Federal Court of Australia

AWX24 v Australian National University (Separate Question) [2024] FCA 1075

ORDERS

THE COURT ORDERS THAT:

1.    The question stated for separate decision on 7 August 2024 be answered as follows:

(a)    The decision of the Appeals Committee of the respondent communicated to the applicant on 12 January 2023 (the Appeal decision) should be set aside.

(b)    Prayer 1(f) in the amended originating application should be dismissed.

(c)    The remaining prayers for relief should be set down for hearing.

2.    In accordance with the answers stated in order 1:

(a)    the Appeal decision be set aside; and

(b)    the originating application be dismissed in so far as it seeks the relief set out in prayer 1(f).

3.    The proceeding be listed for case management on a date to be advised.

4.    The parties provide short minutes of order to Justice Kennett’s Chambers 24 hours prior to the case management hearing referred to in order 3 providing for the timetabling of evidence and submissions for a hearing on the remaining issues in the proceeding.

5.    The costs of the hearing on the separate question stated on 7 August 2024 be reserved.

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

REASONS FOR JUDGMENT

KENNETT J:

Background

1    In March 2022 the applicant was beginning his third year as a student at the Australian National University (the University). He attended an event with other students in the evening, organised by one of the Halls at the University, which involved visiting various bars in Canberra and partaking in their offerings. Afterwards, he returned to his home with three other students.

2    It is not necessary for present purposes to go into any of the detail of what then occurred except that these events resulted, in August 2022, in a complaint against the applicant by one of the other students (who is referred to in these proceedings by the pseudonym ATT24) under the University’s Discipline Rule 2021 (Cth) (Discipline Rule). The complaint alleged that the applicant had engaged in non-consensual, unprotected sexual intercourse with ATT24.

3    Professor Grady Venville, the Deputy Vice-Chancellor (Academic) of the University, was nominated to deal with the complaint. Professor Venville wrote to the applicant on 17 August 2022 notifying him of the commencement of an inquiry and inviting him to participate in an “inquiry” which was to occur on 30 August 2022. He was also invited to make a written statement. In addition, Professor Venville denied the applicant access to all residential and non-residential halls at the University and any activities conducted by them.

4    The applicant’s position was (in short) that he had had intercourse with ATT24 but there had been a conversation beforehand which established that it was consensual. He submitted a written statement of his own and statements by the two other students who had been present, which supported his account of events. The inquiry was delayed but occurred on 8 September 2022. Professor Venville interviewed the applicant from 3:45pm to 4:24pm on that day. She did not speak to ATT24 or to the other witnesses.

5    On 20 September 2022, Professor Venville wrote to the applicant informing him of the outcome of her inquiry. In short, she accepted the allegations of ATT24 as set out in her complaint. She decided to exclude the applicant from the University (the exclusion decision). The exclusion was effective immediately.

6    Decisions of this kind are subject to an appeal process under delegated legislation (at the time, the Appeals Rule 2021 (Cth) (Appeals Rule) of the University). The applicant retained a local firm of solicitors and appealed against the exclusion decision. His grounds of appeal were that the findings of Professor Venville were manifestly wrong and the penalty imposed was manifestly excessive. An Appeals Committee was constituted, consisting of three staff members of the University and a student representative. The Appeals Committee heard from the applicant in person on 24 November 2022 between 10:46am and 11:14am. It also did not speak to ATT24 or the other witnesses.

7    The Appeals Committee communicated its decision to the applicant by a letter dated 12 January 2023, signed by the University’s Senior Appeals and Integrity Officer “on behalf of the Appeals Committee” but naming only three of the members of that committee. Pursuant to s 23(1)(a) of the Appeals Rule, it confirmed the decision of Professor Venville.

This proceeding

8    The applicant filed an originating application for judicial review, together with a statement of claim, on 20 June 2023. These documents had a number of deficiencies which do not need to be detailed here, but which have contributed to the matter taking an undesirably long time to reach the point that it has reached. Following a series of interlocutory applications, an amended statement of claim, a protracted process leading to the making of confidentiality orders and disagreement concerning a proposed further amended statement of claim, the applicant (having changed counsel) filed an originating application on 11 April 2024. By this stage, a claim in tort had been abandoned and the case was effectively reconstituted as an ordinary judicial review application under s 39B of the Judiciary Act 1903 (Cth).

9    The applicant later sought to amend his originating application so as to seek substantially the same relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (for which an extension of time was needed) and clarify some aspects of his case. This was not consented to, although the prejudice it occasioned to the University was unclear. Leave to file the amended originating application (the amended application) was granted on 6 August 2024. The amended application does not appear to have been filed. However, in the light of the grant of leave, I proceed on the basis that it states the relief which the applicant seeks and the grounds on which it is sought.

10    The relief sought by the amended application is as follows (the decisions mentioned in prayers 1(a) to (d) being those made by Professor Venville).

1.     The Applicant seeks orders to the following effect:

a.     An order quashing the Inquiry Decision.

b.     An order quashing the Interim Denial of Access Decision.

c.     An order quashing the Misconduct Decision.

d.     An order quashing the Permanent Denial of Access Decision.

e.     An order quashing the Appeal Committee Decision.

f.     A declaration that, on the evidence before it, the Appeals Committee could not reasonably decide other than the appeal had to be upheld.

g.     A declaration that the Applicant is entitled to resume his studies at the Australian National University.

h.     An order that the Respondent pay the Applicant’s costs of and incidental to the Application.

11    There are 19 grounds of review, which can be summarised as follows.

(a)    Professor Venville was not authorised or delegated to make any of the decisions that she made (grounds 1, 3, 11).

(b)    The decision to commence the inquiry was vitiated by failures to comply with procedural requirements and a denial of procedural fairness (ground 2).

(c)    The finding of misconduct was made in breach of the rules of procedural fairness (ground 4), did not have a rational basis in evidence (ground 5), was affected by errors of law (ground 6) and the taking into account of irrelevant considerations and failing to take into account relevant considerations (ground 7), was unreasonable (grounds 8 and 9) and involved a constructive failure to exercise jurisdiction (ground 10).

(d)    The exclusion decision was made in breach of the rules of procedural fairness (ground 12) and was based on the applicant having caused danger to ATT24’s health “intentionally, recklessly or negligently” without a determination of which of these grounds was made out (ground 13). (Implicitly, also, it is invalid if any of the attacks on the finding of misconduct are sustained.)

(e)    The Appeal Committee was not validly constituted (ground 14); the Committee failed to find any of the errors in Professor Venville’s decisions identified above (ground 15); it erred by confining itself to whether Professor Venville’s findings and conclusions were “open” to her instead of assessing issues for itself (ground 16); it denied the applicant procedural fairness (ground 17); it took into account an irrelevant consideration (ground 18); and its decision was unreasonable, illogical and irrational (ground 19).

12    Since the filing of the originating application the parties have also been in dispute concerning production of documents. On 12 June 2024 I ordered the University to file a court book containing all documents relevant to the decisions under review. This was done on 12 July 2024, after a short extension was granted on the basis that the parties were engaged in settlement discussions. The applicant maintained that the court book did not contain all relevant documents and persisted in seeking further material, in particular communications between members of the Appeal Committee.

The separate question

13    On 19 July 2024 Katzmann J delivered judgment in McGary v Australian National University [2024] FCA 800 (McGary). McGary concerned a decision by an Appeals Committee under the predecessor of the Appeals Rule (the Appeals Rule 2018 (Cth)). For reasons explained at [33]-[53], Katzmann J held that the Appeals Committee in that case had failed to exercise its jurisdiction by confining itself to deciding whether the findings of the Vice-Chancellor’s nominee were open to him, rather than conducting a full merits review.

14    At around the same time (it is not clear exactly when), the University’s legal advisers proposed in correspondence that this proceeding be resolved by consent on the basis that the decision of the Appeals Committee be set aside and the matter remitted to it. This was on the basis that the Appeals Committee had denied the applicant procedural fairness by failing to disclose a document to him. This concession was contained in proposed orders sent to my chambers by the University’s solicitors in preparation for a case management hearing on 6 August 2024. The University also accepted that it would be open to the Court to conclude the Appeals Committee’s decision was liable to be set aside for the same reason as the decision in McGary.

15    The parties are, however, not agreed as to what should happen in relation to the remaining issues in the proceeding.

(a)    The University’s position is that there should be no determination of the other issues raised by the originating application (other than costs) and the proceeding should be otherwise dismissed.

(b)    The applicant, however, does not wish to let the University off lightly. He seeks to be vindicated on all issues, and if possible to have the decisions of Professor Venville set aside as well. He submits that the Court should proceed to a final hearing on all issues other than those conceded by the University.

16    After seeking comments from the parties, I made an order in chambers on 7 August 2024 stating the following question for determination in advance of all other issues:

What orders (if any) should now be made, as a result of the respondent having conceded that the decision of the appeal committee made on 12 January 2023 is affected by one or more jurisdictional errors (being errors in the conduct by the committee of its review), in relation to:

(a)     prayers for relief 1 (a), (b), (c), (d), (e), (f) and (g) in the Amended Originating Application; and

(b)     the further conduct of the proceeding?

17    The parties filed written submissions on this question and I heard argument on 30 August 2024.

Consideration

The process and decision of the Appeals Committee

The concessions by the University

18    As noted earlier, the University originally proposed to resolve the matter on the basis of a concession that the applicant was denied procedural fairness. In the proposed form of orders submitted by the University’s solicitors, this was described as a failure to invite the applicant to comment on “potentially adverse information”, although the information was not identified. At the hearing of the separate question I was taken to an email chain in the court book which, I was informed, was the material the subject of the concession.

19    The applicant had been in possession of this material (albeit in a redacted form) for some time, thanks to a freedom of information request, and had not sought to make any point about failure to disclose it during the Appeals Committee process. The version in the Court Book is also redacted (and the basis of the redaction is not explained). So far as can be seen, it is an exchange of emails in which one of the Committee members asks whether the alleged sexual assault had been reported to police or otherwise become the subject of a criminal investigation and a staff member replies that (so far as the administration is aware) it has not. Nothing in the exchange constitutes information that was referred to adversely with respect to the applicant in the Committee’s reasons or could rationally have been taken into account adversely to him. The fact that the complainant had made no report to police was something that the applicant had very likely worked out for himself and that he might conceivably have deployed in his favour. It was not “adverse” and on this basis was not required to be disclosed by ordinary principles of procedural fairness (see eg Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25; 220 FCR 202 at [145]-[149] (Kenny J)).

20    Before making consent orders the Court must be satisfied that they are within power and appropriate. Where the proposed orders would set aside a purported exercise of statutory power, this means that the Court must be satisfied that the exercise of power is vitiated by the conceded error: the consent of the parties is not itself sufficient to empower the making of the order: Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [13]-[15] (Downes, Greenwood and Tracey JJ); see also Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557; 100 FCR 323 at [11] (French J); VNPC v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 921 at [2]-[5] (Colvin J). I am not satisfied that the Appeals Committee denied the applicant procedural fairness in the manner sought to be conceded.

21    Senior counsel for the applicant described this concession as a “confection” and suggested that it was an attempt to prevent his client’s complaints being fully ventilated. While the concession is surprising and suggests a strategic withdrawal, it would be inappropriate for me to speculate as to the University’s motives. It is sufficient to record that I do not accept that there was a denial of procedural fairness of the kind suggested.

22    The concession by the University arising from the decision in McGary was more equivocal. It was, as I understood it, that it is open to the Court to conclude that the reasoning in McGary is applicable to the present case and, unless the decision in McGary is clearly wrong (which the University did not submit), the decision of the Appeals Committee could therefore be set aside.

23    McGary involved an appeal conducted under the Appeals Rule 2018 (Cth) (the 2018 Rule), which is a predecessor of the Appeals Rule under which the present case proceeded. The relevant provisions are materially the same. Katzmann J set out the relevant provisions of the 2018 Rule at [16]-[28]. The Appeals Committee in that case had rejected the applicant’s grounds of review (other than as to penalty) on the basis that “it was open on the material before the Nominee to make a finding of misconduct” (at [29]). At [33] her Honour said:

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).

24    Detailed reasons for this conclusion followed (at [34]-[54]). It is not necessary to summarise those reasons here. It was not submitted before me that her Honour fell into error and I see no reason to doubt the correctness of the conclusion expressed.

25    The reasoning of the Committee in the present case was, in summary:

(a)    The written statements in support of the applicant were “available to the Nominee” and there was “no evidence that the material was not given due consideration”.

(b)    It was “open to the Nominee” to accept and place more weight on the complainant’s statement and less weight on the other statements.

(c)    The applicant’s reported difficulty “setting boundaries and saying no” was “adequately explored during the initial inquiry”.

(d)    The Nominee “considered all the evidence available to them and weighed that evidence”.

(e)    To make a finding that the decision was manifestly wrong, “the error must be obvious”.

(f)    The Committee was satisfied that:

…the Nominee had sufficient evidence before them to be able to determine that the events in dispute were more likely than not to have occurred as alleged by the Complainant. The Committee considers that on the evidence before the Nominee, a finding of misconduct in relation to the behaviour in question was a decision that was open to be made in the circumstances.

26    This approach to the case is in substance the same as that which was found to be erroneous in McGary. The Committee limited itself to whether there was “obvious” error in the decision under review and whether impugned findings were “open” to Professor Venville. It did not engage in merits review of the decision. The University’s concession, while somewhat equivocal, can be taken to mean that it does not seek to submit to the contrary. On this basis, it should be concluded that the Appeals Committee misunderstood its statutory task in the manner identified in McGary.

27    At the hearing of the separate question on 30 August 2024, senior counsel for the applicant raised a question as to whether the University proposed to appeal from the decision in McGary. Counsel for the University did not respond to this point immediately other than to note that the appeal period had not expired, although she made some submissions in reply on the implications that an appeal would have. Late on the afternoon of 5 September 2024 my chambers was notified by the applicant’s solicitors (not by the University) that an appeal in McGary had been lodged on 3 September.

28    While this development affects my approach to some of the issues addressed later in these reasons, it does not change my view as to whether the Appeals Committee fell into error. McGary is a decision of a judge of this Court which I should follow unless convinced that it is clearly wrong. I do not think it is clearly wrong. The University has not resiled from its acceptance that it is open to the Court to apply the McGary reasoning in this case. Neither party has asked that I delay coming to a decision in order to await the outcome of the University’s appeal.

The consequences

29    The consequence of the application of McGary is that the Appeals Committee erred in a manner which is clearly established as an error going to jurisdiction. To describe the error in this way is to say that the decision of the Committee is “properly regarded, in law, as no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [51] (Gaudron and Gummow JJ). The consequence is that the decision should be set aside, either by an order in the nature of certiorari under s 39B or by an appropriate order under s 16 of the ADJR Act.

30    There is, therefore, no live issue between the parties as to the legal status or efficacy of the Appeals Committee’s decision. The other grounds upon which the applicant sought to have that decision set aside have become academic. While reasons for judgment canvassing those other grounds might provide useful guidance to the Appeals Committee, that is not the primary function of the Court. The role of the Court is to decide concrete disputes about legal rights. It would not be appropriate to hear evidence and argument on those grounds, and write reasons disposing of them, in circumstances where the appropriate final order is already clear and not in contest.

31    It is common for an order setting aside a decision under s 16 of the ADJR Act to be accompanied by an order remitting the matter to the decision maker for consideration according to law. An order “referring” the matter to the decision maker for “further consideration”, with or without directions, is expressly contemplated by s 16(1)(b). Katzmann J decided not to make an order for remitter in McGary, in circumstances where Mr McGary had completed his studies and did not need to re-agitate his appeal: his purposes were sufficiently served by having the decision set aside.

32    The older remedy of certiorari does not require a separate order “remitting” anything to the original decision maker in circumstances (such as the present case) where the decision maker is under a statutory duty to make a decision. The result of the grant of certiorari—at least for jurisdictional error—is that the duty remains unperformed. The authorities on s 16 of the ADJR Act do not, so far as I have been able to ascertain, examine the question whether an order for referral or remitter adds anything of consequence to an order setting aside the decision under s 16(1)(a) in a case such as the present. The error I have identified above means that the Committee did not have “jurisdiction” to make the decision or that it was not “authorized by the enactment” (cf s 5(1)(c)-(d) of the ADJR Act). If set aside on that basis, its decision lacks legal effect. Prima facie at least, the Appeals Committee must try again.

33    In these circumstances (noting that, as explained further below, it is open to an Appeals Committee to receive additional factual material), there is no utility in the Court embarking on the issues raised by prayer 1(f) (which seeks a declaration that only one decision was open on the material before the Appeals Committee). It should be dismissed.

34    This, however, is subject to the issues discussed below in relation to the exclusion decision made by Professor Venville. Rather than have the matter sent back to the Appeals Committee, the applicant would prefer all of the decisions made by Professor Venville to be undone as well. He therefore seeks to have the matter set down for hearing on the prayers for relief that relate to those decisions.

The exclusion decision (and the decisions preceding it)

Status and effect of the exclusion decision

35    The University submits, based on provisions of the Discipline Rule and the Appeals Rule, that a decision by an Appeals Committee affirming a decision by a primary decision-maker becomes the operative decision; so that the primary decision ceases to have any binding effect and is not amenable to judicial review. This has been established in other contexts (see eg Makowski v Legal Profession Admission Board [2020] NSWCA 305 at [26] (Macfarlan and Brereton JJA)) and can be accepted as correct. However, it does not take the University far. It is clear that, if the Appeals Committee decision is set aside by an order of this Court because of jurisdictional error, it will follow that there was never a legally effective decision on the applicant’s appeal. It will also follow that the exclusion decision is (and always was) binding on the Applicant unless it too is set aside.

36    The applicant thus has a real interest in establishing that the decisions made by Professor Venville were affected by error (albeit an interest that is contingent on the Appeals Committee decision being set aside). If the order that the University accepts should be made is made, it will be the exclusion decision that relevantly determines the applicant’s rights. That decision will be amenable to review, including on the footing that prior decisions on which it depended (such as the decision to commence an investigation) were affected by error.

Discretion to refuse relief

37    The real issue is therefore whether the relief sought in respect of Professor Venville’s decisions should be refused in the exercise of the Court’s discretion, in circumstances where a process for appealing from her final decision exists and has been invoked by the applicant.

(a)    In so far as those prayers for relief rely on the ADJR Act, a discretion is conferred expressly by s 10(2)(b)(ii) of that Act where “adequate provision” is made by another law under which the applicant can obtain review of the decision. However, that does not detract from the general discretion to grant such relief as is appropriate under s 16: see Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248; 147 FCR 516 at [87] (Emmett, Allsop and Graham JJ).

(b)    In so far as the relief is sought under s 39B of the Judiciary Act, the constitutional writs and related orders such as certiorari (formerly known as prerogative writs) have long been understood to be discretionary. The same is true of declaratory relief. One recognised basis for refusing relief is the availability of an alternative remedy: see eg Kamha at [87]; Hill v Green [1999] NSWCA 477; 48 NSWLR 161 at [163] (Fitzgerald JA).

38    Section 10(2)(b)(ii) of the ADJR Act reflects a sound policy which the courts generally apply. Where an administrative decision can be reviewed on its merits by an independent body, taking into account all of the relevant issues, it is usually (but not always) preferable for that review to be undertaken rather than engaging in judicial review of the primary decision. This is an aspect of the discretion to refuse relief which can be, and for obvious reasons often is, addressed before a final hearing on the relevant prayers for relief rather than at the end of the case.

39    The statute that now governs the conduct of appeals in cases such as the present one is the Appeals Rule 2023 (Cth) (the 2023 Rule), which was registered and came into effect on 6 July 2023. Section 32(1) of the 2023 Rule provides that s 26 of the Australian National University (Legislation) Statute 2023 (Cth) (Legislation Statute) applies to the repeal of the Appeals Rule, and s 33 provides that the provisions in Division 7.2 of the 2023 Rule are additional to, and do not limit, s 26 of the Legislation Statute. Section 26(3) and (4) of the Legislation Statute preserve the legal effect of things done or in force under legislation that is repealed. Section 26(2) provides that the repealed legislation is taken to have been amended, rather than repealed, by the repealing legislation. Where matters of procedure are involved, I take this to mean that the new legislation applies to a process that is in train at the time of the repeal. However, it is not necessary to state a final view on this matter because there is no material difference between the relevant provisions of the Appeals Rule and the 2023 Rule.

40    The following points are apparent from the 2023 Rule.

(a)    If an application for review is valid, the Registrar must refer it to an Appeals Committee (s 11).

(b)    The Appeals Committee can receive material that was not before the original decision maker. It has power to review that material at a preliminary stage and, if it is considered to be cogent, relevant or substantial, refer the decision back to the original decision maker (s 14).

(c)    Material on which the Committee intends to rely must be provided to the student before the hearing (if there is one) (s 15).

(d)    The Committee has a discretion whether to hold an oral hearing (s 17).

(e)    The Committee may inform itself on any relevant matter in the way it considers appropriate, must take into account any submissions made by the student, and is bound by the rules of procedural fairness but not the rules of evidence (s 19(1)).

(f)    The student (s 20) and the Registrar (s 19(2)) may appear before the Committee, call and question witnesses and make oral or written submissions. The Registrar may appear through an advocate. The student may have a support person present who, with the approval of the Committee, may act as an advocate.

(g)    The Committee has the usual decision making powers of a merits review Tribunal. It may confirm, vary or set aside the original decision and may substitute its own decision (s 23(1)). The decision as varied, or a new decision substituted by the Tribunal, must be one that the original decision maker could have made (s 23(3)). The decision of the Committee must be given to the student and the Registrar in writing.

41    Assuming the correctness of the reasoning in McGary, I would hold that the Appeals Committee provides a form of genuine merits review that is capable of dealing properly with the points the applicant would wish to make concerning the adequacy of the evidence against him. This, together with the fact that the applicant had chosen to invoke the Appeals Committee process, would dictate a conclusion that the remaining prayers for relief should be dismissed in the exercise of the Court’s discretion.

42    However, I do not think the University can properly maintain a submission that the Appeals Committee will provide genuine merits review of the decisions made by Professor Venville while also seeking to overturn the decision in McGary. Based on the oral submissions in reply made on 30 August 2024 concerning the potential implications of an appeal, I understand the University’s position to be that the applicant’s case will probably be considered by an Appeals Committee consistently with the reasoning in McGary, because the process will likely be completed before the University’s appeal is decided. If this were suggested as a complete solution to the present issue, it would be unprincipled. If a public body such as the University wishes to rely on a submission concerning the nature of a decision making process established by statute, such a submission should be based on what that body contends is the true state of the law; not on the temporary and convenient acceptance of a position that the body elsewhere contends is wrong.

43    The position of the University on this point is also unsatisfactory for other reasons.

(a)    The Court can only guess how long the appeal in McGary might take to hear and decide, and how long the Appeals Committee in the present case might take to come to a decision if the matter is returned to it. While it appears likely that the applicant could obtain a decision from an Appeals Committee before the determination of the appeal in McGary, that is not guaranteed.

(b)    Different views have been taken as to what an administrator should do in the face of a single judge decision that the administrator regards as misstating the law. Although the Court in Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16 at [3]-[7] (Allsop J, Stone and Edmonds JJ agreeing) strongly criticised what seemed to be a practice by the Australian Taxation Office of administering legislation inconsistently with the law as expounded in some single judge decisions, the view has sometimes been taken that it is not improper for a government agency to adhere to its preferred understanding while taking steps to clarify the status of contrary authority (eg by an appeal from the relevant judgment or a test case): see, eg, K Walker, “When Can a Court’s Decision be Ignored?” (2023) 46 Melbourne University Law Review 572 at 588-592. The University is a statutory entity but not an executive agency. It is impossible to know what advice will be given to the Appeals Committee (and what view it will take) in the face of the reasoning in McGary and the University’s appeal from that decision.

(c)    The University’s (apparent) position also does not deal with the possibility that, if its appeal succeeds, a party with a sufficient interest could seek judicial review of any decision that the Appeals Committee might have made in the meantime on the footing that McGary correctly states the law.

44    For these reasons, I do not accept the University’s submission that the remaining prayers for relief should be refused in the exercise of discretion. On the basis that the decision of the Appeals Committee is to be set aside, and therefore has no legal effect, the issues raised by these prayers for relief are live issues between the parties which the Court must determine.

Disposition

45    For these reasons, I will answer the separate question so as to reflect the following conclusions.

(a)    The only final orders that should be made are an order in the nature of certiorari quashing the decision of the Appeals Committee and an order dismissing prayer 1(f) (which sought declaratory relief in relation to the evidence before the Appeals Committee). No orders should presently be made in relation to prayers 1(a) to (d) and (g) to (h) in the amended application.

(b)    The proceeding should be listed for case management as soon as possible, with a view to making timetabling orders for the hearing of the remaining issues.

(c)    The costs of the separate question should be reserved.

Associate:

Dated:    17 September 2024