Federal Court of Australia

McGary v Australian National University [2024] FCA 800

ORDERS

THE COURT ORDERS THAT:

1.    Within seven (7) days the parties file short minutes containing an agreed form of declaration and orders giving effect to these reasons.

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

REASONS FOR JUDGMENT

KATZMANN J:

1    This is an application for judicial review. It concerns a decision of an Appeals Committee of the Australian National University on an application for review of a decision of a nominee of the Vice-Chancellor. The principal question it raises concerns the nature of the review. In substance, that question is whether the review was limited to the grounds upon which it was sought, as the Committee believed, such that it would fail if the Committee was not satisfied that any of the grounds was made out, or whether it was a de novo review in which the Committee was required to reach the correct or preferable decision, as the applicant contends.

Background facts

2    The applicant was a doctoral student at the University when, on 7 September 2021, he was informed by the University that allegations of misconduct had been made against him. On 24 November 2021 he was notified that a nominee of the Vice-Chancellor (the Nominee) was satisfied on the balance of probabilities that he had breached several sections of the Discipline Rule 2018 (Cth) (Discipline Rule) between July 2019 and February 2020 and should be excluded from the University effective immediately. He sought an internal review of the Nominee’s decision but on 20 June 2022 an Appeals Committee affirmed the Nominee’s decision. The applicant applied to this Court for judicial review and on 24 October 2022 the decision of the Appeals Committee was set aside by consent and the matter remitted to the University for reconsideration according to law by a differently constituted Appeals Committee. On 29 November 2022, the applicant submitted a fresh application for internal review on five grounds and a newly constituted Appeals Committee was convened to hear it. The Appeals Committee published its decision on 17 April 2023. While it upheld the findings of misconduct made against the applicant for breaches of the Discipline Rule, it determined that the penalty was manifestly excessive and decided to vary it by substituting a reprimand and denying him access to all the University facilities, premises and activities for the duration of his enrolment and any examination periods, requiring his research program to be undertaken remotely.

3    By the time of the Appeals Committee’s decision, the applicant was close to submitting his thesis. He did so, and on 24 October 2023 he was informed that his thesis had been approved and he would be awarded a Doctorate of Philosophy. His degree has since been conferred.

4    On 7 November 2023 the applicant was offered admission, a scholarship, and advanced standing in the Masters of Legal Practice program at the University of Western Australia. He intends to complete the program so as to enable him to begin practical legal training with a view to seeking admission to the legal profession in Western Australia. He also intends to seek admission to practise law in the US State of Texas. He recognises that in the process of seeking admission in both jurisdictions he will be required to disclose any and all findings of misconduct made against him during his tertiary studies and that they will weigh against him in the assessment of his character and fitness to practice law in both jurisdictions. He is concerned that, absent the declaratory relief for which he has applied, he may fail to secure admission to the legal profession. He hopes that a declaration of the kind he seeks “will mitigate the impact” of the Appeal Committee’s findings.

The application

5    The application in this Court is brought under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). It is supported by two affidavits, both affirmed by the applicant. The applicant raises two grounds of review for which s 5(1) provides. He contends that the making of the Committee’s decision was an improper exercise of the power conferred by the enactment under which it was made, namely the Appeals Rule 2018 (Cth) (Appeals Rule or AR), and involved one or more errors of law. The two grounds of review, as particularised, amount to two different ways of saying the same thing. His grievance, in effect, is that the Appeals Committee misunderstood its task, which was to determine for itself what was the correct or preferable decision, and so fell into jurisdictional error. He asks the Court for declaratory relief confirming as much (with costs). But he does not seek any consequential order. In particular, he does not seek an order setting aside the decision and remitting the matter to the Appeals Committee for reconsideration.

The legislative scheme

6    Section 5(1) of the ADJR Act relevantly entitles a person who is aggrieved by a decision to which the Act applies to apply for an order of review on any one or more of several grounds including the two upon which the applicant relies. They are:

(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; [and]

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision.

7    A “decision to which this Act applies” is defined in s 3 as “a decision of an administrative character made … under an enactment …”, including “a part of an enactment”, excluding certain decisions not presently relevant. “Enactment” is defined in s 3 to include [in (c)] “an instrument (including rules, regulations or by-laws) made under … an Act”.

8    It is common ground that the decision of the Appeals Committee is a decision of an administrative character to which the ADJR Act applies.

9    The powers of the Court on an application for an order of review in respect of a decision are set out in s 16(1), which relevantly provides that the Court may, in its discretion, make all or any of the following orders:

(a)    an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

(b)    an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c)    an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)    an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

10    The Appeals Committee is a body appointed on an ad hoc basis by the Registrar in accordance with the Appeals Rule.

11    The Appeals Rule was made by the University’s Vice-Chancellor on 19 March 2018. It is a legislative instrument made under s 3 of the Appeals Statute 2014 (Cth), itself a piece of delegated legislation. Section 3.1 of the Appeals Statute provides that the Vice-Chancellor may make one set of rules pursuant to the statute with respect to appeals of decisions made, inter alia, under the Discipline Rules.

12    Section 50 of the Australian National University Act 1991 (Cth) relevantly provides that:

(1)    The Council may make Statutes, not inconsistent with this Act or the Public Governance, Performance and Accountability Act 2013, prescribing matters:

(a)    required or permitted by this Act to be prescribed by the Statutes; or

(b)    necessary or convenient to be prescribed by the Statutes for carrying out or giving effect to this Act.

(2)    The powers of the Council under subsection (1) include, but are not limited to, the power to make Statutes with respect to the following matters:

(a)    the management, good government and discipline of the University;

(b)    the imposition, by or on behalf of the University, of penalties upon:

(i)    students of the University; or

(ii)    persons employed by the University;

for contravention of, or failure to comply with, a Statute made under paragraph (a)[.]

…

13    The inquiry conducted by the Nominee was governed by the terms of s 14 of the Discipline Rule. It provides:

Inquiries

(1)    A prescribed authority, a panel appointed under section 12(5)(b) (Powers of, and action by, Vice-Chancellor) or the Vice-Chancellor may hold an inquiry into conduct of a student (the respondent).

(2)    The Registrar may appoint a person to assist the person or panel holding the inquiry to conduct the inquiry into the conduct.

(3)    The person or panel holding the inquiry must consider any oral or written statement presented by the respondent to the inquiry and may consider any other matters that the person or panel considers appropriate.

(4)    The respondent must be given the opportunity at the inquiry to comment on the material in the possession of the person or panel holding the inquiry on which the person or panel intends to rely.

(5)    The inquiry must, subject to this section, be conducted in the way that the person or panel holding the inquiry decides.

(6)    The person or panel holding the inquiry may act in an informal way and is not bound by the rules of evidence, but may inform itself on any matter as the person or panel considers just.

(7)    At the inquiry, the respondent may:

(a)    appear in person; and

(b)    present to the inquiry oral or written statements (whether made by the respondent or another person); and

(c)    in addition to or instead of appearing in person, give the inquiry a written statement about the conduct being inquired into (whether made by the respondent or another person).

(8)    At the inquiry, the respondent may be accompanied by another person who may:

(a)    observe the proceedings; and

(b)    with the express approval of the person or panel holding the inquiry, act as an advocate.

(9)    If the respondent was given notice of the inquiry in accordance with section 10(6) and (7) (Prescribed authority’s role) or section 12(6), (7) and (8) (Powers of, and action by, Vice- Chancellor), the person or panel holding the inquiry may exercise its powers whether or not the respondent is present at the hearing of the inquiry.

14    “Prescribed authority” is defined in s 4 to mean “in relation to any student—the Dean, the Registrar or a person nominated for the purpose by the Vice-Chancellor, as the case requires”.

15    If the prescribed authority finds that a student has engaged in misconduct, it has a wide discretion as to the action it may take, from nothing at all to denying the student access to all University facilities, activities or premises for up to 12 months; suspending the student’s candidature or enrolment in a program or course for up to 12 months; referring the matter to the Vice-Chancellor and informing “any relevant professional, government or other organisation or agency about the finding and any action taken in relation to it” (s 15(4)). If a panel appointed under s 12(5)(b) or the Vice-Chancellor holds an inquiry under s 14 into the conduct of a student and the Vice-Chancellor finds that the student has engaged in misconduct, the Vice-Chancellor also has a wide discretion, including excluding the respondent altogether from the University (s 16(4)(f)); determining that the relevant award for the program the student is studying should not be conferred (s 16(4)(k); and recommending to the Council that an award conferred by the University on the student be revoked (s 16(4)(l))).

16    Section 9 of the Appeals Rule, read with s 5, entitles a person affected by a “discipline decision” or an “academic misconduct decision” to apply for review of a decision. “Discipline decision” is defined in s 6 as a decision which is declared to be a reviewable decision by the Discipline Rule. One such decision is a finding by a prescribed authority under s 15(2)(b) that a student has engaged in “conduct that is misconduct”: Discipline Rule, s 25(1)(b). “Misconduct” is broadly defined in s 6 of the Appeals Rule and includes conduct of the kind in which the applicant was found to have engaged.

17    Section 9(2) of the Appeals Rule provides that the application must specify the grounds on which the person relies and be given to the Registrar.

18    Section 8 of the Appeals Rule provides:

Grounds for review

(1)    An application by a person for review of a decision must be made on 1 or more of the following grounds:

(a)    that a procedural irregularity happened that may have affected the decision by the decision-maker;

(b)    that the decision-maker was biased;

(c)    that the decision was manifestly wrong;

(d)    that the decision was made in a mistaken application of the applicable rules;

(e)    that there is substantial relevant evidence that:

(i)    was not taken into account by the decision-maker; and

(ii)    could not have been known to the person and provided to the decision-maker before the decision was made;

(f)    that a penalty imposed on the person, or any other action taken in relation to the person, under the Academic Misconduct Rule or Discipline Rule was manifestly excessive.

(2)    If an application for review includes the ground mentioned in subsection (1)(f), the penalty or other action is taken to form part of the decision for this instrument.

19    The Appeals Rule provides, in Pt 6, for a preliminary consideration of applications by the Registrar. Section 13 provides that, subject to s 12, “if it appears to the Registrar that an application for review relates to a reviewable decision, the Registrar [must] refer the application to an Appeals Committee”.

20    Section 12 relevantly provides:

Rejection of invalid applications

(1)    The Registrar may reject an application for review of a decision if it appears:

(a)    that the application does not relate to a reviewable decision; or

(b)    that the application does not set out 1 or more grounds required by this instrument; or

(c)    that the application has not been made within the time required by this instrument.

…

21    The Appeals Rule provides for an Appeals Panel and an Appeals Committee.

22    The constitution of the Appeals Panel is dealt with in s 15. It provides:

Appeals Panel

(1)    There is to be an Appeals Panel appointed by the Academic Board.

(2)    The Appeals Panel is to consist of at least 2 persons in each of the following categories:

(a)    students appointed after consultation with the President of the Australian National University Students’ Association Inc.;

(b)    students appointed after consultation with the President of the Australian National University Postgraduate and Research Students’ Association Inc.;

(c)    persons who have knowledge or experience in the teaching, research or visual and performing arts functions of the University.

(3)    A member of the Appeals Panel:

(a)    holds office, subject to this instrument, for 2 years; and

(b)    is eligible for reappointment; and

(c)    may resign by written notice given to the Registrar.

(4)    If a student who has been appointed under subsection (2)(a) or (b) ceases to be a student, the person ceases to be a member of the Appeals Panel.

23    Section 16 deals with the Appeals Committee. It provides:

(1)     If the Registrar receives an application for review, the Registrar must appoint an Appeals Committee for the review unless the application is rejected by the Registrar under section 12 (Rejection of invalid applications).

(2)     The Appeals Committee must include at least 4 members of the Appeals Panel, including:

(a)    1 student member from the appropriate category; and

(b)    3 members appointed to the Appeals Panel under section 15(2)(c) (Appeals Panel).

(3)     A person appointed to the Appeals Committee must not be the original decision-maker.

(4)     The Registrar must appoint a person, other than a student, to be the Chair of the Appeals Committee.

…

24    Section 21 provides:

If the application for review relates only to the penalty imposed, or other action taken, under the Academic Misconduct Rule or the Discipline Rule, the Appeals Committee must consider only the question of the penalty or other action.

25    Section 22 deals with the hearing of an application for review. It relevantly provides:

Hearing procedure

(1)    At the hearing of the application for review:

(a)    the procedure to be followed is at the discretion of the Appeals Committee; and

(b)    the Appeals Committee:

(i)    may inform itself on any matter in relation the review in any way it considers appropriate; and

(ii)    is bound by the rules of procedural fairness but is not bound by rules of evidence; and

(iii)    must take into account any submission made by the student or the Registrar.

(2)    At the hearing of the application for review, the Registrar may:

(a)    appear in person or, with the express approval of the Appeals Committee, through an advocate; and

[Note:    The Registrar may appoint a nominee under section 28 (Nominees for Vice-Chancellor and Registrar) to appear in person for the Registrar.]

(b)    call and question witnesses; and

(c)    make written or oral submissions.

(3)    The hearing of evidence by the Appeals Committee may be adjourned from time to time and from place to place.

…

26    Section 23(1) gives the student the right at the hearing of the application for review to appear in person, call and question witnesses and make oral or written submissions.

27    The powers of the Appeals Committee are contained in s 25, which is in the following terms:

Decisions by Appeals Committee

(1)    After considering the application for review, the Appeals Committee may:

(a)    confirm the decision of the original decision-maker; or

(b)    vary the decision; or

(c)    set aside the decision and make a fresh decision in substitution for the decision set aside; or

(d)    set aside the decision.

(2)    The Appeals Committee may:

(a)    accept an undertaking from the student; or

(b)    make recommendations arising from its consideration of the application for review, including recommendations for:

(i)    counselling; or

(ii)    intervention; or

(iii)    corrective or other measures that should be taken.

(3)     The Appeals Committee may vary the decision under subsection (1)(b), or substitute a fresh decision under subsection (1)(c), only if the decision as varied, or the fresh decision, is a decision that the original decision-maker could have made.

(4)     In deciding a question in relation to the penalty imposed, or other action taken, in relation to the student under the Discipline Rule, the Appeals Committee must take all relevant matters into account, including, for example, the following:

(a)     the health and safety of students and staff of the University, and the protection of University property;

(b)     the objectives of punishment, deterrence and rehabilitation;

(c)     the nature and severity of the student’s misconduct;

(d)     the effect of the misconduct, including any loss, damage or harm caused to the University or its students, staff or property.

(5)     Without limiting subsection (4), the Appeals Committee may take into account any other finding of misconduct (however described) made in relation to the student and the action (if any) taken in relation to that finding.

(6)     The decision of the Appeals Committee and the reasons for the decision must be given in writing to the student and the Registrar by the Secretary to the Appeals Committee within 10 working days after the day the decision is made.

28    The decision of the Appeals Committee is final: Appeals Rule s 27.

The decision of the Appeals Committee

29    The Appeals Committee provided a convenient summary of its decision at [8] of its reasons:

The detailed reasoning of the Appeals Committee is below. In summary, the Committee has determined the following:

•    The University has jurisdiction to conduct an inquiry and make findings in relation to the reported conduct in accordance with the Discipline Rule and Appeals Rule;

•    The Committee considers it was open on the material before the Nominee to make a finding of misconduct and the Committee has not upheld the grounds in s 8(1)(a),(c),(d) or (e) of the Appeals Rule;

•    The Committee has upheld the appeal ground in s 8(1)(f) of the Appeals Rule; and

•    The Committee has varied the decision in accordance with s 25(1)(b) of the Appeals Rule to a finding of misconduct with a different penalty to that imposed by the Nominee.

The University’s position

30    The University accepted that the Appeals Committee approached the review on the limited basis that its task was to consider whether the grounds of review identified by the applicant had been made out, rather than to determine for itself whether the complaint had been made out. It submitted, however, that it was correct to do so.

31    The University argued that that is clear from the structure of the Appeals Rule as a whole. It pointed to three matters: first, that an application for review of a decision must be made on one or more specified grounds (ss 8 and 9); second, that an application for review may be rejected if it does not set out one or more grounds (s 12); and third, that it is “the application for review” that is referred to an Appeals Committee for hearing and decision (ss 13, 16, 20, 22, 23 and 25). It contended that to hold otherwise would render “otiose” the whole requirement to specify grounds and to refer to the Appeals Committee only applications which contain such grounds, and that is a construction to be avoided. It also contended that a construction of the Appeals Rule which defines the scope of the review by reference to the grounds specified in the application for review is consistent with the characterisation of the review as an “appeal” by an “Appeals Committee” and that the nature of the grounds are more consistent with those available in judicial review or in an appeal by way of rehearing than a de novo review on the merits.

Did the Committee err as alleged?

32    The core issue or question, as the applicant put it, is whether the designation of grounds of review limits the scope of the review or is merely a gateway to the exercise of the powers of review. It is common ground that this is a question of statutory construction. As the University submitted, like an “appeal”, a “review” has “no settled pre-determined meaning”; rather, “it takes its meaning from the context in which it appears” (Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261 per Mason CJ, Brenann and Toohey JJ), from full merits review involving a hearing de novo to a process which is confined in some way, such as in scope or as to the material to be considered or to the consideration of specified grounds.

33    In my opinion, the review miscarried. Properly construed, the Appeals Rule requires an Appeals Committee to review the Nominee’s decision and the review is not limited to, or concerned solely with, the disposition of the grounds of review. Rather, as the applicant contended, the grounds provide a gateway to merits review. In limiting its consideration to whether the findings of the Nominee were open to him, the Appeals Committee constructively failed to exercise its jurisdiction. It misconceived its role or misunderstood the nature of its jurisdiction or duty or the nature of the opinion it was required to form: Ex parte Hepburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ); Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 at [80] (Gaudron J).

34    The following features of the scheme point strongly to that conclusion.

35    First, at the hearing of the review application both the Registrar and the student have an unfettered right to call and question witnesses (AR, ss 22(2) and 23(1)). In an appeal in the strict sense there is no right to adduce evidence. In an appeal by way of rehearing, “fresh” or “further” evidence may only be adduced with leave. As the applicant submitted, the conferral of an unfettered ability on the parties to call witnesses and adduce new evidence is “antithetical” to a limited right of review.

36    Second, the rights given to the student are significantly broader on review. Whereas on review the student may call and question witnesses, there is no equivalent right given to the student at the inquiry. Although the potential consequences for the student of an adverse finding are serious, the Discipline Rule does not give the student a right to question or confront their accuser or others upon whose untested accounts the original decision-maker may rely.

37    Third, the right to call and question witnesses on the review is not limited to any particular ground of review.

38    Fourth, the Discipline Rule does not require the original decision-maker to make or keep a record of what takes place during the inquiry.

39    Considerations of this nature are relevant to determining the nature of an appeal to a court from an administrative authority. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621 Mason J, with whom Barwick CJ and Stephen J agreed, observed that:

There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo… The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what had taken place there. The authority may not be bound by the rules of evidence of the issues which arise may be non-justiciable … In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or a hearing de novo.

40    Sixth, if the respondents’ construction were correct, there would be no need for s 21.

41    Seventh, the powers exercisable by the Appeals Committee are very similar to the powers given to the Administrative Appeals Tribunal (AAT) in reviewing administrative decisions: see Administrative Appeals Tribunal Act 1975 (Cth), s 43(1). Both include a power to confirm, vary, set aside the decision, and set aside the decision and make a fresh decision in substitution for the decision set aside. The only difference, which I do not consider significant, is the power given to the AAT to remit a decision to the original decision-maker. The AAT’s obligation is to review the merits of the original decision and determine whether that decision was the correct or preferable one on the material before it, not whether the decision of the original decision-maker was the correct or preferable one on the material before them: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; 46 FLR 409 at 419 (Bowen CJ and Deane J).

42    The fact that the Appeals Rule requires a review to be brought on one or more grounds is not significant and certainly not decisive.

43    Appeals from decisions of the Registrar of Trade Marks and the Commissioner of Patents, for example, must be brought on “grounds”, which are to be stated and particularised in the notice of appeal (Federal Court Rules 2011 (Cth), rr 34.24. 34.26). Nevertheless, in each case the appeals are appeals in name only. The “appeal” is a de novo hearing in which the court’s task is not to correct error on the part of the original decision-maker but to deal with the original controversy afresh: New England Biolabs Inc v F Hoffmann-La Roche AG (2004) 141 FCR 1 at [44] (Kiefel, Allsop and Crennan JJ); Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71; 367 ALR 393; 142 IPR 1 at [228] (Burley J). Thus, in the case of a trade marks appeal, for example, just like a tribunal conducting merits review, the court “stands in the shoes” of the Registrar and determines on the evidence before it whether the opposition to registration should succeed: Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365 at [32]–[35] (French J, Tamberlin J agreeing at [104]).

44    The applicant relied on McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609 in which the NSW Court of Appeal held that a review of a medical assessment by a review panel under s 63 of the Motor Accidents Compensation Act 1999 (NSW) extends to the whole of the medical assessment, and is not limited to the grounds particularised in the application.

45    Section 63 relevantly provided:

(1)    A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2)    An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

(3)    The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

…

46    Giles JA, with whom Allsop P agreed, considered s 63 in its statutory context, noting (at [25]) that, under s 63, the party making the application in accordance with subs (1) applies for referral of the medical assessment, not for referral of part of the medical assessment and that subs (2) speaks of the medical assessment, not part of the medical assessment, being incorrect in a material respect. At [26] his Honour said that s 63(2) and s 62(3) “implicitly require a statement of grounds of correctness in a material respect, which the proper officer can consider in order to be satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect ‘having regard to the particulars set out in the application’”, and then “the proper officer arranges for ‘any such application’ to be referred to a review panel, that is, the application itself”. At [27] his Honour rejected the notion that reference of the application carries with it only “the grounds of incorrectness in a material respect” and that the review panel’s assessment is confined to “that incorrectness”. He wrote:

In my opinion, that is not the proper construction of s 63. The referred application is still an application to refer the medical assessment. There is inelegance in referring to the review panel an application to refer a medical assessment to the review panel, but the review panel plainly does more than decide whether it will accede to the application to refer the medical assessment to it. What the review panel receives is a reference to it of the medical assessment. Section 63(2) and s 63(3) do not cut this down. Section 63(3) provides a filter mechanism. Section 63(2) in terms limits the grounds for making an application, although no doubt its effect is that a review panel cannot issue a new certificate if it considers that any incorrectness in the medical assessment was not in a material respect, but it does not otherwise affect the performance by the review panel of its task of either confirming the medical assessor’s certificate or issuing a new certificate expressing its own assessment of the matter or matters referred for assessment.

47    At [29] his Honour referred to the significance of medical assessments and the consequences that could flow from limiting the review to the grounds particularised in the referral application:

I have described the significance of medical assessments. A medical assessment can have a profound effect on a claimant’s recovery, to the perceived detriment of the claimant or the insurer. The legislature has provided for review by a review panel so that a dissatisfied party to a medical dispute can seek redress, as is appropriate given the significance. The dissatisfied party may have particularised the grounds for incorrectness in a material respect, but it would be harsh if the review panel did not have power to entertain altered, added or substituted grounds. (The Medical Assessment Guidelines, to which medical assessments are procedurally subject (s 65), provide that application under s 63(1) must be made within thirty days of receipt of the medical assessor’s certificate (cl 10.1), without ability to extend time (cl 10.3).) Ignorance or mistake should not be penalised, and there can be second thoughts; the significance of a medical assessment is such that restrictions on getting it right should not readily be found to have been intended by the legislature.

48    While the analogy is an imperfect one, the majority’s reasoning applies equally to the Appeals Rule. Here, it is the application for review which is referred to the Appeals Committee, not the grounds of review (s 13) and the Appeals Committee conducts a hearing of the application for review, not the grounds (s 22). The University has provided for a review by the Appeals Committee to enable a dissatisfied student to seek redress. An adverse determination can have a grave effect on the student’s mental health and career path, particularly for a student who is working towards a career, like the law, where it is a condition of admission to practice that the student is “a fit and proper person”. The prospect of incorrect particularisation of the grounds is no less likely. Under the Appeals Rule, an application for review must be made within 20 working days after the student is notified of the decision. While the Appeals Rule does provide for an extension of time (s 9(1)(b)), any decision to extend time is in the discretion of the Registrar and no provision is made for the review of a decision to refuse to exercise it in the student’s favour.

49    The respondents relied on the following passage in the judgment of Basten JA at [66];

If the medical assessment were at large before the review panel, there would be a limited purpose in referring the application to it. By contrast, the provision for referral of the application indicates a clear purpose, namely to notify the review panel of the extent of the dispute which it is being asked to resolve. To effect that purpose, the review panel should be understood to be restricted to considering the errors identified in the application.

50    But Basten JA was in dissent.

51    The respondents submitted that this case is distinguishable from McKee because there is no filtering or gatekeeping function akin to that upon which the Court relied in McKee. I disagree. Section 12 of the Appeals Rule is of this nature.

52    The respondent also emphasised that what is referred to the Appeals Committee is an application for referral, not an application for review. But that is a distinction without a difference. The application for referral is an application to the review panel for the review panel to conduct a review.

53    As the applicant submitted, on a proper construction of the Appeal Rule, the grounds of review do not define the scope of review or limit the powers of the Appeals Committee. The purpose of the grounds is to identify whether the application should proceed to a review. Once a valid application is made, the Appeals Committee “stands in the shoes” of the Nominee. It is required to consider all the material before it, make witnesses available for questioning if requested, take evidence from witnesses, if any, that the student may wish to call, hear from the Registrar and the student, and determine whether the complaint is made out to its satisfaction.

54    It follows that I am satisfied that, by limiting its consideration to the grounds of review and failing to consider for itself whether the complaint was made out, the Appeals Committee took too narrow a view of its own jurisdiction or powers. That was an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 352 (Mason CJ). It is unnecessary in the circumstances to consider whether it was also an improper exercise of the power conferred upon the Appeals Committee.

What order should be made?

55    The applicant submitted that a remittal is inappropriate in the circumstances because he has completed his course; his degree has been conferred; and he is no longer a student. As a result, his relationship with the University has come to an end and any rehearing would be “inutile”.

56    The University submitted that, if reviewable error is found, the decision should be set aside and the matter remitted for consideration according to law. It argued that the mere making of a declaration is inappropriate because, even if the decision of the Appeals Committee was affected by reviewable error, there is an extant application for review of the decision of the Nominee and “a residual discretion” in the Appeals Committee “to decide the ultimate question favourably or unfavourably to the applicant”. In those circumstances, it submitted, despite the breadth of the powers conferred by s 16 of the ADJR Act, “usually, if not invariably”, the order the Court should make is to remit the matter for further consideration according to law: Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 541. The University also pointed out that “student” is defined (in both the Discipline Rule and the Appeals Rule) as “a person who is or was enrolled in, or seeking enrolment in, a program or course offered by the University …” (emphasis added) and therefore it is immaterial that the applicant is no longer a student.

57    It strikes me as odd that the Court should declare that the decision-making process miscarried and not set aside the decision. On the other hand, I am not disposed to order that the matter be remitted for hearing according to law. Notwithstanding the usual course, in this case the applicant has already been penalised and has served his sentence, so to speak. Moreover, the University proceeded to confer his degree in full knowledge of the disciplinary proceedings and their outcome. In these circumstances, where the applicant does not seek vindication, remitting the application for a new hearing seems inappropriate.

58    I will therefore grant the applicant a declaration in a form to be agreed by the parties as foreshadowed at the hearing and order that the decision be set aside. But I will make no order for remittal. Costs should follow the event.

Associate:

Dated:    19 July 2024