Plaintiff v Defendant

1 The plaintiff was a student of the defendant, Swinburne University of Technology (Swinburne University). On 21 March 2018, the plaintiff was notified of Swinburne University's decision to exclude the plaintiff from that date onwards. The plaintiff sought a review of that decision and was unsuccessful. The plaintiff appealed that decision. The appeal was considered by the Deputy Vice-Chancellor as the Acting University Secretary who, by letter dated 27 August 2018, informed the plaintiff of his decision to disallow the appeal.

2 On 9 June 2021, the plaintiff filed an application for judicial review of the decision of the Acting University Secretary to disallow his appeal of the decision to exclude him from Swinburne University. The plaintiff brings his application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).

3 Also on 9 June 2021, the plaintiff filed a summons seeking, among other things, that for reasons set out in his affidavit sworn 25 June 2021, his identity be protected by the application of a pseudonym and that the Court make a cost protection order in his favour.

4 This ruling relates solely to the plaintiff's application for a pseudonym order and a protective costs order.

5 For the reasons that follow, I have decided that it is appropriate the Court make a pseudonym order. I have also decided to dismiss the plaintiff's application for a protective costs order.

6 It is unnecessary in the context of the applications addressed by this ruling to comprehensively detail the factual background and issues in dispute between the parties in this proceeding. A summary of some key facts and issues is detailed below.

7 In February 2017, the plaintiff commenced a Diploma of Nursing at Swinburne University. Although not the subject of the allegations of misconduct, in late 2017, the plaintiff received an assessment notice from Swinburne University and noticed that his final mark appeared not in the 'Mark' column but in the 'Comment' column. The plaintiff intended to use his assessment in his nurse graduate program application the following year and was concerned that potential employers looking at his clinical placement marks would misunderstand the assessment notice and disregard any figure in the comment column. Additionally, the plaintiff was concerned to maintain academic integrity. The plaintiff complained to the university, seeking that his assessment be corrected.

8 Dissatisfied with the university's response, on 30 October 2017, the plaintiff submitted a complaint with the Victorian Ombudsman (Ombudsman). The Ombudsman investigated the plaintiff's complaint and found that Swinburne University acknowledged that the plaintiff's marks were listed in the wrong column, explained that it would be difficult for the records to be adjusted and agreed to send the plaintiff a clarifying letter that could be shown to potential employers.

9 On 28 November 2017, the plaintiff met with Safer Community, an internal investigative and advisory team at Swinburne University, whose role is to provide services to university staff and management relating to issues of student and staff wellbeing and behaviour. The meeting was to discuss behavioural concerns about the plaintiff raised by university staff. While not completely clear from the material before the Court, it appears the behavioural concerns involved the alleged frequency and tone of the plaintiff's email communications with the university's staff, including in relation to his complaint about his assessment.

10 On 17 January 2018, Swinburne University issued the plaintiff with a formal written warning in relation to his conduct and communication with staff.

11 On 6 February 2018, while undertaking a student placement at Cabrini Hospital as part of his nursing course, the plaintiff was involved in an incident with the hospital receptionist (incident). As a result of the incident, the receptionist lodged a complaint against the plaintiff and a meeting was held involving the hospital and Swinburne University. The plaintiff's placement at Cabrini Hospital was terminated on 7 February 2018.

12 On 8 February 2018, the plaintiff applied to withdraw from the Diploma of Nursing on the basis of ill health, supported with a letter from his mental health clinician.

13 On 14 February 2018, Swinburne University informed the plaintiff that he was required to attend a meeting with university staff to discuss the incident and concerns of misconduct. The plaintiff was put on notice that if he was found to have engaged in serious misconduct, a possible outcome was that he would be suspended or excluded from Swinburne University.

14 At Swinburne University, allegations of student misconduct are referred to an 'Authorised Officer' of the university who investigates allegations of student misconduct and determines appropriate sanctions.

15 Also on 14 February 2018, Swinburne University informed the plaintiff that his application to withdraw from the Diploma of Nursing had been processed and approved. The following day, on 15 February 2018, Swinburne University informed the plaintiff that his withdrawal application had been processed in error and that his enrolment had been reinstated pending the outcome of the misconduct investigation.

16 On 22 February 2018, the plaintiff met with Swinburne University staff to discuss the incident and allegations of misconduct. During this meeting, the plaintiff provided a written submission in which he says, amongst other things, that he did not intend to abuse or harass staff and that his behaviour was caused by mental health issues outside of his control, as well as other stresses in his life. In his submissions, the plaintiff apologised for his behaviour and asked the Authorised Officer not to impose a sanction because of a number of mitigating factors. In support of his case, the plaintiff also provided further detailed written submissions dated 2 March 2018 addressing the alleged misconduct.

17 On 21 March 2018, the Authorised Officer[1] wrote to the plaintiff to notify him of the finding that the plaintiff had engaged in misconduct and of the decision to exclude the plaintiff from Swinburne University from that date onwards (Exclusion Decision).

18 The Exclusion Decision is a reviewable decision under Swinburne University's regulations, and on 20 April 2018 the plaintiff requested a review of the Exclusion Decision (Review Application). In short point, the grounds relied upon by the plaintiff included that there were procedural irregularities in the decision, the decision was manifestly excessive, extreme and unfair, and new evidence was available.

19 The Review Application was referred to a Review Officer, who in a letter dated 15 May 2018 advised the plaintiff that the Exclusion Decision had been reviewed and upheld (Review Decision).

20 The Review Decision is an appealable decision under Swinburne University's regulations. On 24 May 2018,[2] the plaintiff submitted an application to appeal the Review Decision (Appeal Application). Pursuant to Swinburne University's regulations, the University Secretary is required to review any appeal application.[3] By letter dated 27 August 2018, the Acting University Secretary[4] disallowed the Appeal Application on the grounds that no evidence of procedural irregularity had been adduced nor was apparent and, further, exclusion for serious misconduct of a student whilst on a placement is a standard outcome and, as such, the decision was not manifestly excessive.

21 On 5 December 2018, the plaintiff lodged an application in the Human Rights List of the Victorian Civil and Administrative Tribunal ('VCAT') with reference H393/2018 (HRL proceeding) alleging that he has been discriminated against on the basis of race and disability and claiming that the Exclusion Decision was reached as a result of false allegations relating to his mental health disability. The HRL proceeding has been adjourned to March 2022 as a result of the plaintiff's judicial review application in this Court.

22 On 10 February 2021, the plaintiff issued a second proceeding against Swinburne University in the Civil Claims List at VCAT, bearing reference C929/2020 (Civil proceeding). The subject matter of the Civil proceeding involves at least some of the subject matter involved in this proceeding in this Court as well as allegations of breach of contract, negligence and breaches under the Australian Consumer Law. The Civil proceeding has also been adjourned to March 2022.

23 In addition to his originating motion filed 9 June 2021 and submissions filed 27 October 2021, the plaintiff relies on the following affidavits he has sworn (and their exhibits) in support of his application for a pseudonym and protective costs order:

(a) Affidavit 1 filed in support of application for judicial review on 25 June 2021;

(b) Affidavit 2 filed 10 July 2021;

(c) Affidavit 4 filed 11 October 2021;

(d) Affidavit 5 filed 11 October 2021; and

(e) Affidavit 6 filed 26 October 2021.

24 In addition, the plaintiff relies on his list and copy of relevant authorities. This list consisted on one authority which the defendant also relies upon the decision in Bare v Small.[5]

25 The defendant relies on the following material (including exhibits) in support of its opposition:

(a) Affidavit of Kornel Koffsovitz sworn 29 September 2021;

(b) Affidavit of Madelaine August sworn 29 September 2021;

(c) Defendant's submissions dated 10 November 2021;

(d) Defendant's list and bundle of authorities.

26 The plaintiff has identified three reasons he needs his identity protected by a pseudonym. First, he says he is currently involved in a proceeding in VCAT where his name is suppressed. If a pseudonym is not allocated in this proceeding, it will render the suppression of the plaintiff's name in VCAT useless. He submits that if a pseudonym is allocated in this Court it, should be different to the pseudonym allocated in the VCAT proceeding.

27 Second, the plaintiff says he intends to rely on sensitive mental health information in this proceeding which, if made known to the public, would jeopardise the plaintiff and be in breach of the Health Privacy Principles set out in the Mental Health Act 2014 (Vic). The plaintiff also relies on s 18 of the Open Courts Act 2013 (Vic).

28 The plaintiff's third reasons is that he is currently being treated by his general practitioner and psychologist for depression and anxiety as a result of this case.

29 The plaintiff requests that if the Court allocates a pseudonym, the Court also direct that all documents that have already been filed in the proceeding be amended and refiled to reflect the pseudonym allocation. This will allow public access to these documents.

30 The defendant does not oppose the plaintiff being allocated a pseudonym. The defendant says that the Court should consider the need for a pseudonym based on its own assessment of the plaintiff's evidence. In this regard, the defendant says the plaintiff's assertion that his mental health issues were caused by the defendant's actions is not supported by the plaintiff's evidence.[6]

Principles relevant to the making of a pseudonym order

31 In Jane Doe v XYZ,[7] Daly AsJ summarised the principles relevant to the making of a pseudonym order:[8]

Turning now to the relevant legal principles governing applications of this nature, there was common ground between the parties as to the balancing approach required to be undertaken by the Court. In particular:

(a) there is no doubt that the Court has the jurisdiction to make pseudonym orders, and that jurisdiction has not been overtaken or confined by the Open Courts Act 2013 (Vic);[9]

(b) the overarching purpose of making a pseudonym order is to prevent prejudice to the administration of justice;[10]

(c) there may be prejudice to the administration where: 'disclosure of the identity of the plaintiffs might be sufficient to deflect the plaintiffs from prosecuting their case; which is to say they might reasonably be deterred from bringing proceedings unless public disclosure of their identities could be prevented;[11]

(d) nevertheless, the starting point is the principle of open justice, as stated by J Forrest J in ABC v D1 and Ors; Ex Parte v The Herald Sun & Weekly Times Ltd,[12] as follows:

The normal rule of our courts is that justice is administered in the court open to the public where the names of the parties are openly revealed and may be the subject of fair and accurate reports without fear or prosecution for contempt or action for defamation or other civil wrong.[13]

In that decision, J Forrest J summarised the principles to be applied in determining whether to grant a pseudonym order. The following statement has been recently endorsed by the Court of Appeal in Secretary, Department of Justice and Regulation v Zhong (No 2).[14]

First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.

Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.

Third, that the test to be applied by the court in making a pseudonym order is ... whether it is necessary to do so in order not to prejudice the administration of justice.

Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.

Fifth, that in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.

Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.

Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.

Other relevant factors to be taken into account include:

(a) the stage of the proceeding at which a pseudonym order is sought will affect how much weight is to be granted to the principle of open justice;[15]

(b) a defendant to a proceeding may be granted a pseudonym order, particularly if there is a risk that a defendant may be deterred or inhibited from properly defending the proceeding if he was publicly identified as the defendant;[16] and

(c) mere embarrassment, distress or invasion of privacy is insufficient to warrant the making of a pseudonym order.[17]

32 The plaintiff has been granted a pseudonym in the Civil proceeding filed in VCAT. The plaintiff submits that although the Civil proceeding involves a different claim, the claim arises out of the same incident and involves the same parties. He submits that if the Court does not grant a pseudonym order in this case, it will undermine the name suppression order made by VCAT in the Civil proceeding.

33 The plaintiff also submits that he is undergoing treatment for anxiety and depression caused by the events leading up to and his expulsion from Swinburne University. He says that this judicial review proceeding is exacerbating his ongoing anxiety and depression.

34 The plaintiff's evidence includes a letter from a mental health clinician at Swinburne University dated 9 February 2018. The clinician advises that the plaintiff first accessed the service in November 2017 to address distress he was feeling as a result of difficulties communicating with students and lecturers involved in his course. At the time the letter was written, the plaintiff had just failed his clinical placement and therefore needed to repeat a large part of his course. The clinician states in her letter that she believed the plaintiff's inability to successfully complete his clinical placement was due to ongoing communication problems which are most likely a symptom of more significant mental health problems.

35 The plaintiff also relies on a letter from his treating psychologist dated 7 January 2020. His treating psychologist states that she has been working with the plaintiff under a mental health treatment plan to address frequent intrusive thoughts and dreams regarding his expulsion from university.

36 Finally, the plaintiff relies on a letter from his general practitioner dated 4 October 2021, who states the plaintiff is a longstanding patient and that the plaintiff has been seeing (and is expected to continue attending) a psychologist under a mental health treatment plan over the last 18 months.

37 The defendant does not oppose the plaintiff's application for a pseudonym order.

38 I accept the plaintiff's submission that if his name is not pseudonymised in this proceeding, there is a very real risk that the efficacy of the pseudonym order made by VCAT will be undermined. I have reached this view because much of the facts that are the subject of the Civil proceeding are also likely to be canvassed in this proceeding. It seems to me likely in those circumstances that if a pseudonym is not applied to the plaintiff's name in this proceeding, that a person reading this or other decisions of the Court in this proceeding or indeed inspecting documents on the Court file will be able to identify the plaintiff in the Civil proceeding in VCAT.

39 I also accept that there is a real risk of further psychological harm to the plaintiff as a result of publication of his name. While his evidence points to his university experience and Court proceeding as causes of his mental health problems, I have inferred that publication of his name in relation to this proceeding is likely to exacerbate his existing condition.

40 I am satisfied that it is appropriate to make a pseudonym order in this proceeding to protect the plaintiff's name.

41 In his written submissions, the plaintiff requested that if the Court makes a pseudonym order, it use a different pseudonym to the pseudonym in use in his VCAT proceeding. At the hearing, the plaintiff conceded that while not necessary, the use of a different pseudonym would be 'safer'. The plaintiff did not elaborate on this submission.

42 In my view, it is appropriate that the same pseudonym used for the plaintiff in the VCAT proceeding is also used for the plaintiff in this proceeding. The use of the same pseudonym as used in the Civil proceeding in VCAT both avoids undermining the efficacy of the VCAT order and also achieves the same mitigation of risk against further psychological harm to the plaintiff if his name was published in this proceeding. In addition, the use of the same pseudonym allows the public and members of the legal profession to understand the link between the two proceedings without risk to the plaintiff.

43 The plaintiff has identified two reasons that the Court should make a protective costs order:

(a) his case involves victimisation because of his complaint to the Ombudsman and currently there is no protection against victimisation in the Ombudsman Act 1973 (Cth). His case is therefore one in which there is a public interest; and

(b) his incapacity to pay an adverse costs order, having obtained a low paid casual job in the end of 2019, following a long period of unemployment.

44 In addition, the plaintiff submits that his ongoing anxiety and depression and need for prescription medication are 'also caused by the need to have judicial review [by] the Supreme Court with the very high risk of the defendant's extreme-high-costs being ordered for the plaintiff to pay if the plaintiff loses.'

45 The defendant opposes the plaintiff's application for a protective costs order. Its primary submission is that the plaintiff's case does not raise issues of public interest. Second, the defendant says that the plaintiff is unlikely to be deterred from continuing this litigation if the Court does not make a protective costs order. Finally, the defendant says that there are no factors which clearly demonstrate that the overarching purpose of the Civil Procedure Act 2010 (Vic) (CPA) to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, is best served by the making of a protective costs order in this case.

46 The plaintiff's application for a protective costs order is made pursuant to s 65C(2)(d) of the CPA and s 24 of the Supreme Court Act 1986 (Vic).

47 Section 65C(1) of the Civil Procedure Act states that, in addition to any other power a court may have in relation to costs, a court may make any order as to costs as it considers appropriate to further the overarching purpose. Section 65(2) allows a court to fix or cap recoverable costs in advance. Section 65C(2A) sets out a number of matters the Court may take into account when making considering whether to make an order to fix or cap costs.

48 Section 24 of the Supreme Court Act 1986 (Vic) provides that:

Unless otherwise expressly provided by this Act or any other Act or by the Rules, the costs of and incidental to all matters in the Court is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

49 It was not in dispute that the Court has a broad and largely unfettered discretion in relation to costs.

The timing of the application - 65C(2A)(a) of the CPA

50 It is common ground that the application has been made at an early stage of the proceeding. Generally, a late application will be a negative consideration and an early application will be a neutral consideration. Accordingly, in this instance I treat this factor as neutral.

The complexity of the factual or legal issues raised in the proceeding - 65C(2A)(b) of the CPA

51 The plaintiff submits that he is not qualified to assess the complexity of his case.

52 The defendant submits that the plaintiff's case does not raise complex factual or legal issues. The defendant submits, however, that the plaintiff's extensive and repetitive affidavit material and submissions add to the burden on the defendant and the Court to identify - with precision - the factual and legal issues involved in the plaintiff's case.

53 I am satisfied that the plaintiff's proceeding does not raise particularly complex issues of fact or law. I have treated this factor as neutral.

Whether the party seeking the order claims damages or other form of financial compensation - 65C(2A)(c) of the CPA

54 It is common ground that the plaintiff does not seek financial compensation in this proceeding. The defendant does note that the plaintiff is seeking substantial financial compensation in the Civil proceeding.

55 The fact that the plaintiff is not seeking financial compensation in this proceeding is unremarkable given the nature of the proceeding being judicial review. As the defendant submits, however, the fact that the plaintiff does not make a claim for damages does not mean that the proceeding is imbued with a public interest as opposed to the plaintiff's private interest. There can be no doubt that if the plaintiff is successful in this proceeding, he will benefit. I have addressed the public interest in the proceeding below.

Whether the claim of the party seeking the order has a proper basis and is not frivolous or vexatious - 65C(2A)(d) of the CPA

57 The plaintiff says that while it is not possible for the Court to assess the plaintiff's likelihood of success at this stage, it is relevant that the plaintiff's case is arguable and not frivolous or doomed to failure.

58 The defendant says the plaintiff's claims in this proceeding are difficult to properly discern due to the prolix and overlapping nature of the plaintiff's materials. Having regard to the extent of the delay in challenging the Exclusion Decision (made on 21 March 2018) and the paucity of the (contestable) reasons for the bringing of that application only in 2021, the defendant contends there is a real possibility that the extension of time will not be granted.

59 The defendant otherwise acknowledges that it is inappropriate to further delve into a full evaluation of whether the plaintiff has an arguable judicial review grounds prior to the determination of the extension of time issue.

60 I agree that at this early stage of the proceeding it is neither possible nor appropriate to make a clear assessment of the merits of the plaintiff's case. Accordingly, I have treated this factor as neutral.

The undesirability of the party seeking the order abandoning the proceeding if the order is not made - 65C(2A)(e) of the CPA

61 In his written materials in support of his application, the plaintiff indicated that he would not abandon this proceeding even if the Court refused to make a protective costs order. At the hearing, the plaintiff submitted that at the time he prepared his written submissions and affidavit, he was suffering from COVID-19 and that his written submissions and affidavit did not reflect his true position on this issue. The plaintiff said at the hearing that he would certainly abandon this proceeding if the Court refused to make a protective costs order.

62 He relied upon a certificate issued by his general practitioner dated 11 October 2021 which certifies that the plaintiff was 'positive for COVID 19 and advised by [the Department of Health and Human Services] to isolate from 8/10/2021 to 21/10/2021.'

63 I accept the plaintiff's evidence of his COVID-19 diagnosis and note that his written submissions are dated 22 October 2021 (although not filed until 27 October 2021). I am, however, cautious about accepting the plaintiff's statements at the hearing that he will abandon his proceeding if the order is not granted. My reason for caution is that the two positions put forward by the plaintiff are diametrically opposed and were put equally emphatically. This is not a case where a position put earlier was subject to some adjustment or refinement. In this case, the earlier position was abandoned wholesale and the opposite position was adopted at hearing. I also note the plaintiff's written submissions were filed almost a whole week after his period of isolation and so he had ample opportunity to review and correct his submissions before they were filed.

64 My observation of the plaintiff at the hearing is that he passionately believes in the case he seeks to bring. The history of this matter, in my view, suggests that the plaintiff will continue to pursue his complaint vigorously. I say this because of the various applications that the plaintiff has previously made seeking review of various decisions, including within Swinburne University, to the Ombudsman and VCAT. I do not believe that the plaintiff's attitude in this proceeding will be any different notwithstanding that possible adverse costs consequences have not been a feature of his other applications to date.

65 In my view, it is very unlikely that the plaintiff would abandon this proceeding if the order is not made. I have treated this factor as adverse to the grant of a protective costs order.

Whether there is a public interest element to the proceeding - 65C(2A)(f) of the CPA

66 The plaintiff submits that his proceeding discloses a public interest. The plaintiff puts this argument on two bases. First, the defendant is a public authority with the definition of the Public Administration Act 2004 (Vic). The defendant has misused its security officers to bully, threaten and harass him because he complained to the Ombudsman about the university's refusal to fix his notice of assessment. The plaintiff submits that the conduct of Swinburne University undermines the quality of Australian public authorities and the integrity of the complaints process of the Ombudsman. The plaintiff has no doubt that unless he is successful in this proceeding, the defendant will do the same thing to many other students in the future to stop them making complaints about the university.

67 Second, the plaintiff submits the education sector is a very important part of the Australian economy and accounts for a significant portion of Australian Gross Domestic Product. Students bring significant economic benefits to Australia but are at the mercy of public universities when they abuse their power by not following their own rules and regulations. There is a public interest in ensuring judicial review proceedings are available to students so that confidence in this economically important sector is maintained.

68 The defendant submits that the plaintiff's proceeding concerns the processes undertaken and decisions made by the university in relation to the plaintiff. In the defendant's view, the issues to be resolved in this proceeding do not involve public interest considerations beyond those raised in any exercise of the Court's supervisory jurisdiction.

69 I accept the Court's supervisory jurisdiction, exercised through judicial review, is generally inherently in the public interest. In my view, however, what is required when considering this factor is the presence of a public interest element in the proceeding over and above any general inherent public interest in judicial review proceedings. For example, a proceeding which clarified the meaning of a statutory provision with general application beyond the parties to the proceeding would involve such a public interest element.

70 I have not been able to identify the presence of a public interest element raised by the plaintiff's proceeding. Accordingly, I have treated this factor as adverse to the grant of a protective costs order.

The costs likely to be incurred by the parties - 65C(2A)(g) of the CPA

71 The defendant's legal representative has provided an estimate of the defendant's likely legal fees and disbursements. The defendant concedes this estimate is based on the relevant solicitor's experience and without the benefit of a costs assessor.

72 The defendant estimates that it will expend approximately $31,650.00 in professional costs and a further approximately $18,300 in disbursements. This is a total of $49,950.00.

73 The defendant submits that its costs are likely to be elevated because of the extensive and repetitive documentary material the plaintiff has filed, and is likely to continue to file, in the proceeding.

74 The plaintiff submits that the defendant's costs are excessive.

75 In my view the defendant's estimate is unremarkable and broadly in line with the level of costs that a legally represented party might expect to expend in fairly straightforward judicial review proceedings. I also accept that the defendant's legal costs are likely to be affected by the way the plaintiff is conducting his case, including his filing of multiple, lengthy, often repetitive affidavit material.

Whether the other party has been uncooperative or delayed the proceeding - 65C(2A)(h) of the CPA

77 The plaintiff submitted that the Court should take into account the alleged behaviour of the defendant in the related VCAT proceedings.

78 In my view, it is appropriate that I take into account the behaviour of the parties in this proceeding. There was no evidence that either party in this proceeding has behaved in an uncooperative way or caused delay. Accordingly, I have treated this factor as neutral.

The ability of the party seeking the order to pay costs - 65C(2A)(i) of the CPA

79 The defendant concedes that the plaintiff is unlikely to be able to pay should a costs order be made against him.

Whether a significant number of members of the public may be affected by the outcome of the proceeding - 65C(2A)(j) of the CPA

80 The plaintiff's submissions in relation to this factor largely repeated those he made in relation to the public interest element factor. He says that all students in Australia will be affected by the outcome of his proceeding because all universities will realise there are consequences if they do not follow their own rules and regulations.

81 The defendant submitted that the plaintiff's proceeding, even if he is successful, will only affect the plaintiff.

82 I accept the defendant's submission that the plaintiff's proceeding will, if he is successful, only apply to him and is unlikely to have any application to other university students. Accordingly, I have treated this factor as adverse to the grant of a protective costs order.

Whether the claim of the party seeking the order raises significant issues as to the interpretation and application of statutory provisions - 65C(2A)(k) of the CPA

83 Neither party submitted that the plaintiff's proceeding raises significant issues of statutory interpretation.

84 It is clear that the plaintiff firmly believes that he has been victimised by Swinburne University as a result of his earlier complaint to the Ombudsman about his notice of assessment and that if he is successful in his judicial review proceeding, the result will have a deterrent effect on the Swinburne University repeating its actions in relation to other students. I am not satisfied, however, that the plaintiff's proceeding raises issues of public interest or of wider application.

85 It is also clear that while the defendant's likely costs in this proceeding are unremarkable in the context of judicial review proceedings in the Supreme Court, the plaintiff has no real capacity to pay an adverse costs order. Notwithstanding his incapacity to pay if a costs order is made against him, in my view, and despite the plaintiff's oral submissions, he is unlikely to abandon this proceeding if a protective costs order is not made.

86 Balancing all of the factors identified in s 65C(2A) of the Civil Procedure Act 2010 (Vic) within the context of this proceeding, I am not satisfied that I should exercise my discretion to make a protective costs order in favour of the plaintiff.

87 I will order that the question of costs of Part B of the plaintiff's summons dated 9 June 2021 be included in the consideration of the overall costs in the proceeding.

[1] The Authorised Officer selected was the Director of the Facilities and Services Group.

[2] The application was made by way of letter dated 23 May 2018.

[3] Affidavit of Kornel Koffsovitz sworn 29 September 2021, [33].

[4] The Acting University Secretary was the Deputy Vice-Chancellor (PAVE).

[5] [2013] VSCA 204.

[6] Submissions of the defendant filed 10 November 2021, [5].

[7] [2019] VSC 176.

[9] Hunter v AFL & Anor [2015] VSC 112, [9].

[10] XYZ v State of Victoria & Anor [2016] VSC 339, [18].

[11] BK v ADB [2003] VSC 129, [10].

[12] [2007] VSC 480.

[14] [2017] VSCA 19, [4].

[15] Anon 2 v XYZ [2008] VSC 466 [40]-[41].

[17] Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19 [7].