Nandutu v University of Sydney

Grounds for review

1. The following is a recounting and consideration of what I understand to be all of the arguments made by the plaintiff in her case. In order to bring structure to my analysis, I have grouped her submissions under a number of headings, even if they were presented more disparately by the plaintiff.
2. I make no personal criticism of the self-represented plaintiff in the following discussion, accepting as I do that she was doing her best in the stressful setting of a courtroom, without legal training, and revisiting as she was events that were painful to her.
3. Having said that, a great deal of material filed by the plaintiff, and of her written and oral submissions, was a detailed if not minute discussion of questions of fact, at least one of which pertained to events that occurred literally decades ago. But all of that was very largely inapposite, for the simple reason that a claim such as this is almost completely confined to the identification of asserted errors of law.
4. As well as that, almost the entirety of the reliance upon various statutory instruments that I list below was, respectfully, misconceived, because of a misconception on the part of the plaintiff about the structure of the Student Appeal Rule that I shall shortly explain.
5. I turn now to a discussion of the particulars of asserted error, derived from the statement of claim, combined with the headings that appear at paragraph 8 of the written submissions of the plaintiff filed before the hearing, supplemented by the oral submissions made by the plaintiff. I have also had regard to the affidavit of the plaintiff read at the substantive hearing before me. I have not regarded the oral submissions as a refinement of arguments found in the three other sources, and have included all of those arguments that are to be found in any one of the four sources.

Apparent bias

1. The plaintiff asserted that the SAB was not properly constituted during the hearing of her second appeal, because it included two members who had sat on her previous, successful appeal. It was her contention that that state of affairs resulted in apparent bias, and contravention of clause 7.4 of the Student Appeals Rule.
2. There are two answers to that contention. The first is that that clause is as follows: The Registrar will not select a member of the Student Appeals Panel to sit on a Student Appeals Body responsible for hearing an appeal arising from a Faculty in which the member is an enrolled student or staff member, or with which the member has other substantial involvements.
3. There is nothing before me to suggest that the two members of the SAB were, at the time of the hearing in question, "enrolled students or staff members" within the Faculty. And, bearing in mind the present tense used in the remainder of the clause, combined with the phrase "substantial involvements", I think the better view is that a person who had sat on a previous SAB appeal pertaining to the plaintiff, many months previously, would not be excluded by the clause.
4. Secondly, and more decisively, in any event the reasons of the SAB record the following at page 2: "Before commencing the hearing, the Chair of SAB reported to Ms Nandutu and the Faculty that two of the SAB members in the hearing had also been SAB members in Ms Nandutu's successful previous SAB appeal against exclusion. Neither Ms Nandutu nor the Faculty reported any concerns and were satisfied with the composition of the SAB Panel."
5. In other words, counsel for the defendant submitted that there had been explicit waiver by the plaintiff of any complaint about the constitution of the SAB on the second occasion.
6. At the hearing before me, the plaintiff was permitted to say from the Bar table that she could not recall whether she had objected to the presence of the two members or not. It is also recorded in the reasons of the SAB that the plaintiff was certainly present at the hearing, and accompanied by a person in support from the Sydney University Postgraduate Representative Association (SUPRA). Neither of those propositions was contradicted by the plaintiff before me. She did, on the other hand, speak of "power dynamics" that may have led her to stay silent when the question was raised.
7. In the circumstances, the evidence is all one way that the matter was brought to the attention of the plaintiff. She waived at the hearing any right that she may have had to object to the presence of the two members on the SAB who had sat on her previous successful appeal.
8. This ground cannot succeed.

Error of law amounting to identification of the wrong question and reaching a mistaken conclusion

1. This ground is derived from the statement of claim.
2. The contention there is that the SAB did not identify the correct decision, namely the termination of the plaintiff's PhD candidature and whether the plaintiff had not shown good cause to resist it, and therefore came to the wrong conclusion.
3. Instead, it is said, the SAB wrongly considered whether the Faculty had followed the applicable rules set out in the Student Appeals Rule.
4. In my opinion, this ground is misconceived. Far from being called upon to engage in a "merits review" of the decision of the Faculty to terminate the candidature of the plaintiff, pursuant to the Student Appeal Rule, the SAB was on the contrary required (pursuant to clause 4.2 and clause 5.1) to determine whether or not the plaintiff had been accorded Due Academic Process (as defined in clause 1.6.6). And it was required to do so in general conformity with the Purpose set out in clause 1.3 of ensuring fair treatment of students in the assessment of their work.
5. The decision of the SAB explicitly determines (at the bottom of page 3 of the reasons) that the Faculty had correctly applied the University of Sydney (Higher Degree by Research) Rule 2011 (as amended) ("the Higher Degree Research Rule"). In other words, the SAB did what it was required to do in accordance with the Student Appeal Rule. It was not required to determine the merits of the question of whether or not the plaintiff had "shown cause" to resist the termination of her PhD candidature.
6. This ground is contrary to the explicit provisions of the Rule governing the appeal to the SAB, and accordingly must be rejected.

Ignoring relevant material/relevant considerations ignored

1. Underpinning the complaint of ignoring relevant material or considerations was the proposition that the SAB failed to consider: the progress of the plaintiff in the PhD program (clause 4.11 of the Student Appeals Rule); the response of the plaintiff to the request that she "show cause" (clause 4.12 of Student Appeals Rule); the difficulties and disruptions experienced by the plaintiff, not least the illness, in the time preceding her termination, of her late mother, who resided in Uganda; whether the plaintiff had in truth failed to show good cause; whether conditions or restrictions should have been placed on the candidature of the plaintiff; and the unsuccessful efforts made by the plaintiff herself to obtain a supervisor for her doctorate when the Faculty was unwilling or unable to do so.
2. The plaintiff at the hearing asserted that many other rules had not been complied with by the Faculty during her candidature, and furthermore that all of those failures in compliance should have been considered by the SAB. The rules that the plaintiff relied upon at the hearing before me are as follows.
3. First, clauses 1.1, 1.3, 1.6.6, 2.1, 2.2, 2.7, 4.2, 5.1, and 7.4 of the Student Appeals Rule.
4. Secondly, clauses 4.09 and 4.12 of the Higher Degree Research Rule.
5. Thirdly, clauses 3, 7, 8(3)-(4), 9(1), 9(6), 14(3), 14(4), 14(8)(a), 10(b)-(c), 12(a)-(c), 12(e)-(f), 13(a), 13(d)-(e), 14(a)-(b), 16(1)-(2), 17(e), 17(i), 18(2)(c), and 18(2)(e) of the Supervision of Higher Degree by Research Students Policy 2013 ("the Higher Degree Research Policy") .
6. There are two fundamental problems with this ground. The first is that it encompassed a plethora of disputes about factual matters. I have already expressed my understanding that, to a very large degree, proceedings such as these are limited to identification of errors of law.
7. Secondly, and perhaps even more fundamentally, Part 4 of the Student Appeal Rule is entitled "Procedures for Postgraduate Research Award Students". In its entirety it is as follows: Part 4: Procedures for Postgraduate Research Award Students 4.1 Subject to clause 4.2 below, a postgraduate research Student should follow the procedures for undergraduate and postgraduate coursework Students set out in Part 3 above. 4.2 A postgraduate research Student who believes that Due Academic Process has not been observed by the relevant Faculty in relation to an Academic Decision associated with: (a) termination of candidature; or (b) the examination of a thesis; is not required to follow the procedures set out in Part 3 above, and may lodge a written appeal to the Student Appeals Body in the first instance.
8. It can be seen immediately that only an Academic Decision "associated with" either a termination of the candidature of a postgraduate research student, or the examination of a thesis of such a student can be the subject of an appeal to the SAB, in accordance with subsequent Part 5 of the Rule.
9. With regard to any other disputed Academic Decision, clause 4.2 refers one to Part 3 of the Student Appeals Rule, which is entitled "Procedures for Undergraduate and Postgraduate Coursework Students". That Part contains two clauses: 3.1, which is entitled "Resolution with Teacher or Unit of Study Coordinator", and clause 3.2, which is entitled "Appeals to the Faculty".
10. In other words, I accept the submission of counsel for the defendant that all of the concerns and complaints of the plaintiff about very many aspects of her candidature were, in accordance with the Student Appeal Rule, incapable of being dealt with at the hearing about the termination of the candidature of the plaintiff before the SAB, pursuant to Part 5. There were separate avenues for resolution of other concerns, by way of the combined operation of clause 4.1 and the entirety of Part 3.
11. And that structural interpretation - derived, of course, from the explicit words of Part 4 - is amply supported by consideration of the logistics of running an institution such as the defendant: concerns about the vast majority of Academic Decisions will be determined in the simpler, quicker and less formal ways set out in Part 3 of the Student Appeals Rule. It is only the most important decisions - that is, with regard to termination, or one's thesis - that are amenable to an appeal to the SAB pursuant to Part 5.
12. It is true that the phrase "associated with" to be found in clause 4.2 may, read without context, be thought of as one of some breadth. But it is clear in my opinion from the context (not least the existence of Part 3), and the overarching purpose of the Rule, that that phrase is to be read quite strictly: it must, to a very large degree, be limited to the Academic Decision itself either to terminate candidature or a (presumably adverse) assessment of a thesis.
13. Regrettably, the complaint of the plaintiff that her various concerns that arose during the course of a candidature were not dealt with by the SAB is founded upon a misunderstanding of the structure of the relevant Rule. All of the complaints she had about the alleged non-compliance with the relevant rules during the course of her candidature were, pursuant to the applicable Rule, incapable of being raised, let alone determined, at the second hearing before the SAB.
14. This ground must be dismissed.

Irrationality

1. Although I regard a ground asserting irrationality as very closely related to a ground asserting unreasonableness, because the plaintiff has dealt with them separately, I shall do so as well.
2. The plaintiff, in her statement of claim, outlines the particulars for this ground. It is said that the decision made by the SAB was based on the reasoning that mere lack of progress was the basis for deciding to withdraw her PhD candidature, and furthermore that the reasons for her lack of progress were not considered by the SAB.
3. Again, this claim betrays a misconception about the role of the SAB. It was not required to adjudicate upon the rights and wrongs of the termination of the candidature, in the sense of making an assessment of its correctness, and weighing up a number of factors within that process. Rather, the SAB was required to determine whether the plaintiff had been afforded Due Academic Process, in the sense of compliance with the relevant Rules.
4. This ground must fail.

Unreasonableness

1. A further submission of the plaintiff that I discuss under the heading of unreasonableness was that clause 1.3 of the Student Appeals Rule was breached by the Faculty not according the plaintiff fair treatment in relation to the assessment of her work and progress. But I have already rejected above the proposition that the plaintiff was entitled to place such a complaint before the SAB. To repeat: on my analysis, that body was restricted to an assessment of whether the Faculty had accorded the plaintiff Due Academic Process in the decision to terminate her candidature for a PhD.
2. In similar vein, it is clear that the plaintiff was and remains very upset and aggrieved by the inability for her to be provided with a supervisor, whether by herself or by the Faculty. And she believes that that underpinned, unfairly, the decision to terminate her candidature. But the merits of the matter was neither within the purview of the decision of the SAB nor is it within this judgment of mine. The question for the former was whether the relevant rules pertaining to the Academic Decision to terminate her candidature had been the subject of compliance; the question for me is whether the SAB has committed an error of law either in the hearing, its decision, or the reasons given.
3. Finally and contingently with regard to alleged unreasonableness, if I be wrong in the analysis immediately above, and there was a sense in which the SAB was called upon to make an assessment of the merits of the decision to terminate the candidature of the plaintiff, there was an abundance of material before the SAB that permitted the conclusion that it was appropriate. Indeed, on that material, any other assessment other than that the termination was soundly reasonable would have been surprising. The same may be said, contingently but with equal confidence, if it be the case that I am called upon to undertake a "merits review" of a "merits review".

Irrelevant considerations

1. In support of the proposition that irrelevant considerations had been taken into account by the SAB, the plaintiff disputed an assertion made by Associate Professor Jordan in the written materials placed before the SAB about having had a meeting with the plaintiff as long ago as in mid-2013. She also asserted that an academic transcript that was placed before the SAB was in fact incorrect.
2. This ground is also based upon a misconception. The plaintiff seemed to equate relevance with correctness, and irrelevance with asserted incorrectness. But they are not the same things. For example, her academic record, if relied upon by the Faculty in terminating her candidature, was surely relevant to the question to be determined by the SAB of whether she had been accorded Due Academic Process. Her assertion that it was not completely correct did not render it irrelevant to the consideration of the SAB.
3. Separately, the plaintiff did not engage in an exercise in construction of the applicable Rules in order to assert that anything placed before the SAB was "mandatorily" irrelevant, explicitly or implicitly.
4. Because it is based upon a false equivalence between questions of correctness and questions of relevance, this ground must be rejected.

Procedural [un]fairness

1. This ground was based on the propositions that the plaintiff was not permitted to make comments or to respond orally at the SAB hearing. She also claimed that she was not permitted to make the allegation that her candidature had been marred by sexual harassment committed by a person in authority within the Faculty.
2. There are at least two problems with this submission. The first is that I did not understand the plaintiff to be asserting that the alleged sexual harassment was connected personally or temporally with the decision to terminate her candidature. In other words, there is a serious question as to whether it could have been raised in an appeal pursuant to Part 5 of the relevant Rule, as opposed to the raising of a concern about it pursuant to Part 3, in accordance with the analysis that I have provided above.
3. Secondly and separately, clause 8.7, to be found in Part 8 entitled "Appeal Hearings" within the Student Appeals Rule, is as follows: The purpose of an Appeal Hearing is for the Appellant and the Faculty to address any questions posed by the Student Appeals Body, but not to give further oral evidence or oral submissions unless the Student Appeals Body, in its absolute discretion, allows such further oral evidence or oral submissions.
4. In my opinion, even accepting for the sake of argument the factual assertion of the plaintiff that she was not permitted to make comments or provide oral submissions, the explicit terms of that clause are fatal to this ground. It must be rejected.

Improper exercise of power

1. I understood the complaint of improper exercise of power to be founded on the proposition that the SAB exercised powers beyond those that it was empowered to exercise pursuant to clause 5.1 of the Student Appeals Rule.
2. At the hearing before me, counsel for the defendant conceded that the SAB may have gone beyond what it was called upon to do, if it be the case that parts of the reasons are to be characterised as a "merits review". That was because she accepted that the process was to be limited to a determination whether the plaintiff had been accorded Due Academic Process by the Faculty in the Academic Decision to terminate her candidature. And I must say that that concession accords with my own reading of the reasons of the SAB: parts of them do indeed engage in an assessment of the appropriateness of the decision to terminate, rather than simply whether or not it occurred in the context of the provision of Due Academic Process by compliance with relevant rules.
3. Having said that, I think there is force in the submission of the defendant that if a body constituted by laypersons fulfils its mandated function, but also strays beyond it, that is of no great moment. In a nutshell, the task that the SAB was mandated to undertake by the relevant rules was to determine whether the decision to terminate was itself made in accordance with the rules relevant to it. It is clear, in my opinion, that the reasons consider that question, and answer it in the affirmative. It is also the case, in my opinion, that the plaintiff has not established any breach by the SAB of the rules that applied to the way it was called upon to make its decision. If this decision maker correctly complied with the requirements of what it was asked to do, but also incorrectly went beyond it, I do not accept that the latter extraneous part of the determination should call for the quashing of the whole.
4. Although there is some merit to this ground, for the foregoing reasons I would not uphold it.

Errors of law

1. A further complaint was made by the plaintiff that the provisions of the Administrative Decisions (Judicial Review) Act 1997 (Cth) had not been complied with, or that its principles had been breached. But I accept the submission of counsel that, because the defendant is not constituted pursuant to federal law, that Commonwealth statute has no application to this dispute: see s 3(1) of that Act.
2. Separately, the plaintiff did engage with one of the rules that pertained to the Academic Decision to terminate, as follows. In a nutshell, she focused on her assertion that certain APRs pertaining to her candidature had never been completed. That led to the submission that the decision to terminate expressed by the letter from the Associate Dean had breached the relevant rule.
3. Clause 4.12 of the Higher Degree by Research Rule is entitled "Students may be required to show good cause". Clause 4.12(4) is as follows: If, after considering any submissions made by the student, progress reports, and any reports by the supervisors or Head of Department, the Associate Dean forms the opinion that the student has not shown good cause, the Associate Dean must, by written notice setting out his or her reasons: (a) terminate the students candidature; or (b) imposed conditions or restrictions on the continuation of the student's candidature. Note. For review of these decisions see University of Sydney (Student Appeals against Academic Decisions) Rule 2006.
4. There are two problems with this submission. The first is that, at the second reason for the decision to terminate in the letter in question, its author does explicitly refer to having considered at least one APR: that of 2014. That is enough, in my opinion, to dispose of the proposition that the Associate Dean had not complied with the requirement to take into account at least one APR.
5. Separately and contingently, it can be seen that, according to the Rule in question, it was incumbent upon the Associate Professor to do one of two things if he or she formed a certain opinion; namely, that cause had not been shown. As I have said above, the plaintiff was not able to demonstrate that that Rule had not been complied with. Nor was she able to demonstrate that the SAB had come to an erroneous conclusion in finding that there had indeed been compliance. But in any event, the complaint of the plaintiff seemed to be that, if there were some APRs that were unable to be taken into consideration by the Associate Dean in coming to his or her opinion, then the Academic Decision to terminate must be invalid. The simple answer to that assertion is the presence of the word "any" on two occasions in the first line of clause 4.12(4).
6. And contingently to a further degree, if there be some ambiguity arising from the fact that the word "any" does not appear immediately before the phrase "progress reports", in my opinion it borders on the preposterous to assert that a person who is called upon to exercise a mandatory function after the forming of a particular opinion must first make reference to documents that may, for whatever reason, simply not exist.
7. No aspect of this omnibus ground asserting different areas of law should be upheld.

Conclusion

1. That brings to an end my conspectus of my understanding of every assertion contained in the statement of claim, the affidavit of the plaintiff read at the hearing, the written submissions, and the oral submissions. No error of law attracting judicial review having been established, the statement of claim must be dismissed.
2. Contingently, even if any or all of the above analysis had been incorrect, and such an error had been established, there would surely have been a serious question as to whether a discretionary remedy such as judicial review would have been apposite. I say that for the simple reason that, respectfully, the quashing of the decision of the SAB not to uphold the appeal against the decision to terminate the doctoral candidature of the plaintiff, made approaching five years ago, would almost certainly have been an act of futility in any practical sense.

Costs

1. Despite my readiness to discuss the question of costs contingently at the conclusion of the hearing, it was agreed between the parties and me that they should be reserved, and thereafter determined in Chambers. My orders contain a simple timetable to facilitate that process.

Orders

1. For the foregoing reasons, I make the following orders: 1. The statement of claim of the plaintiff, Ms Susan Nandutu, is dismissed. 2. Costs are reserved, and will be determined in Chambers. 3. The defendant, the University of Sydney, must file and serve written submissions of no more than four pages in length on the question of costs by 4 PM on 14 April 2020. 4. The plaintiff, Ms Susan Nandutu, must file and serve written submissions of no more than four pages in length on the question of costs by 4 PM on 21 April 2020.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2020