Alajmi v Macquarie University

1. [1]

   PAYNE J: Mr Alajmi, a former PhD student at Macquarie University, brought proceedings in this Court against the University about a number of aspects of the conduct of the University concerning Mr Alajmi’s doctoral thesis.

2. [2]

   On 7 January 2015, Macquarie University received an anonymous complaint relating to Mr Alajmi’s thesis, then in final draft, in these terms:

3. [3]

   Mr Alajmi admitted to the University that he used “allanswers.co.uk” [1] to assist him in relation to his thesis. Exactly what work “allanswers.co.uk” did for Mr Alajmi was, however, controversial. Accordingly, the University decided to conduct an investigation into the anonymous complaint. In a variety of ways, Mr Alajmi complains about the decision to conduct the investigation, the content of the “Final Report” of the investigation and the fact that his PhD thesis supervisor, Associate Professor Wright, refused to certify under the relevant Macquarie University policy that she was satisfied that the thesis was all Mr Alajmi’s “own work”. In reaching that state of non-satisfaction, the thesis supervisor took into account the “Final Report” on the plagiarism complaint and submissions made by Mr Alajmi’s lawyers about that report.

4. [4]

   Mr Alajmi’s case was framed as an administrative law complaint attacking two decisions styled the “Final Report” and the “non-certification decision”. The case was filed by his lawyers in the administrative law list of the Court. As a result, only a summons and, eventually, points of claim were filed. In hindsight, it is clear that this is a case in which a properly articulated statement of claim was required.

5. [5]

   The points of claim identified the two impugned decisions and sought declaratory relief and certiorari in relation to each of those decisions. There was also a claim of estoppel. The estoppel claim received virtually no mention in the oral and written submissions on behalf of Mr Alajmi.

6. [6]

   The points of claim did not address any claim in contract. Written submissions filed by Mr Alajmi almost immediately before the trial, and 10 days after the date originally ordered by the Court that they be filed, however, identified a claim based in contract. In the oral submissions made by Ms Nolan, on behalf of Mr Alajmi, most attention was given to that contract claim. Mr El-Hage, who appeared for Macquarie University, complained that the contract claim was not pleaded. Nevertheless, he was content to address the contract case propounded by Mr Alajmi on the merits and defer my ruling about the availability of the claim until this judgment.

7. [7]

   I have concluded that the contract claim was not pleaded, but that I should address the claim made rather than dismiss it as not having been pleaded in circumstances where:

   1. (1)

      the contract claim was articulated by Mr Alajmi in written submissions before the hearing;

   2. (2)

      no additional evidence was sought to be filed by either party to address that claim; and

   3. (3)

      Macquarie University understood the claim being made and had an opportunity to address that case and make detailed submissions about it.

Evidence

1. [8]

   Mr Alajmi read the affidavits of Sharaf Alajmi sworn on 18 September 2018 and Anthony John Stanton sworn on 23 February 2018. There was no cross-examination.

2. [9]

   Mr Alajmi’s affidavit sets out, at length, the steps he took in preparation of his thesis and the events relating to the investigation into the allegations against him. Objections were made by the defendant to the admissibility of substantial parts of the affidavit on the ground of relevance. Paragraphs 14, 17, 18 (first and third sentence), 19, 20, 21, 22 and 24 were not pressed by Mr Alajmi. In relation to the remaining paragraphs to which objection was taken, 6-11, 25-48, 50-65, 67-79, 81-86 and 88-91, I made a ruling admitting those paragraphs provisionally pursuant to s 57 of the Evidence Act 1995 (NSW).

3. [10]

   I have decided that the paragraphs which were provisionally admitted are admissible. The only objection, relevance, provides a low hurdle to admissibility. I have concluded that the evidence may be relevant to the estoppel claim which was advanced. No fall back limitation pursuant to s 136 of the Evidence Act was sought by Macquarie University. I reserve the question of the weight to be attached to that evidence. I should note, at this stage, that virtually none of the evidence to which objection was taken was referred to, at least in any detail, in the extensive written and oral submissions made by Ms Nolan.

4. [11]

   Mr Stanton is a solicitor acting for Mr Alajmi. His affidavit sets out some relevant facts and outlines aspects of the governance framework. Paragraphs 3, 4, 5, 6, 7, 14, 18 and 19 of Mr Stanton’s affidavit were permitted to be read, subject to a s 136 Evidence Act limitation, as submissions only. There was virtually no reference to Mr Stanton’s evidence in the written or oral submission of either party.

5. [12]

   Macquarie University read the affidavits of Alan Kilgore sworn on 27 November 2018, Louise Dwyer affirmed on 24 October 2018, Zoe Williams affirmed on 24 October 2018 and James Mattson sworn on 31 May 2019. There was no cross-examination.

6. [13]

   Professor Kilgore was employed by Macquarie University from July 2001. From March 2011 to December 2014, he was Mr Alajmi’s primary PhD thesis supervisor. Prior to his retirement in December 2014, Professor Kilgore was the Deputy Head of the Department of Accounting and Corporate Governance. From December 2014 to December 2016, he held an honorary appointment with the University. Paragraphs 11 and 40 of his affidavit were not pressed by the defendant. Paragraph 33 was rejected. I provisionally admitted paragraphs 14 to 27 of the affidavit on the same s 57 basis as the evidence of Mr Alajmi. I am persuaded that these paragraphs (which are responsive to Mr Alajmi’s evidence which I have admitted) should be admitted.

7. [14]

   Ms Dwyer is employed by Macquarie University as the Deputy Director, Governance and Operations. She has held this role since March 2016. Her key responsibilities include oversight of a team that looks after the operations of higher degree research students, including admission, from enrolment to completion.

8. [15]

   Ms Williams is employed by Macquarie University as the Head of Governance Services. She has held this role since April 2012. Her key responsibilities include leading the development and implementation of a strategic framework for student and academic governance. Paragraph 21 of her affidavit was admitted as a submission only.

9. [16]

   Mr Mattson is a solicitor acting for Macquarie University in these proceedings. His affidavit sets out correspondence between Mr Alajmi and Macquarie University’s previous solicitors.

10. [17]

    The joint court book comprised seven volumes and was marked Exhibit A. The documentary evidence was voluminous. A number of draft versions of Mr Alajmi’s thesis were tendered.

11. [18]

    The documents at tab 25 were materials produced under a notice to produce dated 4 July 2018 issued to Macquarie University. Those documents were received as provisionally relevant in that they related to passages in Mr Alajmi’s affidavit to which objection was taken. These documents principally go to an issue, alleged apprehended bias, which was not clearly pleaded in the points of claim and addressed only fleetingly in the written submissions filed before the hearing. Oral submissions were made about those documents by both parties. The documents were also said to go to the issue of legally unreasonable decisions made by Macquarie University and Associate Professor Wright. I have decided to admit in evidence the documents behind tab 25 of Exhibit A despite their principally relating to an unpleaded issue. I am satisfied that Macquarie University had a sufficient opportunity to address the unpleaded issue.

12. [19]

    The documents at tab 29 of Exhibit A were tendered by consent. They are a compilation of documents which were exhibited to the affidavit of Robert Johnston, the defendant’s previous solicitor, sworn on 14 May 2018. Rather than read Mr Johnston’s affidavit, the parties sensibly agreed that the documents at tab 29 should be tendered.

Factual findings

1. [20]

   My principal factual findings are as follows. Where necessary I will make additional factual findings when addressing various aspects of the parties’ arguments.

2. [21]

   Mr Alajmi is a Kuwaiti national. Macquarie University is:

   1. (1)

      a body corporate established under s 4 of the Macquarie University Act 1989 (NSW);

   2. (2)

      a public office within the meaning of the State Records Act 1998 (NSW); and

   3. (3)

      a public authority within the meaning of the Ombudsman Act 1974 (NSW) and Independent Commission against Corruption Act 1988 (NSW).

3. [22]

   On 3 February 2011, Macquarie University offered Mr Alajmi a position in its Doctor of Philosophy in Accounting and Corporate Governance program. A term of the offer was that Mr Alajmi agreed “to abide by the By-laws and Rules of Macquarie University”. On 8 February 2011, Mr Alajmi accepted the offer. On 8 February 2011, the Kuwait Public Authority for Applied Education and Training certified that Mr Alajmi had been granted a scholarship to obtain a Doctor of Philosophy in Accounting from Macquarie University.

4. [23]

   Between 21 March 2011 and March 2015, Mr Alajmi was engaged in work in respect of his PhD thesis. During his PhD candidature, Mr Alajmi’s primary supervisor was Professor Kilgore and his associate supervisor was Associate Professor Wright. Mr Alajmi met regularly with his supervisors. Mr Alajmi made notes during those meetings. There is some debate in the affidavit evidence about Mr Alajmi’s capacity to read, speak and write in English. I am in no position to make a finding about that subject. I do, however, find to the extent that it is relevant that Mr Alajmi’s PhD supervisors believed that he read, spoke and wrote English well and was well-versed in English grammar.

5. [24]

   It was standard practice in the Accounting and Corporate Governance Department at Macquarie University to provide each PhD student with a specified amount of money, some of which would be used to engage a copy editor in the final stages of preparation of a doctoral thesis. In April 2013, Mr Alajmi was not at the stage where his thesis was completed or nearing completion such as to require a copy editor. That this is so was demonstrated by an exchange between Professor Kilgore and Mr Alajmi some months later. On 23 August 2013, Professor Kilgore sent Mr Alajmi an email regarding the timeline for reviewing the draft chapters of Mr Alajmi’s doctoral thesis. In this email, he stated:

6. [25]

   Later on 23 August 2013, Mr Alajmi responded and stated:

7. [26]

   Some months earlier, however, Mr Alajmi had already retained “All Answers”. The scope of that engagement and the work done by All Answers remains in dispute between Mr Alajmi and Macquarie University. Although framed in traditional administrative law and contract terms, many, if not all, of the submissions advanced by Mr Alajmi in this case were predicated on an assumption that the Court could itself determine the merits of this debate between Mr Alajmi and Macquarie University. I do not propose to embark upon a process of impermissible merits review.

8. [27]

   On 17 May 2013, Mr Alajmi emailed All Answers to engage them to assist him with his doctoral thesis:

9. [28]

   In April 2014, Mr Alajmi returned to Kuwait and decided to remain living in Kuwait whilst completing his PhD thesis.

10. [29]

    On or about 13 October 2014, Professor Kilgore completed the 2014 Annual Progress Report for Mr Alajmi which included the following notation:

11. [30]

    Mr Alajmi never informed Professor Kilgore or Associate Professor Wright that he was using All Answers, or any other organisation, to provide him with assistance.

12. [31]

    On 15 December 2014, Associate Professor Wright replaced Professor Kilgore as Mr Alajmi’s primary supervisor.

13. [32]

    On 7 January 2015, Professor Kilgore received an email entitled “Student plagiarism” from an anonymous source. The email alleged that Mr Alajmi had engaged in academic misconduct by employing All Answers to contribute to the intellectual content of his doctoral thesis. The email stated:

14. [33]

    On 14 January 2015, Associate Professor Evans, Higher Degree Research Coordinator for Macquarie University, emailed Mr Alajmi informing him of the allegation and inviting him to respond as soon as possible. The email stated:

15. [34]

    On 15 January 2015, Mr Alajmi responded to Associate Professor Evans’ email, confirming that he had worked with All Answers and stating that All Answers had “been helping with things like proofreading, feedback on the work and general support”. The email stated:

16. [35]

    In February 2015, Professor Pretorius, Deputy Vice-Chancellor (Research), established an Internal Institutional Misconduct Inquiry to investigate the allegation and appointed a panel consisting of Professor Mansfield (Chair), Dr Alter and Professor Quinn (“the Panel”).

17. [36]

    Between March 2015 and November 2016, the Panel investigated the following allegation:

18. [37]

    On 26 February 2015, Associate Professor Wright emailed Professor Quinn a draft of Mr Alajmi’s thesis.

19. [38]

    On 4 March 2015, the Research Integrity Office sent an email to the anonymous informant’s email address. No response was received. Macquarie University was unable to confirm the identity of the informant.

20. [39]

    On 4 March 2015, Professor Mansfield, Dean of Higher Degree Research and Chair of the Panel, wrote to Mr Alajmi notifying him that the University had received an anonymous allegation of research misconduct against him relating to his alleged engagement of All Answers or its related companies. The allegation was expressed as follows:

21. [40]

    On 16 March 2015 at 3.26pm, Professor Quinn emailed Associate Professor Wright, stating:

22. [41]

    Later that day at 3.41pm, Associate Professor Wright replied to Professor Quinn:

23. [42]

    At 3.45pm, Professor Quinn replied to Associate Professor Wright:

24. [43]

    At 3.51pm, Associate Professor Wright replied to Professor Quinn:

25. [44]

    At 3.56pm, Professor Quinn emailed Professor Mansfield, stating:

26. [45]

    On 17 March 2015, Professor Quinn wrote a memorandum to Professor Mansfield:

27. [46]

    On 18 March 2015, Mr Alajmi submitted his PhD thesis for examination with a form titled “Submission of a HDR Thesis for Examination” (“Submission Form”). Mr Alajmi signed under section 7 of the Submission Form, which provided:

28. [47]

    On 19 March 2015, Associate Professor Wright signed under section 9 of the Submission Form, which provided:

29. [48]

    The bottom of section 9 of the Submission Form, which required the signature of the Head of the Department, was unsigned. Section 10 of the Submission Form, which required the signature of the Associate Dean (HDR), was unsigned. It stated:

30. [49]

    On 20 March 2015, Mr Alajmi emailed Professor Mansfield attaching his written response to the allegation. In his written response, Mr Alajmi stated:

31. [50]

    On 26 March 2015, Associate Professor Wright wrote to Ms Botros of the Kuwait Culture Office, stating that Mr Alajmi had “submitted his doctoral thesis on time, on March 18th 2015. His thesis is awaiting examination”.

32. [51]

    On 8 April 2015, Professor Mansfield wrote to Mr Alajmi, requesting his email correspondence with All Answers, any record of the agreement he entered into with All Answers, copies of the requests he made to them and the work they undertook to do.

33. [52]

    On 14 April 2015, Mr Alajmi responded to Professor Mansfield’s email, stating that there was only email correspondence sent by Mr Alajmi to All Answers, that no written contract existed between Mr Alajmi and All Answers and that Mr Alajmi did not have earlier drafts of his thesis:

34. [53]

    On 24 June 2015, Ms Davies, Chief Information Officer, granted the Research Integrity Office permission to access Mr Alajmi’s student email account and student data backup folder to retrieve relevant documents.

35. [54]

    On 23 July 2015, Professor Mansfield wrote to Mr Alajmi, inviting him to comment on extracted files retrieved from the folder named “42403472”. The folder enclosed 12 files which included: two files named “chapter6 instructions.docx” authored by Mr Alajmi; a file named “Sam instruction­_15-05-2013.docx” authored by Mr Alajmi; and a file named “Literature Review 352002 c.doc” last saved by a person identified as “Paul Lines”.

36. [55]

    On 24 July 2015, Mr Alajmi emailed Professor Mansfield and the Research Integrity Office, responding to Professor Mansfield’s letter of 23 July 2015. In that email, Mr Alajmi denied that instructions to another person directing changes to the content of his doctoral thesis went beyond editorial assistance. The email stated:

37. [56]

    On 17 September 2015, Professor Mansfield emailed Mr Alajmi, enclosing copies of the files retrieved from the folder named “42403472” and inviting him to comment:

38. [57]

    I will address the contents of these documents, and in particular the comments in the margins which were authored by Mr Alajmi, when I address the substance of his complaints below. To the extent that Mr Alajmi, as part of his complaint of unreasonableness, sought findings from the Court about the content of those documents, it is sufficient to note at this stage that I find that a large number of comments in the above documents were plainly drafted by Mr Alajmi in the form of directions to a third person about the substantive content of the draft thesis and there were comments from third parties, including from a person named Paul Lines, who I find was one of the recipients of those instructions, contained in the documents.

39. [58]

    On 19 September 2015, Mr Alajmi emailed Professor Mansfield again asserting that the comments written in the third person were instructions directed at himself. He denied knowing a person named Paul Lines. The email stated:

40. [59]

    On 9 November 2015, the Panel conducted a 30 minute Skype interview with Mr Alajmi. The transcript of the interview records the following:

41. [60]

    On 2 March 2016, Dr Pitcher, Research Integrity Officer, telephoned Mr Dennehy, Customer Service Experience Manager at All Answers, requesting information about Mr Alajmi’s engagement of All Answers. On 3 March 2016, Dr Pitcher wrote to Mr Dennehy requesting further information about Mr Alajmi’s engagement of All Answers. On 8 March 2016, Dr Pitcher emailed “Re&d Research Essays & Dissertations” requesting that Mr Lines provide information about his involvement with the preparation of Mr Alajmi’s doctoral thesis. No response was received from Mr Lines.

42. [61]

    On 28 June 2016, Ms Montague of the University’s Office of the General Counsel wrote to Mr Alajmi’s solicitors enclosing the Panel’s Draft Report (“Draft Report”). That letter stated:

43. [62]

    On 30 June 2016, Mr Alajmi’s solicitors wrote to Ms Montague, requesting that Mr Alajmi have until 29 July 2016 to provide his submissions in relation to the Draft Report. That same day, Ms Montague responded to Mr Alajmi’s solicitors, agreeing to the requested date.

44. [63]

    On 7 July 2016, Mr Alajmi wrote to Ms Montague, enclosing his formal response to the Draft Report. The response was 14 pages in length and included Mr Alajmi’s submissions in relation to procedural fairness and jurisdictional error and his response to the draft findings and submissions on the next steps. Mr Alajmi stated in summary:

45. [64]

    On 17 August 2016, Ms Montague emailed Mr Alajmi’s solicitors, stating:

46. [65]

    That same day, Mr Alajmi’s solicitors replied to Ms Montague, stating:

47. [66]

    On 23 August 2016, Ms Montague emailed Mr Alajmi’s solicitors with a list of questions from the Panel, noted that the Panel awaited Mr Alajmi’s consent for the Panel to contact All Answers with some questions and requested that Mr Alajmi respond within 14 days.

48. [67]

    On 1 September 2016, Mr Alajmi requested an extension of time to respond to the list of questions. On 2 September 2016, the Panel agreed to grant an extension of time to 20 September 2016 and again asked whether Mr Alajmi had provided his consent to All Answers responding to the Panel’s questions. Mr Alajmi had asserted on 24 July 2015 (quoted at [55] above) that he had told All Answers that he gave permission for them to answer any questions.

49. [68]

    On 7 September 2016, Mr Dennehy of All Answers emailed Dr Pitcher, confirming that Mr Alajmi had been a customer of All Answers, that the invoice obtained from Mr Alajmi had been generated by All Answers and that they do not supply invoices as standard practice and only by request.

50. [69]

    On 13 September 2016, the Research Integrity Office on behalf of the Panel emailed Dr Rieschild, a former lecturer in the Department of Linguistics at the University, with enquiries about the Arabic language and specifically about the relevance of English being Mr Alajmi’s second language. That same day, Dr Rieschild responded to the Research Integrity Office, stating:

51. [70]

    On 13 September 2016, Ms Montague emailed Mr Alajmi’s solicitors about Dr Pitcher’s correspondence with Mr Dennehy, attaching the email correspondence and requesting Mr Alajmi’s comments about Mr Dennehy’s response.

52. [71]

    On 21 September 2016, Mr Alajmi requested a further extension of time to respond to the Panel’s list of questions. On 23 September 2016, the Panel agreed to grant a further extension of time to 30 September 2016. On 30 September 2016, Mr Alajmi requested a further extension of time to respond to the list of questions. That same day, the Panel agreed to grant a further extension of time to 5 October 2016.

53. [72]

    On 5 October 2016, Mr Alajmi’s solicitors emailed Ms Montague with Mr Alajmi’s response to the Panel’s list of questions dated 23 August 2016.

54. [73]

    On 11 October 2016, Ms Montague emailed Mr Alajmi’s solicitors a copy of the transcript of the Skype interview with Mr Alajmi on 9 November 2015.

55. [74]

    On 20 October 2016, Ms Montague emailed Mr Alajmi’s solicitors regarding the opinion that the Panel had received from Dr Rieschild on 13 September 2016. That email stated:

56. [75]

    The Panel decided not to have regard to the opinion of Dr Rieschild in the circumstances, including after consideration of the objection by Mr Alajmi to the Panel doing so.

57. [76]

    On 10 November 2016, the Panel released the Final Research Integrity Investigation report (“the Final Report”). The Final Report made the following findings:

58. [77]

    On 10 November 2016, Ms Montague emailed Mr Alajmi’s solicitors with the Final Report and appendices. The email stated:

59. [78]

    On 24 November 2016, Mr Alajmi formally responded to the Final Report, rejecting entirely its findings. The response stated:

60. [79]

    On 12 January 2017, the Deputy Vice-Chancellor (Research) wrote a memorandum to Dr Yi of the Higher Degree Research Office with his recommendation. That same day, the Deputy Vice-Chancellor (Research) wrote to Mr Alajmi advising him of his recommendation:

61. [80]

    Mr Alajmi did not seek a review of the Final Report under s 30 of the Macquarie University Code.

62. [81]

    On 16 January 2017, Dr Yi wrote a memorandum to Associate Professor Wright regarding the Deputy Vice-Chancellor (Research)’s recommendation on 12 January 2017. That memorandum stated:

63. [82]

    On 20 January 2017, Mr Alajmi’s solicitors wrote to Macquarie University’s solicitors regarding the Deputy Vice-Chancellor (Research)’s recommendation.

64. [83]

    On 24 January 2017, Mr Alajmi received an email from Associate Professor Wright. In that email, she advised:

65. [84]

    On 27 January 2017, Mr Alajmi’s solicitors wrote to Macquarie University’s solicitors explaining that Mr Alajmi opposed the actions proposed by Associate Professor Wright in her email of 24 January 2017. That letter stated:

66. [85]

    On 31 January 2017, Macquarie University’s solicitors wrote to Mr Alajmi’s solicitors, responding to their letters dated 20 January 2017 and 27 January 2017. That letter stated:

67. [86]

    On 2 February 2017, Macquarie University’s solicitors wrote to Mr Alajmi’s solicitors advising that Associate Professor Wright could not certify that Mr Alajmi’s thesis met the University’s preparation requirements:

68. [87]

    On 16 February 2017, Mr Alajmi’s solicitors wrote to Macquarie University’s solicitors requesting an extension of time in respect of Mr Alajmi’s submission of his thesis, notwithstanding the assessment of Associate Professor Wright. On 20 February 2017, Macquarie University agreed to an extension of time for Mr Alajmi to determine if he would submit his PhD thesis for examination.

69. [88]

    Mr Alajmi did not submit his thesis within the time allotted and has not subsequently submitted it. Mr Alajmi’s PhD sponsorship was subsequently cancelled and he has repaid the cost of the program to his sponsor being AUD 529,845.52 (Kuwaiti Dinar 121,130.455).

70. [89]

    Mr Alajmi’s enrolment at Macquarie University has ceased and he cannot now submit his PhD thesis for examination. This is a consequence of Mr Alajmi not submitting his thesis to be examined within the maximum enrolment period and not having an approved application for extension. Mr Alajmi has been treated by Macquarie University as having discontinued his PhD and would need to apply for re-admission to the degree of Doctor of Philosophy were he to resume his candidature.

71. [90]

    On 22 May 2018, Associate Professor Wright provided reasons for her decision that she was unable to certify that she was satisfied that Mr Alajmi’s PhD draft thesis was his “own work”:

72. [91]

    Annexure 2 to the Statement of Reasons was an internal memorandum dated 25 January 2017 by Associate Professor Wright:

Issues to be determined

1. [92]

   As noted at the outset, Mr Alajmi’s pleaded case was framed as an administrative law complaint attacking the decisions styled as the “non-certification decision” (being the decision by Associate Professor Wright that she was not satisfied she could certify in accordance with a Macquarie University policy requirement that Mr Alajmi’s thesis was his “own work”) and the determinations contained in the “defendant’s Research and Integrity Investigation Report made on 16 November 2016” (the correct date of the report is 10 November 2016), referred to in these reasons as the Final Report. In addition, the summons sought to rely upon what was styled a “thesis certification” by Associate Professor Wright on 19 March 2015, addressed at [47] above, and associated documents, apparently in support of the estoppel claim.

2. [93]

   The case was filed by Mr Alajmi’s lawyers in the administrative law list of the Court. The summons filed on 23 February 2018 sought the following relief:

3. [94]

   The points of claim filed on 9 April 2018 were sparse. They provided, relevantly:

   1. (1)

      The non-certification decision was infected by error of law, was a decision made in excess of statutory power, and/or was in breach of the common assumption that decisions made under the Higher Degree Research Policy would be lawfully made. This is because, in taking into account the Final Report in making the non-certification decision, Associate Professor Wright took into account an irrelevant consideration because:

   2. (2)

      Further, and/or in the alternative, Mr Alajmi relies upon:

4. [95]

   It is tolerably clear that the only causes of action identified in the summons and the points of claim related to administrative law relief (attacking the “non-certification decision” and, on a generous view of the pleadings, the Final Report) and an estoppel claim based on alleged detrimental reliance on the representations identified in [94](2) above made by Macquarie University.

Submissions of the parties

1. [96]

   Before descending into the detail of the submissions I have already noted that a number of written and oral submissions made on Mr Alajmi’s behalf related to issues that were not pleaded. Whilst, as I have earlier made clear, I propose to address the very substantial claim in contract on the merits, despite it not having been pleaded, I do not propose to permit Mr Alajmi to rely upon allegations made orally that were not squarely dealt with in his written submissions. Despite the considerable leeway I have adopted in Mr Alajmi’s favour, unless a claim was clearly addressed in Mr Alajmi’s written submissions, it would be unfair to the University to permit Mr Alajmi to rely on that claim.

2. [97]

   Mr Alajmi submitted that the “non-certification decision”, which is how he styled the decision by Associate Professor Wright that she was not satisfied she could certify in accordance with a Macquarie University policy requirement that Mr Alajmi’s thesis was his “own work”, involved the exercise of public power conferred by statute which was amenable to judicial review.

3. [98]

   Mr Alajmi submitted that Macquarie University is a public university created by statute. It is a body corporate the subject of statutory regulation. In its supervision of its students on matters affecting students’ legal rights, as opposed to questions of academic judgement, the University exercises a public power or a power in the nature of a public power amenable to relief granted in the Court’s jurisdiction under ss 23 and/or 69 of the Supreme Court Act 1970 (NSW).

4. [99]

   Mr Alajmi submitted that the act of non-certification was sufficiently an act of public power so as to be amenable to judicial review. Mr Alajmi submitted that the derivation of power is peculiarly public in nature and that universities are, for all intents and purposes, public bodies. The Macquarie University Act and the delegated or subordinate legislation or rules created further to the derivation of power conferred by the Act played a relevant part in affecting or effecting rights or obligations of Mr Alajmi. The Macquarie University Act and the delegated or subordinate legislation or rules created further to that Act reposed in Associate Professor Wright a grant of authority to do that which under the general law a person does not have the authority to do.

5. [100]

   Mr Alajmi submitted that:

   1. (1)

      Sections 28(a) and (q) of the Macquarie University Act expressly empowers the University Council to make by-laws, not inconsistent with the Macquarie University Act, for or with respect to any matter that is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the Macquarie University Act and, in particular, for or with respect to, relevantly, the management, good government and discipline of the University and the courses of lectures or studies for, the assessments for and the granting of degrees, diplomas, certificates and honours and the attendance of candidates for degrees, diplomas, certificates and honours.

   2. (2)

      Section 29 of the Macquarie University Act provides that the by-laws may empower any authority (including the Council) or officer of the University to make rules (not inconsistent with the Macquarie University Act or the by-laws) for or with respect to any or all of the matters for or with respect to which by-laws may be made.

   3. (3)

      By-law 35 of the Macquarie University By-Law 2005 (NSW) empowers the Vice-Chancellor to make rules for or with respect to any or all of the matters for or with respect to which rules may be made under the Macquarie University Act.

   4. (4)

      By-law 35(4) of the By-Laws provides that the Rules of the Vice-Chancellor must be published on the internet by means of the website of the University, or in another official University publication.

   5. (5)

      Pursuant to this regime the University publishes on its internet page rules for each year. In 2014, the University published the Higher Degree Research Rules, clause 12 of which dealt with thesis requirements, examination of theses and lodgement and provided that “[a]ll matters to do with a thesis, including submission and examination are governed by the [HDR Thesis Rules]”.

6. [101]

   In oral submissions Ms Nolan relied on s 42 of the Interpretation Act 1987 (NSW) which provides, relevantly:

7. [102]

   It was submitted that the Higher Degree Research Rules and Higher Degree Research Policy are incorporated into statutory rules as requirements for preparation, submission and examination of higher degree research theses at Macquarie University. Orally, Ms Nolan submitted:

8. [103]

   It was submitted that the Court should “also” grant relief under the principle explained in R v Panel on Take-overs and Mergers; Ex parte Datafin PLC [1987] QB 815. Mr Alajmi submitted that the decision to certify that a thesis is the candidate’s “own work” is an exercise of public power and that this makes it relevantly different to all the cases where the Datafin principle has been said not to apply in Australia. Whether the Datafin principle applies requires a consideration of not only the source of the power but the nature of the power. Even if the University were to be considered a private entity in certifying PhD candidates for their doctoral degree, it is exercising a public function which has public law consequences, so as to “bring the body within the reach of judicial review”: Datafin at 847. The effect of the non-certification was that it unilaterally affected the rights of Mr Alajmi and was not in the nature of the exercise of a private right by the University.

9. [104]

   The principal basis for the claimed administrative law relief was legal unreasonableness as explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. This aspect of the case may be summarised thus:

   1. (1)

      It was submitted that the most preponderant error in Associate Professor Wright’s decision-making process was, despite having been Mr Alajmi’s supervisor and having earlier been satisfied and certified that the thesis was suitable for examination under the Higher Degree Research Rules, Associate Professor Wright, “without rational reason”, accepted the conclusions in the Final Report.

   2. (2)

      It was submitted that in taking into account the Final Report, Associate Professor Wright took into account an irrelevant consideration in the sense discussed in Bromley London Borough Council v Greater London Council [1983] 1 AC 768, in so much as Associate Professor Wright erroneously considered herself bound to implement the findings of the Final Report. It was submitted that Associate Professor Wright’s decision was also legally unreasonable.

   3. (3)

      It was submitted that Associate Professor Wright acted unreasonably in making the certification decision in accordance with the Final Report, rather than on the basis of “other countervailing considerations of which she had direct personal knowledge”.

   4. (4)

      It was submitted that Associate Professor Wright’s “error” was compounded by the fact that in March 2015 she sought advice from Professor Quinn about whether Mr Alajmi’s thesis contained the work of a third-party statistician. Mr Alajmi’s submissions on this point were difficult to follow but it seems that the principal conclusion which he submits should be drawn was that (as was submitted in writing) “what Professor Quinn said following on from Dr Wright’s question could not assist the University”. Jones v Dunkel (1959) 101 CLR 298 at 308; [1959] HCA 8 and Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [64] were cited.

   5. (5)

      As an apparently separate point, it was submitted that “this interaction between Dr Wright and Professor Quinn, are calamitous for, not only the apprehension of bias which might [be] imputed to the Panel, and indeed, might properly be imputed to Dr Wright, but to the reasonableness of both the Panel’s findings and the non-certification decision”.

10. [105]

    The remaining submissions on administrative law grounds were advanced under the rubric of ground (a), which was to the effect that by taking the Final Report into consideration, Associate Professor Wright took into account an erroneous decision and thereby acted extraneously to the purpose devised by the Higher Degree Research Policy and/or asked herself the wrong question and/or made an unreasonable decision.

11. [106]

    First, it was submitted that the Macquarie University Code provided that the University will not normally act on an anonymous allegation launched against individuals although a discretion resided to pursue such allegations, if they contained sufficient information to enable the assessment of the allegations and the credibility of the facts and evidence on which the complaint was based, i.e. without the need for further information from the source of the allegation: Macquarie University Code, 19.1.c. An anonymous allegation of breach was said ordinarily to not initiate formal review, but depending on the specifics of the allegation it may prompt professional development activities in the relevant area or a review of processes: Macquarie University Code, 19.1.e. It was submitted to be relevant, or perhaps dispositive, that the Panel’s decision to proceed from its inquiries to a formal investigation was made on 4 March 2015. This decision would appear to have been made before Mr Alajmi’s supervisors were approached. Neither Professor Kilgore nor Associate Professor Wright traversed this issue in evidence.

12. [107]

    Secondly, it was submitted that an essential ingredient of procedural fairness and natural justice is the requirement to proceed on evidence, which is cogent and probative. In proceeding to conduct the investigation on the basis of what was characterised as “spurious and poorly substantiated anonymous allegations” the Panel also contributed to the apprehension of its pre-judgement as to the issues. It was submitted that Antoun v The Queen [2006] HCA 2; 80 ALJR 497 established that if the Panel exhibited pre-judgement it is capable of giving rise to the apprehension that the Panel might not be bringing an impartial mind to bear on the matter to be decided.

13. [108]

    Thirdly, it was submitted that much of the so-called “relevant” evidence upon which the Panel relied was capable of reasonably admitting of other possibilities, such that the Final Report should be found to be predicated on mere conjecture and speculation, rendering the findings of the Final Report unreasonable. It was submitted to be significant that the Final Report does not rely upon any direct evidence that established the allegations made against Mr Alajmi. It was submitted that the use of the words “please”, the various pronouns in comments in drafts of Mr Alajmi’s thesis and the assumed identity of Paul Lines, provided “no direct link” with All Answers. It was submitted that the evidence relied upon by the Panel and Associate Professor Wright was “circumstantial, speculative, and lacked cogency”. It was submitted that the findings made in the Final Report were not adjudicated to the correct standard. It was submitted that “no direction has been made to the Briginshaw standard”: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It was submitted that Re Day [2017] HCA 2; 91 ALJR 262 at [15] per Gordon J was apposite:

14. [109]

    Fourthly, it was submitted that the findings of the Final Report “do not equate and cannot subsume the considerations which would inform the satisfaction that Mr Alajmi’s thesis was his ‘own work’”. It was submitted that Associate Professor Wright subjugated her state of satisfaction to the findings in the Final Report. Mr Alajmi claimed that it “could not be” (given her experience and background as Mr Alajmi’s supervisor) that Associate Professor Wright could reasonably and rationally arrive at the conclusion that the thesis was not Mr Alajmi’s “own work”. It was submitted that Associate Professor Wright asked herself the wrong question – the question addressed by the Final Report does not answer the question posed by the requirements of which she was to be satisfied under the Higher Degree Research Rules.

15. [110]

    Mr Alajmi submitted that there was a contract between Mr Alajmi and the University set out in the offer and acceptance of the PhD candidature. Mr Alajmi “agree[d] to be bound by the By-laws and Rules of the University” and the University, implicitly, agreed to be bound by those rules. Mr Alajmi submitted that it is not necessary to imply any term in that contract. It was submitted that the task of this Court is to intervene where a tribunal unilaterally exercises power which has adverse consequences on the rights of a party to the contract, and that power is exercised in a manner that is unreasonable. Mr Alajmi submitted that there does not need to be a breach of contract established. Nevertheless, if a breach were required, Mr Alajmi submitted that the relevant breach was the failure to exercise a power reasonably. Mr Alajmi submitted that the “non-certification decision” was reviewable on the basis that it involves the exercise of a unilateral contractual discretion, which, as a matter of law, must be exercised reasonably.

16. [111]

    Mr Alajmi submitted that the “non-certification decision” required Associate Professor Wright to reach a state of satisfaction about whether Mr Alajmi’s thesis was his “own work”. In reaching the requisite state of satisfaction, Associate Professor Wright was required to act reasonably and fairly. The obligation of good faith and reasonableness in the performance of her obligation to determine whether to provide a certification is implied as a matter of law and as a legal incident of both the regulatory framework and the contract, which governed the exercise of her duty.

17. [112]

    Regrettably, the way Mr Alajmi’s written and oral submissions were presented, effectively fusing the administrative law and contact complaints, meant that there was a high degree of overlap and repetition in his submissions. Nevertheless I will attempt to disentangle the strands of the argument and address them separately. At the risk of repetition, those submissions were:

    1. (1)

       First, Associate Professor Wright took into account an irrelevant consideration, by taking into account the Final Report, which was infected by errors of law, in the sense that it was made contrary to law, involved breaches of natural justice and was itself unreasonable.

    2. (2)

       Secondly, the non-certification decision was a decision that no reasonable supervisor, acting with due appreciation of her responsibility, could have arrived at, such that the non-certification decision was unlawful or invalid. This was for the following reasons.

    3. (3)

       Thirdly, Mr Alajmi submitted that Associate Professor Wright impermissibly fettered the exercise of her discretion in her non-certification decision of 2 January 2017. It was submitted that she premised her decision on an erroneous assumption that the Final Report found that Mr Alajmi’s thesis had failed to meet the requirements of the Higher Degree Research Policy. It was submitted that the Final Report had directed its investigation to a specific allegation and none of its findings answered the relevant question asked by the Higher Degree Research Rules and the Higher Degree Research Policy.

18. [113]

    Mr Alajmi sought relief based upon an alleged estoppel by convention. It was submitted orally that, as the University’s regulatory framework is incorporated in the contract between the parties, there was a conventional basis for relations between Mr Alajmi and the University. The parties accepted that their relationship was governed by the University’s By-Laws, Rules, Code and policies. This founded a common assumption between them that an investigation into Mr Alajmi’s alleged academic misconduct and any state of satisfaction reached as to whether his thesis met the University’s preparation requirements would be conducted lawfully and in accordance with the requirements of the regulatory framework.

19. [114]

    Mr Alajmi also sought relief based on an alleged equitable estoppel. Mr Alajmi relied upon what he said was the representation contained in Associate Professor Wright’s “thesis certification” on 19 March 2015. Mr Alajmi allegedly relied upon this representation to his detriment because he elected not to apply for internal review of the Final Report and allowed the Final Report and his response be provided to Associate Professor Wright so that she may have regard to those documents in certifying whether his thesis met the University’s preparation requirements.

20. [115]

    Orally, Mr Alajmi submitted that it was unreasonable, in circumstances where Associate Professor Wright had already given her “thesis certification” on 19 March 2015, that she later “purported” not to be satisfied on 2 January 2017. Mr Alajmi submitted that even though the Submission Form on 19 March 2015 omits the words “own work”, Associate Professor Wright made her decision against the landscape of the rules as they stood at the relevant time which required the thesis to be Mr Alajmi’s own work.

21. [116]

    Mr Alajmi submitted that he had a reasonable and legitimate expectation that in making her certification decision on 2 January 2017 Associate Professor Wright, who had before her thesis drafts, “track changes” edits and interactions with Mr Alajmi and who had made no suggestions of any difference in “authorial voice”, would take into account this history and the fact that she had earlier “certified” the thesis.

22. [117]

    Macquarie University submitted that Mr Alajmi has not established a basis for relief in respect of the “Final Report” or the “non-certification decision” and that even if the Court finds a basis for relief, the Court should, in its discretion, refuse to grant the relief.

23. [118]

    Macquarie University submitted that the Final Report and the “non-certification decision” are not amenable to relief under s 69 of the Supreme Court Act.

    1. (1)

       The relief sought in the nature of certiorari is not available unless the decision-maker is exercising a public, relevantly statutory, function. Neither the Final Report nor the non-certification decision involved an exercise of a public or statutory power or function.

    2. (2)

       The investigation that led to the Final Report was conducted under the auspices of an internal University policy, namely the Macquarie University Code. The Macquarie University Code is not a statutory instrument and was not made pursuant to the Act or By-law. The fact that the Macquarie University Code was approved or brought into being by bodies who might be said to be ultimately under the auspices of, or are subject to, the Act or the By-law does not mean that the Inquiry involved an exercise of public power.

    3. (3)

       The “non-certification decision” was made under two internal policies of the University, namely the Higher Degree Research Policy and the Higher Degree Research Procedure. These policies are not statutory rules or by-laws and, as such, are not delegated legislation. The fact that the Higher Degree Research Policy and Higher Degree Research Procedure were approved or brought into existence by bodies who might be said to operate ultimately under the auspices of, or subject to, the Act or the By-law does not mean that decisions made under those policies involve an exercise of public power. In making the non-certification decision, Associate Professor Wright was not exercising a public or statutory function and owed no public duty. The fact that the non-certification decision was made by an employee of a body established by the Act does not elevate it to a public or governmental level.

    4. (4)

       Even if the Datafin principle is accepted as good law in Australia, the principle has no application in the present proceedings. It is unclear what “public function with public law consequences” the University is said to have exercised. A staff member of the University determining for the purposes of the University’s own internal requirements whether a doctoral thesis met the requirements to be assessed involves no public function.

24. [119]

    Macquarie University submitted that the core subject matter sought to be raised in the proceedings by Mr Alajmi, namely, whether he engaged a third party to prepare intellectual content for his thesis, is not justiciable because that issue involves academic judgement and that matters of academic judgement are not suitable for resolution by the Court. It was submitted that this is a matter of academic judgement because, inter alia, the University requires that at least one of the members of the Panel have knowledge and experience in the relevant field of research and the Panel’s finding was reached in part by the Panel drawing “on its collective academic experience”.

25. [120]

    Macquarie University submitted that, even if the Final Report or the non-certification decision are amenable to relief under s 69 and the core subject matter of the proceedings is justiciable, none of the complaints made by Mr Alajmi establish reviewable error to ground relief and many of the complaints amount to an impermissible attempt to engage in merits review.

26. [121]

    Macquarie University submitted that the complaints made in relation to the Final Report should be rejected:

    1. (1)

       Mr Alajmi’s complaint that the Inquiry should never have taken place given that it was initiated by an anonymous complaint should be rejected. A failure by a decision-maker to follow a non-statutory policy is not necessarily a ground of judicial review. In any event, the steps taken by the University were not inconsistent with the Macquarie University Code and did not give rise to any practical injustice.

    2. (2)

       Mr Alajmi’s complaint, that the Panel’s findings were based on untenable circumstantial evidence, speculative evidence or no evidence at all, does not raise any ground of judicial review, cannot lead to a finding of an error of law and impermissibly engage in merits review.

    3. (3)

       Mr Alajmi’s complaint that the Panel did not apply the Briginshaw standard should be rejected. The Briginshaw standard is not relevant to the question of the weight to be attributed to potentially competing items of evidence. In circumstances where the Panel was tasked with undertaking a process where the rules of evidence do not apply and where there is no onus of proof, there was no applicable standard of proof. In any event, the Panel applied the standard of comfortable satisfaction (which is derived from Briginshaw) and found that the standard was met. Mr Alajmi’s submission, that the standard required is one of cogency, persuasiveness and the need for direct evidence, should be rejected. Even in administrative law cases involving statutory tribunals, the required standard is logically probative evidence. The Panel is far from being a statutory tribunal. In any event, the Panel’s findings met that standard.

    4. (4)

       Mr Alajmi’s claim of apprehended bias by the Panel should be rejected because it impermissibly invites the Court to engage in merits review and is not supported by evidence in circumstances where Mr Alajmi participated in the Inquiry, provided material and submissions to the Panel, and commented on a Draft Report before it was finalised. That Professor Quinn stated that he could not see anything which suggested plagiarism in March 2015 was not a basis for a finding of apprehended bias, but indicative only of him having an open mind to the issues in the investigation. After careful consideration of the evidence during the course of the Inquiry, Professor Quinn joined in the Panel’s conclusion in the Final Report. Mr Alajmi’s complaint seems to be in effect that the Panel was biased because it reached a conclusion that was not favourable to him.

    5. (5)

       Mr Alajmi’s complaint that the Panel misunderstood its task and asked itself the wrong question in assessing the allegation should be rejected. Mr Alajmi did not identify how the Panel misunderstood its task, what question the Panel asked, why it was wrong and what the right question was. In any event, the Panel undertook the task required of it by the Macquarie University Code.

    6. (6)

       Mr Alajmi’s complaint that the Panel otherwise reached a decision that no reasonable Panel could have reached should be rejected. The Panel’s conclusion was not unreasonable. It was based on evidence, including Mr Alajmi’s evidence, on logic and reason and on the Panel members’ own experience. It is not a decision which could be described as a series of merely speculative findings.

27. [122]

    Macquarie University submitted that if Mr Alajmi’s challenge to the Final Report fails then his challenge to the non-certification decision also fails. As with the complaints about the Final Report, the complaints about the non-certification decision are nothing more than a complaint about the factual conclusion reached by Associate Professor Wright and should be rejected:

    1. (1)

       Associate Professor Wright considered the relevant material and reached the conclusion that she was unable to satisfy herself that Mr Alajmi’s thesis was his own work. Even if reasonableness is the applicable standard, in these circumstances, it cannot be said that the non-certification decision was an act that no reasonable person would have committed. Further, even if reasonableness is the applicable standard, it was reasonable for Associate Professor Wright to rely on facts found by others.

    2. (2)

       Associate Professor Wright did not certify that the thesis was Mr Alajmi’s own work on 19 March 2015. In any event, even if she had so certified, she did so at a time before the Inquiry had been completed and without knowledge of the findings in the Final Report, and she was not bound by the certification on 19 March 2015.

    3. (3)

       Mr Alajmi did not plead in the points of claim (or particularise upon the defendant seeking particulars) the claims regarding Associate Professor Wright seeking advice from Professor Quinn, a Panel member, as to whether Mr Alajmi’s thesis contained the work of a statistician. Mr Alajmi should be precluded from raising the claims at this late stage. In any event, the claims cannot take matters further given that Professor Quinn was a member of the Panel and a co-author of the Final Report. Mr Alajmi also cannot rely on Jones v Dunkel given Mr Alajmi’s failure to particularise such claims.

28. [123]

    Macquarie University submitted that Mr Alajmi’s claim in contract was not fairly raised in the points of claim. The basis for any contract, how it was formed, its terms (including any term imposing any specific obligation on the University), any breaches of any such terms and the basis for any claimed breach were not identified. Orally, Macquarie University submitted that the absence of proper pleadings caused problems because, without context, the Court cannot meaningfully answer the question of whether or not a particular term ought to be implied into the contract and what the appropriate standard of legal unreasonableness might be. The defendant submitted that the Court ought not to allow Mr Alajmi to depart from, or enlarge, the issues in the points of claim at this very late stage.

29. [124]

    Macquarie University submitted that, even in a contractual framework, the relevant question is one of academic judgement and the Court would be reluctant to intervene. The people involved in reviewing the allegation were, by reason of their experience and expertise, in a much better position to adjudicate than the Court. This is particularly so in circumstances where there has been no expert evidence before the Court.

30. [125]

    Macquarie University submitted that the standard of legal reasonableness will necessarily draw upon the contractual framework and can only be answered by reference to the context in which the legal unreasonableness is imposed. The Academic Honesty Policy, which defines plagiarism in a broad and inclusive way, forms part of that contractual framework. In light of that policy, a narrow view should be taken about what constitutes legal unreasonableness in the present context. Macquarie University submitted that the standard that Mr Alajmi relies upon is drawn from the context of insurance contracts, which is a separate field of discourse.

31. [126]

    Macquarie University submitted that in so far as the By-laws and Rules made by the University have an effect on its actions or decisions, it is by force of the statutory instrument under which they are made, not by reason of the contractual obligations said to arise between the University and Mr Alajmi.

32. [127]

    Macquarie University submitted that Mr Alajmi’s complaint that the anonymous allegation was not sufficient to satisfy the University, acting reasonably, to commence the investigation, should be rejected. The University put the anonymous allegation to Mr Alajmi and he immediately confirmed that he had been using All Answers. By so doing, Mr Alajmi confirmed the key aspect of the allegation against him and this was a sufficient basis for the University to commence its investigation.

33. [128]

    Macquarie University submitted that the proposition that Associate Professor Wright fettered the exercise of her discretion was not pleaded by Mr Alajmi. In any event, Associate Professor Wright clearly formed her own view and did not simply defer to the Final Report. She formed her view in circumstances where she had participated in the Inquiry to some extent and where she took into account Mr Alajmi’s submissions which contained many of the allegations that have been made in these proceedings.

34. [129]

    Macquarie University submitted that if the Court were to address the merits of the contract case, for essentially the same reasons as in relation to the administrative law issues, it should find that the complaints are without substance.

35. [130]

    Macquarie University submitted that the claim of estoppel by convention was not sufficiently elaborated in Mr Alajmi’s submissions to permit any meaningful response.

36. [131]

    In relation to the alleged equitable estoppel, Macquarie University submitted that the representations alleged were not made and that Mr Alajmi had not shown detrimental reliance on any pleaded representation.

37. [132]

    Macquarie University submitted that, even if the Court finds that Mr Alajmi had established a basis for relief in respect of either the Final Report or the non-certification decision, the Court should, in its discretion, refuse to grant the relief sought in the summons.

38. [133]

    Macquarie University submitted that Mr Alajmi had other internal and external avenues of review which he did not avail himself of. By reason of not pursuing those avenues of review and delaying the commencement of proceedings his candidature has ended. The relief he now seeks lacks utility.

39. [134]

    Macquarie University submitted that there was an unreasonable delay in the commencement of proceedings. The summons was filed over a year after the non-certification decision was made and about 15 months after the Panel issued the Final Report. This is outside the three month period stipulated by r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW).

40. [135]

    Macquarie University submitted that, having regard to the purpose of limitation periods, the absence of any allegation of practical injustice, the failure to provide a reasonable explanation for the delay, the availability of internal appeal avenues and the other discretionary factors weighing against the relief sought being granted, including the jurisdictional difficulties faced by Mr Alajmi and the lack of utility in the relief sought, no extension of time ought to be granted to Mr Alajmi.

Consideration

1. [136]

   Macquarie University is governed by the Macquarie University Act 1989 (NSW) (“the Act”) and the Macquarie University By-Law 2005 (NSW) (“the By-law”).

2. [137]

   The Macquarie University Act provides, relevantly: [2]

3. [138]

   Section 28 of the Macquarie University Act provides:

4. [139]

   Section 29 of the Macquarie University Act provides:

5. [140]

   By-law 35 of the Macquarie University By-law provides: [3]

6. [141]

   It was alleged by Mr Alajmi that “pursuant to this regime” the Rules he relied upon were published each year. The relevant “rules, policies and procedures” the subject of this case in force in February 2015 were the:

   1. (1)

      Higher Degree Research Rules 2015 as approved on 5 December 2013 (“Higher Degree Research Rules”);

   2. (2)

      Academic Senate Rules 2015 as approved on 4 December 2011 (“Academic Senate Rules”);

   3. (3)

      Higher Degree Research – Thesis Preparation, Submission and Examination Policy as approved on 25 July 2014 (“Higher Degree Research Policy”);

   4. (4)

      Higher Degree Research – Thesis Preparation, Submission and Examination Procedure as approved on 3 October 2008 (“Higher Degree Research Procedure”);

   5. (5)

      Macquarie University Academic Honesty Policy as approved on 13 November 2012 (“Academic Honesty Policy”); and

   6. (6)

      Macquarie University Code for the Responsible Conduct of Research as approved on 28 January 2015 (“Macquarie University Code”).

7. [142]

   The relevant parts of the Higher Degree Research Rules provide:

8. [143]

   The Higher Degree Research Policy relevantly states:

9. [144]

   The Higher Degree Research Procedure relevantly states:

10. [145]

    The Academic Honesty Policy provides that:

11. [146]

    Section 10.12 of the Macquarie University Code provides:

12. [147]

    Section 19.1 of the Macquarie University Code states:

13. [148]

    Section 24 of the Macquarie University Code states:

14. [149]

    Section 26 of the Macquarie University Code provides:

15. [150]

    Section 27 of the Macquarie University Code states:

16. [151]

    Section 30 of the Macquarie University Code states:

17. [152]

    Rules 10 and 11 of the Academic Senate Rules provide:

18. [153]

    The first issue is whether the “Final Report” and/or what Mr Alajmi styled the “non-certification decision” are amenable to relief under s 69 of the Supreme Court Act.

19. [154]

    In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Spigelman CJ at [3] explained:

20. [155]

    In the same case, Basten JA at [65]-[66] stated:

21. [156]

    Neither the Final Report nor the “non-certification decision” involved the exercise of statutory powers or the conduct of statutory procedures. This is for the following reasons:

    1. (1)

       The investigation which culminated in the Final Report was carried out under the Macquarie University Code. The Panel was established by, and carried out its functions pursuant to, the Macquarie University Code. The Macquarie University Code is a policy approved by the Deputy Vice-Chancellor (Research) and endorsed by the Academic Senate. The Deputy Vice-Chancellor (Research) may make policies in relation to higher degree research and the Academic Senate may approve such policies. The Macquarie University Code is not a statutory instrument. It was not made pursuant to the Macquarie University Act or the By-Law. Neither the Deputy Vice-Chancellor (Research) nor the Academic Senate has been delegated the power to make rules under the Macquarie University Act or the By-Law.

    2. (2)

       The “non-certification decision” was made under the Higher Degree Research Policy. The Higher Degree Research Procedure was also relevant to the extent that it provided a mechanism for review if, as here, a thesis supervisor declined to certify that the thesis requirements under the Higher Degree Research Policy had not been met by the candidate. These policies are not statutory rules or by-laws and are not delegated legislation. The Higher Degree Research Policy was approved by the Academic Senate. The Higher Degree Research Procedure was approved by the Higher Degree Research Committee. Neither the Academic Senate nor the Higher Degree Research Committee has been delegated the power to make Rules under the Macquarie University Act or the By-Law.

    3. (3)

       The Higher Degree Research Policy and the Higher Degree Research Procedure were not incorporated as a statutory rule by operation of s 42 of the Interpretation Act. I reject Mr Alajmi’s submission that the Higher Degree Research Rules and the Higher Degree Research Policy were incorporated as statutory rules. It is true that the Higher Degree Research Rules were made under s 29 of the Macquarie University Act. It is not, however correct that r 12 of the Higher Degree Research Rules (set out at [142] above) operates to incorporate by reference the terms of the Higher Degree Research Policy as statutory rules. The Higher Degree Research Policy does not have an equivalent enactment provision to cl 2 of the Higher Degree Research Rules. It was not made or approved by the Council but approved by the Academic Senate which is empowered to advise the Council and the Vice-Chancellor and approve polices on academic matters: Academic Senate Rules 2015, rr 10, 11. The Academic Senate was not given the statutory authority to make or approve statutory rules. The Higher Degree Research Policy, unlike the Academic Senate Rules and the Higher Degree Research Rules, also does not state “Note: The Interpretation Act 1987 of New South Wales applies to these Rules”. The fact that the Higher Degree Research Policy was published on the internet does not mean it is a statutory rule.

    4. (4)

       No different conclusion arises from consideration of the cases relied upon by Mr Alajmi, Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; 155 LGERA 230 at [67] per Biscoe J and Dornauf v The Stewards of the Harness Racing Board [1994] VR 302 at 307, 309 per Tadgell J. Currency Corporation involved a quite different context of Model Provisions potentially applying to all Local Environmental Plans being adopted in a particular Local Environmental Plan. In Dornauf the ratio of Tadgell J’s decision, with which I respectfully agree, was that “where a regulation contains a reference to some other document the question whether or not the requirement just stated is fulfilled must depend upon a consideration of the particular regulation and of the nature and contents of the incorporated document”. There is no reason to think, based on the scheme of the Macquarie University Act and the Higher Degree Research Rules, that the Higher Degree Research Policy and the Higher Degree Research Procedure were incorporated by reference as part of a statutory rule.

22. [157]

    In making the “non-certification decision” Associate Professor Wright was not exercising a public or statutory function. The “non-certification decision” did not involve the exercise of any power conferred by statute or subordinate legislation. Further, in making the “non-certification decision”, Associate Professor Wright owed no public duty. She determined, for the purposes of the University’s internal policies, whether she was of the opinion that the thesis met the University’s preparation requirements.

23. [158]

    The fact that the Higher Degree Research Policy and the Higher Degree Research Procedure were approved or brought into being by bodies which ultimately operate under the auspices of, or subject to, the Macquarie University Act or the Macquarie University By-Law does not mean that decisions made under those policies involve an exercise of public power.

24. [159]

    It follows that the “non-certification decision” (and if it matters, the Final Report) are not amenable to relief in the nature of certiorari, or any other relief pursuant to s 69 of the Supreme Court Act. As will become apparent, however, against the possibility that Mr Alajmi will take this case further, in the remainder of this judgment I will proceed on the assumption that this conclusion is not correct.

25. [160]

    There are formidable hurdles to acceptance of Mr Alajmi’s alternative case based on the principle in R v Panel on Take-overs and Mergers; Ex parte Datafin PLC [1987] 1 QB 815. The English Court of Appeal in that case decided that a decision of a private body which was not made in the exercise of a statutory power, may be amenable to judicial review if the decision is, in a practical sense, made in the performance of a “public duty” or in the exercise of a power which has a “public element”: Datafin at 838, 847 (Lloyd LJ). It was significant, in the context of that case, that the private body in question exercised “immense power” and had “enormously wide discretion”: Datafin at 826-827 (Lord Donaldson MR).

26. [161]

    In NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35, the High Court elected not to determine, on the facts of that case, the “question whether public law remedies may be granted against private bodes”: at [49]-[50] (McHugh, Hayne and Callinan JJ).

27. [162]

    In Chase Oyster Bar, Basten JA, with whom Spigelman CJ agreed, said that “there is an absence of authority in Australia addressing the question of whether or not Datafin applies”. Basten JA at [81] said:

28. [163]

    This issue has also been addressed by Leeming JA in Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; 340 ALR 560:

29. [164]

    In Christie, Leeming JA expressly addressed, albeit in obiter remarks, considerable doubts about the application of the Datafin principle in Australia in a closely analogous context:

30. [165]

    I agree with Leeming JA. The lack of a coherent framework for the application of the principle advanced in Datafin alongside Australian administrative law, and the constitutional setting of that law, tends against acceptance of the Datafin principle in Australia.

31. [166]

    That this is so is illustrated by the decision of the High Court in Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7. In Tang the High Court dealt with an application for judicial review of a decision to exclude a student from the PhD programme conducted by the appellant. Whilst the claim for relief in that case was limited to one under the Judicial Review Act 1991 (Qld), the majority judgments covered a wide scope of relevant administrative law principles in this area. As in Tang, the Macquarie University Act contains no provision for there to be a Visitor to the University. Accordingly, there is no occasion for the consideration of the case law concerning the content and exclusivity of the jurisdiction of a Visitor, in particular, Thomas v University of Bradford [1987] AC 795. [4]

32. [167]

    The judgment of the Chief Justice in Tang contains a useful statement of principle relevant to the present question:

33. [168]

    In the judgment of the plurality, Gummow, Callinan and Heydon JJ, a number of things relevant to the questions raised in this case are said:

34. [169]

    Even if I were free, following Chase Oyster Bar and Christie, to follow Datafin I would respectfully decline to do so absent clear guidance from the High Court or an intermediate Australian Court of Appeal. I am not persuaded that Datafin forms part of the law of Australia. The approach of Beech-Jones J in Amos v Western New South Wales Local Health District [2016] NSWSC 1162 at [93]-[105] to a different but related question is persuasive.

35. [170]

    The next formidable hurdle to acceptance of Mr Alajmi’s administrative law case is that his attacks on the decisions in the Final Report and the “non-certification decision” are, in truth, attacks on the merits, being matters of academic judgement.

36. [171]

    The core subject matter sought to be raised in the proceedings by Mr Alajmi, namely, whether he engaged a third party to prepare intellectual content for his thesis, is an issue that centrally involves academic judgement. This is because academic judgement is involved in considering the content of the thesis, the importance of the issues raised by Mr Alajmi in his comments in the margin of drafts of that thesis, the content of the requests made by Mr Alajmi to third parties and the importance of the material apparently received by Mr Alajmi from the third parties. Close consideration of all of these issues by academics in the appropriate field of discourse was involved in both decisions here under attack. The core subject matter, alleged plagiarism, is a matter best suited to consideration by academics who are involved every day in the relevant field of discourse.

37. [172]

    It would be, to adopt the language of Sedley LJ in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, “jejune and inappropriate” for me to attempt to apply my understanding of academic standards of plagiarism to the particular problem posed by Mr Alajmi’s thesis. What may seem important to a present-day academic in a business school in identifying and dealing with plagiarism will not necessarily be apparent to a judicial officer, particularly one dealing with a doctoral thesis in a field only tangentially related to law.

38. [173]

    As to the Final Report, the University requires that at least one of the members of the Panel have knowledge and experience in the relevant field of research and the Panel’s finding was reached in part by the Panel drawing “on its collective academic experience”.

39. [174]

    As to the “non-certification decision”, Associate Professor Wright was plainly in a position where she was asked to make an evaluative judgement based, at least in substantial part, on her academic skills and training.

40. [175]

    I reject the submission that I should seek to identify plagiarism by Mr Alajmi by looking at all the drafts of Mr Alajmi’s thesis and seeking to discern his unique “authorial voice”. Rather than seeking to apply standards of administrative review, by undertaking that task I would be engaging in impermissible merits review.

41. [176]

    As I have said, however, and contrary to my conclusion about the availability of relief under s 69 of the Supreme Court Act, I propose to address the remainder of Mr Alajmi’s administrative law claim on its merits.

42. [177]

    The suggestion that the Final Report was an irrelevant consideration for Associate Professor Wright in making the “non-certification decision” should be rejected. It would be perverse if an administrative decision-maker in the position of Associate Professor Wright, who was required to reach a state of satisfaction about whether a thesis submitted for examination was the candidate’s “own work”, was not permitted to take into account the results of a detailed report of an investigation, conducted by a Panel with the relevant expertise and experience, which addressed the relevant subject matter.

43. [178]

    In the classic statement of Mason CJ in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40:

44. [179]

    There is nothing in the Macquarie University Act or any delegated legislation or any policy requiring that Associate Professor Wright not take into account the Final Report. This ground is really an attempt to have the Court perform impermissible merits review.

45. [180]

    Mr Alajmi’s next complaint concerns the decision to commence an investigation on the basis of an anonymous complaint. In this case there was no failure to follow proper procedure in causing an investigation to be commenced into the anonymous allegation. Section 19.1.c of the Macquarie University Code states:

46. [181]

    That Code was followed here. An anonymous complaint “may be acted upon if [it] contain[s] sufficient information to enable the assessment of the allegations and the credibility of the facts and evidence on which the complaint is based”. The detail in the anonymous complaint fell within that description.

47. [182]

    In effect, Mr Alajmi’s complaint is an appeal for a merits review, attacking the sufficiency of the information available to Macquarie University in the anonymous complaint and the relevance of Mr Alajmi’s concession that he had consulted All Answers at a time long before any proofreading of his thesis was required.

48. [183]

    In written and oral submissions Mr Alajmi’s principal complaint was that Associate Professor Wright’s state of satisfaction (or lack thereof) about whether Mr Alajmi’s thesis was his “own work” was legally unreasonable because the Final Report was itself “barren of information” and also allegedly inconsistent with things Associate Professor Wright herself “knew”.

49. [184]

    In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [34], the plurality explained that the formation of a state of satisfaction or of non-satisfaction, in that case by a Minister, the Minister’s delegate or the Tribunal on review, is in each case conditioned by a requirement that the Minister or his or her delegate or the Tribunal forming its own conclusion on review, must proceed reasonably and on a correct understanding and application of the applicable law: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]-[137]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [34]; Graham v Minister for Immigration and Border Protection [2017] HCA 33; 91 ALJR 890 at [57]; Wilkie v The Commonwealth [2017] HCA 40; 91 ALJR 1035 at [109].

50. [185]

    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 the High Court explained this area of discourse. French CJ at [30] said:

51. [186]

    The plurality, Hayne, Kiefel and Bell JJ, at [63] held that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably: Attorney-General for the States of New South Wales v Quin (1990) 170 CLR 1 at 36; [1990] HCA 21; Kruger v The Commonwealth (1997) 190 CLR 1 at 36; [1997] HCA 27; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [126]; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [15]. Their Honours went on:

52. [187]

    Gageler J at [90] said:

53. [188]

    There was also a complaint of denial of natural justice in “basing [the] conclusion on untenable circumstantial evidence” or “no evidence at all”. The “no evidence” ground is related closely to the unreasonableness ground and I will deal with them together.

54. [189]

    The relevant questions are whether there was evidence available from which the Panel constituted to investigate Mr Alajmi’s alleged plagiarism could draw the inferences leading to the conclusions in the Final Report and whether there was evidence available from which Associate Professor Wright could form a state of non-satisfaction in that she was not satisfied that the thesis was Mr Alajmi’s “own work”.

55. [190]

    Whether the evidence referred to was sufficient was a matter for the Panel and Associate Professor Wright respectively to determine, so long as the evidence they each took into account could be described as rationally probative of the existence of a fact in issue. In Amaba Pty Ltd (Under NSW Administered Winding Up) v Booth; Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth [2010] NSWCA 344 (in a passage referred to with approval in Ballina Shire Council v Knapp [2019] NSWCA 146), Basten JA explained the “no evidence” ground thus:

56. [191]

    The inferences drawn by the Panel in this case and by Associate Professor Wright in making the “non-certification decision” were reasonably open, in the sense of being logically available. My evaluative judgment, exercising the Court’s supervisory jurisdiction on the contingent hypotheses I have identified, is that the inferences drawn by the Panel and by Associate Professor Wright were open and logical. There was nothing in either the findings of the Panel or the decision of Associate Professor Wright which was legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li. Even accepting Mr Alajmi’s submission, that the standard of evidence required to reach conclusions in the Final Report and to make the “non-certification decision” is one of cogency and persuasiveness, that standard was met here.

57. [192]

    In expressing this conclusion I take into account the material in evidence upon which the detailed findings of fact I have made above were made and need only give a few examples of cogent material available to the Panel and Associate Professor Wright which was taken into account. There are many more examples.

58. [193]

    First, within at least five of the electronic files pertaining to Mr Alajmi’s draft thesis available to the University, there were at least 68 marginal notes identified as containing what are obviously instructions to a third party. The Panel and Associate Professor Wright also had available Mr Alajmi’s responses upon being confronted with those marginal notes:

    1. (1)

       By a letter dated 23 July 2015, Mr Alajmi was asked about two files retrieved named “chapter6 instructions.docx” and “Sam_instruction­_15-05-2013.docx”.

    2. (2)

       On 24 July 2015, by email in response Mr Alajmi stated “I can say that the files that ‘appear to include instructions to another person directing changes to the intellectual content of your thesis which go well beyond simply requesting professional editorial assistance’ are not my files. I have never directed any instruction regarding changing or completing my work to anybody else. I have only original files with instructions from my supervisors to me. The instructions you referred to in the letter are the instructions from my supervisors”.

    3. (3)

       On 23 August 2016, the University responded, “Could Mr Alajmi please explain why he stated in his letter to Professor Mansfield dated 24 July 2015 that these files ‘are not my files’ when the metadata of those files record ‘Sharaf Alajmi’ as the author?”

    4. (4)

       On 5 October 2016, Mr Alajmi sent a lengthy reply, the effect of which was that he denied that he ever gave “such instructions”, that the anonymous complainant had access to his computer and was motivated by malice and that, therefore, “the Panel cannot rely on such documents as being complete or authentic”.

59. [194]

    It was open to the Panel and Associate Professor Wright to take into account the 68 marginal notes containing what are obviously instructions to a third party and to reject Mr Alajmi’s strained and somewhat incredible explanations for those instructions to a third party. The determination that the thesis was not Mr Alajmi’s “own work” was logically available. It was not legally unreasonable. The suggestion made at various times in oral address by Ms Nolan that direct rather than circumstantial evidence was required in this case should be rejected. Even in criminal cases, requiring the most exacting proof, circumstantial evidence may give rise to a strong case.

60. [195]

    Secondly, the Panel and Associate Professor Wright had available a significant body of material comprising examples of editorial work received by Mr Alajmi from All Answers:

    1. (1)

       The Panel and Associate Professor Wright had available a document entitled “Editorial draft – CH1.docx”. That document contained 12 marginal notes and a series of “track changes” edits. Examples of the marginal notes include:

    2. (2)

       The Panel and Associate Professor Wright had available a document entitled “Editorial draft – CH2.docx”. That document contained 3 marginal notes and a series of “track changes” edits. The marginal notes are:

    3. (3)

       The Panel and Associate Professor Wright had available a document entitled “Editorial draft – CH3.docx”. That document contained 9 marginal notes and a series of “track changes” edits. Examples of the marginal notes include:

    4. (4)

       The Panel and Associate Professor Wright had available a document entitled “Editorial draft – CH4.docx”. That document contained 1 marginal note and a series of “track changes” edits. The marginal note is:

    5. (5)

       The Panel and Associate Professor Wright had available a document entitled “April.01,2013_Ph.D._Dissertation.doc”. The following marginal comments are recorded as being made by “Sharaf Alajmi” on 18 April 2013:

    6. (6)

       This document contains a series of marginal notes, as well as sections of text in red and sections of text in black. In the 69 marginal notes in this document there are 16 instances of the use of the word “please”, 5 instances of “my”, 3 instances of “you”, 1 instance of “your” and 1 instance of “I”. Examples of these phrases include:

    7. (7)

       On 23 August 2016, the Panel stated to Mr Alajmi that the following note in the file “April.01,2013­_Ph.D._Dissertation.doc” appears to be a commentary by one person about another person’s writing and that “it is Mr Alajmi who is in fact commenting on the writing of another person”:

    8. (8)

       When asked to comment on this text Mr Alajmi replied on 5 October 2016:

    9. (9)

       The Panel and Associate Professor Wright had available a document entitled “chapter6 instructions.docx”. The following marginal comments appear to be instructions to a third party made by “Sharaf Alajmi” on 22 July 2013:

    10. (10)

        The Panel and Associate Professor Wright had available a document entitled “Literature Review 352002 c.doc” which was authored by “Paul Lines” and created on 23 August 2011. The document contains 3 comments, 2 by “Paul Lines” and 1 by “FBE Admin” (note that the comment by “FBE Admin” was dated 31 July 2011, suggesting that it was created prior to the document itself and copied into a new document on 23 August 2011):

    11. (11)

        When asked about those comments Mr Alajmi replied on 5 October 2016:

61. [196]

    The inferences drawn by the Panel (quoted in [76] above) in this case and by Associate Professor Wright in making the “non-certification decision” (quoted in [86] and [90] above) were reasonably open, in the sense of being logically available. My evaluative judgment, exercising the Court’s supervisory jurisdiction on the contingent hypotheses I have identified, is that the inferences drawn by the Panel and by Associate Professor Wright were obviously open and were logical. It follows that there was no denial of natural justice in “basing [the] conclusion on untenable circumstantial evidence” or “no evidence at all”. The decisions, even on the contingent hypotheses I have identified, were not legally unreasonable. If it is not clear from what I have already said, the extravagant language used in the submissions by Mr Alajmi, for example, that the critical finding upon which the Final Report was premised is “equivalent to meaningless”, is completely unjustified.

62. [197]

    The assertion that it “could not be” that Associate Professor Wright “could reasonably and rationally” arrive at the conclusion she did needs merely to be stated to be rejected. The Final Report contains a powerful series of findings pointing objectively to gross academic misconduct by Mr Alajmi. It is not the role of the Court to opine about whether those findings were correct, merely to determine that they were reasonably open and not legally unreasonable in the way I have earlier explained. Plainly they were. A supervisor in the position of Associate Professor Wright was entitled to take all of that material into account in deciding whether she was satisfied that Mr Alajmi’s thesis was his “own work”.

63. [198]

    I do not regard the email correspondence between Professor Quinn and Associate Professor Wright in March 2015 as leading to any different conclusion. The effect of those communications was that Professor Quinn, who was one of the members of the recently constituted Panel, expressed a view to Associate Professor Wright that at that time he could not “find any evidence that [Mr Alajmi] has sought the advice of a statistical expert to redo his analysis”. That limited conclusion does not cause me to think that those emails are, as was submitted by Mr Alajmi, “calamitous” for the reasonableness of both the Panel’s findings and the “non-certification decision”. There was no finding by the Panel that Mr Alajmi had sought the advice of a statistical expert to assist in his analysis. The failure by the Panel to refer to a non-dispositive conclusion, explained by Professor Quinn to Associate Professor Wright at an early stage of the inquiry, does not lead me to conclude that the decisions of the Panel and Associate Professor Wright, even on the contingent hypotheses I have identified, were legally unreasonable.

64. [199]

    There was nothing legally unreasonable in the conclusions in the Final Report that:

    1. (1)

       on the balance of probabilities, Mr Alajmi engaged one or more third parties (one of which it finds was All Answers) to create intellectual content to be included in the doctoral thesis (it should be observed that nowhere in the Final Report is the character of the so-called “intellectual content” defined);

    2. (2)

       Mr Alajmi admitted to using All Answers; and

    3. (3)

       having regard to the totality of the information and evidence it was more likely than not that All Answers completed (unspecified) work which contributed “at least in part” to the intellectual content of Mr Alajmi’s thesis. It found that the services provided by All Answers went beyond what a professional editor may provide when editing a doctoral thesis (which, for example, includes appropriate copy editing and proofreading).

65. [200]

    I reject Mr Alajmi’s submissions about the Panel’s failure to apply the Briginshaw standard. The rules of evidence did not apply to the Panel’s deliberations. There was no onus of proof or applicable standard of proof for the Panel’s findings. The Panel was not required to apply the Briginshaw standard before reaching its conclusions. Notwithstanding this, the Panel instructed itself to apply the standard of comfortable satisfaction, which is derived from Briginshaw and found that this standard was met. Even if the Panel were required to be satisfied to the Briginshaw standard, that standard was applied and met in this case.

66. [201]

    The next complaint made by Mr Alajmi is that the emails between Professor Quinn and Associate Professor Wright just discussed lead to a reasonable apprehension of bias on the part of the Panel and “perhaps” Associate Professor Wright. The allegation of apprehended bias made in relation to the Panel, in Mr Alajmi’s written submissions, was expressed in four paragraphs, which I will set out in full:

67. [202]

    The test for apprehended bias is well established. The Court must be satisfied that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. The “double might” test is future-looking, about a decision to be made in the future. Even in the context of judicial proceedings, tentative rather than final statements of a judge’s views about critical issues made by a judge do not necessarily demonstrate a reasonable apprehension of bias: Johnson v Johnson at [13]-[14].

68. [203]

    In a judicial context, requiring the highest standard of procedural fairness, the application of the apprehension of bias principle requires two steps. The first is to identify what it is said might lead the judge to decide a case otherwise than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified and the apprehension that the case might not be decided on its merits. Thus a bare assertion that a judge appeared to be biased is of no assistance unless the nature of the conduct relied on is identified and the connection between that conduct and the possibility of departure from impartial decision-making is articulated: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [63]; Bezer v Basan [2017] NSWCA 333.

69. [204]

    No fair-minded observer of the Panel’s process, taking into account the initial emails, the abundant material available to the Panel and the meticulous consideration of Mr Alajmi’s submissions about all of the material, might conclude that the members of the Panel, including Professor Quinn, might have brought a prejudiced mind to their deliberations. The emails between Professor Quinn and Associate Professor Wright which are the foundation of this apprehended bias allegation do not evidence any pre-judgement. A reasonable observer, armed with knowledge of those emails, in their proper context, would conclude that professional colleagues were seeking and providing information about certain technical details in the context of the recently commenced investigation. If it matters, the tentative views expressed by the participants in the emails were favourable to Mr Alajmi.

70. [205]

    The connection between the conduct here relied on (the email exchange) and the possibility of departure from impartial decision-making has not been established. It is clear that nothing was being prejudged in the exchange of emails. A fair-minded observer of the email exchange would conclude that Professor Quinn had not prejudged the complaint against Mr Alajmi. The same fair-minded observer would conclude that Associate Professor Wright had not prejudged the decision she was to be asked to make some time in the future in relation to the “certification” of Mr Alajmi’s thesis. I reject the submission made by Mr Alajmi that an inference unfavourable to the University should be drawn from the failure of Professor Quinn or Associate Professor Wright to give evidence about this matter. Such evidence would only have been required to rebut an inference arising from the material that does not fairly arise. In any event, even if the conclusion were reached that the evidence of Professor Quinn or Associate Professor Wright would not have assisted the University it would make no difference to my determination of this issue.

71. [206]

    Finally, the submission made that Associate Professor Wright impermissibly fettered her discretion or subjugated her state of satisfaction to the Final Report must be rejected. This allegation was not pleaded and was only briefly addressed in Mr Alajmi’s written submissions. The submission finds no support in the evidence. Associate Professor Wright said in her reasons “I had no reasons to disagree with either the process of the investigation or [the Final Report’s] findings”.

72. [207]

    Associate Professor Wright understood the certification she was being asked to provide. She plainly took into account everything that she knew on that topic. Unsurprisingly, given the wealth of primary material on that topic in the Final Report and not having any reason to disagree with the process of information gathering or the conclusions in Final Report, Associate Professor Wright could not be satisfied that the thesis was Mr Alajmi’s “own work”. If it is not already clear from what I have said, I reject the submission that Associate Professor Wright, “without rational reason”, accepted the conclusions in the Final Report. She did not fetter her discretion. The detailed evidence inculpatory of Mr Alajmi’s conduct contained in the Final Report is reason itself to accept the conclusions in the Final Report. Having considered her own knowledge of the subject, Associate Professor Wright was entitled to accept the evidence contained in the Final Report in making the “non-certification decision”.

73. [208]

    Mr Alajmi’s submission that the Court should itself read the drafts of Mr Alajmi’s thesis and determine that Associate Professor Wright had failed to appreciate that he spoke with a single “authorial voice” is really an impermissible invitation to conduct merits review.

74. [209]

    I also reject the submission made by Mr Alajmi that “absent any evidence from Associate Professor Wright other than her reasons, there is nothing to suggest that the conclusions in the report were founded from her experience. There is nothing to suggest there was any intellectual content being introduced. She has just abandoned all of that and relegated her decision making to the findings in the report and impermissibly ignored her experience as a supervisor in this process”.

75. [210]

    The inference that Mr Alajmi invites the Court to draw is simply not open. No part of the assumption that Associate Professor Wright “knew” that Mr Alajmi’s draft thesis contained no different “authorial voice” in the various drafts was established.

76. [211]

    As I have said, there is no basis shown for concluding that Associate Professor Wright subjugated her state of satisfaction to the Final Report. The pre-condition to that finding, that she “knew” that Mr Alajmi’s draft thesis contained only one “authorial voice” such that it should be concluded that Associate Professor Wright knew that “fact” was not established. The attempt to have the Court fill that gap in Mr Alajmi’s case was an appeal to merits review.

77. [212]

    Mr Alajmi’s administrative law claim must be dismissed.

78. [213]

    I have explained at the outset that despite it not having been pleaded I propose to determine the contract claim advanced in written submissions by Mr Alajmi.

79. [214]

    I accept that there was a contract between Mr Alajmi and Macquarie University set out in the offer and acceptance of his PhD candidature on 8 February 2011. Mr Alajmi there agreed to be bound by “the By-laws and Rules of Macquarie University”. Macquarie University, implicitly, agreed to be bound by those “By-laws and Rules”.

80. [215]

    The reference to “By-laws” is to By-laws made under s 28 of the Macquarie University Act. The reference to “Rules” in the contract is plainly a reference to Rules identified in s 29 of the Macquarie University Act and made by the Council of Macquarie University or the Vice-Chancellor under By-law 35 of the Macquarie University By-law. Relevantly, the Higher Degree Research Rules are “Rules” within the meaning of the contract.

81. [216]

    A problem at the outset for Mr Alajmi is that the essence of his contract complaint concerns the application of the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure, and in particular the exercise of a discretion under the Higher Degree Research Policy. The rights and obligations referred to in those documents are not express terms of the contract Mr Alajmi identified. That contract was evidenced by the offer and acceptance of his PhD candidature on 8 February 2011. The express terms of the contract comprised “the By-laws and Rules of Macquarie University”.

82. [217]

    I have earlier rejected the submission that the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure were either expressly or by operation of s 42 of the Interpretation Act incorporated in the Higher Degree Research Rules. Other than in relation to the argument about s 42 of the Interpretation Act, no submission was made on behalf of Mr Alajmi that requirements contained in the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure were (in whole or in part) implied in the contract between the parties.

83. [218]

    Whether terms should be implied in the identified contract raises potentially difficult issues. Each of the bases upon which a term may be implied in a contract raises different issues: JD Heydon QC, Heydon on Contract (2019, Thomson Reuters) at [10.10]. One of the undesirable things about the way this case was advanced by Mr Alajmi is that there was no statement of claim and the usual process of identifying the express and implied terms of the contract did not occur. Particularly in the absence of any submission that terms should be implied in the identified contract, I would not conclude that a term in the identified contract should be implied to the effect that the parties agreed to be bound by the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure.

84. [219]

    This is because it is not necessary in the present case to imply a term in the contract that the parties agreed to be bound by the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure. Those policies deal, relevantly, with the issue of whether or not a piece of academic work is the student’s “own work”. That issue involves, to a significant degree at least, a question of academic judgement. I would not conclude in this case that it was necessary to give business efficacy to the contract [5] or was obvious to both parties [6] that a term would be implied that the parties were contractually bound by the terms of the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure. This is principally because this would make academic judgements about matters such as alleged plagiarism the subject of a contractual promise.

85. [220]

    I accept Mr El-Hage’s submission that, on the application of the usual principles for the implication of contractual terms, the Court should not imply a term into this contract that the University was bound to give effect to the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure. Mr Alajmi’s contract case fails at this point.

86. [221]

    The next threshold difficulty for Mr Alajmi’s contract case is that in Tang Gummow, Callinan and Heydon JJ at [58] said:

87. [222]

    I have earlier found that the core subject matter sought to be raised in the proceedings by Mr Alajmi, namely, whether he engaged a third party to prepare intellectual content for his thesis, is an issue that centrally involves academic judgement. The core subject matter, alleged plagiarism, is a matter best suited to consideration by academics who are involved every day in the relevant field of discourse. That conclusion applies equally to Associate Professor Wright and the “non-certification decision”.

88. [223]

    I have earlier concluded it would be “jejune and inappropriate” for me to attempt to apply my understanding of academic standards of plagiarism to the particular problem posed by Mr Alajmi’s thesis.

89. [224]

    I will, however, against the possibility that Mr Alajmi will seek to take this case further and contrary to the findings I have made, consider Mr Alajmi’s contract claim on its merits.

90. [225]

    It was submitted that the task of this Court is to intervene where a “tribunal” unilaterally exercises power which has adverse consequences on the rights of a party to the contract, and that power is exercised in a manner that is unreasonable. Mr Alajmi submitted that there does not need to be a breach of contract established. Nevertheless, if a breach were required, Mr Alajmi submitted that the relevant breach was the failure to exercise a power reasonably. Mr Alajmi submitted that what he described as the “non-certification decision” was reviewable on the basis that it involves the exercise of a unilateral contractual discretion, which, as a matter of law, must be exercised reasonably.

91. [226]

    There is an interesting and developing relationship between unreasonableness in administrative law and in contract. It has been the subject of recent academic analysis: see E Lim and C Chan, “Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law” (2019) 135 LQR 88. As Aronson, Groves and Weeks state in Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at [3.180]:

92. [227]

    This principle is perhaps discernible in the decision of Finn J in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 180, 195-196, 261 and 264 where it was held that the terms and procedures of requests for tender might sometimes be contractual and that, where that is the case, a duty of fair dealing might be more readily implied into the contract if the requesting party is a government entity. Public law principles would inform the requirements of fair dealing, but not the remedy.

93. [228]

    There is no rigid formula permitting identification of what “manifest unreasonableness” means in all contexts. In the context of a contract, in order properly to determine the standard which ought to be applied to the statutory scheme, the entire contractual scheme informs what might be manifestly unreasonable in the context of that regime. On the assumption I am wrong about the implication of a term that the parties agreed to be contractually bound by the terms of the Macquarie University Code, the Higher Degree Research Policy and the Higher Degree Research Procedure, I accept the submission of the University that the relevant contractual framework here included the Macquarie University Academic Honesty Policy. That policy identified an ongoing obligation on students not to engage in plagiarism.

94. [229]

    It is and was a fundamental principle that all staff and students act with integrity in the creation and development, application and use of ideas and information. Examples of dishonest fabrication and plagiarism were given. “Plagiarism” is defined in an inclusive way as using or extracting another person’s concepts, experimental results or conclusions:

95. [230]

    On the contingent hypotheses I am addressing Mr Alajmi’s contract claim, the Academic Honesty Policy is part of the contractual framework by which legal unreasonableness is to be judged in the case of Associate Professor Wright’s “non-certification decision” and the Panel’s Final Report. In light of the Academic Honesty Policy, a narrow view of what would constitute “unreasonableness” in addressing alleged plagiarism is appropriate.

96. [231]

    Gummow J in Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 at 94 explained that:

97. [232]

    In Bartlett v Australia & New Zealand Banking Group Ltd (2016) 92 NSWLR 639; [2016] NSWCA 30 at [39]-[49] it was explained and accepted that broad contractual discretions must be exercised reasonably. In Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233, Gleeson JA (Macfarlan and Meagher JJA agreeing) explained:

98. [233]

    In Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; 329 ALR 1 at [1012] and [1014]-[1015] Edelman J (quoting Lady Hale in Braganza v BP Shipping Ltd [2015] 1 WLR 1661 at [28]) noted that the concept of “reasonableness” was one which was “drawing closer and closer to the principles applicable in judicial review”. On this point, I am bound by the Court of Appeal in Hannover Life Re of Australasia Ltd v Jones where Gleeson JA (Macfarlan and Meagher JJA agreeing) stressed:

99. [234]

    In addressing Mr Alajmi’s contract case on the hypotheses I have identified, I will proceed by making the assumptions favourable to Mr Alajmi that:

    1. (1)

       the obligations identified in the Higher Degree Research Policy formed part of the contract between Mr Alajmi and Macquarie University; and

    2. (2)

       as was submitted by Mr Alajmi, the standard of review for the unreasonable exercise of a contractual discretion was the same standard required to judge unreasonableness in administrative law.

100. [235]

     Without repeating all that I have said at [183]-[211], which applies with equal force to the contract claim and is incorporated here by reference, the inferences drawn by Associate Professor Wright in making the “non-certification decision” (quoted in [86] and [90] above) and to the extent it is relevant in the contract case, by the Panel in the Final Report (quoted in [76] above), were reasonably open, in the sense of being logically available and not legally unreasonable.

101. [236]

     My evaluative judgment is that the inferences drawn by Associate Professor Wright were obviously open and were logical. It follows that there was no denial of procedural fairness in “basing [the] conclusion on untenable circumstantial evidence” or “no evidence at all”. The Briginshaw standard did not apply to the Final Report. Even if it did, that standard was acted upon and met in the Final Report. The decision to refuse certification, even on the contingent hypotheses I have identified, was not legally unreasonable.

102. [237]

     At the risk of repetition, the assertion that it “could not be” that Associate Professor Wright “could reasonably and rationally” arrive at the conclusion she did must be rejected. The Final Report contains a series of findings pointing objectively to gross academic misconduct by Mr Alajmi. A supervisor in the position of Associate Professor Wright was entitled to take those findings into account. As I have found, Associate Professor Wright did not subjugate her decision-making to the Final Report.

103. [238]

     As I have said, I do not regard the email correspondence between Professor Quinn and Associate Professor Wright in March 2015 as leading to any different conclusion. The failure by the Panel to refer to a non-dispositive observation, reached by Professor Quinn at an early stage of the investigation, does not lead me to conclude that the findings of the Panel and the “non-certification decision” of Associate Professor Wright, even on the contingent hypotheses I have identified, were contractually unreasonable in the sense I have explained.

104. [239]

     It follows that Mr Alajmi’s contract case must be dismissed.

105. [240]

     There was virtually nothing said in support of the estoppel claim in the almost two days spent on submissions in this matter. That was for good reason. The estoppel claims are unsustainable.

106. [241]

     The elements of estoppel by convention are not made out:

     1. (1)

        The first common assumption asserted by Mr Alajmi, that decisions made under the Higher Degree Research Policy would be lawfully made, is not supported in the evidence. In any event, I have found that the decisions made under the Higher Degree Research Policy were lawfully made.

     2. (2)

        The second common assumption asserted by Mr Alajmi, that only doctoral theses which meet the University’s preparation requirements may be submitted for examination, is contradicted by the Higher Degree Research Policy itself. The Higher Degree Research Policy states that a candidate may submit a thesis for examination against the advice of their supervisor.

     3. (3)

        The third common assumption asserted by Mr Alajmi, that Associate Professor Wright in filling in part of the “Submission of a HDR Thesis for Examination Form” on 19 March 2015 represented that Mr Alajmi’s thesis met all the University’s preparation requirements, cannot form the basis of estoppel. Associate Professor Wright did not certify that the thesis was Mr Alajmi’s “own work”. In any event, whatever representation or act that might have been engaged in by Associate Professor Wright, the assumption was not shared by the University, given the ongoing investigation into that very subject. Mr Alajmi’s evidence reveals that he did not rely on any such representation and knew that the investigation was ongoing. It was never represented that Associate Professor Wright would not come to a different view following the outcome of the inquiry. In any event, Associate Professor Wright revoked the alleged certification.

107. [242]

     Relief is also sought in the nature of restraint based upon an equitable estoppel arising from the representation contained in the so-called “thesis certification”. Mr Alajmi, relying on the conventions, which underpinned the common assumption derived from the contract between the parties discussed above, and the representation said to arise from the “thesis certification” on 19 March 2015, elected not to apply for internal review of the Final Report and acquiesced in the Deputy Vice-Chancellor (Research)’s recommendation that the Final Report and Mr Alajmi’s response be provided to Associate Professor Wright.

108. [243]

     This estoppel claim must be rejected:

     1. (1)

        First, as I have already stated, on 19 March 2015 Associate Professor Wright did not certify that the thesis was Mr Alajmi’s “own work”. More than that she left blank the place on the Submission Form where such a certification would have been made. The Submission Form was incomplete in other respects. Section 9 had not been signed by the Head of Department and section 10 had not been signed by the Associate Dean (HDR) of the Faculty. It was never represented that Associate Professor Wright would not come to a view adverse to Mr Alajmi about whether the thesis was his “own work” following the outcome of the inquiry.

     2. (2)

        Secondly, Mr Alajmi’s evidence reveals that he did not rely on this “representation”. At [99] of his affidavit he states in part:

     3. (3)

        The balance of [99] discusses the involvement Associate Professor Wright had in the development of Mr Alajmi’s thesis, which led him to believe that she would certify the thesis as his “own work”. It is clear from his evidence that Mr Alajmi knew that Associate Professor Wright on 19 March 2015 did not make a representation that would bind the University regardless of the outcome of the Inquiry. He knew that any “certification” on 19 March 2015 was not irrevocable. He knew that Associate Professor Wright would have to decide whether to certify the thesis as his “own work” once the Final Report was issued. He hoped that she would form a view that was different to the Final Report’s conclusions. This is not detrimental reliance on the relevant “representation”.

109. [244]

     None of the suggested elements of an estoppel was proved here. The estoppel claim must be rejected.

Discretion to refuse relief

1. [245]

   Given the conclusion reached, it is strictly unnecessary for me to address the discretionary bases of relief. If I were otherwise persuaded that Mr Alajmi was entitled to succeed under any of his grounds, I would not refuse relief on discretionary grounds.

2. [246]

   Whilst Mr Alajmi’s delay in commencing proceedings is regrettable, if I were otherwise satisfied that this was an appropriate case for relief under administrative law principles, contract or estoppel, I would not refuse relief on discretionary grounds.

3. [247]

   The other available internal and external avenues of review ground pose a more difficult problem. If I had been persuaded that relief should otherwise have been granted, for example on the basis that the University had made a legally unreasonable decision not involving academic judgement which was properly the subject of relief under s 69 of the Supreme Court Act, I would not refuse relief on discretionary grounds.

4. [248]

   I accept that the Court should be reluctant to intervene in this dispute, given that there are internal appeal avenues available to Mr Alajmi which he has not availed himself of: cf. Chan v Sellwood [2009] NSWSC 1335 at [26]. An often compelling discretionary bar to a claim for prerogative relief is the availability of other relief: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ).

5. [249]

   An internal appeal to the Chair of the Academic Senate in relation to the Panel’s findings was available. The appeal could have been brought on one or more of the grounds specified in s 30.1 of the Macquarie University Code. Mr Alajmi did not avail himself of this opportunity. Additionally, Mr Alajmi could have sought review of the Panel’s findings to the Australian Research Integrity Committee (“ARIC”) pursuant to s 30.8 of the Macquarie University Code. Although there is a time limit of 60 working days following formal notification to apply to ARIC, late applications for review are assessed by ARIC on a case by case basis: Australian Research Integrity Committee Framework (February 2011) at 7. Mr Alajmi did not avail himself of this opportunity.

6. [250]

   In relation to the “non-certification decision”, Mr Alajmi could have submitted his thesis for examination against the advice of his supervisor. This was made clear to him in the correspondence notifying him of the “non-certification decision”. Mr Alajmi did not avail himself of this opportunity.

7. [251]

   Despite these available alternative avenues for review, if I had concluded that relief should otherwise have been granted to Mr Alajmi, I would have granted declaratory relief. Given the delay and the expiry of Mr Alajmi’s PhD candidature, injunctive relief would not be appropriate.

Conclusion and orders

1. [252]

   For the foregoing reasons I make the following orders:

   1. (1)

      Summons dismissed.

   2. (2)

      Plaintiff to pay the costs of the defendant as agreed or assessed.