Plaintiff v First Defendant

2 The defendants include the university as well as individual officers and servants of the university who are alleged to have witnessed Mr Durney's alleged misconduct, managers of affected staff or those involved in the decision-making to exclude Mr Durney. The defendants in the proceedings are as follows:

(a) Deakin University;

(b) Mr Kean Selway, Vice-President (Enterprise);

(c) Professor Jane den Hollander, Vice-Chancellor and President;

(d) Dr Kerrie Bridson, Chair of the Faculty Student Misconduct Committee;

(e) the Faculty Student Misconduct Committee;

(f) Professor Damien Kingsbury, Chair of the University Appeals Committee;

(g) Ms Anne Horn, University Librarian, Geelong Campus; and

(h) Ms Sue Owen, Deputy University Librarian, Burwood Campus.

3 The original proceedings were brought by way of an originating motion filed 16 June 2014 in proceeding S CI 2014 02984. By summons filed the same day, Mr Durney sought declaratory relief, injunctive relief and other interim relief until all avenues of appeal have been exhausted.

4 Mr Durney brought another proceeding S CI 2014 04260 by way of an originating motion and summons filed 15 August 2014 with substantially similar claims for relief.

5 After various procedural hearings, including applications by Mr Durney in the Practice Court, Daly AsJ made orders on 2 September that the two proceedings be heard together and listed them for trial on 28 October 2014.

6 By notice of appeal filed 17 September 2014, Mr Durney appealed against the orders listing the two proceedings for trial. On 9 October 2014 orders were made by Dixon J vacating the trial dates for both proceedings, with the interlocutory applications made by Mr Durney to be heard and determined on the date previously given for trial instead.

7 Thus, in the present application, the plaintiff seeks certain interlocutory relief pending the hearing and determination of this proceeding against the defendants, whether by itself or its servants and agents, from enforcing their decisions to exclude him from the campus and facilities at the university including:

(a) an injunction to restrain the university from enforcing two decisions dated 11 April and 13 May 2014 respectively to exclude him from the university campus and to reinstate his rights as a student at the university and other related orders;

(b) a mandatory injunction to provide him with access to the university campus and access to the university's library collections and facilities; and

(c) an order in the nature of mandamus to compel the university to remove all references to the exclusions from Mr Durney's academic record.

8 Should I decide to grant the injunction sought by Mr Durney, he also seeks orders that he be entitled to special consideration in respect of his disability needs for assessment while the proceedings are on foot. Specifically, he seeks orders that the university provide him with the following assistance to ensure that his disability is adequately accommodated:

(a) extensions to assessment deadlines;

(b) extra reading time in exams; and

(c) a silent study area.

9 Mr Durney also seeks declaratory relief against the defendant in respect of the legality of the two decisions. As declaratory relief is in the nature of final relief, requiring the determination of facts, and this is an interlocutory application, it is not appropriate to consider granting such relief on this application.

10 As this is an interlocutory application, the following summary of the facts of this proceeding are only a summary of the allegations made by the parties on their face. It is unnecessary to make any final findings of the facts to determine this application.

11 In early 2014, Mr Durney applied for and was offered an off-campus position in the Bachelor of Law at the university. The letter of offer dated 26 February 2014 was sent to his post office box, which was the postal address that he subsequently listed as his address for correspondence.

12 On 3 March 2014, Mr Durney accepted the university's offer and enrolled as an off-campus law student. When enrolling at the university, Mr Durney signed an agreement to the effect that he would check his student e-mail a number of times each week in order that the university could relay important information to him. Further, he agreed that as an off-campus enrolment student, he had access to a computer and the internet to study because the course materials and lectures are delivered online. Mr Durney also provided the post office box as his listed address for any correspondence.

13 The agreement that Mr Durney signed before enrolling states, inter alia:

1. I agree to comply with the legislation, policies and procedures of Deakin University as detailed in The Guide;

1. I understand that I am required to have access to a computer and the internet to study with Deakin and that there are Information Technology Use policies and procedures which I must comply with;
2. I understand that the University will provide me with a Deakin e-mail account that I am required to check a number of times a week or to ensure that it is redirected to an alternative e-mail account which I must regularly access.

14 The university is a body politic and body corporate established pursuant to s 4 of the Deakin University Act 2009. University regulations are made by the governing body of the university, the Council (consisting of officers of the university such as the Vice-Chancellor and the Vice-President (Enterprise) who are defendants to these proceedings), pursuant to their powers under the s 28 of the Deakin University Act 2009. The Council is empowered to make regulations with respect to matters concerning the university as well as any person entering onto the campuses or other property of the university or using the university's facilities.

15 The Council may also make regulations in respect of specific matters such as the organisation, management and good governance of the university; discipline; students; and any other matter related to the management of its affairs.[1] The Act and all university regulations, policies and procedures are accessible online via a publically-available portal called The Guide. The Guide includes the policies and procedures of Deakin University, including Regulation 05.1(1) - Enrolment and Regulation 04.1(1) - General Misconduct. In enrolling at the university, Mr Durney agreed to abide by all university regulations, procedures and policies pursuant to Regulation 05.1(1).

16 Mr Durney began his studies in trimester one, commencing on 10 March 2014. Upon commencing his studies at the university, Mr Durney began to use the library facilities at the university's Burwood campus as his place of study.

The allegations of misconduct against Mr Durney and subsequent exclusions

17 On 25 March 2014, Mr Durney first made complaints to the library staff about noise coming from another student's mobile telephone. He said that he had asked the student to put the telephone on silent but it still made vibrations, which distracted him. He also mentioned to the staff member that he had brought proceedings against another university for a similar issue.[2] The situation resolved as the student using the telephone left the library.

18 On 27 March 2014, Ms Kavanagh, a university staff member who works at the Disability Resource Centre, was asked to attend reception as a result of an incident in the library whereby Mr Durney mentioned self-harm. He did so because the library could not provide him with a silent study place, ensuring no sound. Mr Durney again mentioned the proceedings brought by him against another university. Ms Kavanagh spoke with the plaintiff about his requests for special consideration and a quiet study area but he rebuffed her attempts to assist. She then contacted security to advise them of his agitated state and comments about self-harm. Security advised library staff to wear duress pendants and use them to call security if necessary.

19 Later in the evening, security were called to attend as Mr Durney was found lying face down on a path in front of a university building. Mr Durney refused to move or identify himself and the police were called. The police informed Mr Durney that a private room for quiet study in the library had been made available to him for use that evening however Mr Durney refused to leave the path. A decision was made by security to leave him there and check on him at regular intervals. Approximately an hour and a half later, security discovered that Mr Durney had left the premises. Library staff did not see him again that evening.

20 On 8 April 2014, Mr Durney attended the Disability Resource Centre to arrange an appointment, which was made with Ms Kavanagh for 15 April 2014. At this time, Mr Durney provided the reception with a 'Supporting Documentation Form' completed by his treating doctor detailing his health condition and the special considerations requested. Ms Kavanagh deposed that the notes from Mr Durney's doctor did not include a request for a quiet silent study area. The 'Supporting Documentation Form' was not produced to the Court.

21 At the hearing of these proceedings, Mr Durney contended that this was a 'mistake' on the part of his doctor and, in an exhibit to one of his affidavits, included a document from a doctor dated 3 August 2012 that appears to have been prepared for Mr Durney's previous university. Contained within this document, in response to the question, 'What strategies would you recommend to minimise the impact of the disability/medical condition?' Mr Durney's doctor in 2012 wrote:

Extra time for essays and exams.

Extra assistance with course.

Access to quiet study area in the diary [sic].

22 On 10 April 2014, Mr Durney was verbally abusive towards library staff for not enforcing a silent study area. He used expletives and refused to comply with requests to leave the library. Mr Durney again mentioned his proceedings against another university. This incident caused the staff to seek the assistance of campus security who monitored his presence while he remained in the library.

23 On 11 April 2014, security was again called to the library as a result of Mr Durney being verbally abusive and intimidating towards staff. Mr Durney removed some of his clothing and left this and his bags in the library. He then left the campus and lay down on the tram tracks in front of the university after threatening suicide. Security, police and the ambulance were called to attend the scene. Staff and students who witnessed the incident were offered counselling and the bags he left in the library were checked for any dangerous items.

24 The university and its staff and officers considered the manner of Mr Durney's complaints to be disruptive and disturbing to both staff and students. As a result of this and the preceding incidents, a decision was made by Mr Selway, pursuant to the exercise of his emergency powers under Regulation 04.1(1) - General Misconduct, on 11 April 2014 to exclude Mr Durney temporarily from the university campus and its facilities for the period of 11 April to 26 April 2014.

25 Notice of the decision was sent to Mr Durney's student e-mail address and included descriptions of the alleged conduct as well as information about student services and appeal rights. The letter was also sent to the post office box listed as the address for correspondence on Mr Durney's enrolment form. The April decision did not exclude Mr Durney from online access to materials, nor did it provide for his expulsion or suspension from the course.

26 The letter dated 11 April 2014 containing the April decision stated:

University staff have reported that your recent behaviour in the Library on the Burwood Campus has been unreasonable, demanding, hostile, aggressive and intimidating. Details of your alleged behaviour are below.

As a result of these allegations, I am exercising my discretion under Regulation 4.1.1 - Student Misconduct to exclude you from the University, including the Burwood, Geelong Waurn Ponds and Waterfront campuses, for a period of 14 days from the date of this letter.

Security staff will be informed of your exclusion, and if you try to enter the campus before 26 April 2014, you will be asked to leave and may be forcibly escorted off the campus.

If you wish to appeal this decision, you may do so within 7 days, in writing addressed to the Vice-Chancellor, Professor Jane den Hollander. Please forward any appeal of this decision to [Deakin e-mail address].

You are also advised that the Faculty may also take disciplinary action against you arising out of the behaviours that are described below. You will receive written details of any action shortly.

27 The letter from Mr Selway, signed on his behalf by the university's lawyer Ms Shirley Rooney, then provided detail regarding the alleged misconduct on 25 March, 27 March, 10 April and 11 April. In concluding, the letter also stated:

The officers and staff of Deakin University are concerned for your welfare and for that reason I also urge you to seek medical assistance or counselling which may be of assistance to you in the intervening period.

28 In the same letter, the university offered to avail its student support services to Mr Durney for medical or counselling purposes.

29 Mr Durney concedes that he was given verbal notice of the April decision by security guards on 15 April 2014 when he attended an appointment with the Disability Resource Centre on campus and he contends that he had no prior written notice of the decision. He did not inform the university that he would be attending the campus as he was required to do so under the terms of his temporary exclusion.

30 At the appointment Mr Durney discussed his special consideration requests for assessment, including his request for a silent study space with Ms Kavanagh. During this meeting, the plaintiff informed Ms Kavanagh that he had recently obtained judgment against Victoria University and that he had had recent physical and mental health issues, culminating in an attempted suicide on 11 April 2014.

31 Following the appointment, Mr Durney was approached by staff requesting that he leave the campus. He did not leave and became hysterical, attempting to barge through glass doors and to asphyxiate himself with a t-shirt while hitting his head against the ground. Mr Durney was restrained by staff and the police and ambulance were called. He was then removed from the university campus by police.

32 On 16 April 2014, Ms Bridson, the Chair of the Faculty Misconduct Committee, sent a letter to Mr Durney's student e-mail address detailing the allegations against him and notifying him of the incident reports, the university policy and procedure relied upon by the Committee. It also informed him of the General Misconduct hearing that was scheduled for 10am on 9 May 2014 and informed him of his rights and the potential outcomes of the hearing. The correspondence was sent to Mr Durney's student e-mail address, as well as his post office box and his residential addresses.

Allegations of General Misconduct arising from your conduct described below have been referred to the Faculty of Business and Law Student Misconduct Committee pursuant to Regulation 4.1(1) - General Misconduct. A copy of the regulation is attached for your reference.

You are hereby put on notice that it is alleged that you have committed acts of general misconduct as defined in Section 3, Regulation 4.1(1) - General Misconduct and specifically in violation of the following subsections:

(a) breaching a Statute, regulation, policy or rule of the University;

(b) disobeying any reasonable order or direction given by a University staff member in accordance with section 4 of this regulation';

(c) behaving in a manner that is disorderly or detrimental to the interests and good repute of the University;

(d) obstructing or interfering with the proper use of any of the facilities of the University by any other member of the University or other authorised user;

(g) attacking, harassing or threatening to attack or harass, or intimidating any person, or causing another person to fear for their safety, security or wellbeing, whether face to face, by telephone or by the use of technology;

(h) engaging in conduct which causes or may cause injury to any person or damage or loss of property;

(i) causing damage to, or without authority, removing or wrongfully interfering with any property...;

(k) refusing to or failing to provide identification when requested to do so by an officer of the University acting in the course of official duties, provided that when making such a request the officer concerned produces identification to the Student;

(n) failing to behave in a manner appropriate to the codes of conduct relevant to the profession being pursued in the course of study...

34 The letter then outlined in detail the allegations against Mr Durney, including the incidents that culminated in the April decision as well as a separate incident on 15 April 2014 where Mr Durney was removed from the campus by police. Details of the hearing were also included with information about Mr Durney's right of reply and appeal.

35 On 24 April 2014, Ms Kavanagh sent an invitation to Mr Durney asking to meet on 29 April to discuss his requests for special consideration. These letters were sent to Mr Durney's post office box and his residential address but were returned to the university unopened on or about 25 June 2014 as undelivered.

36 On 2 May 2014, the plaintiff attended the Disability Resource Centre without an appointment and requested 'his file'. Ms Kavanagh provided him with the 'Supporting Documentation Form' that he had previously provided to her.

37 On 6 May 2014, Ms Kavanagh sent a text message to Mr Durney informing him that the university had sent him an e-mail regarding its policy on study spaces the day prior. Mr Durney responded in a hostile manner, despite having asked to be contacted via text message, and informed her that his access to his student e-mail was blocked. The university contends that Mr Durney did, in fact, still have access to his student e-mail at that time. Mr Durney then attended the library and complained to the staff about the level of noise in the library in an aggressive manner. The staff contacted campus security. Police were called after Mr Durney refused to acquiesce to security's demands to leave the premises; however, they did not evict him and he left of his own accord after some time.

38 On 7 May 2014, a copy of the 16 April correspondence and its enclosures were forwarded to Mr Durney's personal e-mail address. The plaintiff contends that he did not receive this e-mail until 9 May 2014 and, thus, was not given sufficient notice of the hearing such to accord him procedural fairness. The university librarian also sent an e-mail to Mr Durney's student and personal e-mail addresses indicating that the university was unable to provide him with a silent study space that would ensure the complete absence of any sound. On the same day, Mr Durney attended the library and repeated his requests for a silent study area and complained that he could not access his student e-mail account. A staff member attempted to assist him with his e-mail access by putting Mr Durney through to a supervisor on the telephone. Mr Durney became agitated and slammed the receiver down and left the library. He returned later in the day with similar complaints and requested that staff expel all students using telephones from the library. Security was once again called and they then called the police. Mr Durney left the library after the staff refused to expel other students at his request.

39 On 9 May 2014, the Faculty Student Misconduct Committee met in relation to allegations about Mr Durney's misconduct. Mr Durney did not attend the hearing despite being invited to do so. A decision was made to issue Mr Durney with a formal notice of exclusion, the effect of which is that Mr Durney is excluded from the campus and its facilities for four trimesters as well as having his enrolment at the university suspended. The letter included detailed reasons for the decision as well as information about how to appeal. The letter stated:

I refer to the letter dated 16 April 2014 setting out three allegations of general misconduct and notifying you that the matter would be dealt with at a hearing by the Faculty of Business and Law Student Misconduct Committee on 9 May 2014 (the Notice). A further copy of that letter is enclosed for your records.

The Faculty Misconduct Committee did convene on Friday 9 May 2014 at 10.00am on the Burwood Campus, and as advised, irrespective of not having received a submission in response to the allegations from you and/or you choosing not to attend the hearing, the Committee considered three allegations against you as set out in the Notice.

The Committee considered the documentary evidence set out in the Notice...

Finding

1. The Committee unanimously found the three allegations of General Misconduct outlined in the Notice and made pursuant to Regulation 4.1(1) - General Misconduct (the Regulation) to be proven to its satisfaction.

1. The Faculty of Business and Law Misconduct Committee imposed the following penalties from the Schedule of Penalties:
   • Suspension for 4 trimesters of study during which you are excluded from Deakin University premises, including Geelong, Burwood and Waterfront campuses. At the conclusion of the 4 trimesters, you are entitled to resume your studies at Deakin University...

40 On 13 May 2014, Dr Bridson sent Mr Durney an outcome letter that explained the reasons for the May decision to his student and personal e-mail addresses, as well to his post office box and residential addresses. The outcome letter also explained the procedure to appeal the May decision.

41 On 16 May 2014, Mr Durney wrote to the Vice Chancellor of the university seeking an appeal of the April decision. In a letter dated 19 May 2014, the Vice Chancellor, Professor Jane den Hollander, advised Mr Durney that after reviewing Mr Selway's decision, she had declined to revoke the directive notwithstanding the fact that it had expired. This notice was sent to Mr Durney's student and personal e-mail addresses and to his post office box address. The letter stated:

I confirm receipt of your email dated 16 May 2014 and attached submission of 18 pages.

I understand you are seeking a review of the decision to exclude you from the campuses for a period of 14 days from the date of the direction conveyed by letter from the Vice-President (enterprise) dated 11 April 2014 (the Direction).

The Direction was made pursuant to paragraph 8 of Regulation 4.1.1 - General Misconduct and was operative between 12-25 April 2014 and expired on the latter date. The Direction was effective to the extent that it banned you from physically entering or being present on the campuses. The Direction did not revoke your other rights as a student, and your Cloud Deakin access, your IT access, your access to Deakin email and the on-line library for example were unaffected and remained operative during this period...

The University is entitled to rely on the addresses you have nominated for correspondence in Student Connect, and I am satisfied that the letter was duly sent to you at these addresses and that therefore proper notice of the Direction was given...

I confirm my decision that the Direction made by the Vice-President (Enterprise) was valid and has not been revoked or overturned, but expired on 25 April 2014.

42 On 2 June 2014, Mr Durney gave notice to the University Appeals Committee that he would appeal against the May decision made by the Faculty Student Misconduct Committee. On 16 June 2014, Professor Kingsbury, Chair of the University Appeals Committee, sent a letter to Mr Durney dismissing his application to appeal the May decision. Mr Durney contends that he has received no response to this appeal although he commenced these proceedings on that same day.

43 On 5 June 2014, Dr Bridson sent a letter to Mr Durney giving notice of a hearing on 28 July 2014 in relation to further allegations of misconduct on 6 and 7 May 2014. This notice, along with enclosures, such as incident reports, was sent to Mr Durney's student and personal e-mail addresses as well as his post office box address. Mr Durney sought further and better particulars, including un-redacted documents, in relation to the incident reports in order that he could identify the complainants. The university refused to provide un-redacted documents on the grounds of privacy. The university notes that Mr Durney was likely aware of the identity of the complainants as they had been present at each of the incidents. This final notice is not the subject of these proceedings.

44 In applications for interlocutory injunctions, a Court must ask whether the applicant has established the 'three organising principles' which are to be applied having regard to the nature and circumstances of the case. [3] The three organising principles are whether:

(a) there is a serious question to be tried or whether an applicant made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial an applicant will be entitled to relief;

(b) damages are an adequate remedy, although this is often combined with the third principle;[4] and

(c) the balance of convenience or justice favour the granting of the orders sought.

45 The issue of whether or not Mr Durney was given notice or sufficient notice is central to his applications for his claim for injunctive relief. He claims that he did not receive notice of the April decision and that he only received notice of the hearing that culminated in the May decision after the fact.

46 In relation to the April decision, a temporary decision to exclude Mr Durney from the university campus and its facilities for a period of 14 days, Mr Durney was provided with a written record of this decision on 13 April and 15 April by way of an e-mail sent to his student e-mail address, as well as a hardcopy to the addresses listed for correspondence on his university enrolment form. Further, security guards at the university verbally informed him of the exclusion when he attended the campus on 15 April 2014.

47 Mr Durney submitted that notice is only achieved when that notice is brought to the attention of the person. He contended that this cannot be achieved by sending an e-mail or letter and can only be effected by hand delivery or registered post. Relying on English authority, he further submitted that, even when deeming provisions are in place, the presumption of service of the notice is rebuttable if the circumstances indicate that the documents did not arrive.[5] This line of authority relied on by Mr Durney is concerned with proof of non-delivery based on legislative provisions in the relevant jurisdiction. Mr Durney also relied on Australian authorities which, however, suggest the opposite of his submissions[6] - it has long been held that sending even unregistered mail to a person at their last known address, properly addressed and stamped, is deemed as received by that person at the time that it would in the ordinary course be delivered.[7] This presumption is only rebutted if returned to the sender unopened in specific factual circumstances.[8]

48 Although some mail sent to Mr Durney's post office box address by Ms Kavanagh regarding an appointment at the Disability Resource Centre was returned to the university unopened, the university sent notices and relevant enclosures regarding the April decision and the May decision to Mr Durney's student e-mail address as well as his postal address. Mr Durney did concede that service of a notice could also be effected via his student e-mail address. He contended, however, that he did not have access to his student e-mail and, therefore, it could not be deemed that he received proper notice.

49 Prima facie, it appears that Mr Durney did have access to his student e-mail and the fact that he claims not to have checked his e-mail does not mean that he is not deemed to have received the e-mail. Pursuant to s 13A of the Electronic Transactions Act 1999 (Cth), receipt of an electronic message is deemed to have been received when the e-mail becomes capable of being retrieved by the addressee at an electronic address designated by the addressee:

(1) For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication

(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee...

(2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.

50 The university's General Misconduct Procedure also contains deeming provisions regarding receipt of notices relating to misconduct:

1. Where the University is required to give notice to a person of a matter arising out of Regulation 4.1(1) or this procedure, unless otherwise specified, that notice will be deemed to have been given if it is in writing and is

62.1 hand delivered to the person, or

...

62.3 posted by registered or express post to the person at the address provided by that person recorded by the University as being their address for correspondence, or

62.4 if the person has an allocated university email [sic] address, emailed to that address. [Emphasis added]

51 Pursuant to those provisions, Mr Durney is deemed to have received the April decision to exclude him on 13 and 15 April 2014. In any event, because the period of exclusion under the April decision was temporary, being a period of 14 days, and has now expired, there is no good reason to challenge its validity.

52 In relation to the May decision, Mr Durney was given notice of the hearing at the Faculty Student Misconduct Committee by it being sent to his student e-mail address, as well as to the post office box address and his residential address. In addition, as Dr Bridson had not received a response from Mr Durney regarding his attendance, she forwarded the letter of notice and its enclosures to Mr Durney's personal e-mail address on 7 May 2014. Those enclosures included all relevant material that the university wished to rely on in deciding whether or not to exclude Mr Durney, including incident reports and the relevant university policies and procedures.

53 As the university sent notice to four separate addresses for Mr Durney, it is implausible that notice of the hearing was not brought to his attention unless he deliberately sought to avoid receiving correspondence from the university.

54 As noted above, when enrolling at the university, Mr Durney had agreed that he would check his student e-mail a number of times per week in order that the university could relay important information to him and he provided the post office box as his listed address for any correspondence. While it may be Mr Durney's practice to infrequently check his student e-mail and post office box, it would be unreasonable for him to rely on this as an excuse for not receiving notice of the relevant decisions made by the university. On the contrary, the evidence suggests that Mr Durney deliberately did not access his e-mail and postal mail thereby depriving himself, by his own conduct, of the opportunity to be given a fair hearing because he did not attend the university on the relevant dates. If Mr Durney chose not to read the notification or, having done so, chose not to appear, he cannot complain of a denial of natural justice.[9]

55 In my view, Mr Durney was given sufficient notice for all decisions made in respect of his exclusion from the university campus and he has not established there is a serious question to be tried nor has he made out a prima facie case.

Does the balance of convenience favour Mr Durney's claims?

56 When considering the question of balance of convenience, in Bradto Pty Ltd v State of Victoria,[10] the Court of Appeal noted:

In our view, the flexibility and adaptability of the remedy of injunction as an instrument of justice will be best served by the adoption of the [Lord Hoffman approach. That is, whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[11]

57 Relying on X v University of Western Sydney,[12] Mr Durney submitted that the importance of university education, and any potential hardship to the student as a result of any exclusion, should be considered in relation to the balance of convenience.[13] While the granting of an injunction would allow Mr Durney to complete his studies in pre-requisite subjects so that he could enrol in subjects following the exclusion period of four trimesters, the university staff would be burdened with having to deal with Mr Durney's unpredictable and, at times, aggressive and threatening behaviour, including threats to take his own life. This volatile behaviour appears to be a direct response to Mr Durney not getting his way. It is alleged that Mr Durney has disrupted the quiet enjoyment of staff and students at the libraries of two universities now; the potential threat caused by Mr Durney's mere presence is not fanciful on the part of the university or of its staff. Further, the university would incur the financial burden of employing additional security staff at the library in order to protect its staff and students from any threat of harm by Mr Durney.

58 I consider the likely prejudice to be suffered by Mr Durney to be minimal. Mr Durney's prejudice in essence constitutes delay - if he is not allowed to attend the university during the exclusion, he will have to wait, perhaps for over a year, to continue his studies. No doubt that delay is unfortunate, and if he is successful in these proceedings, unjustified. But I do not consider it sufficient prejudice such that the balance of convenience favours an interlocutory injunction in the form sought.

59 I also note that early in this proceeding, Daly AsJ granted Mr Durney an expedited trial date that he successfully sought to have vacated. Parties who are granted expedited trials are given a priority over other parties who no doubt also wish for a more efficient justice system. Having declined the opportunity to have his dispute resolved in priority to the disputes of others, Mr Durney cannot now be heard to complain of the injustice he will suffer as a result of that delay.

60 In my view, the dismissal of Mr Durney's application for interlocutory relief carries a lower risk of injustice and, thus, the balance of convenience favours the university.

61 In light of the conclusions reached on the above two 'organising principles' it is unnecessary to consider the final 'organising principle' of damages not being an adequate remedy.

62 In light of my findings vis-à-vis the injunctive relief, there is no need to consider the orders sought in respect of Mr Durney's disability requirements as he remains suspended from the university pursuant to the May decision. Accordingly, I dismiss the plaintiff's application for interlocutory injunctive relief.

63 Subject to any further submissions as to costs, I consider that the costs of these applications should be costs in the proceeding.

64 As previously noted, the trial for this proceeding has been vacated and the matter is no longer set down for trial. I am informed by the Associate Judge in charge of listing that the next available date for a proceeding of this kind is 18 May 2015. Subject to anything the parties have to say, I order that the matter be set down for trial on that date on an estimate of one to two days.

[1] Deakin University Act 2009, ss 29(1)-(2).

[2] This was a reference to the decision of Durney v Victoria University & Ors [2014] VSC 161 (11 April 2014) where Mr Durney brought comparable actions for the review of decisions made by Victoria University where he was previously enrolled as a law student.

[3] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 81.

[4] As recently noted by Macaulay J in GM v Financial Services Ombudsman Limited & Anor [2014] VSC 587 (19 November 2014) [7]-[8].

[5] R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682.

[6] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87. Note that this case highlighted that, notwithstanding comments made regarding non-receipt in another case relied on by the plaintiff (Burke v Custom Credit Corporation Ltd (1971) 65 QJPR 5), it was proof of non-delivery that was important and the fact or allegation of non-receipt cannot displace a presumption of deemed receipt.

[7] Cushing v The Lady Barkly Goldmining Co [1883] VicLawRp 21; [1883] 9 VLR (Eq) 108; approved in Tristan Head v Credit Corp [2000] NSWSC 488 (17 May 2000) [13]; Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 96.

[9] Maksimovich v Walsh (1985) 4 NSWLR 318.

[10] [2006] VSCA 89; (2006) 15 VR 65.

[12] [2013] NSWSC 1329 (11 September 2013).