Western Sydney University v Thiab

t Act 1970 (NSW) s 101(2)(r) University Legislation Amendment Act 1994 (NSW) Sch 1 University of New England Act 1993 (NSW) s 24 University of New South Wales Act 1989 (NSW) s 23 University of Newcastle Act 1964 (NSW) s 30 University of Newcastle Act 1989 (NSW) s 24 University of Sydney Act 1989 (NSW) s 31 University of Technology Sydney Act 1987 (NSW) s 32 University of Technology Sydney Act 1989 (NSW) s 24 University of Western Sydney Act 1988 (NSW) ss 27, 29 University of Wollongong Act 1972 (NSW) s 35 University of Wollongong Act 1989 (NSW) s 24 Western Sydney University Act 1997 (NSW) ss 19, 35, 36 Cases Cited: Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 Australian Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56 Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 Browne v Dunn (1893) 6 R 67 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72 Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11 Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 Re Macquarie University; Ex Parte Ong (1989) 17 NSWLR 113 Ridd v James Cook University [2021] HCA 32; (2021) 95 ALJR 878 Rumble v Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423; [2020] FCAFC 37 Scott v Scott [2022] NSWCA 182 State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 Thomas v University of Bradford [1987] AC 795 Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137 Victoria v Commonwealth (1975) 134 CLR 81; [1975] HCA 39 Texts Cited: B Mansfield and M Hutchinson, Liberality of Opportunity: A History of Macquarie University 1964-1989 (Hale & Iremonger Pty Ltd, 1992) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 April 1964 P Kamvounias and S Varnham, "Legal Challenges to University Decisions Affecting Students in Australian Courts and Tribunals" (2010) 34 Melbourne University Law Review 140 Category: Principal judgment Parties: Western Sydney University (First Applicant) Leanne Hunt (Second Applicant) Nera Thiab (Respondent) Representation: Counsel:

S Lloyd SC with S J Walsh (Applicants) P Braham SC with B Necovski (Respondent)

Thomson Cooper Lawyers (Applicants) Kanzi Lawyers (Respondent) File Number(s): 2022/211356 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2022] NSWSC 760 Date of Decision: 10 June 2022 Before: Parker J File Number(s): 2021/332456

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] In late 2021, Western Sydney University (the University) cancelled certain clinical placements which had been allocated to a nursing student, Ms Thiab, and ultimately imposed disciplinary sanctions on her. In August 2021, when about to commence a clinical placement at a hospital, Ms Thiab disclosed that she was not vaccinated against the COVID-19 virus and declined to undergo screening swabs for the virus, saying that regular swabbing would cause cancer. She was also reported to have said that she was not going to comply with Public Health Orders and that "Dr Kerry Chant was wrong". The supervising staff member of the hospital told her she could not attend the clinical placement, and the University formally cancelled that placement. Ms Thiab was subsequently vaccinated against COVID-19 and presented for a further clinical placement at a vaccination hub in October 2021. At the beginning of that placement, she expressed doubts to other healthcare staff about the safety and efficacy of COVID-19 vaccinations. She was reported to have said that she had heard or read that "people would die five years after [being given] the vaccine"; that "in Israel the vaccine wasn't working"; and that her sister was working in a cardiac ward and had seen patients with heart problems after receiving the vaccine. Concerns about Ms Thiab's statements were relayed by the medical facility to the University. The student's placement was cancelled (the cancellation decision), and a disciplinary process initiated against her. Before the disciplinary process was completed, Ms Thiab commenced proceedings seeking a declaration that the cancellation of her placement contravened s 35 of the Western Sydney University Act 1997 (NSW) (WSU Act). She also sought to restrain the continuation of the disciplinary process but no interlocutory relief was granted. Section 35 of the WSU Act provides: "No religious or political discrimination A person must not, because of his or her religious or political affiliations, views or beliefs, be denied admission as a student of the University or progression within the University or be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of, the University." By the time of the hearing at first instance, the University had completed the disciplinary process, in which Ms Thiab elected not to participate. That resulted in the imposition of certain disciplinary sanctions (the disciplinary sanctions). Although Ms Thiab did not amend her Summons to seek declaratory relief in respect of the imposition of the disciplinary sanctions, the primary judge held that both the cancellation decision and the imposition of disciplinary sanctions were unlawful for breach of s 35 of the WSU Act. His Honour ultimately only made a declaration in respect of the disciplinary sanctions. The primary judge held that Ms Thiab's views or beliefs about COVID-19 vaccinations and their safety and efficacy were "political" within the meaning of s 35 of the WSU Act, and were the cause of the cancellation decision and the disciplinary sanctions. His Honour rejected an argument that the cause of those two decisions was a concern that Ms Thiab's anti-vaccination views would result in misinformation being disseminated to patients about the safety and efficacy of vaccination against the COVID-19 virus. In relation to the primary judge's conclusion about the cause of the disciplinary sanctions, the University complained on appeal that it had been denied procedural fairness, in that this was not an issue raised by Ms Thiab although she had been given the opportunity to do so by amending the Summons. Further, although the relevant university decision-maker gave evidence in the proceedings, she did not address her reasons for imposing the disciplinary sanctions (as their legality had not been challenged), nor was she cross-examined about those reasons. The appeal raised three issues for determination: first, whether Ms Thiab's views or beliefs were "political" within the meaning of s 35 of the WSU Act (the political belief issue); second, whether the cancellation decision and disciplinary sanctions were imposed "because of" Ms Thiab's relevant views or beliefs (the causation issue); and third, whether, in the circumstances, the making of a declaration that the disciplinary sanctions contravened s 35 of the WSU Act involved a denial of procedural fairness (the procedural fairness issue). The Court (Bell CJ, Meagher and Leeming JJA) held, granting leave to appeal, allowing the appeal with costs, setting aside the orders of the primary judge and dismissing the Amended Summons with costs:

As to the political belief issue 1. The meaning of the word "political" in the compound expression "political affiliations, views or beliefs" must be divined from the immediate context of s 35, its legislative history and from the broader context of the statute as a whole. Great care must be taken in having regard to the many different uses of the term "political" and cognate terms in different legal and statutory contexts: [110]-[113]. Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42; Victoria v Commonwealth (1975) 134 CLR 81; [1975] HCA 39; Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11; Australian Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46, considered. 1. Whatever the precise metes and bounds of the term "political" in s 35 of the WSU Act, the word at least describes an affiliation, view or belief associated with (including in opposition to) a political party, organisation or sufficiently identifiable political movement, that is to say a body of persons unified and agitating for a change or changes to or implementation of government policy in a particular area or areas: [118]. 2. The scope of the word "political" as used in s 35 is not so broad as to apply to all views or beliefs connected with public debate about affairs of government, or the conduct of public affairs: [114]. 3. Section 35 is not a guarantor of free speech, and certainly not a guarantor of free speech at large so as to protect, for example, the expression of views or beliefs about scientific or medical matters. Having regard to the text and legislative history of the section, it is wrong to impute to Parliament an intention to treat any conscientiously held "moral" or "ethical" belief as "political" for the purposes of s 35: [121]-[123]. Ridd v James Cook University (2021) 95 ALJR 878; [2021] HCA 32, considered. 1. While a person's anti-vaccination views may in some circumstances be "political", the nature of Ms Thiab's opposition to vaccination was medical and scientific and not political, even on a broad understanding of the term: [124]-[129], [133]-[136]. Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, referred to. 1. To the extent that Ms Thiab had referred to then Premier Gladys Berejiklian and Chief Medical Officer Kerry Chant, those references related to scientific views which they had expressed. In this context, not every statement made by a politician or a public servant constitutes a political view or belief: [130]-[132]. As to the causation issue 1. The causation question presented by s 35 requires identification and characterisation of the true basis, reason or ground for the impugned decision(s). The reason for an adverse action may not be entirely dissociated from a person's views or beliefs, but that does not mean that the action was taken because of those views or beliefs: [140]-[141]. Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137; Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, considered. 1. There may be situations where adverse action by the University is not taken "because of" a political view or belief per se but rather because of the manner or context in which that view was expressed and the perceived consequences of its expression. In such circumstances, s 35 will not necessarily have been contravened. In each case it is a matter of determining whether the adverse action was actuated by the political affiliation, view or belief itself, or by some other legitimate and bona fide concern: [142]. Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587; Rumble v Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423; [2020] FCAFC 37, considered. 1. The primary judge erred in holding that the cancellation decision was made because of Ms Thiab's views and beliefs. The cancellation decision was made because of an apprehension that there was a risk that Ms Thiab would share misinformation with patients about vaccination against COVID-19: [146]-[151]. Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, considered. 1. The disciplinary sanctions were similarly not imposed because of Ms Thiab's views or beliefs, but because of a well-founded concern that Ms Thiab would express those views and beliefs in a manner that would result in danger to patient health: [154]-[159]. As to the procedural fairness issue 1. The making of a declaration that the disciplinary sanctions contravened s 35 involved a denial of procedural fairness, in circumstances where Ms Thiab had not advanced an argument to that effect either orally or in written submissions; she had not included such an allegation in her Amended Summons despite the matter having been raised at pre-trial directions; and the relevant university decision-maker was not cross-examined about her reasons for imposing the disciplinary sanctions: [160]-[166]. 2. As a general but important rule, judges should refrain from making comments seriously critical of witnesses where at least the gist of any adverse criticism has not been put to the witness and where they have not been given an opportunity fairly to respond to the criticism: [170]. Browne v Dunn (1893) 6 R 67; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11; DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72; Scott v Scott [2022] NSWCA 182; Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226; State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47, referred to.

JUDGMENT

1. THE COURT: This is an application for leave to appeal in respect of a declaration made by Parker J (the primary judge) on 21 June 2022, to the effect that certain disciplinary sanctions imposed by Western Sydney University (the University) on Ms Thiab, a nursing student at the University, were in contravention of s 35 of the Western Sydney University Act 1997 (NSW) (WSU Act) and were therefore invalid. That declaration was made following the publication of his Honour's reasons for judgment on 10 June 2022: Thiab v Western Sydney University [2022] NSWSC 760 (primary judgment or PJ).
2. Section 35 of the WSU Act provides: "No religious or political discrimination A person must not, because of his or her religious or political affiliations, views or beliefs, be denied admission as a student of the University or progression within the University or be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of, the University."
3. In strongly expressed reasons for judgment, the primary judge found that two actions taken by staff of the University were in contravention of s 35 of the WSU Act.
4. The first was a decision by Ms Leanne Hunt (Ms Hunt) on 25 October 2021 to cancel a number of clinical placements to which Ms Thiab had been allocated, and which she was required to complete in order to graduate in her Bachelor of Nursing and Midwifery degree (the cancellation decision). Ms Hunt held the position of Deputy Director of Clinical Education (Nursing) within the School of Nursing and Midwifery.
5. The cancellation decision, which it was accepted amounted to a denial of "progression within the University" within the meaning of s 35 of the WSU Act, followed the making of certain statements by Ms Thiab about the safety and efficacy of COVID-19 vaccinations. Ms Thiab contended, and the primary judge accepted, that these statements reflected political views or beliefs within the meaning of s 35 of the WSU Act, and were the cause of the cancellation decision.
6. The second act which was found to have involved a contravention of s 35 of the WSU Act was the imposition of one of four disciplinary sanctions on Ms Thiab by Associate Professor Leeanne Heaton on 22 March 2022 (the disciplinary sanctions). Associate Professor Heaton was the Deputy Dean of the School of Nursing and Midwifery. Following internal university disciplinary proceedings, the Professor made a finding of student misconduct against Ms Thiab and subsequently imposed four disciplinary sanctions. One of those sanctions required Ms Thiab to write a reflection statement of 1,500 words on, among other things, how she had demonstrated unprofessional behaviour whilst on placement and what she would do if she were placed in the same situation again (the fourth disciplinary sanction). Compliance with this sanction was expressed to be a precondition to Ms Thiab becoming eligible to be reallocated to a clinical placement.

Factual and procedural background

1. The factual background to the dispute was discussed by the primary judge at PJ [47]-[68]. Due to the nature of the arguments agitated on appeal, it is necessary to refer both to this background and the procedural history of the proceedings at first instance in some detail.

Overview of factual background

1. Ms Thiab was enrolled in a Bachelor of Nursing and Midwifery at the University. At the time of the hearing before the primary judge, she had completed the coursework component of her degree, but was required to complete a certain number of hours of clinical placements in order to graduate and be accredited as a Registered Nurse.
2. The University and different health districts enter into what are styled "facility agreements" in relation to training student nurses. Under these agreements, the facility has the right to remove a student at any time. Universities compete with each other for the number of student placements allocated in any one year at particular facilities.
3. The peak professional and regulatory body for nurses is the Nursing and Midwifery Board of Australia (NMBA). Three publications of the NMBA were in evidence before the primary judge, namely, its Code of Conduct for Nurses (the Code of Conduct), a Standard of Practice dated June 2016, and a position statement on Nurses, Midwives and Vaccination dated October 2016.
4. In late 2021, Ms Thiab was scheduled to undertake clinical placements at St George Hospital, Westmead Children's Hospital and Liverpool Hospital. On the first day of her placement at St George Hospital, on 30 August 2021, she had a conversation with Ms Reardon, a staff member engaged by the Hospital to co-ordinate clinical nursing placements. During that conversation, Ms Thiab broadly expressed doubts about the safety and efficacy of vaccination against COVID-19. At that time, Ms Thiab was not vaccinated against COVID-19 and was reluctant to be vaccinated. She also declined to undergo rapid testing for COVID-19. According to Ms Reardon, Ms Thiab said that she "was not going to comply with [the] Public Health Orders", as a result of which Ms Reardon decided that she could not attend the clinical placement.
5. Later that day, Ms Reardon reported the incident in an email to a member of staff at the School of Nursing and Midwifery, which was forwarded to Ms Hunt. Soon after, Ms Hunt sent an email to Ms Thiab, advising her that she had cancelled the remaining clinical placements that had been scheduled for her. A series of emails was then exchanged between Ms Thiab, Ms Hunt, the Clinical Placement Team within the School of Nursing and Midwifery, and Associate Professor Heaton, which will be referred to in due course.

Evidence about the cancellation of Ms Thiab's clinical placements

1. The evidence concerning the cancellation of Ms Thiab's clinical placements included: 1. a number of emails between Ms Hunt, Ms Thiab, the University's Clinical Placement Team and Associate Professor Heaton; 2. a "Clinical 'At Risk' Report" completed by a clinical placement facilitator, Ms Almeida, on 25 October 2021; 3. a referral form sent by Ms Hunt to Associate Professor Heaton on 26 October pursuant to the University's internal Misconduct Rule, containing an allegation of general misconduct against Ms Thiab; 4. an affidavit sworn by Ms Thiab on 19 November 2021; and 5. an affidavit sworn by Ms Hunt on 3 February 2022.

The events on and following 30 August 2021

1. Shortly after Ms Thiab's conversation with Ms Reardon at St George Hospital on 30 August 2021 referred to in [16] above, Ms Reardon sent an email to Ms Hunt which included the following: "[Ms Thiab] … did arrive but she said that she was not going to comply with our Public Health Orders. I had to say that she therefore could not attend this clinical placement. I will send you another email with the latest directions I have received with regards to vaccination requirements. Whilst I was not able to talk to [Ms Thiab] at length it became apparent that she was vaccine hesitant, espousing misinformation that has been circulating and stating that Dr Kerry Chant was wrong. She was not even agreeable to screening swabs citing that regular swabbing would eventually cause cancer. Before she left I cautioned her that her decision will impact her future career." (emphasis added)
2. At 2.55pm that day, Ms Hunt sent an email to Ms Thiab, in which, drawing upon Ms Reardon's earlier email, she wrote: "I have been advised by St George Education that your placement was today terminated. They have also advised that you are refusing to comply with the Public Health Orders and were espousing misinformation that has been circulating and stated that Dr Kerry Chant was wrong. You were also not agreeable to screening swabs citing that regular swabbing would eventually cause cancer. … [Ms Thiab] based on this information I am going to cancel the remainder of your placements … [Ms Thiab] if you are not going to follow the public health orders then you cannot go to clinical placement and cannot complete this program or become a registered nurse. Being a registered nurse means that you are registered 24/7 and that you uphold the standards of nursing 24/7. Anti-vaccination messaging and spreading misinformation is not in line with what is expected in the profession and as if you were a RN this would be reported to Aphra [sic: AHPRA]. You are in a respected position in the community and your opinion is not what is required, we are here to provide evidence-based facts from well sourced areas to the community. I have provided the NMBA position statement on vaccinations and the Public Health Order mandating all staff, including students, are to be vaccinated, please also refer to our Code of Conduct, Code of Ethics and Standards of Practice. I have also cc'd in your academic course advisor into this email who may be able to offer some assistance." (emphasis added)

The events of 25 October 2021

1. As noted above, Ms Thiab resumed her clinical placements on 25 October 2021 at the Vaccination Hub, having been vaccinated for COVID-19 in the interim. Following Ms Thiab's discussion with a nurse working at the Vaccination Hub (see [19] above), the facilitator of the clinical placement, Ms Almeida, completed a form entitled "Clinical 'At Risk' Report". That form records that the discussion occurred at 8.35am, and that the form was completed at 9.20am. The form was as follows (noting that RN was shorthand for Registered Nurse and NUM shorthand for Nursing Unit Manager): "Student allocated with RN/ANI, started to talk about research regarding vaccines and mentioned that she heard/read that people would die 5 years after the vaccine. Mentioned that in Israel the vaccine wasn't working. Said that her sister? works in a cardiac ward and had patients with heart problems after the vaccine. Based on student views and conversation, ANI raised her concerns to the NUM's and Facilitators regarding student ability to provide safe information and education to clients. NUM's agreed that student could continue placement under close supervision. NUM [illegible] notified and NE. Leanne Hunt informed and placement cancelled. Student spoken to about staff concerns and the decision to cancel her placement and complete an at risk form." (emphasis added)
2. At 9.28am, Ms Hunt sent an email to Ms Thiab, in which she wrote: "I was contacted by your facilitator this morning. Your facilitator received information from the RN that you were AGAIN [e]spousing anti-vaccination dialogue. It is clear to me that you have yet to understand your position as a future RN and have not taken on board the incident from St George Hospital documented below [referring to the email of 30 August]. Based on this I have decided to terminate your placement. This incident will be escalated as a misconduct, and you will meet with the Deputy Dean regarding this matter." (emphasis added) Ms Hunt's reference to "anti-vaccination dialogue" in this email must be understood in the context of the report she had received earlier that morning in the "Clinical 'At Risk' Report". That document reported that Ms Thiab had expressed views as to the safety and efficacy of the vaccine.
3. At 2.57pm that afternoon, Ms Thiab replied: "I feel I have been repeatedly bullied by you, wrongfully accused without you investigating the matter efficiently and simply based on 'incomplete information and hearsay', and your remarks have been disparaging. I also feel your abuse of power has caused me grief, anxiety, fear to speak up in any situation, and most importantly - fear to advocate for patients' rights. It has also affected all my upcoming placements which you cancelled, and in turn, my ability to graduate next year. You have a duty of care towards your students and frankly, I have not been heard but rather accused and dismissed on two different occasions, and have been discouraged from asking any sort of questions, no matter how important, if they may somehow affect vaccine uptake. Additionally, based on your comments, I feel they directly imply that asking healthcare workers questions and questioning the validity of their answers, constitutes 'spreading of misinformation' or 'engaging in spousing anti vaccination dialogue' as evidenced by your repeated accusations towards me for 'spreading misinformation'. I feel as if you are basically instructing me, indirectly, not to ask questions and you punish me with placement cancellations if I do not comply, as you have previously done so and now, again. This is evidenced by the fact that the vaccination hub was happy for me to continue my placement because they conceded that I was simply asking my RN important questions regarding side effects and Ethics surrounding informed consent as opposed to your accusation of 'engaging in spousing anti vaccination dialogue'. However, once again, you used your position of power to override their decision and cancelled my placement."

The allegation of misconduct and the disciplinary process

1. The following day, on 26 October 2021, Ms Hunt made a report in accordance with the University's internal Student Misconduct Rule, containing an allegation of student misconduct against Ms Thiab. The Student Misconduct Rule contemplates three categories of misconduct, being academic, research and general misconduct. The allegation against Ms Thiab was one of general misconduct. Ms Hunt's report identified the "details of incident" as follows: "I received a call from Maria [Almeida] who had been approached by the RN that [Ms Thiab] was buddied with. The RN raised concerns regarding the content of the student[']s conversation regarding vaccinations, the information she was relaying was incorrect and not evidence based. The RN was concerned that [Ms Thiab] would convey these ideas to people coming in to get the vaccination. (Please see At Risk). The facility were happy to keep [Ms Thiab] on placement and 'watch' her. However, based on her previous termination of placement on the 30th August from St George Hospital due to 'that you are refusing to comply with the Public Health Orders and were espousing misinformation that has been circulating and stated that Dr Kerry Chant was wrong. You were also not agreeable to screening swabs citing that regular swabbing would eventually cause cancer' I terminated her placement." (emphasis added)
2. As has been noted, Ms Thiab commenced proceedings in the Supreme Court several weeks later, on 22 November 2021. The nature of these proceedings and the relief sought will be discussed shortly but it is relevant to note that, by prayer 4 of the Summons, Ms Thiab sought to have the disciplinary proceedings restrained.
3. On 17 January 2022, Ms Thiab was notified by the University that a preliminary investigation would be undertaken by Associate Professor Heaton in accordance with the University's Student Misconduct Rule. A letter from Associate Professor Heaton was enclosed, which contained details of the allegation made against Ms Thiab (the notice of preliminary investigation). In that notice, Associate Professor Heaton invited Ms Thiab to a meeting on 25 January 2021 to discuss the allegation, "so that you have an opportunity to respond and provide your version of events."
4. Ms Thiab replied on 19 January 2022, requesting that the meeting be rescheduled to February to "allow… a sufficient amount of time to analyse the evidence".

Relevant aspects of procedural history

1. It is convenient at this stage to set out several key elements of the proceedings before the primary judge, together with relevant communications between the parties, which were relied upon by the University in support of its ground of appeal asserting a denial of procedural fairness. The matters of context discussed in this section broadly relate to the question of whether the University was fairly put on notice that the lawfulness of the disciplinary sanctions would be in issue.
2. At the pre-trial directions hearing on 7 April 2022, some two weeks after the imposition of the disciplinary sanctions, a discussion took place about the way in which Ms Thiab's case addressed the disciplinary sanctions. The primary judge asked a number of questions of Mr Walsh, who appeared for the University and Ms Hunt, about the nature of the disciplinary sanctions and the internal appeal process. After this exchange, Mr Walsh agreed with his Honour's summary of the University's position, which was as follows: "HIS HONOUR: I can dare say that you told me that the university's attitude is that unless the plaintiff complies with what you describe [as] the sanction there isn't going to be anything organised for her, so that's clear … the university's position is it won't go any further until she either [internally ap]peals successfully against the sanction or the Court declares there's something wrong with the sanction." (emphasis added)
3. The primary judge then asked Mr Mando, who appeared for Ms Thiab, why, in light of the University's position concerning the disciplinary sanctions, Ms Thiab's case concerned "what's happened in the past". Mr Mando's response was that "this sanction [that is, the fourth disciplinary sanction] emanated from the cancellation in particular of the second placement that was totally unjustified." The following exchange then took place: "MANDO: … Your Honour, what I'm simply saying is if we focus on the cancellation, the second cancellation that was by the university [on 25 October 2021] our submission is that it was unjustified because there was nothing wrong with what [Ms Thiab] said. HIS HONOUR: I understand that's going to be your submission. I'm questioning what's next. Let's suppose I agree with you and say that there was nothing wrong with what she said. That isn't going to get her any closer to the university allocating her a placement. Based on what Mr Walsh has told me, the road block now is the disciplinary proceedings that the university has taken. They've taken this in the disciplinary proceedings and having imposed this sanction, that presumably stops everything in its tracks." (emphasis added)

The primary judgment

1. In the primary judge's reasons, after a brief chronology of events, his Honour set out key extracts from the documentary evidence which have also been set out above.
2. As Ms Thiab was not cross-examined and no other witnesses gave evidence about the conversations which took place on 30 August and 25 October 2021, it was common ground that the primary judge was required to accept the substance of Ms Thiab's affidavit evidence concerning those conversations: PJ [53]. The primary judge summarised these extracts from the affidavit evidence as showing that the discussions Ms Thiab engaged in "at the St George Hospital on 30 August and at the Vaccination Hub on 25 October… merely rais[ed] questions about the safety of Covid-19 vaccination in a moderate and unexceptionable way."
3. The primary judge then, under the heading "Disciplinary Decision", set out key aspects of Associate Professor Heaton's disciplinary report of 22 March 2022. After reproducing the terms of the fourth sanction (see [54] above), his Honour made the following remarks at PJ [64]-[66] about the evidence Associate Professor Heaton gave in cross-examination: "It is notable that Professor Heaton went so far in this part of her report to say that Ms Thiab had put patient safety at risk. Earlier in the report… Professor Heaton had referred only to Ms Thiab's conduct having 'rais[ed] concerns' about her ability to provide 'safe patient care and education'. Under cross-examination, Professor Heaton stated that she had understood at the time that Ms Thiab had actually been involved in spreading 'misinformation' directly to patients. But this was not the case and there was no evidence before me that the University was ever told that it was the case. I think Professor Heaton's evidence under cross-examination must have been based on faulty recollection, or perhaps reconstruction. There was no evidence of the Professor being told at the time that Ms Thiab had been dealing with patients when her placements were terminated."
4. Before turning to consider whether the University's conduct contravened s 35 of the WSU Act, the primary judge considered the nature of the relief available to Ms Thiab for a breach of s 35, if made out. His Honour found that public law remedies were not available to Ms Thiab, as the internal functioning of the University did not involve the exercise of statutory power. Rather, his Honour considered that the Court had the power to grant equitable injunctive relief in aid of statutory rights, and that declaratory relief must also be available: PJ [87]-[89]. No challenge was made to that aspect of his Honour's decision.

Grounds of appeal

1. The University sought leave to appeal from the decision of the primary judge on essentially three grounds, which may be summarised as follows: 1. The primary judge erred in finding that the cancellation decision was made and the disciplinary sanction was imposed because of anti-vaxxer views or beliefs attributed to the respondent which were political in nature for the purposes of s 35 of the WSU Act. 2. The primary judge ought to have found that: 1. the relevant views or beliefs of Ms Thiab were that Covid-19 vaccines were ineffective or associated with adverse health outcomes and were not "political" in nature for the purposes of s 35 of the WSU Act; 2. the evidence did not establish that Ms Hunt and Associate Professor Heaton attributed views or beliefs to the respondent that were "political" in nature for the purposes of s 35 of the WSU Act; 3. the cancellation decision and the disciplinary sanction were imposed not because of views or beliefs attributed to Ms Thiab that were political in nature for the purposes of s 35 of the WSU Act, but because: 1. the statements had been made to health facility staff in clinical settings; 2. the statements were not supported by scientific evidence; 3. by making the statements the respondent had engaged in conduct in clinical settings that was inconsistent with the professional obligations of a member of the nursing profession to promote health, disease prevention and vaccination; and 4. there was a risk members of the public may be influenced to refuse vaccination if the respondent were permitted to continue with the placements. 1. The primary judge erred in finding that a contention that the sanctions imposed by the first appellant on 22 March 2022 contravened s 35 of the WSU Act was fairly open, as: 1. the Amended Summons filed on 28 April 2022 did not challenge either the sanctions or the misconduct decision; and 2. no notice had been given by the respondent that the sanctions and the misconduct decision would be challenged, or the grounds on which any such challenge would be advanced.
2. These grounds in turn raise three issues for determination: 1. whether Ms Thiab's views or beliefs were "political" within the meaning of s 35 of the WSU Act (the political belief issue); 2. whether the disciplinary sanctions (and anterior cancellation decision) were imposed "because of" Ms Thiab's relevant views or beliefs, within the meaning of s 35 of the WSU Act (the causation issue); and 3. whether, in the circumstances, the making of a declaration that the disciplinary sanctions contravened s 35 of the WSU Act involved a denial of procedural fairness (the procedural fairness issue).

Jurisdiction

1. There was no issue, in this Court, that injunctive and declaratory relief lay for a contravention of s 35 of the WSU Act. It may be useful to elaborate why that is so. For many years, and indeed when the University of Western Sydney (as it was originally called) was established in 1988, universities in New South Wales comprised a body corporate constituted by a board of governors, Convocation, staff, graduates and students. The affairs of that body corporate were, traditionally, within the jurisdiction of the University Visitor: see s 29 of the University of Western Sydney 1988 Act (NSW) (the 1988 Act) as originally enacted and Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 at [40] and Thomas v University of Bradford [1987] AC 795. Some aspects of the Visitor's jurisdiction were exclusive.
2. As originally enacted (in a narrower form than s 35 at the time of the events giving rise to this appeal), s 27 provided that: "A person shall not, because of his or her religious or political views or beliefs, be denied admission as a student of the University or be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of, the University."
3. Section 27 was a prohibition, reflecting an incapacity of the University, which would have fallen within the Visitor's original jurisdiction: see Re Macquarie University; Ex Parte Ong (1989) 17 NSWLR 113, a decision of Hope JA appointed as Assessor to assist the Visitor (the Governor of New South Wales) in the determination of a complaint that Dr Ong had been denied natural justice when removed from office. But the role of Visitor of New South Wales Universities was in very large measure reduced to a merely ceremonial role in around 1994: see P Kamvounias and S Varnham, "Legal Challenges to University Decisions Affecting Students in Australian Courts and Tribunals" (2010) 34 Melbourne University Law Review 140 at 148. In the case of what was then known as the University of Western Sydney, Schedule 1 of the University Legislation Amendment Act 1994 (NSW) inserted a new s 29 into the 1988 Act which stated, "The Governor is the Visitor of the University but has ceremonial functions only". That section has now become s 19 of the present WSU Act.
4. The repeal of the substantive role of the Visitor left no inhibition (if there was one) preventing the exercise of this Court's supervisory jurisdiction in respect of exercises of public power such as that controlled by s 35.

Legislative history

1. Section 35 of the WSU Act finds near-identical analogues in the legislation governing the University of Sydney, [1] the University of New South Wales, [2] Charles Sturt University, [3] Macquarie University, [4] the University of Technology Sydney, [5] the University of Newcastle, [6] the University of Wollongong, [7] the Australian Catholic University, [8] Southern Cross University [9] and the University of New England. [10] None of these provisions appears to have been judicially considered.
2. In discussing the statutory context to s 35 of the WSU Act, the primary judge said the following: "Plainly ss 35 and 36 were taken from equivalent provisions enacted in 1989 for earlier established universities: see University of Sydney Act 1989, ss 31, 32; University of New South Wales Act 1989, ss 23, 24; Macquarie University Act 1989, ss 24, 25."
3. Although the provisions cited in the above passage are indeed substantially equivalent to ss 35 and 36 of the WSU Act, it is not entirely correct to say that s 35 was "taken from" those provisions. As has been noted above, s 35 of the WSU Act appears to be the successor provision of a similar provision in an earlier statute which established the Western Sydney University, namely s 27 of the 1988 Act: see [95] above. The primary judge was correct to note at PJ [143] that s 27 and ultimately s 35 of the WSU Act reflected an expansion from a prohibition in other university statutes which had been confined to religion, derived from the Macquarie University Act 1964 (NSW) which itself had been overseen by a Legal Committee chaired by the Hon. Rae Else-Mitchell (see B Mansfield and M Hutchinson, Liberality of Opportunity: A History of Macquarie University 1964-1989 (Hale & Iremonger Pty Ltd, 1992), p 29.
4. Section 29 of the Macquarie University Act 1964 had provided that: "No religious test shall be administered to any person in order to entitle him to be admitted as a student of the University, or to hold office therein, or to graduate thereat, or to enjoy any benefit, advantage or privilege thereof and no person shall be denied admission as a student of the University or be ineligible to hold office therein or to graduate thereat or to enjoy any benefit, advantage or privilege thereof by reason of his political views or beliefs." (emphasis added) Section 30 of the University of Newcastle Act 1964 (NSW), passed later the same year, was in identical terms. [11]

Political views, beliefs or affiliations

1. The abstract question as to the meaning of the word "political" may be open to broad philosophical debate. So too the term "religious", also used in s 35 of the WSU Act.
2. The adjective "political" attracts a number of widely varying meanings in law. One is associated with the long-standing "political objects" doctrine of charitable trusts considered in Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 and which was overturned by constitutional considerations in that case. Another is the "political questions" doctrine associated with justiciability (cf Victoria v Commonwealth (1975) 134 CLR 81; [1975] HCA 39; Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11). A third - which postdates the enactment of s 35 and its counterparts in universities - is the implied freedom of political communication first recognised in Australian Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45 and elaborated or altered in subsequent cases.
3. It by no means follows that the meaning attributed to the term "political" in those different contexts is picked up by s 35. There are very few things which may not be regarded as "political" in an extended sense. For example, an early, broad statement of the width of the concept in the context of the implied freedom was made in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 at 122 by Mason CJ, Toohey and Gaudron JJ: "The interrelationship of Commonwealth and State powers and the interaction between the various tiers of government in Australia, the constant flow of political information, ideas and debate across the tiers of government and the absence of any limit capable of definition to the range of matters that may be relevant to debate in the Commonwealth Parliament and to its workings make unrealistic any attempt to confine the freedom to matters relating to the Commonwealth government."
4. As in any exercise of statutory interpretation, great care must also be taken in having regard to the use of the term "political", and cognate terms such as "political opinion" and "political offence", in different statutory contexts: see e.g. Fair Work Act 2009 (Cth), s 351 ("political opinion"); Discrimination Act 1991 (ACT), s 7(n) ("political conviction"); Equal Opportunity Act 2010 (Vic), s 6(k) ("political belief or activity"); Anti-Discrimination Act 1992 (NT), s 19(n) ("political opinion, affiliation or activity"); Anti-Discrimination Act 1998 (Tas), s 16(m) ("political belief or affiliation"); Equal Opportunity Act 1984 (WA), s 53 ("religious or political conviction"); Anti-Discrimination Act 1991 (Qld), s 7(j) ("political belief or activity"); Extradition Act 1988 (Cth), s 7(a) ("political offence").

Were Ms Thiab's views or beliefs "political"?

1. Ms Thiab's views or beliefs are those which were capable of being discerned from the various accounts of her interactions with nursing staff at the hospitals at which she had been scheduled to undertake her placements, in addition to her direct communications with Ms Hunt. These have been set out at length above. The fact that other people during the pandemic may have had views about vaccination and government insistence on it that may have been characterised as political is not to the point. The focus was necessarily upon Ms Thiab's views and, more precisely, the University's understanding of those views in the context of the information Ms Hunt and Associate Professor Heaton received from St George Hospital and the Vaccination Hub.
2. To the extent that Ms Thiab's views were acted upon by Ms Hunt, she characterised those views as the "espousing of misinformation that has been circulating and stating that Dr Kerry Chant was wrong" and "[e]spousing anti-vaccination dialogue": see [30] and [37] above. Ms Hunt also referred to concerns relayed to her "regarding the content of the student's conversation regarding vaccinations", namely that "the information the student was relaying was incorrect and not evidence based": see [40] above.
3. To the extent that these views were acted upon by Associate Professor Heaton, she characterised them as entailing "anti-vaccination messaging" and "mis-information about COVID-19 vaccine safety and efficacy": see [52] above. Her understanding was that Ms Thiab was "opposed to vaccination": see [33] above.
4. Further insight into whether Ms Thiab's views were in fact "political", and were understood by Ms Hunt and Associate Professor Heaton to be political, may be gained from her own correspondence with Ms Hunt, some of which was forwarded to Associate Professor Heaton: see [33] above.
5. An analysis of this material leads us to be comfortably satisfied that, to the extent that Ms Thiab held negative views about vaccination for COVID-19, those views did not arise from any belief that could be described as "political", even taking a broad view of that concept. Rather, her belief or views were born of concerns, no doubt genuinely held by her, about the efficacy of treatment and reports of negative health consequences including myocarditis. For example, Ms Thiab's email to Ms Hunt of 30 August 2021 (set out at [32] above) put her vaccine hesitancy squarely in the context of the asserted insufficiency of scientific data. Her opinion was also based on her understanding of the physiological process - "considering the heart's unique physiology, inflammation can lead to the development of scar tissue, and, as we know the cells of this vital organ can not regenerate. Therefore this poses serious risks of chronic cardiac issues …". The email also referenced scientific reports in support of her views. The email concluded with a request for information in relation to the vaccine.

Consideration: the causation issue

1. As already noted, even though the Summons sought declaratory relief solely in relation to the cancellation decision, the declaration in fact made by the primary judge was expressed solely in relation to Associate Professor Heaton's disciplinary sanctions.
2. It appears from the passage of his reasons extracted at [91] above that the primary judge made the declaration in the form he did because he considered that the disciplinary sanctions had some ongoing operation whereas there was no utility in making a declaration in relation to the cancellation decision, the effect of which could not be remedied. The divergence from what was sought and what was given in terms of declaratory relief is the subject of the University's procedural fairness complaint which, as has been seen, was that other than an argument that if the cancellation decision violated s 35, the disciplinary sanctions could not stand (an argument not accepted by the University), it was given no notice that Ms Thiab would challenge the lawfulness of the disciplinary sanctions by reference to s 35. That issue is dealt with at [160]ff below.
3. In terms of causation, both parties made reference to the judgment of Kiefel J in Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137 where her Honour (at [63]) referred to the "true reason or true ground" for the impugned action in the context of a claim of racial vilification, citing Dawson J in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 186; [1989] HCA 56; see also the judgment of Deane and Gaudron JJ and their Honours' reference to the "true basis" for the decision at 176-7. The causation question presented by s 35 of the WSU Act similarly requires a characterisation of the true basis, reason or ground for the impugned decision(s).
4. Identification of the "true" reason, ground or basis for a particular decision will not always be straightforward and may have in its background a person's particular views or beliefs. The reason for a particular adverse action may not always be entirely dissociated from a person's particular views or beliefs, but that does not mean that such adverse action is taken because of those beliefs: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [62] (Bendigo Institute). For example, a student who actively espoused antisemitic opinions on campus and encouraged hostility towards Jewish students or faculty could be regulated or disciplined in the event that the University formed the judgment that such conduct represented a risk to security. The true or operative cause of such intervention would not be the fact that the student held the particular antisemitic belief, but rather the apprehended consequences of the promotion of that belief.

The cause of the cancellation decision

1. Notwithstanding that it was not the subject of declaratory relief, the primary judge found that the cancellation decision was made by Ms Hunt because of Ms Thiab's political views or beliefs. However, that decision on the causation question was not supported by a consideration of Ms Hunt's reasoning process, as revealed in the language she employed to give effect to the cancellation decision. It was also contrary to the affidavit evidence given by Ms Hunt as to her reasoning process, which was not challenged in cross examination nor referred to by the primary judge. Such evidence, whilst not necessarily conclusive, is undoubtedly relevant: cf Bendigo Institute at [43]-[45], [65]. It is convenient to refer to Ms Hunt's affidavit evidence first.
2. After recounting what had occurred at Ms Thiab's placement at St George Hospital in August 2021 and referring to the correspondence which has been set out at [29]-[33] above, Ms Hunt said in her unchallenged affidavit evidence (omitting documentary references): "On 30 September 2021, I received an email from the Clinical Placement Team asking whether the plaintiff could be allocated a placement at a vaccination clinic. The Clinical Placement Officer, Ms Johnston, noted that the plaintiff appeared to have changed her position in that she had now provided evidence that she had received a first dose of COVID vaccine. Ms Johnston also noted the recent 'issue' at St George Hospital, which I understood to mean the plaintiff[']s conduct in espousing anti-vaccination opinions. It appeared to me that the plaintiff had changed her position and I therefore approved the placement. … The Clinical Placement Team allocated the plaintiff a placement at the Macquarie Fields Vaccination Hub commencing 25 October 2021. … On the morning of 25 October 2021, the first day of the Macquarie Fields Vaccination Hub placement, I was contacted by Maria Almeida, the facilitator at the Macquarie Fields Vaccination Hub, who advised that the plaintiff that the Plaintiff had been making statements to the effect that 'people would die 5 years after the vaccine', that, 'in Israel the vaccine isn't working' and 'patients with heart problems after the vaccine' to the Registered Nurse to whom she had been allocated. The complaint was such that there were concerns 'regarding student ability to provide safe information and education to clients.' I did not consider the views expressed by the plaintiff to be evidence-based. I was concerned that the plaintiff was again engaging in conduct that was inconsistent with the professional obligations of a member of the nursing profession to promote health, disease prevention and vaccination under the Code of Conduct, and was inconsistent with the Nursing & Midwifery Board's Position Statement on vaccination. As noted in paragraph 12 of this affidavit, nurses hold a position of trust and influence in the community. I was concerned that the conduct had occurred at a vaccination hub during a pandemic and that there was a risk members of the public may be influenced to refuse vaccination if the plaintiff were permitted to continue with the placement. I therefore made the decision to terminate the placement." (emphasis added)

The cause of the imposition of disciplinary sanctions

1. Unlike Ms Hunt, Associate Professor Heaton did not advance reasons in her affidavit for her decision to impose the disciplinary sanctions. It was submitted on behalf of the University that it may readily be inferred that the reason this was not done was because Ms Thiab had nowhere identified that she sought to challenge the disciplinary proceedings in the Supreme Court (other than seeking to restrain their continuance by prayer 4 of the Summons). We agree with this submission.
2. True it is that the University filed an affidavit by Associate Professor Heaton but this was filed on 31 January 2022, well prior to the misconduct hearing, and simply explained the background to and nature of the disciplinary proceedings in the context of Ms Thiab's attempt to have those proceedings restrained. It may readily be inferred that, had the University been on notice of an attempt to challenge the disciplinary sanctions by reference to s 35 of the WSU Act, Associate Professor Heaton's evidence would have addressed her reasons for imposing the disciplinary sanctions in the same way that Ms Hunt's affidavit addressed her reasons for making the cancellation decision. This is therefore not a case where any adverse inference may be drawn as to the Associate Professor's reasons: cf Ferrcom at 418.
3. Even without direct evidence from Associate Professor Heaton, her reasons for imposing the disciplinary sanction may be discerned from her report and, in particular, the following passage (also extracted at [52] above): "The education provider is ultimately accountable for the assessment of students in relation to their PEP meaning that the School has the responsibility to ensure that students are safe practitioners and must address matters when a student's behaviour on placement poses a risk to public safety which has been the case at two placements this student attended; the student's placements were terminated due to the student's unsafe practice" (emphasis added)
4. The primary judge referred to and placed emphasis upon the Associate Professor's references in her report to Ms Thiab's "anti-vaccination views and misinformation about COVID-19 vaccine safety and efficacy" but abstracted these words from the context Associate Professor Heaton immediately supplied, namely "raising concerns about [Ms Thiab's] ability to provide safe patient care and education to NSW Health clients". This, coupled with the passage extracted at [154] above, highlights the reasons for Associate Professor Heaton's decision to impose disciplinary sanctions. The Associate Professor's decision was entirely consistent with what had been stated by Ms Almeida in the "Clinical 'At Risk' Report" referred to at [36] above. The decision was a response to the risk identified in that form. The risk was one in relation to patient safety. It was not about or caused by the fact that Ms Thiab simply held certain views, whether "political" or not: cf PJ [128].

Consideration: the procedural fairness issue

1. We now turn to the question of whether the making of the declaration by reference to the disciplinary sanctions as set out at [8] above involved a denial of procedural fairness. The University's contention is that it was not fairly put on notice that Ms Thiab would seek to impugn Associate Professor Heaton's reasons for imposing the disciplinary sanctions, or that she would seek declaratory relief in relation to those sanctions.
2. In support of this contention, the University relied upon the following matters: 1. that neither the Summons nor the Amended Summons sought a declaration that the disciplinary sanctions contravened s 35 of the WSU Act, nor was Associate Professor Heaton a defendant in the proceedings; 2. that Ms Thiab's written submissions, which were served before the hearing, raised no challenge to the disciplinary sanctions on the basis that they contravened s 35 of the WSU Act; 3. that, at two pre-trial directions hearings, the question of whether Ms Thiab sought to challenge the disciplinary sanctions was raised either by the primary judge or by counsel for the University, with the primary judge indicating that the Summons would need to be amended if such relief was sought (see [58]-[61] and [63]-[64] above); 4. that solicitors for the University raised the absence of any challenge to the disciplinary sanctions expressly in a letter to Ms Thiab's solicitors dated 19 April 2022 to which there was no apparent response (see [66] above); 5. that Associate Professor Heaton's affidavit evidence pre-dated the misconduct decision and thus did not address it, highlighting the fact that the University did not understand any challenge was being made to that decision other than to the extent of a submission that, if the cancellation decision was set aside, the disciplinary sanctions should fall away; 6. that both Ms Thiab's and the University's opening written submissions proceeded on the basis that there was no challenge brought by Ms Thiab to the misconduct decision; 7. it was not put to Associate Professor Heaton in cross-examination that she had imposed sanctions because of "anti-vaxxer" beliefs she imputed to Ms Thiab.
3. Although not referred to by the University, the contention that it was not fairly on notice of the challenge to the disciplinary sanctions also finds support in the letter from Associate Professor Heaton to Ms Thiab dated 8 February 2022 and extracted in part at [46] above. In that letter, the Associate Professor indicated that her understanding of the purpose of her affidavit was to give "evidence of the present status of the complaint that is before me in my role as authorised officer". She stated that her evidence was "limited to the misconduct process, the Misconduct Rule itself, and the timeframe within which I expect the complainant to be resolved", and "does not concern the substance or merits of the complaint".

Other matters

1. The nature of the proceedings before the primary judge and on appeal did not concern the merits or otherwise of the cancellation decision or the subsequent disciplinary process and sanctions. As to the latter, as recorded at [23] above, Ms Thiab initiated an internal appeal process. Whether that process has run its course or was in abeyance as a result of these proceedings was not before the Court.
2. What was also not before the Court, either at first instance or on appeal, was any consideration of the procedural propriety of the University's disciplinary process conducted by Associate Professor Heaton which led to the disciplinary sanctions imposed on Ms Thiab. In that context, it was most regrettable that the trial judge saw fit to characterise the disciplinary proceedings as being, "[a]s an independent investigation, … a travesty", as he did at PJ [118], and to express his doubts as to whether Ms Hunt and Associate Professor Heaton "even read the relevant provisions of the Code": see PJ [126]. These observations, adverse to the reputation of Associate Professor Heaton in particular insofar as her investigation was described as a "travesty", were all the more regrettable as it was never put to Associate Professor Heaton either by way of cross-examination or by the primary judge that the disciplinary process had that character.
3. As a general but important rule, judges should refrain from making comments seriously critical of witnesses where at least the gist of any adverse criticism has not been put to them and where they have not been given an opportunity fairly to respond. This is for similar reasons as underpin the rule in Browne v Dunn (1893) 6 R 67 at 70-71 in which Lord Herschell LC famously said: "... if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses." (emphasis added)
4. As was observed in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [72] (Kuhl), "if it was not open to counsel for the first respondent to make the postulated allegation, how can it have been open to the trial judge, without warning, to incorporate into his reasons for judgment a finding to the same effect as the allegation?"; see also DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72 at [172].

Conclusion

1. In our opinion, leave to appeal should be granted and the appeal allowed with costs. The orders of the primary judge should be set aside and in lieu thereof, the Amended Summons should be dismissed with costs.

Endnotes

1. University of Sydney Act 1989 (NSW), s 31.
2. University of New South Wales Act 1989 (NSW), s 23.
3. Charles Sturt University Act 1989 (NSW), s 27.
4. Macquarie University Act 1989 (NSW), s 24.
5. University of Technology Sydney Act 1989 (NSW), s 24.
6. University of Newcastle Act 1989 (NSW), s 24.
7. University of Wollongong Act 1989 (NSW), s 24.
8. Australian Catholic University Act 1990 (NSW), s 7.
9. Southern Cross University Act 1993 (NSW), s 25.
10. University of New England Act 1993 (NSW), s 24.
11. See also Higher Education Act 1969 (NSW), s 27; University of Wollongong Act 1972 (NSW), s 35; University of Technology Sydney Act 1987 (NSW), s 32.
12. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 April 1964 at 8797 (Ernest Wetherell, Minister for Education).

Amendments 29 March 2023 - Under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) the following corrections were made:

At paragraph [136], second sentence the word "dismissed" should be replaced with "allowed" so the sentence should read: "This conclusion is sufficient to require that the appeal be allowed."; and

at paragraph [137], again second sentence, the word "dismissing" should be replaced with "allowing" so the sentence should read: "This provides a further ground for allowing the appeal." 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: 29 March 2023