breached the Australian Code for the Responsible Conduct of Research 2018 in respect of whether that employee engaged in research misconduct by engaging in plagiarism, nor otherwise to determine the merits or outcome of such an allegation, in the context of arbitrating a dispute about the application of clauses 58 and/or 62 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2019. 29 The Court's power to grant a declaration of this nature was not in issue: Federal Court of Australia Act 1976 (Cth) ss 21, 23; Fair Work Act s 562.

The submissions of the University 30 In support of the claim for the declaration, senior counsel for the University submitted that clause 12 of the Agreement authorises the reference of certain disputes to the Commission, and that it was necessary to determine whether any given dispute is one that is within clause 12, which was one of the sources of the Commission's jurisdiction. The University submitted that the Commission will only have power to deal with a dispute by arbitration where the dispute is properly characterised as one within the scope of clause 12 of the Agreement. 31 The University characterised the dispute - or at least part of it - as a dispute about the underlying question as to whether Dr Murthi committed plagiarism and so breached the Research Code. While accepting that the statements made by Dr Murthi in her Form F10 as to what "[t]he dispute is about" are relevant to characterising the dispute, the University submitted that it was also relevant to consider the relief sought by Dr Murthi in the Commission. The University emphasised that paragraphs [2] and [3] of the claim for relief in the Form F10, which I set out above, shed light on the true character of the dispute. The University submitted that, in light of the relief sought, Dr Murthi's dispute was properly characterised as one as to whether she in fact committed plagiarism. 32 Turning to clause 12, the University drew attention to the scope of clause 12.1(a), which I set out at [13] above, which provides that a staff member may raise a dispute "as to the application of this Agreement or any matters arising from it". For the purposes of construing this clause, the University referred to the reasons of Tracey, Flick and Rangiah JJ in Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2016] FCAFC 57, where at [55] their Honours said - In the context of clause 16.1 "the application of this Agreement" will occur when a party seeks to bring one of its provisions into use for some purpose. It may also be attracted if one party complains that another has failed to do something which the Agreement required that party to do. The clause will not, however, be engaged unless the association between the grievance and the Agreement is founded on something more substantial than an assertion that it has application. The grievance will not arise out of the application of the Agreement unless it can be said that, on its proper construction, the Agreement has the effect for which the aggrieved person contends. 33 The University submitted that, properly construed, clause 12.1(a) of the Agreement refers only to disputes which are as to "the application of [the] Agreement or any matters arising from" the application of the Agreement. Senior counsel for the University initially submitted that it was not enough to engage clause 12.1(a) that a dispute was as to a matter arising from the Agreement itself, if the dispute was not as to a matter arising from the application of the Agreement. This submission appears to give insufficient significance to the words "or any matters arising from it" in clause 12.1(a), which were not present in the cognate provisions of the Workplace Relations Act 1996 (Cth) when in force, namely s 134H, s 170MH(a), and then s 170LW(a): see the references to these provisions in Endeavour Energy at [20]-[21]. The submission also runs up against the terms of s 186(6)(a) of the Act, which is relevant context for the construction of clause 12.1, and under which, as a condition of approval of an enterprise agreement, the Commission must be satisfied that the agreement includes a procedure for the settlement of disputes "about any matters arising under the agreement". Ultimately, this point is not necessary to decide in view of the subsequent acceptance by senior counsel for the University that a dispute as to a claimed contravention of the Agreement is one as to the application of the Agreement and, further, that the consequences of a contravention of the Agreement are matters arising from the application of the Agreement. 34 The University nevertheless submitted that a dispute as to whether Dr Murthi in fact committed plagiarism is not one as to the application of the Agreement or as to any matter arising from it, within the meaning of clause 12.1. The University submitted that the Agreement addresses only the process for investigating allegations of plagiarism, and any consequences that may follow from a finding of plagiarism. The University submitted that the dispute resolution provisions in the Agreement do not pick up any question whether plagiarism has in fact occurred. For that reason, in the University's submission, the dispute raised by Dr Murthi in the Commission falls outside the scope of clause 12.1(a). 35 Additionally, the University submitted that clause 12.1(a) must be read with clause 62, and the two clauses given what was said to be a harmonious operation. The University submitted that clause 62 provides for alleged breaches of the Research Code to be dealt with in accordance with the Research Code, which in turn establishes a procedure under which experts will investigate allegations of plagiarism. In the University's submission, it would be inconsistent with clause 62 to read clause 12.1 as including within the dispute resolution process, and so referral to arbitration, disputes about whether plagiarism has in fact occurred. Rather, the University submitted, the Agreement contemplates that disputes about the fact of plagiarism will be dealt with exclusively by the processes set out in clause 62 and the instruments to which it refers. The University effectively submitted that clause 12 must be construed as subject to an implied limitation that carves out disputes about plagiarism from its general words. 36 The University further submitted that an inquiry into whether plagiarism has occurred raises technical questions, both about the subject matter of the academic field in question, and about the workings of universities. This was said to support a construction that leaves such questions as the exclusive preserve of experts, operating in line with the Research Code, and not the Commission, which would otherwise be required to receive and analyse expert evidence. 37 Finally, during the course of oral argument, senior counsel for the University properly and fairly accepted that - (a) the obligation in clause 58.3 to apply procedural fairness and natural justice applied to all the processes referred to in clause 58.1; (b) the processes referred to in clause 58.1 included the investigation of a claimed breach of the Research Code pursuant to clause 62; (c) clause 62.1 picked up requirements in the guidelines referred to, and the University's procedures for investigations; (d) those guidelines included rules about evidence, which required that decisions be based upon evidence, including an evidentiary standard that findings be made on the balance of probabilities, referring to the civil standard of proof which is defined in the relevant guide as requiring that "on the weight of evidence, it is more probable than not that a breach has occurred"; (e) a claim that a panel had made a finding other than in accordance with the evidentiary standard provided for by the guidelines was amenable to arbitration by the Commission; (f) a failure to comply with the guidelines or procedures required by clause 62 would be capable of constituting a contravention of the Agreement; and (g) clause 12.1, which is the dispute resolution provision, should be construed broadly and not narrowly.

The submissions of Dr Murthi 38 Counsel for Dr Murthi relied on written submissions that gave prominence to the difference between questions of jurisdiction, and questions of power. 39 In oral submissions, counsel for Dr Murthi emphasised four points. The first was to point to the fact that the terms of the declaration sought by the University were expressed to go to the Commission's jurisdiction to determine whether a staff member had engaged in research misconduct by engaging in plagiarism, rather than being directed to the Commission's power to grant relief. Counsel for Dr Murthi further submitted that the declaration sought was almost devoid of any facts, and that the Court was being asked to make a declaration almost as a pure question of law, which courts rarely entertain, citing Director of Public Prosecutions (Cth) v JM [2013] HCA 30; 250 CLR 135. 40 The second point was to pick up the concession that senior counsel for the University had made that the Commission had jurisdiction to decide whether the University had complied with clause 58.3 of the Agreement, which requires the University to apply procedural fairness and natural justice to all processes carried out under the clause. Counsel submitted that Dr Murthi's case before the Commission is that the consequence of the claimed failure of the University to comply with clause 58.3 was that she was wrongly and unfairly found to have committed plagiarism. It was submitted that this is how Dr Murthi's case has been consistently framed before the Commission. Counsel submitted that the Commission had power to make orders to address, remediate, and compensate for the consequences of the University's claimed failure to comply with clause 58.3 of the Agreement. 41 The third point built upon the acceptance by the University that non-compliance with the evidentiary standard prescribed by the guidelines was amenable to arbitration by the Commission. Counsel for Dr Murthi submitted that such errors were not confined to patent errors, such as where the decision-maker misstated the evidentiary standard in the reasons, but extended to cases where error could be inferred as a result of an examination of the evidence that was before the decision-maker. Counsel for Dr Murthi likened error of this nature to a challenge that a finding was not open on the evidence, thereby giving rise to a conclusion that the decision-maker must have failed to understand or comply with the applicable evidentiary standard. Counsel submitted that a claim on this ground necessarily invited an examination of the facts, which was a sufficient reason why the declaration should not be made. It was submitted that the validity of the third point did not depend on whether there was any ground currently agitated before the Commission that relied on a failure to apply the standard of proof, but the fact that such a failure might amount to a contravention of the Agreement demonstrated that the declaration that is sought is not correct in law. 42 The fourth point was to submit that there were no express limits on the Commission's authority to arbitrate of the type advanced on behalf of the University, and that none arose by implication. It was submitted that in evaluating whether any limit arose by implication it was relevant to have regard to the Commission's broad powers in s 595(3), limited by s 739(3) under which the Commission must not exercise "any powers limited by the term", referring to the term of the enterprise agreement that provides for a procedure for dealing with disputes, including a term referred to in s 186(6): see ss 738(b), 739(1). 43 In response to arguments advanced on behalf of the University, it was submitted that in circumstances where it was accepted by the University that the Commission had authority to arbitrate disputes relating to contraventions of clauses 58 and 62 of the Agreement, express words were not necessary to give the Commission authority to decide whether there had been a breach of the Research Code where that issue arose as part of a dispute concerning the claimed contraventions.

Analysis 44 The issue in dispute is a narrow one, focused on whether the Court should make a declaration in the amended terms sought by the University. The starting point of the analysis must therefore be the terms of the declaration proposed, which is set out under [28] above. 45 There are three features of the proposed declaration that are important to notice. 46 First, the declaration is directed to the "jurisdiction" of the Commission to do certain things. In its terms, then, the declaration is directed to the Commission's "authority to decide", a concept that has currency in the context of arbitration as it does in connection with the jurisdiction of courts: see TCL Air Conditioner at [94] (Hayne, Crennan, Kiefel and Bell JJ); Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142 (Isaacs J); Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; 219 CLR 365 at [6] (Gleeson CJ and McHugh J); Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd edition, Federation Press, 2020) at pp 14-15. 47 Secondly, the declaration is directed to the jurisdiction of the Commission to "determine" questions relating to whether an academic employee has breached the Research Code, and to "determine the merits or outcome" of allegations of plagiarism. In some contexts, the term "determination" has a meaning "directed to the resolution of a dispute, rather than particular factual findings that are made along the way to the resolution": see O'Bryan v Lindholm [2024] VSCA 130 at [79] (Kennedy, Walker and Macaulay JJA) (footnotes omitted). In this proceeding, however, senior counsel for the University accepted at the hearing that the gist of the declaration sought is that the Commission may not consider any element of the question whether, in fact, there has been plagiarism. The University thus advances the position that the scope of the Commission's jurisdiction to deal with a dispute by arbitration is limited such that the Commission is precluded not just from formally determining that no plagiarism has occurred, but also from entering upon the field of factual inquiry as to the existence of plagiarism in the first place. 48 Thirdly, the declaration as amended is distinctly sparse in terms of its factual content. For that reason, the University seeks a declaration of a prospective nature as to what jurisdiction the Commission would have across a range of factual scenarios. The declaration, while not an order in rem, would lay down a legal proposition that could be applicable to the Commission in other proceedings with different facts. The Court is therefore being asked to make a declaration in quite abstract terms, without a full factual appreciation of the precise questions the Commission may be asked to resolve in a given case. Importantly, the declaration is not on any view restricted to declaring that the Commission lacks jurisdiction (or power) to make orders in the form of paragraphs [2] and [3] of the claim for relief in the Form F10 lodged by Dr Murthi in the Commission. Its scant factual content means the declaration necessarily has a broader scope.

The jurisdiction of the Commission 49 The scope of the Commission's jurisdiction to arbitrate is governed by the Agreement and the Fair Work Act. As I have already made clear, the central clause in the Agreement is clause 12.1, which lays out the scope of the dispute resolution procedure under the Agreement, providing that a staff member or any party may raise a dispute "as to the application of [the] Agreement or any matters arising from it". 50 Various procedures are then established under clauses 12.1-12.3, with clause 12.4 dealing with interim arrangements that apply while the procedures unfold. Clause 12.5 provides for what happens if "the dispute" is not resolved by the procedures in clauses 12.1-12.3. In that event, "the matter" may be referred to the Commission for conciliation or arbitration, and the parties agree to be bound "by any recommendation or decision" of the Commission. 51 Clause 12 therefore takes the concept of a "dispute" as its subject matter. The scope of this concept as it applies in this case must be discerned as an ordinary matter of construction which requires consideration of context and purpose: Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; 267 CLR 514 at [18] (Kiefel CJ, Gageler, Nettle and Gordon JJ). A "usual consideration of context" is that reasonable persons in the position of the parties would wish to minimise the fragmentation across different tribunals of their future disputes: Rinehart at [83] (Edelman J). Together with the objects underpinning the Act to which I referred at [14] above, this militates in favour of a liberal, and not a narrow or pedantic, approach to the construction of clause 12. While these principles were essayed in the context of commercial arbitration agreements, I consider them to be apposite to the present case to this extent. These principles accord with the reasoning of Colvin, Raper and Dowling JJ in United Firefighters at [11]. And, as I have already noted, senior counsel for the University accepted that clause 12 must not be read narrowly. 52 Clause 12 should therefore be construed as being directed to a "dispute" between the persons mentioned in that clause. Clause 12 is concerned with the whole of a dispute, provided that the dispute still bears the connection to the Agreement that is specified in clause 12.1. For present purposes, that means the dispute must remain a dispute "as to the application of this Agreement or any matters arising from it". Provided that connection remains, the whole of the dispute that the parties have squarely joined remains subject to the dispute resolution processes provided for under the Agreement. For the same reason, clause 12.5 must also be understood as referring to the whole dispute when it refers to "the dispute" and "the matter" that are referred to arbitration by the Commission. 53 The Agreement therefore invests the Commission with jurisdiction - that is, authority to decide by arbitration - over the whole of any dispute captured by clause 12.5. It follows that I am not persuaded by the submission made by senior counsel for the University that clause 12.5 only invests the Commission with jurisdiction over those aspects of an undoubted dispute that themselves are "as to the application of this Agreement or any matters arising from it". Such a construction clashes with the plain words of the Agreement, which addresses "disputes" rather than aspects of disputes. It would also lead to fragmentation of disputes, as certain aspects are dealt with by the Commission, but intimately related claims forming part of a single controversy are hived off to be dealt with elsewhere. Of course, the Commission's jurisdiction does not extend beyond the limits of the dispute in which the parties are themselves engaged. 54 The Commission's statutory authority to arbitrate, which is derived from s 739(4) of the Fair Work Act, reinforces this conclusion. Section 739(4) provides that "[i]f … the parties have agreed that the [Commission] may arbitrate (however described) the dispute, the [Commission] may do so". The Commission therefore has statutory authority to arbitrate the whole dispute, as clause 12 itself contemplates. 55 It therefore becomes necessary to identify the parameters of "the dispute" over which the Commission has jurisdiction. The way in which a dispute is framed informs the Commission's authority to decide, as illustrated by the decision of the Full Bench that was the subject of an unsuccessful application for review by the Full Court in Duggan v MFESB. It is to be noted that the Commission is not a court, or an arbitral body that has pleadings. Therefore, an investigation into the character of the dispute might extend beyond the text of the Form F10 lodged by Dr Murthi. Indeed, the Form F10 lodged by Dr Murthi invites recourse to other documents to the extent that it refers to issues raised in correspondence. 56 The relief sought by Dr Murthi in the Commission is set out at [23] above. The University submitted that the relief sought shapes the dispute. It is not necessary to enter upon that submission in this case. However, on the assumption that the submission has merit, at least paragraph [1] of the relief sought in relation to the dispute is directly concerned with the question whether the University contravened clauses 58 and 62 of the Agreement, which I understood senior counsel for the University to accept was a matter which the Commission had authority to decide in its arbitral function. Ultimately, the dispute is a dispute as to the breach of the Agreement and its consequences, which is plainly a dispute as to the application of the Agreement or any matters arising from it. 57 I also understood the University to submit that clause 12 should be read as subject to an implied limitation, or carve-out, in light of clauses 58-62 of the Agreement. I referred to this submission at [35] above. I am not persuaded by it. At its core, the University's submission proceeds on the premise that clause 62 of the Agreement operates on the same plane as clause 12 - that is, as a mechanism for resolving disputes between the University and staff members. But that is not the function of clause 62. Clause 62 requires the University to comply with the Research Code, any associated guidelines, and other University procedures as it conducts its own unilateral investigation. That investigation produces results that may have consequences which are provided for by other provisions of the Agreement. It is no part of the purpose of clause 62 to reserve any part of any dispute as to the application of the Agreement from the dispute resolution mechanisms in clause 12. Clause 62 imposes a substantive obligation. Clause 12 deals, amongst other things, with what is to occur when there is a dispute as to whether the substantive obligations in the Agreement have been complied with. 58 That is, indeed, the scenario here: a core element of Dr Murthi's claim is that the University has contravened its obligations under clause 62. Clauses 12 and 62 therefore address fundamentally different issues. There is no warrant for relying on clause 62, or any other clause of the Agreement that attributes substantive functions and obligations to the University alone, to limit the scope of the authority to decide vested in the Commission. The purpose of including in the Agreement a dispute resolution clause is precisely to resolve disputes that arise as to whether relevant persons have or have not complied with terms of the Agreement that attribute powers to, or impose obligations on, those persons alone. The role of the Commission then becomes to deal with the dispute - not to step into the shoes of anyone bound by the Agreement. As a result, there is no tension between clause 62 envisaging that the University alone will determine whether plagiarism has occurred, and clause 12 investing the Commission with jurisdiction to deal with disputes arising from that process. Clause 12 is therefore not subject to the implied limitation urged by the University. 59 For these reasons, the Commission has jurisdiction - in the sense of authority to decide by arbitration - over the whole of the dispute between Dr Murthi and the University. That is a sufficient reason to decline to make the declaration in the terms sought by the University.

The power of the Commission 60 At times, it appeared that the University was seeking the declaration on the basis that the Commission, even if seized of jurisdiction over the dispute, lacked power in one or more relevant respects. I will deal with this submission in two parts, in view of the distinction I have drawn at [47] above between a "determination" in the sense of a finding, and a "determination" in the sense of some operative order. 61 A necessary first step, however, is to identify the source, and so the scope, of the Commission's power, which is found in s 595(3) of the Act which I set out at [14]. Senior counsel for the University submitted in reply that this section should be read as meaning that the Commission can only exercise a particular power if it is "expressly authorised" to exercise a power of that kind. Read as a whole, however, the section is not concerned with authority to exercise a power, but authority to deal with a dispute by arbitration only if the Commission is expressly authorised to do so. The authorisation of the Commission to deal with a dispute is the function of clause 12.5 of the Agreement, in combination with s 739(4) of the Act. If the Commission has authority to deal with the dispute, then its power is to make "any orders it considers appropriate". That power is subject to ss 739(3) and (5), which provide - (3) In dealing with a dispute, the FWC must not exercise any powers limited by the term. … (5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties. 62 The resulting position is that the Commission may make any order within the broad bounds of orders that the Commission may properly consider appropriate, unless the dispute resolution clause in the Agreement relevantly limits the powers of the Commission, or the order would relevantly amount to "a decision that is inconsistent with" the Agreement. As for the first of these exceptions, clause 12 - which is the relevant "term" - contains no provision limiting the powers of the Commission. 63 For these reasons, the question becomes whether the Commission would be making a decision that is inconsistent with the Agreement if the Commission were either: to make a finding as to whether Dr Murthi breached the Research Code by engaging in plagiarism; or to make a formal determination as to whether Dr Murthi breached the Research Code by engaging in plagiarism. 64 Dealing with the former issue first, I am satisfied that the Commission does have the power to make a finding as to whether plagiarism has occurred, as a step along the way to an operative order otherwise within power. For the reasons I have already explained, the Commission is not precluded from entering onto the question of plagiarism in the discharge of its jurisdiction. That is sufficient to establish that the Commission may "determine" the merits of the allegation in the sense of considering them and making a finding for the purpose of exercising its jurisdiction by making an order that is within power. 65 There are further reasons why I am persuaded the Commission has power to determine the merits in this sense. An example was proffered by counsel for Dr Murthi, who drew an analogy with administrative law. Counsel submitted that the Commission's powers under s 595(3) include the power to make orders seeking to address, to remediate, and to compensate for the consequences of a breach of the Agreement. In such a case, if the relevant breach were a breach of the procedural fairness obligation in clause 58.3, it might be necessary for the staff member at least to show that the denial of procedural fairness could realistically have made a difference. That is, it could be necessary to persuade the Commission that the denial of procedural fairness was material. If that is so, counsel submitted, there is nothing preventing the staff member from putting his or her materiality case on the footing that affording procedural fairness not only could, but would have made a difference to the outcome of an investigation. In that case, it would be open to the Commission to consider the case as put, and to make findings about it, as a step along the way towards deciding whether to make an order remediating the consequences of the asserted breach of clause 58.3. 66 Finally, I reiterate what I have already said about the relationship between clause 12 and clauses 58-62. A premise of the University's position was that the Agreement contemplates that the University alone will consider whether plagiarism has occurred, in accordance with the Research Code. It followed, the University submitted, that the Commission lacked authority to consider the merits of the plagiarism allegations, even as a step along the way to a decision to make an order under s 595(3). Once again, I regard this as a misconception of the function of clauses 58-62, which are not concerned with a dispute resolution process. While the University is indeed invested with the responsibility to investigate allegations in line with the Research Code, nothing in clauses 58-62 has the effect that the Commission is precluded from looking at the merits of such allegations for its own purpose, which is to deal with a dispute. The Commission's view of the merits is not, and could not be, substituted for the University's in such a way that it has effect for the purposes of other parts of the Agreement. On this limb of the case, the Commission's view is simply a finding made along the way to the pronouncement of an operative order. Making such a finding is a function entirely within the authority of the Commission. 67 In summary on this issue, there is no reason to suppose that the Commission lacks the authority to make findings that touch on the merits of the underlying allegation against Dr Murthi. The Commission's powers are broad, and there is no express or implied derogation from those powers in relation to the making of findings. The relevant context is that the Agreement refers disputes as to the application of the Agreement - including clause 62 - to the Commission for arbitration. In that context, it may become necessary for the Commission to consider the merits of the underlying allegations, both to assess the cases put forward by the parties to the arbitration, and to inform the Commission's assessment of what orders are appropriate on the facts of the case. 68 At times, the tenor of the University's submissions was that the effect of the declaration sought by it would be to preclude the Commission from making findings as to plagiarism in the way I have considered. That accords with the University's position that it should not be required to lead evidence before the Commission as to the underlying question of plagiarism. On my analysis, however, even if the Commission were not empowered to make a determination as to whether plagiarism occurred, it is conceivable that the merits of a plagiarism allegation could be material to the issues joined before the Commission. In that event, the parties to the arbitration might well decide to adduce evidence as to the merits. For that reason, even if the declaration of this Court were restricted to addressing the power of the Commission to make its own formal determination, it would not have the practical effect of obviating the need for the University to lead evidence before the Commission, as the University's position assumed. 69 It remains to consider the second issue, whether the Commission has power to make an operative order, such as a formal determination, dealing with whether plagiarism in fact occurred. I did not understand this to be the primary way in which the University argued for the declaration it sought, but it is appropriate for me to deal with this issue, so as to address all the ways the argument could be put. 70 As I have noted, the powers of the Commission are broad. The Commission has power to deal with the dispute by arbitration, including by making whatever orders it considers appropriate, but subject to the limitations in ss 739(3) and (5). As I have also noted, this language is the same language as s 545(1) of the Fair Work Act, which empowers a court to make "any order the court considers appropriate" in certain circumstances. In the Personal Payment Order Case at [103], Keane, Nettle and Gordon JJ, with whom Gageler J apparently agreed at [51], said - What is "appropriate" for the purpose of s 545(1) falls to be determined in light of the purpose of the section and is not to be artificially limited. As the ABCC submitted, such broad terms of empowerment are constrained only by limitations that are strictly required by the language and purpose of the section. (Footnotes omitted.) 71 Drawing a distinction in that case between penal and non-penal orders, their Honours went on to hold at [110] that s 545(1) was "limited to making appropriate preventative, remedial and compensatory orders". Of course, the context of s 545(1) is that the Court is empowered to deal with civil remedy provisions. The context of s 595(3) is different, but the breadth of the orders contemplated by the latter section is not obviously narrower. It includes the power to make "remedial" orders. 72 One of the matters about which Dr Murthi complains in the Commission is that she has been wrongly and unfairly found to have breached the Research Code as a result of the University's contraventions of the Agreement. The dispute between Dr Murthi and the University being squarely within the jurisdiction of the Commission, the Commission is clothed by s 595(3) with the power to make any remedial orders it considers appropriate, including orders directed to undoing the consequences of the University's breach. Dr Murthi's complaint includes that her reputation has been besmirched by a wrong finding that flowed from the University's contraventions of clauses 58 and 62. One can readily understand why Dr Murthi would seek, as part of her remedy, the vindication of the Commission formally expressing its own view that she has not engaged in plagiarism. 73 Since making a formal determination directed to the consequences of a breach of the Agreement would be prima facie within the scope of the Commission's powers, the question becomes whether making such an order would be inconsistent with the Agreement. Once more, this turns on whether the Agreement contains an implied limitation that withdraws from the Commission the power to make such an order. 74 The University submitted that it did, because the Agreement envisages that the University alone will decide whether a breach of the Research Code has occurred. Within the four corners of the Agreement, that is true. It is also true that, to take other examples, the University alone is empowered to transfer or second staff members under clause 24.2, and the University alone may form the view that it is unsafe for a staff member to remain offshore under clause 70.1. Closer to this case, clause 59.1 similarly turns on the "view" of the University as to whether a staff member's performance is unsatisfactory, and not on the view of any other person or body. There is much to be said for the view that the Commission cannot substitute its own view for that of the University, because the relevant clauses of the Agreement operate by reference to the University's views, not the view of the Commission. In dealing with a dispute, the Commission is not sitting as though on an appeal from the University's investigation, with power to substitute the outcome of the investigation as the Commission sees fit. 75 But this does not determine the question whether this Court should make the declaration sought by the University. That declaration is directed to whether the Commission can determine whether an academic employee has breached the Research Code, or "otherwise … determine the merits or outcome of such an allegation". It does not follow from the fact that operative provisions of the Agreement are concerned with the University's view on the allegation that the Commission can never make any determination as to the allegation's merits. For example, a determination by the Commission that no reasonable person in the position of the University could have concluded that Dr Murthi committed plagiarism, because the evidence of plagiarism was so scant, may well be a determination as to the merits of the allegation. But such a determination would seem to be open to the Commission, and making such a determination would not cut across the University's investigative functions. 76 Now, it may well be that the Commission will decline to make any order directly stating that Dr Murthi did not breach the Research Code, or "dismiss[ing]" the allegation, as the Form F10 requests. Depending on the view taken by the Commission, the Commission may see an analogy between the present case and cases concerning private or domestic tribunals and other private decision-makers. In Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, for example, Tadgell JA stated at 549 - Examples are legion in which the courts have consistently refused to review on the merits decisions made by private or domestic tribunals that had been established to deal with disputes within organisations to which people had become voluntarily affiliated, by contract or otherwise. 77 That case concerned the disciplinary tribunal of the Australian Football League, and in that sense was concerned with a private process for the adjustment of rights, to which the parties had submitted. As I have noted, the process established by clause 62 of the Agreement is in a slightly different category. 78 Perhaps a closer analogy can be found in the decision of the High Court in Dickason v Edwards (1910) 10 CLR 243, which concerned the circumstances in which a court will review the decision of the "Judicial Committee" of a friendly society. O'Connor J said at 254 that it was "open to the Courts to review the decision of a committee such as this", but that a court could only interfere on the ground that no reasonable person could come to the conclusion that the Judicial Committee had in that case. 79 Similarly, in Australian Workers' Union v Bowen [No 2] (1948) 77 CLR 601, Dixon J held at 629 that the proper approach to impugning a decision of a domestic tribunal was "to destroy" it rather than "to review" it, or simply re-make it. 80 As I have mentioned, these authorities are all concerned with private or domestic tribunals in which parties to an agreement have vested an authority to decide those matters referred to the tribunal. The University, acting pursuant to clause 62, is not in that position. Nevertheless, depending on the circumstances of the precise order that is ultimately sought in the Commission, as well as on all the evidence and arguments that are put before the Commission, the Commission may well not consider it appropriate to make a decision as to the underlying merits of the allegations against Dr Murthi. Analogies with private or domestic tribunals may contribute to that decision. The fact that the Commission is not dealing with an appeal from the University's investigative processes, but with a dispute as to the application of the Agreement, may also contribute. But these considerations go to the Commission's view as to the appropriate exercise of its power, and not to jurisdiction in the sense of authority to decide. 81 For present purposes, the central point is that the declaration sought by the University is broad and sweeping. It proceeds on the premise that all determinations whatsoever that reflect on the merit of the underlying allegation are beyond the reach of the Commission. 82 To the extent that the University is best understood as submitting that the Commission ought not, or cannot, make the specific orders sought by Dr Murthi before the Commission, the University effectively seeks to have a separate question determined by this Court. The Commission was urged by the University to list the "jurisdictional" question separately from the other questions in the arbitration, and decided not to do so. Having regard to the well-known difficulties that can attend the hearing of a separate question in isolation, particularly those that are devoid of a factual underpinning, that approach was entirely orthodox. It is not appropriate for this Court now to essay a view on whether the Commission can or should make orders in the form sought by Dr Murthi in her Form F10, for that question is not the one answered by the declaration sought by the University. 83 The paucity of facts that underpin the declaration illustrates why it is not appropriate for the Court now to make the sweeping declaration sought by the University. Even understanding the University's declaration as narrowly targeted to the prospect that the Commission will make a decision that Dr Murthi did not commit plagiarism, I am not persuaded that a declaration should be made. The appropriateness of such an order turns on all the circumstances of the case, few of which are apparent on the evidence and submissions that are before the Court. 84 More fundamentally, the University's opposition to the Commission's power proceeds on the incorrect premise that the University stands, under clause 62, in the position of a private or domestic tribunal which has jurisdiction finally to determine matters referred to it. In fact, the University's processes under clause 62 have no such status, and there is thus no implied derogation from the broad powers of the Commission under s 595(3). 85 Accordingly, there is no legal bar deriving from the text or structure of the Agreement that precludes the Commission from remediating the consequences of any breach of the Agreement by making orders that the Commission considers appropriate. The Commission's process is not an appeal from the University's investigation, and so the Commission's opinion would not be substituted for the University's. Rather, the Commission would be called upon to deal with the dispute between the parties to the dispute, which arises from the application of the Agreement. If the University were to consider that any order made by the Commission stepped outside its authority, the University might be able call it into question by appropriate proceedings, noting the limitations on judicial review for jurisdictional error and for error of law on the face of the record that have been identified by the Full Court in Wagstaff Piling, Endeavour Energy, ALS, Duggan v MFESB, and United Firefighters. But I am not persuaded that the Agreement itself places an absolute prohibition on the Commission making determinations of the general kind identified in the University's proposed declaration. 86 Therefore, even if the University's proposed declaration were to be understood in the narrow way I have explained, I would decline to make it. This result must be understood in light of my earlier conclusions that the declaration sought by the University is, in fact, directed to jurisdiction, in the sense of authority to decide, and that the Commission does have authority to arbitrate the whole dispute between the parties, including by considering any issues related to plagiarism. Whether it decides to do so is a matter for the Commission having regard to the way the parties to the dispute present their cases, and the Commission's consideration of what is appropriate. Further, this result must be understood in light of my conclusion that, even understood as concerned with power, the declaration sought by the University should not be made because it would appear to assert that the Commission lacks power to make findings as to the merits of the plagiarism allegation, as a step along the way towards some orthodox remedial order.

Conclusions 87 By entering into the Agreement and consenting to its approval by the Commission, the University enshrined as terms of the Agreement its obligations to follow procedures and guidelines for dealing with claimed breaches of the Research Code. The University also submitted to having any disputes about its compliance with those processes referred to the Fair Work Commission for arbitration. The issues which the University has agitated in this proceeding do not go the Commission's authority to decide in relation to the dispute that has been referred to it. Rather, the University's arguments go to the appropriateness of the relief sought by Dr Murthi, which is a question for the Commission to decide. 88 The application must be dismissed. I will hear the parties on costs. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

Workplace Relations Act 1996(Cth)ss 134H, 170LW(a), 170MH(a)

Fair Work Act 2009(Cth)ss 3(e), 50, 51, 186(1), 186(6), 545(1), 562, 595, 595(2)-(3), 738, 738(b), 739, 739(1), 739(3)-(5), s 570.

onic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; 244 FCR 178 Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; 219 CLR 365 O'Bryan v Lindholm [2024] VSCA 130 One Tree Community Services Inc v United Workers' Union [2021] FCAFC 15; 284 FCR 489 Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; 267 CLR 514 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 United Firefighters' Union of Australia v Fire Rescue Victoria [2024] FCAFC 84 True v Amalgamated Collieries of WA Ltd [1940] AC 537 Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd edition, Federation Press, 2020)

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Judgment (11 paragraphs)

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