Federal Court of Australia

Garvey v Australian National University (No 2) [2024] FCA 632

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    By an application filed on 3 April 2023, the applicant seeks an extension of time pursuant to r 31.02 of the Federal Court Rules 2011 (Cth) to lodge a judicial review application under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The impugned decision was made by the Deputy Vice-Chancellor of the respondent, the Australian National University (ANU), to decline to uphold the appeal of a decision to terminate the applicant’s candidature in his PhD program.

2    In his draft amended originating application, which was lodged on 15 March 2024, the applicant seeks the following orders:

1. The impugned decision of Professor Keith Nugent be quashed, that it be declared void ab initio and that it be remitted back to the new deputy-vice-chancellor (research and innovation), Professor Lachlan Blackhall, to be remade according to law.

2. A prohibitive injunction against Professor Genevieve Bell, the new ANU vice chancellor, Professor Brian Schmidt, the former vice chancellor, and any other person from influencing, or attempting to influence, the outcome of Professor Lachlan Blackhall's remaking of the impugned decision.

3. A mandatory injunction that Professor Lachlan Blackhall remake the impugned decision according to law.

4. A mandatory injunction that Professor Lachlan Blackhall immediately and directly report any attempt to influence his remaking of the impugned decision to both the Australian Federal Police and the ANU's Council, by passing vice chancellor Professor Genevieve Bell.

5. A declaration that Professor Keith Nugent's impugned decision unlawfully infringed the Applicant's implied constitutional freedom to communicate on political matters.

6. A declaration that Professor Keith Nugent's impugned decision unlawfully infringed the Applicant's academic freedom.

7. A declaration that Professor Keith Nugent's impugned decision unlawfully infringed the Applicant's right to seek and impart information, a right protected under Article 19 of the International Covenant on Civil and Political Rights.

8. A declaration that the Australian National University, on the orders of then-vice-chancellorship Professor Brian Schmidt, unlawfully condoned the research misconduct of Dr. Mark Harrison of the University of Tasmania.

9. A declaration that the Australian National University, on the orders of then-vice-chancellorship Professor Brian Schmidt, unlawfully infringed the academic freedom of the Applicant.

(quoted as in the original)

(footnotes omitted)

3    For the reasons that follow, the application for an extension of time is dismissed.

BACKGROUND

4    The applicant was a PhD candidate at the ANU from February 2016 until 2019 in the College of Asia and the Pacific at the Australian Centre for China in the World. His research related to changes in Hong Kong’s political situation.

5    On 15 November 2016, the applicant met with the supervisory panel to discuss his Thesis Proposal Review (TPR) which was scheduled for 2 December 2016. As a result, it was determined that the applicant’s thesis proposal was lacking a substantial thesis question. The first TPR was deemed unsatisfactory, and it was recommended that the applicant undertake a further review of his Thesis Proposal.

6    From the end of 2016, the applicant conducted field work related to his proposed thesis in Hong Kong. In November 2017, when he was towards the end of the field work, he alleges that he was subject to ritual abuse, torture, human experimentation, bastardisation, attempted brutalisation and involuntary initiation ritual.

7    On 9 April 2018, a second TPR took place wherein it was determined that the applicant’s thesis remained unsatisfactory and “showed that the period of fieldwork in Hong Kong had not clarified [the applicant’s] ideas on a research question”. It was recommended that the applicant show cause as to why his candidature should not be terminated.

8    On 18 May 2018, the Panel Chair, Dr Benjamin Penny met with the applicant to advise him of the panel’s “continuing lack of satisfaction and of the decision to allow him a last chance to demonstrate his capabilities”. Ultimately, while it was acknowledged that the applicant’s work showed some progress, it was determined to be unsatisfactory for the standard required for a PhD.

9    On 20 August 2018, Dr Penny again met with the applicant and informed him that the Panel had unanimously recommended that the applicant’s candidature be terminated. He was repeatedly advised to consider withdrawal from the program so that his ability to pursue a PhD in a different institution would not be adversely impacted. He was given two weeks to assess his options.

10    On 2 September 2018, the applicant advised Dr Simon Avenell, Associate Dean, that he believes he has been treated unfairly, there had been an infringement on his academic freedom and that Dr Mark Harrison did not supervise him in good faith.

11    On 6 September 2018, Dr Avenell advised the applicant that ANU was considering terminating his candidature on the basis of the two failed TPRs and invited the applicant to make any written representation to him.

12    On 31 October 2018, the applicant was advised by letter that his candidate was being terminated pursuant to s 48 of the Research Awards Rule 2017 (which was then in force). The grounds provided were as follows:

a.    You have failed two attempts at the Thesis Proposal Review (TPR), the first on 2 December 2016 and the second on 9 April 2018;

b.    Your supervisory panel has attempted to assist you and provide direction after both TPRs; however, they have reached the unanimous decision that your work and progress have been unsatisfactory; and

c.    Your supervisory panel are no longer supportive of your continued candidacy.

13    On 24 November 2018, the applicant appealed the decision, leading to an appeal hearing on 18 December 2018. On 7 February 2019, the applicant was advised that the Committee has confirmed the initial decision (Appeal Decision).

14    On 7 March 2019, the applicant appealed the Appeal Decision on procedural grounds, namely that his supervisors did not comply with the statutes, rules, order and policies of the university as required by section 53 of the Rule.

15    On 5 April 2019, Professor Keith Nugent, Deputy Vice-Chancellor, advised the applicant that the appeal was not upheld on the basis that the university had followed its procedures (Impugned Decision). This decision is the one which is the subject of the judicial review application which the applicant seeks to bring.

16    At the hearing, the applicant was self-represented and relied upon his affidavits affirmed on 3 April 2023 and 11 September 2023 (September Affidavit).

17    The respondent read the affidavit of Alexandra Gorman affirmed on 16 October 2023 and a written outline of submissions.

LEGISLATIVE FRAMEWORK

18    Section 5(1) of the Act relevantly provides:

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

…

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

…

(g)    that the decision was induced or affected by fraud;

(h)    that there was no evidence or other material to justify the making of the decision;

…

(j)    that the decision was otherwise contrary to law.

19    Pursuant to s 11(3) of the Act, an application for judicial review must be made within 28 days after the decision is furnished to the applicant. However, s 11(1)(c) of the Act empowers the Court to extend the time by which the applicant can make an application for judicial review, whether before or after the expiration of the prescribed period.

20    The considerations relevant to this exercise of discretion were set out in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186 at 348 – 349. They include the length of, and explanation for the delay, action taken by the applicant, prejudice to the respondent, public interest considerations and the merits of the substantive application.

CONSIDERATION

21    At the outset of the hearing, the applicant advanced the argument that this Court is a court of equity and accordingly should invoke its equitable jurisdiction to prevent an unjust application of the prescribed time limit for bringing a judicial review application.

22    However, as correctly submitted by the respondent, the application is brought under the Act and invokes the Court’s statutory jurisdiction. Further, as to the applicant’s submission that the Court should not allow for a strict application of the provision and should consider the relevant circumstances, that is indeed what the Court is doing when considering the various factors in Hunter Valley. It is appropriate to consider each of the relevant factors in turn.

Length of, and explanation for, the delay

23    A paramount consideration for the Court in exercising its discretion to grant an extension of time is whether the applicant can show an explanation for the delay and that it is fair and equitable in the circumstances to grant the extension.

24    The period of delay in this case is considerable, being approximately 4 years.

25    The applicant deposed to various circumstances which may have contributed to the delay in bringing the application. In summary, the applicant deposed:

(1)    On 2 May 2019, he sought legal assistance from a solicitor, Mr Mitchell Downes, in relation to the judicial review application but was subsequently ‘dropped’ by him. The applicant deposed that he believes Mr Downes was subject to improper influence from an agent of the respondent and had breached the fiduciary duties he owed to the applicant.

(2)    He made a complaint to the Commonwealth Ombudsman regarding the Impugned Decision on 5 May 2019. On 24 May 2019, the Ombudsman made a decision not to investigate the applicant's complaint.

(3)    He sought the assistance of another solicitor, Ms Emily Shoemark, who was unable to assist.

(4)    He suffered a ‘nervous breakdown’ and suffers from post-traumatic stress disorder and severe depression. It has taken him “some time and much study” to process what happened to him.

26    As to the complaints about Mr Downes, there is plainly no evidence before the Court to suggest that he had been under improper influence or had acted improperly. As the applicant himself stated, he has only inferred in respect of the allegation of a breach of fiduciary duties. By a letter of 3 May 2019, Mr Downes informed the applicant that he had reviewed the material, considered the possible grounds of review and ultimately advised that he was “unable to identify any grounds of review that would support [the applicant] making an application for judicial review” and that an application for judicial review would have “next to no prospects of success”.

27    This is not a case where the default or error of a solicitor has resulted in the late filing of an application; Pattanasri v Minister for Immigration, Local Government & Ethnic Affairs (1993) 34 ALD 169 at 182. Indeed, on the evidence before the Court, it appears that Mr Downes had acted quite properly and discharged his duties by providing legal advice to the applicant. This is also supported by the fact that the applicant had lodged a complaint about Mr Downes with the Legal Services Commissioner, which was dismissed. He then lodged a complaint with the Queensland Ombudsman about the Legal Services Commissioner’s handling of the complaint, which was also dismissed.

28    Further, to the extent that the applicant’s argument may be that the delay can be explained by the adverse legal advice received on 3 May 2019, I refer to the findings of Cowdroy J in Wyong-Gosford Progressive Community Radio Inc v Australian Communications Media Authority (2006) 93 ALD 784; [2006] FCA 1691 at [26]:

The fact that an adverse legal opinion was received by PCR relating to its prospects of success in May 2005 is not a sufficient reason to justify the delay in commencing proceedings. GCB submits that the observations of McHugh J in Re Commonwealth of Australia and Another; ; Ex parte Marks (2000) 177 ALR 491 apply wherein His Honour said (with reference to the prevailing High Court Rules) that a delay of 17 months to institute proceedings to quash a decision was beyond that which should be countenanced: see [16]. His Honour also said at [17] that:

‘[17] An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision.’

29    As to the position that seeking the assistance of the Commonwealth Ombudsman is a sufficient explanation for the delay, it is not clear why this would have prevented the applicant from bringing a judicial review application at the same time. Further, the applicant sought the assistance of the Commonwealth Ombudsman on 5 May 2019. He was formally advised on 24 May 2019 that the Ombudsman would not investigate his complaints. Even if it was the case that the applicant was awaiting the decision of the Ombudsman, there is no explanation provided for the delay from 24 May 2019 to 3 April 2024, being the date upon which he brought the extension of time application.

30    As to the applicant’s mental health status, the applicant deposed that he has seen four psychiatrists in total. He also deposed:

…While I have the reports of those four psychiatrists, the best evidence that I suffer mental health problems due to the “set up” that was human experimentation without consent is the fact that Services Australia, after I was interrogated in an interview with Centrelink psychologist, recognised my suffering PTSD and deemed me partially disabled and a Pensioner in early 2020.

31    At the hearing, the applicant submitted that the fact that he has a pensioner’s card is sufficient medical evidence to explain the delay in bringing the application.

32    I am not satisfied that the applicant has adduced any medical evidence before the Court to support the finding that he suffers from a medical condition which has prevented him from pursuing this application within the prescribed time.

Conduct of the applicant

33    The conduct of the applicant, other than making the application for judicial review, is also relevant: Hunter Valley at 348 – 349. In this case, the applicant has repeatedly contested the Impugned Decision in several ways. He has sought legal advice on the matter and attempted to make a complaint to the Commonwealth Ombudsman. In his September Affidavit, he deposed to further conduct which he purports forms “extra-curial conduct” which put the respondent on notice that he does not accept its decision:

19. My “extra-curial conduct” since the ANU’s decision has informed the respondent that I do not accept its decision. After making substantive (2018) and procedural (2019) appeals directly to the ANU, beginning in September 2019, I made multiple freedom of information requests to the ANU. …

20. I made a criminal complaint to the Australian Federal Police in December 2022 about vice chancellor Schmidt’s being blackmailed and hacking my email account and sending emails in my name, and although I did not receive a personalised reply, two months later, in February 2023, the ANU vice chancellor announced his resignation.

21. I have done other “extra-curial conduct” that shows that I do not accept the ANU’s decision, although the ANU may not have been aware of this conduct: such acts include my making a complaint about the ANU decision to the Administrative Appeals Tribunal in December 2021. (By order dated 11 January 2022, the AAT decided it could not identify a provision of law under which it could review the decision of the ANU.) I also made complaints about the ANU to the Australian Human Rights Commission and the Commonwealth Ombudsman.

(Footnotes omitted)

34    As submitted by the respondent, no explanation is given as to why the applicant could not have pursued a judicial review application at the same time as the aforementioned conduct. While some weight can be given to the fact that the applicant has not “rested on his rights”: Doyle v Chief of General Staff (1982) 71 FLR 56 at 60, given the extent of the delay and the lack of sufficient explanation provided, I do not consider that such conduct weighs heavily in favour of granting the extension.

Prejudice to the respondent

35    A material factor militating against the grant of an extension is any prejudice to the respondent, including prejudice in defending the proceedings; Doyle at 60; Duff v Freijah (1982) 62 FLR 280 at 287. As the respondent submitted, where the delay is lengthy, the Court is entitled to infer that there is prejudice suffered by the respondent: Maric v Comcare (1993) 40 FCR 244; 17 AAR 259 at 250 – 251. This is because “[t]he longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose”: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 551. However, the absence of prejudice to the respondent does not, by itself, sufficiently justify the granting of an extension; Lucic v Nolan (1982) 45 ALR 411 at 416; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 523.

36    Accordingly, given the delay is lengthy in this case, the Court is entitled to consider that the respondent is prejudiced by it.

Merit of the substantive application

37    The merits of the substantive application ought to be considered when determining whether the Court should exercise its discretion to grant an extension of time: Hunter Valley at 349; Lucic v Nolan at 417. The Court is not required to conduct a full and detailed examination of the substantive application. The relevant question is whether the substantive application, on the evidence before the Court, has arguable merit; Trevor, in the matter of Bell Group NV (in liq) [2016] FCA 851 at [24]; Federal Commissioner of Taxation v Brown [1999] FCA 1198 at [18].

38    While the applicant’s draft originating application only contained one ground of review, orders were made for the filing of a draft amended originating application. The grounds of review as found in the draft amended originating application can be summarised as follows:

(1)    The making of the decision by Professor Keith Nugent was an improper exercise of the power conferred by the enactment in pursuance of which it purported to be made as the decision was an exercise of a personal discretionary power at the direction of Professor Brian Schmidt.

(2)    There was a breach of the rules of natural justice in connection with the making of the decision as Professor Schmidt submitted to “blackmail or extortion by threat, and act[ed] ultra vires, or beyond power, for an improper purpose.”

(3)    The decision was induced or affected by fraud, constituted by various acts, including the blackmailing of Professor Schmidt and the criminal hacking of ANU in November 2018. The applicant also referred to the corruption of the ANU Appeals Committee as it did not consider two positive evaluations of his scholarship and Dr Harrison’s evaluation of his scholarship as a basis for fraud.

(4)    There was no evidence or other material to justify the making of the decision as there were two positive evaluations of the applicant’s scholarship and only one negative one by Dr Harrison.

(5)    The decision was made otherwise contrary to law based on the criminality and wrongdoing which is alleged to have occurred above.

39    In his concise statement, the applicant claims that Professor Schmidt was blackmailed into “condoning the research misconduct of Dr. Mark Harrison.” He also alleges that Professor Schmidt wrote a letter to the Appeal Committee for an improper purpose and “functioned to pressure the tribunal into violating [his] right to seek and impart information.”

40    The respondent submitted that the allegations by the applicant were assertions unsupported by evidence and that by the relief sought by the applicant, the applicant is asking the Court to engage in merits review. I agree with the respondent’s submissions in that regard. There is no evidence before the Court to support the applicant’s claims in respect of the substantive application. As correctly contended by the respondent, there is also no evidence to link Professor Schmidt, who is the subject of many of the allegations, to the Impugned Decisions. I am satisfied that the substantive application is, on its face, without merit.

Public interest considerations

41    The Court ought to consider the prejudice to the public interest in the administration of the law when determining whether to exercise the discretion to grant an extension of time. This consideration is relevant both in relation to the importance of finality of decisions and in respect of reviewing the correctness of the decision: Australian Petroleum Pty Ltd v Australian Competition and Consumer Commission (1997) 73 FCR 75; 143 ALR 381 at 85. This balancing exercise has been helpfully summarised by Smithers J in Intervest Corporation Pty Ltd v Federal Commissioner of Taxation (1984) 3 FCR 591; (1984) 58 ALR 317 at 599 as follows:

…It is in the public interest that the administration of the law should not be inappropriately hampered by the extension of indulgences to undeserving persons, but it is in accordance with justice and the public interest that a citizen should not lose an entitlement by delay which is neither reprehensible or excessive. …

42    The applicant submitted that there is a significant public interest in the application for judicial review, in “getting a criminal out of the position of [V]ice [C]hancellor” and in “publicly detailing the mostly covered-up or glossed-over criminal, human-rights-violating practices…of US proxies in overseas jurisdictions.” He contended that the Court should accordingly issue a public interest order wherein each party bears their costs irrespective of the outcome.

43    Conversely, the respondent submitted that finality of decisions is in the public interest and referred to Taylor at 552 wherein McHugh J stated:

…people should be able to arrange their affairs and utilize their resources on the basis that claims can no longer be made against them…public institutions…have a significant interest in knowing that they have no liabilities beyond a definite period… the public interest requires that disputes be settled as quickly as possible.

(Footnotes omitted)

44    The respondent also advanced the argument that, in promoting fairness between the applicant and people in a similar position to that of the applicant, being students who comply with the prescribed time limit, the public interest would not support the granting of an extension of time in these circumstances.

45    In this case, I am satisfied that the public interest is served by the dismissal of the application for an extension of time. As correctly submitted by the respondent, there is a public interest in ensuring that time limits are not waived in circumstances where it is not in the interests of justice that an extension of time be granted, particularly where the delay is significant. As to the applicant’s contentions, I do not consider that such matters would be addressed by a judicial review application.

CONCLUSION

46    The applicant has not provided a sufficient explanation for the considerable delay and the substantive claim is, in any event, unmeritorious. Accordingly, I am not satisfied that it is in the interests of justice that an extension of time be granted for the applicant to bring an application for judicial review. The application for an extension of time is dismissed. Costs ought to follow the event.

Associate:

Dated:    14 June 2024