30 April 2014


In Durney v Victoria University & Ors [2014] VSC 161 the University has been found by the Victorian Supreme Court to have not met expectations regarding procedural fairness in excluding a law student.

Plaintiff Paul Durney, a law student at Victoria University, has made "numerous complaints" from 2008 onwards about noise in the University Law Library. The Victoria U administration "considered that the manner of his complaints and conduct" was "disruptive and disturbing for university staff and students", reflected in a decision to exclude him from "being on, in or using any or all premises of the University". In response Durney successfully challenges that decision, claiming  a lack of procedural fairness, failure to afford natural justice, bias, unreasonableness, and ultra vires.

In August 2012 the University wrote to Durney stating that it was very concerned about his health, wellbeing and recent behaviour. It recommended that Durney seek assistance from qualified professionals.

The expression of concern reflected indications that  Durney had "behaved inappropriately",  including a complaint to the Law Librarian that "caused the Librarian to sound the duress alarm and call security staff with Mr Durney ultimately being removed by police". Presumably the complaint was somewhat more forceful than a brisk unemotive statement about chatter or the need for peers to use headphones.  Durney shouted at a professor - often quite tempting -  and on another visit to the Library shouted about the noise. He twice stated that he intended to commit suicide. A subsequent email to Law School and Library staff communicated his intention to conduct a "hunger strike" outside the Law Library until the conditions in his email were met or until he died. He later  lay on the footpath outside the main entrance of the Law School in view of students until police and ambulance personnel attended. In September Durney reportedly entered the "secure, staff only area at the Footscray Park campus library and refused to leave when asked to do so".  The University claimed that Durney subsequently made an attempt to hang or choke himself] outside the Law School, again in view of students and staff, some of whom we might infer would be distressed. Police and ambulance attended the scene. Later in the month he visited the Footscray Park campus library once again and indicated that he wasn't leaving until the librarian met to discuss providing a silent library space.

In responding to a letter from the Vice-Chancellor reiterating concern regarding Durney’s health  and noting the importance of a safe environment for staff and students Durney  indicated that he was suffering from significant health issues.

He went on to state that
  • Victoria U continued to refuse to meet obligations under its Student and Library Charters to provide silent study areas for private study and "a traditional library function"
  • the University failed to meet the requirements of a disability assessment for Durney
  • the University was refusing to meet its obligations to students and silencing him
  • Victoria U was in breach of several of its own policies. 
  • there was no lawful authority or ground for his exclusion, and no legitimate case for exclusion (e.g. he had not been charged with or found guilty of any disciplinary or criminal offence.
A memorandum by staff to the Vice-Chancellor (accompanied by documents that were not provided to Durney)  indicated that hs behaviour had "caused very significant concern and distress to University staff over recent months", his demands and complaints had been disruptive and difficult, his "disruptive and disturbing" behaviour "posed a threat to the mental health of staff, his behaviour was erratic and apparently growing more and more extreme, an increased security presence had to be maintained at the libraries and the Law School, and staff were "in a constant state of tension and unease" wondering when Durney would "next cause a distressing incident".

The Vice-Chancellor appears to have been persuaded and excluded the unhappy student.

Durney was advised that a Faculty representative would be in contact to make arrangements for Durney to sit the exams. Durney would continue to "have access to WebCT, Lectopia and all the online resources of the Victoria Law Library", along with email access to lecturers and tutors. The exclusion would be revoked
at such time as I can be provided with some independent assurance that your behaviour does not pose a risk to staff and students, or indeed to yourself. This would need to take the form of a report from a medical practitioner, psychiatrist, or Forensic Psychologist of the university’s choice, at the university’s expense. ...   
I once again entreat you to obtain professional assistance. I reiterate that Dr Darko Hajzler, the University’s Manager of Counselling Services is available to assist you, and can be contacted on  …
Durney contended that procedural fairness and natural justice were not observed by the University when the exclusion decision was made.
One concern is that he was given no notice at all of the October 2012 incidents relied on by the Vice-Chancellor in the exclusion decision, and no opportunity to address them. 
A second concern is that he was not provided with most of the documents relied on by the Vice-Chancellor when he made the exclusion decision, including a copy of the joint memorandum.