PN1

VICE PRESIDENT HATCHER: I'll take the appearances: Ms Nomchong and Ms Hui, you appear for the appellant?

PN2

MS NOMCHONG: That's correct, Vice President.

PN3

VICE PRESIDENT HATCHER: Mr Brennan, Mr Macintosh, you appear for the respondent?

PN4

MR BRENNAN: We do, Vice President.

PN5

VICE PRESIDENT HATCHER: All right, the parties are granted permission for legal representation in this appeal. There appears to be two preliminary issues: first of all, there is the confidentiality orders sought by the appellant. Ms Nomchong, with the first order that was made by the Deputy President below, which you asked us to reproduce, there's two orders, 2 to 6. I'm not intimately familiar with the evidence yet. Who is the person referred to in order 6?

PN6

MS NOMCHONG: That's the supervisor of the relevant student and it's our contention - or it was below - that by identifying the supervisor by name would then identify the relevant student.

PN7

VICE PRESIDENT HATCHER: I see, all right. You confirm, Mr Brennan, those proposals are consented to?

PN8

MR BRENNAN: Yes, they're not opposed, Vice President.

PN9

VICE PRESIDENT HATCHER: All right, we'll make the orders sought and we'll endeavour to get an (indistinct) order that the parties (indistinct) today. I understand there is some representatives of the media present remotely at the hearing. If they can give their contact details to my chambers I'll have the order sent to them directly so that they know what is required by the order and I will assume consistent with the order and the terminology used in the decision that will use the expressions, 'relevant student' - I think it's, 'new witness', to refer to those persons throughout the hearing, is that correct?

PN10

MS NOMCHONG: (Indistinct).

PN11

VICE PRESIDENT HATCHER: Yes, all right. Now, the second issue, Mr Brennan, is that you've sent through a proposed new statement of evidence or piece of evidence which you seek to have admitted in the appeal in the event that permission to appeal is granted. Can you just explain what that is said to go to?

PN12

MR BRENNAN: Yes, Vice President - the document attached to the affidavit we say goes only to the question of relief that is the utility of reinstatement, in that it demonstrates that the whole of the current faculty of the mathematical sciences institute are supportive of the respondent returning to his previous position. So that's all that it goes to.

PN13

VICE PRESIDENT HATCHER: And why couldn't that evidence have been adduced before the Deputy President?

PN14

MR BRENNAN: Because it didn't exist and couldn't have existed - - -

PN15

VICE PRESIDENT HATCHER: The email can exist but why could not evidence of that nature - that is indicative of the views of the faculty - have been adduced at first instance?

PN16

MR BRENNAN: There was some evidence to that effect of some of the faculty. But what the whole of the faculty is saying in the email is, 'We read of the Fair Work Commission ruling a few weeks ago'. So they couldn't have formed the views they formed without having knowledge of what it was that had occurred. They derived that knowledge by reading the Deputy President's reasons. They could not have formed their views as expressed in this email without the reasons.

PN17

VICE PRESIDENT HATCHER: All right, thank you. Ms Nomchong, what do you want to say about this?

PN18

MS NOMCHONG: The application is opposed, Vice President. On the test set down of course in Aiken and adopted by this Commission in Tarnet v Australian View and HCR [2019] FWCFB 2384. We say that the evidence could have been obtained at first instance; that is that there could have been a disclosure of the evidence to these academics. Indeed, there is an email that was addressed to the Vice Chancellor of seven of those people who are named in this email and many of whom are the same people. Second, the test is that there must be a high degree of probability that there would be a different decision and we say that there are several reasons why the evidence is not sufficient: firstly, as Mr Brennan has said, it only goes to reinstatement.

PN19

Secondly, the email says that the Red DP Dean's decision but we say in very clear terms in the appeal that the decision is highly deficient because it fails to make reference to a large amount of the evidence and makes significant errors of fact. There is no evidence that the signatories agreed or were aware of the university's evidence about Professor Morrison's conduct and thirdly, there is no evidence of how this email came into being. Were they asked to put it in writing? You know, had they put it in writing? It arrived on our doorstep at 5.36 last night. We've got no way of testing this evidence, of whether these people who are copied in actually hold this view.

PN20

We have no idea of their motivation for making this statement. Thirdly, the evidence must be credible and we're not able to test that at this stage so we say that the Full Bench wouldn't be persuaded to accept this new evidence at this point.

PN21

VICE PRESIDENT HATCHER: Right, do you want to say anything in response to that, Mr Brennan?

PN22

MR BRENNAN: No, Vice President.

PN23

VICE PRESIDENT HATCHER: All right, we've decided not to admit the new statement. We consider it lacks probative value such as to be pertinent to any substantive issue in the appeal. All right, we can indicate we've read the parties' outlines of submission. Ms Nomchong.

PN24

MS NOMCHONG: I will be taking each of the members of the Full Bench to the evidence in some detail because as you can tell from the outline of evidence, we do say that there is a failure by Deputy President Dean to go to that evidence and to engage with the evidence and engage with the submissions of the appellant. We do rely on the written submissions and if I don't say something in oral submissions today it's not to be taken that that point has been abandoned. For brevity, I'm going to refer to the relevant student as, 'the student', otherwise we'll be here for much longer than I intend to be before you today.

PN25

Let me start by saying that the gravamen of this appeal is that DP Dean erred when she found that there was no valid reason for dismissal. It's the appellant's case that DP Dean erred in failing to find on the basis of the evidence and taking into account all of the submissions and predominantly the appellant's submissions that there was a sound, defensible and well-founded reason based on the totality of Scott Morrison's misconduct. This is because the manner in which DP Dean analysed the evidence and made findings on which she based her conclusions was tendered by manifest error. I'm going to summarise these at the beginning just to give you a short of framework in which we will conduct our submissions today. In summary those errors can be broken down into the following matters: first, DP Dean narrowly focused on the events at the beach and gave scant regard to the other significant aspects of Professor Morrison's misconduct in the days, weeks and months that followed. As such DP Dean failed to properly apprehend the totality of Scott Morrison's misconduct, both that known at the time of the dismissal and that which was discovered later.

PN26

In that regard, I refer you to the decision in Chandler v Bed, Bath and Table, which is number 6 in our list; that is the inquiry as to whether there is a valid reason for dismissal is not limited to the reasons given at the time by the employer. Second, DP Dean failed to take into account the power imbalance between Professor Morrison and the student, particularly where Professor Morrison on all accounts was a type of superstar within the institute. He was a senior academic, a person who could be extremely influential in supporting and promoting the studies and careers of students.

PN27

In that regard, DP Dean narrowly and wrongly construed his role visa vis the relevant student. DP Dean (indistinct) that because he submitted his marks for the Honours work before the retreat, he no longer had any supervisory teaching or administrative role. I'm going to come to that in a lot of detail in just a moment. But that is a significant error of fact which is foundational in nature, which completely underscores the way in which the Deputy President approached this matter and did so erroneously.

PN28

Third, DP Dean failed to take into account a number of relevant matters, including the deleterious effect on the student in their post-graduate studies, including the fact that when she came to consider new witness, she - Deputy President Dean put it in a way that said because the new witness didn't object to the stripping naked, didn't object to the sexualised texts, didn't object to Professor Morrison talking about having fantasies about her, that it was okay and that's a wrong test because at law, sexual harassment doesn't rely upon the victim in fact expressing or communicating some sort of objection to the perpetrator.

PN29

Further, the conduct of the new witness, another matter that DP Dean failed to take into account, illustrated that the conduct towards the student wasn't a one-off. This was the second known occurrence of this sort of sexualised behaviour. Lastly and significantly, DP Dean failed to give proper consideration to the damage to the ANU in terms of its commitment to its reputation as a (indistinct) tertiary institution, its commitment to providing a safe environment for students, its commitment to having trust between its staff and students and to properly managing conflicts of interest. The corollary of this decision for the ANU is that it sends a message to the community, including to the prospective students, that it is not a safe place to come and study.

PN30

I'm going to take the Full Bench to each of those matters in more detail shortly but I want to really start with this very extraordinary statement made by Deputy President Dean. But before I do I wonder, Vice President, if you could just repeat your direction that everyone goes on mute? There is someone who's not on mute and it keeps interrupting in sort of a way - I'm not sure if you're hearing that as well.

PN31

VICE PRESIDENT HATCHER: I'm not hearing any interference but can other parties attending the hearing turn their microphones on mute during the duration of the hearing, please?

PN32

MS NOMCHONG: Thank you very much, Vice President. This most remarkable statement is set out at the judgment at paragraph 115, which is on appeal book 22. What it says at 115 says:

PN33

I was so satisfied based on the evidence of Dr Morrison that he is fully cognisant of the effect of his actions and there will be no repeat of this type of conduct. Were there to be further such conduct Dr Morrison ought to expect to be dismissed as a result.

PN34

Now, why is that extraordinary? It's extraordinary because all the way through the judgment, up to that point, Her Honour came to the conclusions that Mr Morrison had done nothing wrong. It was not premeditated, it was consensual - in fact, the student had instigated the interaction. She found there was no obligation to disclose the conduct to the University because there was nothing wrong. DP Dean found that getting the wife involved wasn't wrong. DP Dean found that because he asked her if she was okay, then that was enough to ensure her wellbeing.

PN35

Professor Morrison took responsibility for his actions and then at judgment paragraph 114, adopts the applicant's submissions that the student was a grown woman who had to take responsibility for her own actions and therefore that there was no valid reason for dismissal.

PN36

But then if that's the case, and he had done nothing wrong, it begs the question of what type of conduct would Professor Morrison engage in again to warrant dismissal? Do you see the inconsistency there? Would it be stripping naked in front of the student, would it be taking a student to a secluded beach, would it be failing to be clear about the nature of the relationship after the sexual action, would it be involving his wife, not telling the University? What would it be? With respect, this conclusion undermines the whole of the decision-making of DP Dean because of its inconsistency. As we'll come to as I go through these submissions the decision is replete with failures to give reasons and this is one of the most noteworthy.

PN37

Failure to do what further conduct and it begs the question, would the further conduct be considered a second time because the relevant student, the interaction with the relevant student, was inappropriate or would it be considered to be a third time because we have to take into account his inappropriate conduct with the new witness? We way that the Full Bench will be persuaded that the errors warrant appellate intervention and the setting aside of the finding by DP Dean that there was no valid reason for dismissal. In its place we submit that because all of the other issues in section 387 have been satisfied and were not in contest, that the Full Bench would substitute a finding that there was a valid reason for dismissal and that the dismissal was not harsh, unjust or unreasonable.

PN38

If the Full Bench is against me on that, then we contend that DP Dean was in error in determining that reinstatement was the appropriate remedy. So that is the summary on the framework that I'm going to follow today. I first turn now to the failure to find a valid reason for termination: this is appeal ground 1(a). In this matter, as I've said, DP Dean erred by failing to take into account the totality of the misconduct of Professor Morrison. In our submission each part of that conduct, either on its own but certainly in combination, amounts to serious misconduct warranting dismissal.

PN39

So let's have a look at each of the parts of what I say is the totality of the misconduct. The first is the sexual interaction between Professor Morrison and the student at the Kioloa retreat on 21 November 2017, which DP Dean found occurred and that is a judgment paragraphs 13 to 20. I interpolate here that when we say DP Dean erred - and we'll come back to this - she erred in failing to find that it was Professor Morrison who initiated that conduct, but I'll come back to that. Second, the conduct of Professor Morrison when he had conversations with the student (indistinct). This conversation has to be put in context because it involved a complete turnaround in his attitude towards the student. The night before he had asked her to go to a secluded beach alone to look at bioluminescence. When he got there on the student's version of events, he immediately stripped naked and then went into the water for a swim. She followed him in. There is a controversy about who started the kissing but certainly whatever way we look at it, Professor Morrison engaged in it. They then went back to the beach and Professor Morrison kissed and touched the student and then he offered to have oral sex with her, which she refused.

PN40

Then as they returned back to the retreat, back up to the camp, he asked her if she wanted to come to his house to have a shower. Now, during that conversation on the beach, he told the relevant student, on her version of events, that he was in an open relationship with his wife. In his evidence he said he told her that he had - he and his wife had slept with other people. Well, that's a semantic difference, in our submission. But the next day when he sees the student it's not a continuation of this romantic interlude that they'd had on the beach: rather, it's a complete flip. He tells the student that his wife had arrived at the camp that night and he told her about the interlude on the beach. She had got extremely upset.

PN41

Then he apologised to her, lamenting: 'I've now dragged you into this terrible mess'. He left the status of their ongoing professional personal relationship up in the air. So what was she then to think? One minute she's in a romantic interlude on the beach, and the next he's saying she's been inveigled into a marital mess. Third, DP Dean failed to take account of the fact that Professor Morrison told someone else at the retreat. That was Ms Dancso, and her statement is at appeal book 1285. I'll come back to that in more detail in a moment. Fourth, there is the meeting on the Saturday. So the interlude on the beach is on the Wednesday, the distressed conversation is on the Thursday, and then back in Canberra on Saturday 25 September.

PN42

At O'Connor Ridge, Professor Morrison told the student that (a) he had revealed these matters to Ms Dancso while at the retreat, so already (audio malfunction). Professor Morrison asked the student about her experience with her previous boyfriends, you know? What was her previous boyfriend experience like? In cross-examination Professor Morrison said he couldn't recall if he said that or not. DP Dean made no finding about it. He then described to the student how he'd had really good sex with his wife after they'd resolved their argument involving the relevant student. Then Professor Morrison said he'd really like to see the student occasionally and thought he could make things work. In that conversation it was or it should have been evident to Professor Morrison that the student was offended by his comments. Going back to the beach - and we'll come to this on the instigation - when they were on the beach Professor Morrison said to her as part of his seduction, in our view, is that he had been distracted by her in lectures. He'd been distracted by her. She says to him on the Saturday at O'Connor Ridge: 'I was really offended when you said that I was a distraction', and then she told him that she felt vulnerable about how things had worked out.

PN43

So he already knew that there was this emotional difficulty which she was experiencing but DP Dean didn't take any of that into account. The fifth part of his conduct is involving his wife, Kate Lessinger, telling the student at a later point in time - because the student was trying to contact Professor Morrison to say, 'Look, are we on or are we off? What are we doing?' and he didn't want to deal with her so he said, 'Direct your inquiries to my wife'. DP Dean said that she found this, 'clumsy', and that's at judgment paragraph 90 and referred to the ANU's submissions but failed to make any finding at all about the inappropriateness of Professor Morrison essentially fobbing the student off to his wife.

PN44

That's a step that led, one would think, inevitably, to a confrontation between Ms Lessinger and the student in which Ms Lessinger yelled at the student, told her to stay away from Professor Morrison: 'Don't go past his office, don't go down the corridor past his office, don't even look him in the eye'. DP Dean also failed to take into account that by involving his wife it got even worse because Ms Lessinger got a job at the Maths and Science Institute in February 2018. So this inveiglement of his wife then became incredibly difficult for the student, because Ms Lessinger had an administrative job at the MSI and therefore the student was going to have to interact with her in that capacity.

PN45

Six: there was the failure by Professor Morrison to take any steps to re-establish a proper professional boundary and this was apparent from the day after the encounter. He knew it was wrong. He said to Ms Dancso, 'I've done something I shouldn't have'. He knew that the encounter was wrong because he had the conversation with his wife in which she became upset. He apologised to her for getting her into this mess. That failure to re-establish boundaries to say, 'Well, look, this was all a big mistake, we've got to disclose it to the university, we've got to set some professional boundaries' - instead, there was just this limbo land that they both lived in for the days and weeks that followed, a matter which DP Dean noted but again, made no findings about. Seventh: DP Dean failed to take into account Professor Morrison's email directing her not to attend his seminars in November 2018 because he didn't want to be stressed and directed her to interact with his wife, who was then in the admin job at the MSI, in a straightforward manner.

PN46

That's also something he obviously didn't want the university to know about, because he didn't send that from his university email account. He sent that from his private email account. Eighth: there was the failure to ensure that the student had support or assistance in the face of what was now a gigantic mess. He'd had an intimate relationship with her in his role as a senior academic. He prevaricated about whether that relationship could go on. He involved his wife and even DP Dean at judgment paragraph 91 said: 'He wasn't as clear as he could have been'.

PN47

If that isn't the understatement of the century I don't know what is. He was acting in his own interests at all times because - at least in the beginning - he probably didn't want to make a decision about whether he wanted to continue the intimate relationship with the student. In our submission the finding DP Dean should have made is that Professor continued to fail to establish boundaries and certainly continued in any duty or obligation that he had to ensure the student's wellbeing in that way. Ninth: Professor Morrison failed to advise the ANU of what had occurred and he failed to - and in cross-examination, and this is at appeal book 111, PN 856, he said he didn't tell the ANU in part because he didn't want the university to know about it.

PN48

VICE PRESIDENT HATCHER: Sorry, Ms Nomchong - what was that reference again?

PN49

MS NOMCHONG: AB 111, PN 856.

PN50

VICE PRESIDENT HATCHER: Thank you.

PN51

MS NOMCHONG: If members of the Full Bench want any references to the evidence as I'm talking through these submissions, please don't hesitate to ask me because I can refer you to those on the way through. This failure to tell the university about what had happened with the student, that she was distressed and vulnerable and it was a mess with the wife, et cetera, et cetera, also involved not telling the university that he'd failed to offer any support and that he'd failed to re-establish professional boundaries. Finally the conduct of Professor Morrison was the failure to be frank and honest during the investigation process. We'll come to the role of the new witness in just a moment because that's also part of his conduct but I'll come back to that.

PN52

Any fair reading of the decision reveals that the approach adopted by DP Dean focuses only on the kissing in the water at the Kioloa retreat. In the decision when DP Dean was describing Professor Morrison's conduct, she describes it as, 'the interaction', and I put that in inverted commas. At paragraph 81 of the decision, you'll see DP Dean says:

PN53

I find that there was no breach of the harassment policy. There is no evidence to support a finding that the conduct, i.e. the interaction, was unwelcome. On the contrary, the interaction was fully consensual. Similarly, I find there was no breach of the code in large part for the same reasons that there was no breach of the conflict policy.

PN54

So when describing the interaction, it's really about the kissing in the water, not about the totality of this conduct at all. So, for example, when determining whether Professor Morrison had contravened the conflicts policy, DP Dean limited her analysis to the 30 minutes on the beach and that's at paragraph 77 and 78 of the judgment. DP Dean did not consider all of the other matters that I've just described, being the totality of the conduct. DP Dean did not consider Professor Morrison involving Ms Dancso and let's go to Ms Dancso's evidence. It's at AP 1285. Ms Dancso was a former mentee of Professor Morrison and she had been a post-doct at the ANU.

PN55

At paragraph 10 of her statement, she describes - she knows what inappropriate conduct is. She says:

PN56

For context, I had previously experienced inappropriate behaviour from individuals in academic and professional settings, including from someone who was at the time in a senior position to me.

PN57

So she knows that there's inappropriateness between a senior person and a student:

PN58

I have been on the receiving end of innuendo, verbal flirtation and physical touching at times in these settings and I am familiar with what inappropriate behaviour looks like. I know it when I see it and I never saw it or experienced it with the applicant.

PN59

That's her personal view. If we go to paragraph 22, this is the part - that's at the bottom of page 1285 - Ms Dancso says:

PN60

A day or two before the end of the retreat, the applicant approached me and we had a conversation. Applicant: 'I've done something stupid and might need your help.' Me: 'What happened?' Applicant: 'I went to the beach with the relevant student last night and some things happened that shouldn't have. The relevant student was enthusiastic and I think she's feeling okay. She's already left with another student and that had been the plan anyway for other reasons but Kate is very upset and wants to leave. I might need you to take over things here'. Me: 'Not one of your better notions. Of course I can look after things here'. Applicant: 'Could you please check on Kate to make sure she's okay?'

PN61

So most importantly, if we come down to 31 and 32 of that statement - and this is where Ms Dancso is offering an opinion and it was an opinion which DP Dean relies upon when she comes to a decision in reinstatement. She says:

PN62

Many of the offices at MSI have vast wall panels which face the corridor. They are not intimate and not fully private. If the applicant were returned to the MSI he would be able to meet the students in open areas of the MSI in addition to ample public meeting space with informal interactions. There are several meeting rooms on each floor with unobstructed glass walls, clearly visible from high-traffic areas.

PN63

So rather than supporting a view that there was nothing wrong with Professor Morrison's conduct on the beach, this evidence clearly shows that both Professor Morrison and Dr Dancso knew that it was wrong at the time and Dr Dancso thought it would only be safe for Dr Morrison to return to his duties if he was in glass wall rooms and in public meeting areas in all time with his interactions with students. Another matter - really, telling Ms Dancso really demonstrated a lack of judgment as well because telling Ms Dancso about who it was that he met on the beach and that he'd done something that he shouldn't have, (indistinct). No part of that conversation is, 'Whatever you do, Ms Dancso, please keep this confidential'. Ms Dancso had the opportunity to promulgate that information, whether advertently or inadvertently, therefore could adversely affect the student's reputation elsewhere.

PN64

VICE PRESIDENT HATCHER: What position did she hold at that - at the relevant time?

PN65

MS NOMCHONG: Ms Dancso? She was a former - sorry, I'll just take you there. At paragraph 2, which is on appeal book 1285, you'll see that she was a former post-doctoral mentee of the ANU. She wasn't attending the ANU at that time but had come to assist in the academic retreat at the Kioloa retreat.

PN66

VICE PRESIDENT HATCHER: So she was not a staff member of the university?

PN67

MS NOMCHONG: No, she was at the University of Sydney by then in a permanent position.

PN68

VICE PRESIDENT HATCHER: Thank you.

PN69

MS NOMCHONG: Thank you. I suppose that's why I was saying, Vice President, that had the opportunity to spread this information beyond the confines of the ANU. Now, I want to turn now to significant error of fact. This is to be found at paragraph 22 of the judgment of DP Dean, which is on appeal book page 7. In paragraph 22 DP Dean states - and this is in the last three lines of that paragraph:

PN70

In other words, at the time of the retreat Dr Morrison did not have a teaching, supervision or administrative role with respect to the relevant student except insofar he was one of the organisers of the retreat.

PN71

Now, in our list of authorities, I want to take you to number 9 in our authorities, which is Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 and ask you to go to paragraph 43 of that decision. This is about how the Full Bench of this Commission characterises significant errors of fact and I dare say all of the members of this Full Bench will be familiar with it. But in that decision - do Your Honours have that? It's at page 285, if that's of any assistance. At paragraph 43 the Full Bench held:

PN72

In each of the appeals before us there are challenges to a number of the Deputy President's factual findings. Subsection 400(2) provides that such challenges can only be made on the grounds that the decision involved a significant error of fact. It is common ground that to be characterised as significant, the factual error must vesicate the ultimate exercise of the discretion. In a misconduct case such as these two matters, the significant fact is one which is foundational to the member's conclusion about whether the alleged misconduct took place.

PN73

In that regard, we say that this conclusion about not being in a supervisory role is foundational to everything that follows. First, DP Dean focused only on a small part of the overall role Professor Morrison has. So true it is by the time of the retreat the students had received grades for individual exams and that Professor Morrison had submitted grades to the administration area. But the students hadn't received those grades yet. So DP Dean failed to take into account a raft of evidence that really showed that it wasn't just what was happening at the retreat, even though we say that the finding about what was at the retreat was significantly wrong, it failed to take into account his role extended over the remainder of the student's academic life at the ANU, in particular at the MSI.

PN74

So first, the retreat itself was an academic one. There were lectures and Professor Morrison was one of the main convenors. You can find that at AB 1394. Second, the marks that Professor Morrison had submitted in relation to the lectures he'd given to the student were not finalised at the date of the retreat. The university's evidence was that he remains the relevant student's lecturer until the final grades were delivered on 30 November. You can find that evidence from Dr Nadine White, who was the director of human resources, in her statement at paragraph 41, AB 1358.

PN75

VICE PRESIDENT HATCHER: Sorry - just insofar as Professor Morrison said he'd submitted the final grades - - -

PN76

MS NOMCHONG: Yes.

PN77

VICE PRESIDENT HATCHER: - - - would that have been known to the student at the time?

PN78

MS NOMCHONG: No - in fact, she didn't know her final marks for the unit. The evidence for that is in her original complaint at AB 1315.

PN79

VICE PRESIDENT HATCHER: Thank you.

PN80

MS NOMCHONG: Moreover, it was possible for Professor Morrison to change the grades before they were released to the students. Now, the evidence for that came from Dr Stephen Roberts, who was the interim director of the MSI at the time of the hearing. That is at paragraph 60 to 61 on appeal book 1597. Professor Morrison himself gave evidence that it was possible to change a student's grades before they were released. But he qualified it. He said that there were these elaborate steps that he'd have to take before he could do so. In his statement at paragraph 82 at appeal book 1242, he said:

PN81

I would have needed to justify why I was changing one student's grades.

PN82

However, the evidence contradicted that. Can I ask the Full Bench to go to appeal book page 973? This is an email dated Saturday 18 November. So according to Professor Morrison he'd submitted his remarks on 15 November, therefore he was no longer the lecturer and he would have to go to these elaborate lengths to change their marks. But here is Saturday 15 November 2017 and he's changing a student's grades. There is nothing in there about seeking to justify why he did that or taking any elaborate steps or that it had been signed off by someone. So this email itself is contradictory to Professor Morrison's own statement.

PN83

In addition to still being able to alter her marks as at the date of the Kioloa retreat, Deputy President Dean also ignored the evidence that Professor Morrison was able to be directly involved in her Honours grade so just to interpolate there: the relevant student didn't finish her Honours hear at the end of November 2017. That didn't finish for her until May 2018. So by the time of the Kioloa retreat, she was only halfway through her Honours year. So Professor Stephen Roberts described the process for setting the other's mark in his witness statement at paragraphs 45 to 47 at appeal book 1595, and he said:

PN84

At the end of the Honours year, there's a school examiners' meeting and all of the MSI staff who have been involved in an Honours course or thesis can participate.

PN85

So Professor Morrison was eligible to participate in the relevant student's Honours thesis marking.

PN86

VICE PRESIDENT HATCHER: Ms Nomchong, what paragraph was that?

PN87

MS NOMCHONG: Paragraphs 45 to 47 of Professor Roberts' statement and that's at appeal book 1595.

PN88

VICE PRESIDENT HATCHER: Thank you.

PN89

MS NOMCHONG: That's also the same meeting where staff decide whether MSI will nominate someone for a university medal. Now, true it is that Professor Morrison's evidence is that he didn't attend that meeting but that's irrelevant. He was still able to do it, it was still a role that he could participate in so when DP Dean made the conclusion that he didn't have any ongoing role, this is evidence contrary to that. Professor Roberts also gave evidence at paragraph 59 - this is at AB 1596 - that Professor Morrison was also able to influence the outcome of the student's grades less formally, through casual discussions with his colleagues.

PN90

As I've said to you, he was regarded as a bit of a superstar. He was very influential in the institute. Everyone regarded him as an outstanding mathematics professor. So if he made some casual remarks, he could certainly influence the way in which other lecturers might regard the student. If I can take you to appeal book 1315, and ask you to go to paragraph 10, this is the relevant student's witness statement below.

PN91

COMMISSIONER BISSETT: Ms Nomchong, what was that reference?

PN92

MS NOMCHONG: AB 1315, Commissioner.

PN93

COMMISSIONER BISSETT: Thank you.

PN94

MS NOMCHONG: So at paragraph 9 you can see, there is the reference to the fact that the relevant student didn't know whether her final marks had been submitted or they were still being considered. At paragraph 10 the student says this:

PN95

In early November 2017, together with other Honours students, I'd given a presentation on my thesis topic. For me, this was my mid-thesis presentation. Scott met with me to discuss my presentation ahead of time. He helped me with the sequencing and flow of my presentation. He also encouraged his research group to attend my presentation. Although my thesis was not directly in his field, I regarded Scott as a kind of secondary supervisor in a very loose sense, in that he was someone who seemed to be happy to provide me with extra support. I had planned to continue to seek his guidance and continue leaning on him for that support during the second half of my Honours year, January 2018 to July 2018.

PN96

So DP Dean erred by not finding that these ongoing roles, both formal and informal, meant that Professor Morrison still had a supervisory, academic and/or administrative relationship with the student, not only as at the date of the Kioloa retreat, but also in the period up to the end of her Honours year at least. Thirdly, in addition to these roles, Professor Morrison had the ability to assist and influence the student's progress in to the PHD program and this is because Professor Morrison held the position of HDR convenor: higher degree research convenor.

PN97

Deputy President Dean didn't even refer to the fact that Professor Morrison held this very significant role in circumstances where the evidence of the student was that she was considering a PHD at ANU and had been encouraged top do so by another academic. If we go back to her statement - and I ask the Commission to go to appeal book page 1320 - I commenced reading from paragraph 56, underneath the heading, 'My career prospects':

PN98

At the start of my Honours year I had not decided exactly what I wanted to do. A PHD in maths either at ANU or elsewhere was one option I was considering. My supervisor - and I don't mention his name - was keen for me to continue with postgraduate study in maths and talked to me about that. Two of my friends who got comparable marks to me in Honours are now doing their PHDs at Oxford. Because of the incident with Scott and how it interacted with me after the Kioloa retreat, as well as how his wife acted towards me in 2018, I did not feel comfortable or supported to continue at the MSI. Scott was the PHD convenor at the MSI. I did not know the precise duties and responsibilities of the PHD convenor role but I knew that he was the contact point for prospective PHD students.

PN99

I understood that I would have to interact with Scott in that role if I wanted to do a PHD at MSI and that he might have some say in assessing my application for PHD candidature.

PN100

Significantly, Professor Stephen Roberts - and if I can ask you to go to page 1596 - I'm reading now from paragraph 49, he says:

PN101

As a rule, students who obtain a first-class Honours, which the student did, at their Honours year at MSI will be eligible for PHD candidature at MSI and for an Australian Government-funded PHD scholarship.

PN102

Later on, down at 51 to 55, Professor Roberts outlines Professor Morrison's roles and responsibilities as the HDR convenor. At 51 he said:

PN103

The HDR convenor is the point of contact for any HDR-related issues for staff, students and potential students. The HDR convenor is responsible for coordinating the admissions process. If a potential candidate requires assistance finding an appropriate supervisor, they can seek assistance from the HDR convenor, who will liaise with potential supervisors. The HDR convenor is also involved in an assessment of the applications from the candidates for an admission for the PHD program. Prior to August 2018, this was an advisory role to the MSI director, who formally approved admission together with the dean of the college of science.

PN104

Since 8 August 2018 Scott as HDR convenor was provided with the MSI delegation to make decisions under the ANU's research award rule. As HDR convenor Scott would have undertaken the activities discussed in paragraphs 51 and 54 above. Any student who wished to progress to PHD or the (indistinct) program would have had to have liaised with Scott in some capacity.

PN105

In terms of Professor Roberts' view about the academic relationship between Professor Morrison and the student, he had a very firm view. If you go down to paragraphs 57 on appeal book 1596, Professor Roberts says this:

PN106

I was quite shocked by Scott's conduct as detailed in both the ANU's finding and by Scott's own witness statement. All academics in the school have a duty of care towards students in the school and a supervisory-like relationship should be maintained while the student remains members of the school. In my view it is completely inappropriate for a senior academic to have an intimate sexual encounter with a student while in any position of responsibility or authority over that student. Scott is the HDR convenor and more generally as a senior academic in the school had a position of responsibility and authority over all students studying at the MSI.

PN107

The pivotal incident occurred at a workshop organised by Scott in which I feel that he had an added responsibility and duty of care for the safety and wellbeing of the attendees in particular, for students attending the workshop. It is clear that Scott failed in that duty of care. Scott had an extra responsibility, since the student was undertaking an Honours program within the MSI at the time and so Scott had the potential to influence the progress and assessment of the student throughout the year-long program. In particular, Scott was scheduled to teach an Honours course the following semester which the student may have taken. Scott was a potential examiner for the student's thesis.

PN108

Over the page:

PN109

Scott was in a position to influence the outcome of the student's grade less formally, by offering his views on her performance in the examiner's meeting or even more casually amongst his colleagues. As HDR convenor he could have influence over her subsequent admission to the HDR studies in MSI. I understand that at the time of the workshop at Kioloa, the students including the student involved had received their marks for individual assessment but that the final grades had not been released.

PN110

Then at 61 refers to that passage I took you to earlier that it was possible for him to (indistinct).

PN111

VICE PRESIDENT HATCHER: Ms Nomchong, was there ever any dispute that the Kioloa workshop and everything that occurred at it was in the course of employment?

PN112

MS NOMCHONG: No.

PN113

VICE PRESIDENT HATCHER: Thank you.

PN114

MS NOMCHONG: DP Dean also failed to take into account the evidence of Dr Nadine White. Dr White was the ANU human resources director and she gave evidence that the formal responsibilities of the HDR convenor in not dissimilar terms to that which I'd just taken you to, to Professor Roberts, and her evidence can be found at appeal book 1359 and following. Dr White considered Professor Morrison to be in a position of authority with respect to the student for those reasons and including because of his role as the HDR convenor. Finally, in terms of the relationship of the power and authority that Professor Morrison continued to wield in respect of the student, I want to take you to the cross-examination of Professor Morrison. We'll go to appeal book page 64. You'll see there at PN 366 - do Your Honours have that?

PN115

VICE PRESIDENT HATCHER: I so, yes.

PN116

MS NOMCHONG: Thank you.

PN117

Well, you'd accept, don't you, that as a senior member of the faculty you always have the capacity to affect the experience of a student and their capacity to learn, regardless of whether you've got any ongoing supervision or they're a student of yours or otherwise?‑‑‑I mean, there are many students at the university I haven't met and never would have met.

PN118

I'm talking about within your faculty?‑‑‑Sorry, didn't understand that that was - yes, I would agree, yes, within the faculty, absolutely.

PN119

Over the page at appeal book page 66, PN 379, question:

PN120

You also accept, don't you, that with respect to the relevant student you had a significant ability to assist her in the future terms of professional guidance and support?‑‑‑I think as with any other student in the Department.

PN121

At PN 386, further down the page, question:

PN122

You had the capacity as well to introduce the relevant student - this is at November 2017 - and other students to other students, researchers, or, you know, professors in the field that you thought would match their research interests or be able to assist them because of your own knowledge of the mathematics community?‑‑‑Yes.

PN123

Next paragraph, question:

PN124

You also had the capacity, as I understand it, to invite students within the faculty - not necessarily your students - to speak at lecture series that you held from time to time including, for example, this retreat?‑‑‑Yes, although I would qualify that no students gave any talk.

PN125

They didn't at that one but, for example, in the quantum mathematics seminar, it is called?‑‑‑Yes.

PN126

Over at page 67 at PN 400, question:

PN127

You also, as I understood it in terms of your assistance to students per se, including the relevant student but not students you were necessarily teaching at the time, you also supported them when they wanted to undertake courses at other universities - say, summer schools, or otherwise to receive recognition from the university if they had done that - so, credit and recognition?‑‑‑Yes - rarely, but yes.

PN128

Then over the page at PN 401:

PN129

Rarely, but you have done that, haven't you, with the relevant student in the previous year?‑‑‑Yes, yes, I had.

PN130

So she had done category theory courses, I understand, at Macquarie University?‑‑‑I think so.

PN131

And she sought your assistance to be in effect her supervisor but what that meant was you were prepared to effectively sign off on the university saying she can do that course and when she does that course it will be taken as a credit for her?‑‑‑That's my understanding.

PN132

And I don't read the rest of that paragraph. Now, that's all of the evidence about the supervisory, administrative, teaching, academic involvement that Professor Morrison had with the student at the relevant time - that is at the retreat and going right through to the end of her Honours year - and then her possible involvement in the PHD program. So by failing to refer to the totality of that evidence it was a significant error of fact when DP Dean did no more than say, well, he'd handed in her marks by the time of the Kioloa retreat. Therefore, in any practical sense, he wasn't her supervisor.

PN133

The reason that's foundational - and I'll come back to this in a moment - was because that was the basis upon which DP Dean said because he wasn't her supervisor he didn't have any obligation to tell the university and he didn't do anything wrong. He didn't offend the conflicts policy. But as I said, I'll come to that in a moment but it's really foundational in that regard. What I want to do now is just to say to you that there are three decisions of this Commission at first instance involving the dismissal of senior staff at tertiary teaching institutions because of sexualised conduct with students. I'm going to come to two of those later but I want to go to whether - this point about whether direct supervision of a student is necessary before sexualised advances are considered inappropriate. There's the decision of Commissioner Roberts in D v Charles Sturt University [2013] FWC 446 and that is at number 5 in our list of authorities, commencing on page 91. Now, at paragraph 76 after listening to all of the evidence, Commissioner Roberts said this:

PN134

I'm not impressed by the argument for Mr D turning this technical enrolment status of Ms Z on or about 29 October 2012. In my view when Mr D dealt with Ms Z during October 2012 she was a student in the care of CSU, Charles Sturt University. The argument put forward by Mr D, in relation to the enrolment status of Ms Z was typical of the number of nit-picking, legalistic points such as the exact position of the bushes in the park raised by him both during the Gamble inquiry and submissions to me, which do nothing to justify or explain the events of 29 October 2012.

PN135

Mr D needs to face the fact that it is never acceptable for a person in a respected position of authority to behave as he did. His actions on 29 October 2012 were not just unwise but (and this is important) betrayed the trust in which Ms Z and the university had reposed in him. That is a breach of trust.

PN136

As such there is already authority in this Commission supporting the view that it's not necessary for there to be a direct supervisory relationship in order for there to be impropriety, damage to the student and reputational risk to the teaching institution and the breach of trust with that teaching institution. So in conclusion, it can be seen that the finding of fact that Professor Morrison made about there being no supervisory role was a significant error of fact. It's clear that Professor Morrison did have teaching, supervision, administrative role, both formally and informally and as I said, this error was foundational because it goes on to infect the way in which DP Dean looked at the code of conduct.

PN137

So let's go to that now. This is appeal ground 1(b). In her decision-making DP Dean committed the same error by restricting her consideration of whether there had been a breach of the code of conduct to predominantly the interaction. As I've said, the interaction is the kissing in the water at the beach instead of looking at the totality of Professor Morrison's conduct. As we've said in our written submissions, DP Dean absolutely failed to engage with the submissions that the university had put below in this. If you go to appeal book 700 - and I don't intend to read all these to you - but I would invite the Full Bench to read the submissions under the heading, 'Content of the code of conduct', and all the way through those submissions to see how DP Dean absolutely failed to engage with this line of argument. So at paragraph 129 the appellant sets out all of the relevant sections of the code of conduct. There's absolutely no contest that this code of conduct applied to Professor Morrison. DP Dean did set those out at paragraph 12 of her decision but from paragraph 130 to 145 of those submissions the appellant set out its argument as to why the conduct of Professor Morrison contravened both the code and the conflict policy.

PN138

Paragraph 190 to 191, you'll see - and I'm not going to read this paragraph - technically, Dr Morrison's conduct involved multiple breaches of the university policy. These breaches arise not only in respect to his failure to obtain a professional relationship with the relevant student, including the entirety of his conduct towards her, both at the time of the Kioloa retreat and subsequently. They also included his dereliction from his duty of care to act with diligence both at Kioloa and on multiple occasions thereafter to establish professional boundaries, to provide the relevant student with appropriate alternative support and assistance and to ensure that her studies were not detrimentally affected thereafter.

PN139

In addition, Dr Morrison failed by his conduct to uphold the good name of the university in exercising judgment in the best interests of the university. He acted in ways that would have unfairly harmed the career prospects of the relevant student, improperly used his position and abused his position of trust and was not honest with the university about his conduct in failing to declare a conflict of interest in respect of that conduct. As a senior academic Dr Morrison had a responsibility (indistinct) enforcing the university's policies and to lead by example in following those policies.

PN140

Despite this Dr Morrison appears to have considered the code of conduct and the conflict of interest policy simply did not apply to him. They did and Dr Morrison should have acted in accordance with them. However, as I've said, DP Dean failed to engage with that line of argument and when DP Dean came to consider whether Professor Morrison had breached the code of conduct, only relied on the kissing in the water at the beach. If we go to the judgment at paragraph 78, which is on AB 17, you'll see Dr Morrison did not formally notify anyone of the interaction - that is the kissing on the beach with the relevant student:

PN141

In my view he was not required to do so because on any reasonable view, the interaction (again) could not be characterised as a close personal relationship, given the whole of the interaction lasted no more than 30 minutes.

PN142

So I'll take you to where, 'close personal relationship', is an important part, because in the policy that's what he is required to declare. Now, in relation to this 30 minutes at the beach, I'm now going to flip back to another significant area of error of fact. DP Dean engaged in two other significant errors of fact and I'm turning to them now because it affected the way in which DP Dean analysed the breach of the code and the policies. These are grounds 3(b) and 3(c) of our amended appeal. First, DP Dean looked at the events on Kioloa beach as consensual and concluded that there was no inappropriateness on Professor Morrison's part. DP Dean erred when she found that it was the relevant student who instigated that conduct.

PN143

This is because - as I've said multiple times - for DP Dean, for whatever reason, the only important conduct was the kissing in the water. But this was in error because DP Dean failed to take into account very relevant considerations. These are: it was Professor Morrison who asked the student to go alone with him to this secluded beach at night. This was in the middle of an academic retreat where the student was attending classes and Professor Morrison was the key organiser. It was Professor Morrison who immediately stripped naked and went into the water and I'll come to the (indistinct) in the evidence and the findings on that point in just a minute.

PN144

In any event, the whole of Professor Morrison's conduct up to that point was to lay the groundwork for a sexual encounter. Therefore, irrespective of who swam up to who in the water it was Professor Morrison who had set up this scene. It was Professor Morrison who reciprocated the kissing. If in fact he was acting properly, as she swam up to him, he should have said, 'Sorry, I didn't meant to lead you on in that way'. When they were on the beach it was Professor Morrison who asked her if she wanted oral sex. It was Professor Morrison who told the student that she had been a distraction to him at all of the lectures. You can see that at the student's version at appeal book 1393.

PN145

This supports the view that he wanted this sexual encounter, he wanted sex to occur and he set the scene for it.

PN146

VICE PRESIDENT HATCHER: The bit about him asking her about oral sex - did he concede that?

PN147

MS NOMCHONG: Yes, he did.

PN148

VICE PRESIDENT HATCHER: Was that in his initial statement of evidence?

PN149

MS NOMCHONG: No, it wasn't in his initial statement of evidence and that's part of why we say he wasn't fully frank and honest. He was asked about the oral sex both in the university and investigation and in those answers, he said that they did nothing but touching and kissing and it really was only, I think, in his second statement - just excuse me a moment - it might have only been in cross-examination, I'll check that for you, Vice President, that he actually conceded that he made the offer for oral sex. Clearly, as I'll come to later, he didn't want her to tell anyone that he had made the offer of oral sex because obviously that then solidified that it was he that wanted the sexual encounter.

PN150

I just want to come back to the stripping off naked event.

PN151

COMMISSIONER BISSETT: I'm sorry but just before you go back to that, was any evidence given as to why she was invited to the retreat, given I understand - I think from her witness statement - that her field of study was quite different to everyone else who was at the retreat.

PN152

MS NOMCHONG: Could you just bear with me a moment? My learned junior tells me that there were some vacancies on the retreat and so Professor Morrison invited some more students, including the relevant student.

PN153

DEPUTY PRESIDENT ASBURY: I think also there is some evidence that the relevant student's friends who also were engaged in similar studies were going to the retreat and that she had some interaction with students in that field, even though it wasn't hers?

PN154

MS NOMCHONG: I think that's correct, Deputy President.

PN155

COMMISSIONER BISSETT: Thank you.

PN156

MS NOMCHONG: So now returning to this distraction that I think that DP Dean engaged in, at paragraph 16 and 17 of the judgment DP Dean rejected the relevant student's evidence about whether or not Professor Morrison asked whether he could take his clothes off before he actually did. So the controversy in the evidence was - and I'll take you to it so at appeal book 1322 - the paragraphs are not numbered. This is the original complaint submitted to the university by the relevant student. At the fourth paragraph it reads this:

PN157

We walked down to the beach. When we got to the beach Scott took off all of his clothes right away. Scott said to me, 'I didn't check what is appropriate night bear attire'. Scott then said to me, 'You can also undress if you want'. I decided to keep on my sports bra and my swimming bottoms. We went into the water. The fish were lighting up in the water, as he'd said, and in the water we started kissing. The circle was quite strong, we were also having to pay attention to the waves.

PN158

Now, I'm not going to read the rest of that but I invite the Full Bench to read the whole of the original statement because really I'm just concentrating now on the evidence about who took of their clothes. In cross-examination, at appeal book 186 - this is at PN 1665 to 1666 - it was put - and this is PN 1655:

PN159

Well, let me ask you this question: Scott said something - - -

PN160

I'm sorry, this is the cross-examination of the relevant student:

PN161

Scott said something along the lines of, 'I realise I don't have my swimmers, would you object to me swimming naked', didn't he?‑‑‑No.

PN162

You said, 'That's okay with me'?‑‑‑So, no, he didn't say anything like that. He just took off the swimmers.

PN163

VICE PRESIDENT HATCHER: Ms Nomchong, can you pause? Where are we again?

PN164

MS NOMCHONG: We're on appeal book 186. This is cross-examination of the student where the - where she's being cross-examined about what - - -

PN165

VICE PRESIDENT HATCHER: 164, all right, sorry, yes.

PN166

MS NOMCHONG: I'm sorry, that was probably my dyslexia.

PN167

VICE PRESIDENT HATCHER: Yes, thank you.

PN168

MS NOMCHONG: 165, 166 - thank you. Professor Morrison, in his statement at paragraph 36 - and this is at AB 737 - says - - -

PN169

VICE PRESIDENT HATCHER: Sorry, I'm still a bit behind: what page was that again?

PN170

MS NOMCHONG: 737 - I'm so sorry, Vice President. I realise I'm rushing a bit. I'll slow down.

PN171

VICE PRESIDENT HATCHER: I've got this electronically so it takes a bit longer, I'm afraid.

PN172

MS NOMCHONG: That's all right. So at 737, at paragraph 36 - this is Professor Morrison's statement:

PN173

When we arrived at the beach but did not see bioluminescence I decided I would go swimming and we had a conversation as set out below. Me: I realise I don't have swimmers. Would you object to me swimming naked? Student: That's okay with me.

PN174

Now, in his cross-examination he denied taking off his clothes right away. His cross-examination is at AB 71 at PN 440:

PN175

That is in fact what happened: you didn't inform the relevant student in advance that that's what you were going to do, you did it without telling her and you made a joke, saying, 'I didn't check what is the proper appropriate beach attire'?‑‑‑I disagree.

PN176

While there was controversy on the evidence, between the only two people on the beach that night, we say DP Dean was in error. Why do we say that? Because what we had in this case was evidence from the new witness. The new witness's experience with Professor Morrison bears a remarkable resemblance to what happened with the relevant student. So 18 months before the events of the Kioloa beach, Professor Morrison is out on a canyoning trip with the new witness. She is 19 years old and a student at the ANU. If we go to appeal book 1641 and paragraph 13 - do Your Honours have that?

PN177

VICE PRESIDENT HATCHER: I got distracted by something else which I want to ask you about. Ms Nomchong, can you go back to the last passage you took us to at appeal book page 71?

PN178

MS NOMCHONG: Yes, Your Honour.

PN179

VICE PRESIDENT HATCHER: I'm looking at 442 to 443.

PN180

MS NOMCHONG: Yes.

PN181

VICE PRESIDENT HATCHER: Am I reading it correctly to say that the student had already addressed - that he is saying that the student had already undressed to her underwear and it was then that he said, 'You can undress if you want to'. Is that how to read that?

PN182

MS NOMCHONG: That's his account, that she had started to do it but that's controversial because that's not her account.

PN183

VICE PRESIDENT HATCHER: On the face of it, he appears to be saying that she had taken off her clothes but still had her underwear on and it was with her underwear on that he says, 'You can undress' - that is, go further.

PN184

MS NOMCHONG: I think that's right, Vice President.

PN185

VICE PRESIDENT HATCHER: Yes, all right, thank you - sorry, what was the next reference?

PN186

MS NOMCHONG: The next reference is looking at the evidence of the new witness, who I say, Vice President, had a remarkably similar encounter 18 months before this.

PN187

VICE PRESIDENT HATCHER: Is this like tendency evidence, is it?

PN188

MS NOMCHONG: It is tendency evidence, Your Honour. So if I can ask you to go to page 1641, is this the statement of the new witness. In short form what had happened was they were on a canyoning trip. Professor Morrison and another academic called Dr Schwich and the new witness were on this part of the walk. At paragraph 13 of her witness statement - and this is on AB 1641 - the new witness says this:

PN189

When we reached the lunch spot, Scott stripped off his wetsuit. I don't think he was wearing anything underneath his wetsuit but if he was he took that off too until he was naked. He did this right in front of me. He did not turn away from me to do it or move away from me to be more discreet. He did not say anything before he removed all of this clothing as he was doing it or immediately afterwards. He then jumped into the water. I was shocked that Scott had stripped naked directly in front of me. I felt very uncomfortable. However, I didn't say anything because I didn't want to make the situation more awkward than it already was for me.

PN190

In her recitation of the evidence, DP Dean only set out the evidence of Dr Schwich, and this is at paragraph 41 of the judgment. So she doesn't refer to this striking similarity between the new witness's evidence but only refers to Dr Schwich's evidence. Further, if I can ask you to go to appeal book page 472, question - and this is at PN 1210, so this is cross-examination of Dr Morrison after new witness had given her evidence:

PN191

I use a different word given my friend has some peculiarities. Now, you didn't ask her whether it was okay for you to take off your clothes before you went in the water?‑‑‑I agree, there was no discussion before (indistinct) and I got undressed about whether or what clothes we would be wearing while we swam.

PN192

So DP Dean had confirmatory evidence from new witnesses that this propensity for Professor Morrison to just strip naked in front of students. In the appellant's submissions below, we put that - - -

PN193

DEPUTY PRESIDENT ASBURY: Sorry, Ms Nomchong - could you just give me that transcript reference again?

PN194

MS NOMCHONG: AB 472, PN 1210.

PN195

DEPUTY PRESIDENT ASBURY: Thank you.

PN196

MS NOMCHONG: So getting back to your point, Vice President Hatcher, we did put the tendency argument below and we said in our submissions that his actions are demonstrative of a tendency to strip naked without asking. However, DP Dean didn't even engage with the tendency argument at all. So when we look at the way in which DP Dean analysed the events of the beach, this factual error was who instigated the interaction is then informed by the manner in which DP Dean addressed the question of whether Professor Morrison breached the code of conduct. DP Dean also erroneously construed Professor Morrison's behaviour at the beach as the central feature of misconduct, finding that because it was - only lasted 30 minutes, it wasn't a close personal relationship.

PN197

One would think that all close personal relationships would have to be consensual, but that's not in issue here. Then at paragraph 78 of the judgment, this is where DP Dean says - and I've read this to you before:

PN198

On any reasonable view, the interaction could not be characterised as a close personal relationship, given the whole interaction lasted no more than 30 minutes.

PN199

Then DP Dean says if she's wrong about that, there was no breach of the code because at the time of the interaction, he was not in any practical sense her supervisor. This is the last sentence of paragraph 78 in the decision at AB 17. So this is a further error, because the code of conduct is not limited to circumstances where the academic is not in a practical sense her supervisor. So I want to take you to the code of conduct itself. If you go to appeal book 1376 - sorry, it starts at 1375 - you'll see here the code of conduct. I'm just going to take you to the relevant provisions because it's important for this Full Bench to understand the way the university perceived and the prism through which it looked at Professor Morrison's conduct.

PN200

So at paragraph 4 on AB 1375 the statement that the code stands beside but does not exclude or replace rights and obligations of staff under common and statute law and is not intended to exhibit academic credit and that underpins our argument that it wasn't necessary to find that there was a breach of the code of conduct. At common law it was open to DP Dean to find that Professor Morrison's conduct was antithetical to being an academic at the ANU. At paragraph 15 at the bottom of page 1376 the code says - under the heading, 'Respect for the law and university governance':

PN201

They should also uphold the good name of the university and exercise judgment in the best interests of the university.

PN202

Over the page at paragraph 20, under the heading, 'Duty to act in good faith and for a proper purpose':

PN203

An official of the university must exercise their powers, perform their functions and discharge their duties in good faith and for proper purpose.

PN204

At paragraph 25 of AB 1378:

PN205

All staff are required to treat staff and students with respect, to treat staff and students with courtesy, fairness and equity, to engage in conduct that is respectful of differences and not discriminate.

PN206

I don't read the rest of that. The fourth dot point:

PN207

Avoid behaviour that may be reasonably perceived as harassing, intimidating, overbearing, bullying, physically or emotionally threatening.

PN208

And I'm going to come back to that, 'emotionally threatening', in just a moment. At paragraph 26 and 27, underneath the heading, 'Personal and professional behaviour':

PN209

Staff are placed in a position of trust and are expected to be honest in carrying out their duties.

PN210

At paragraph 27:

PN211

This trust is placed at risk when staff fail to recognise and avoid conflicts between their private interests and the university responsibilities.

PN212

And the second dot point:

PN213

Situations where there is a reasonable basis for the perception of such conflict; situations that may give rise to a conflict of interest.

PN214

This is when we get to the close personal relationships so at the top of 1379:

PN215

Personal relationships with students: staff should avoid and must disclose to the university any situations (any situations) which may require them to supervise or assess a student with whom they have or have had a personal, commercial, familial or other significant relationship.

PN216

So that's where we get the, 'close personal relationship'. At paragraph - sorry, if I could just stop there about paragraph 28, here of course when DP Dean is considering whether or not there is a conflict, Her Honour failed to take into account the multitude of ways that Professor Morrison could have assisted the relevant student or indeed thwarted her academic pursuits because the evidence was he was able to influence the outcome of her career and studies, either formally or informally. He had that capacity to offer the student additional career assistance: references, promotion in the sphere of mathematical academia.

PN217

At paragraph 32 under the heading, 'Exercise and care and diligence in employment', it says:

PN218

For example all staff should (and the second dot point) carry out official directions and policies in a faithful, impartial and transparent manner.

PN219

Over the page at AB 1383, what this policy does is set out a series of examples. So these are meant to give staff and academic staff at the university some idea about what is not appropriate. At the bottom of page 1383, there is a second dot point there:

PN220

A staff member is teaching a student with whom they have a close personal relationship. It is expected that the staff member will declare the conflict of interest and request that another colleague supervise (indistinct) the student.

PN221

That's just an example. Now, I'm going to go to the conflicts policy. That starts at page 1386:

PN222

The conflict of interest is defined when the private interest of a staff member may influence or compromise the conduct of that staff member in the conduct of their activities at the university, including making decisions determining research directions, or unduly influencing relationships between that person, their colleagues and students. Apparent or perceived conflicts may undermine trust and be damaging as an actual conflict.

PN223

Then skipping the next paragraph:

PN224

Close personal relationship means a relationship with persons who are relatives, other financially Dependent persons, de facto partner or (and this is critical) any person with whom there is currently or has been an intimate relationship.

PN225

It doesn't give a time difference. It doesn't say if you have an intimate relationship of 30 minutes or less that doesn't count. That's not there. He can have an intimate relationship, which clearly Professor Morrison had, then you are in a close personal relationship. DP Dean erred when failing to construe this policy in that regard. Over at page 1387, at the bottom, it says, 'Standards of conduct':

PN226

The university has a responsibility to ensure that official activities and those of staff and students conform to acceptable standards of integrity and good administrative conduct. It is the policy of the university and its officers and staff and others acting on its behalf avoid ethical, legal, financial or other conflicts of interest and ensure their activities do not conflict with their obligation to the university and its welfare.

PN227

Then underneath that at paragraph 2, it talks about - it refers to general standards of conduct expected of university staff and the increasing complexity of conflicts, including those of personal relationships. So in that context it can easily be seen that DP Dean was in error in not finding that the multitude of transgressions of Professor Morrison constituted breach of the code and the conflicts policy. Just to name a few: engaging in a sexual encounter rather than avoiding professional relationships with students and thereby breaching the trust placed in him by both students and the university in a context which could be damaging to the university.

PN228

Professor Morrison knew that himself. He knew he'd done something wrong. Not re-establishing professional boundaries after the events on the beach because he said he didn't want to tell the university, he didn't want (indistinct) and he also was telling the student that he thought that the relationship could work. So he's putting his own self-interest before that of the student and before that of the university. He's putting himself in an ethical conflict involving his wife in the communications which on any version of events was emotionally threatening but as with the conversations, when he started telling her the day after he was intimate with her on the beach that he dragged her into a marital mess, that his wife was upset, whereas the night before - so this emotional threatening behaviour that she was in, not ensuring that the relevant student was provided with support, counselling, and instead thinking, as DP Dean did, that all you had to do was say, 'Are you okay?'

PN229

That was okay, according to DP Dean. But that was, according to the university, not discharging good faith and putting again his interests over hers because to refer her to counselling someone would have found out. Then of course not disclosing to the university his conduct and admitting in cross-examination that he did so because he didn't in in part want the university to know. Again, he was putting his own interests over those of the university. Of course when we look at the new witness, of course until the new witness came forward, the university was completely unaware that that conduct had happened also. So Professor Morrison had a track record of not telling the university about sexual encounters or inappropriate behaviour with students. I just wonder - I'm about to go on to a bit more of the conduct but I note the time. I wonder if now might be an appropriate time for a short adjournment, Vice President. I'm happy to go on if you want me to. Sorry, you're on mute, Vice President.

PN230

VICE PRESIDENT HATCHER: How much longer do you think you'll be?

PN231

MS NOMCHONG: I certainly think I'll be another couple of hours, maybe an hour and a half.

PN232

VICE PRESIDENT HATCHER: All right, well, that might be a convenient time then. So we'll adjourn until 11.15.

PN233

MS NOMCHONG: Thank you.

PN234

VICE PRESIDENT HATCHER: The parties can just stay online and turn off their microphones and cameras.

PN235

MS NOMCHONG: Thank you.

SHORT ADJOURNMENT [11.00 AM]

RESUMED [11.15 AM]

PN236

VICE PRESIDENT HATCHER: Is everyone ready to resume?

PN237

MS NOMCHONG: Thank you, Vice President; thank you, members of the Full Bench. Ground 3(d) of the amended appeal, we plead that notwithstanding out view that there were evidence breaches of the code of conduct and the conflicts policy, it wasn't necessary for DP Dean to find that there was a breach in order to establish a valid reason for dismissal. In the alternative it was put to DP Dean that she could find a valid reason because the totality of Professor Morrison's conduct was antithetical to his role as a senior academic.

PN238

DP Dean addressed herself to that submission starting at paragraph 83 of the judgment on AB 18. From paragraph 84 to 89, Deputy President focuses on the events at the beach and the interaction and the kissing and the swimming. But where she turns her attention to the events after the retreat, it really is short shrift. There is five paragraphs in which she deals with all of this conduct. So from 90, we see rather than finding, as she ought to have done, that the involvement of his wife, Ms Kate Lessinger, was wholly inappropriate, DP Dean simply characterises that as, 'clumsy and poor judgment'. At 91, there is another example of a failure to give reasons on a key point and I'm not going to deal with ground 5 of our appeal point in isolation but as we go through these submissions, the Full Bench will appreciate that there are these blatant statements, bare assertions by DP Dean, where there is no attempt to give reasons as to why the conclusion has been reached and this is one of them. At J91, Deputy President says this:

PN239

I accept that Dr Morrison took some steps to re-establish a professional relationship with the relevant student and did ensure her wellbeing. For example, the relevant student's evidence was that she was at the retreat, 'Dr Morrison checked in if I was okay'. I accept the evidence of Dr Morrison that their meeting on 31 January was for the purpose of re-establishing a professional boundary. He apologised to her about the interaction on more than one occasion (and this is important) he was less clear in his communications with her that he was not going to have an ongoing relationship with her.

PN240

I accept this was in part a result of not wanting to hurt her feelings.

PN241

Now, the conclusion that Professor Morrison took some steps to re-establish a professional relationship is not backed up in any way by the remainder of the reasons set out in that paragraph. Indeed, as I've said, the finding was he was less than clear about an ongoing relationship because he didn't want to hurt her feelings. None of those matters provide any evidentiary support for the finding that Dr Morrison took steps to re-establish a professional relationship. Similarly, in saying that he took some steps to establish her wellbeing, and pointing to one thing - that is asking her at the retreat if she was okay - is again no evidentiary basis for that point.

PN242

As I've stated, the day after the retreat Professor Morrison completely reversed the way in which he had approached the relevant student the night before. His wife was upset, he dragged her into the mess, and it was absolutely self-evident to anyone who had any self-awareness that this would place a very heavy emotional burden on the student. But there was no consideration of that event by DP Dean, about the emotional wellbeing of the relevant student the day after or on the Saturday where he's telling her he's had - I suppose to use the vernacular - make up sex with his wife. None of that then put in issue.

PN243

Certainly DP Dean made no reference to the confronting discussion that was had at O'Connor Ridge. Further, in cross-examination - and I've taken you to this - Professor Morrison conceded that he did not make any statements to the student about specific support. He did not refer her to a female at the institute so that she could seek support from someone else, nor did he suggest counselling or any other person who might be able to assist her. That's all in the context of Professor Morrison saying he'd been told by the relevant student - her evidence is that at O'Connor Ridge she says to him, 'I object to the fact that you said that I was a distraction during lectures', and, 'I'm in a very vulnerable position'.

PN244

So she tells him, she tells him at O'Connor Ridge that she's in a very vulnerable position but DP Dean ignores all of that and says, 'Well, the fact that he asked her while he was back at the retreat' - well, we don't know whether that was on the beach or the day after or whenever it was but she tells him that she's feeling vulnerable on the Saturday and there is no engagement by DP Dean as to what his obligations were there. If you go to appeal book page 111, at PN 855, the cross-examination of Professor Morrison is this - do Your Honours have that part of the transcript? Yes, appeal book 111, PN 855:

PN245

What I'm saying to you here is that this student has expressed to you her concern about the fact that she felt your conduct towards her had been inappropriate and it put her in a very vulnerable position and you did nothing in terms of supporting her going forward or suggesting supports that were available to her within the university?‑‑‑Yes, I think that's mostly true.

PN246

The reason you didn't is because you didn't want the university to know about your own conduct?‑‑‑That is true, that is part of the reason but I emphasise again how strongly she worded her request that I do not tell people about what happened.

PN247

MS NOMCHONG: Then I don't read the rest because he's making a suggestion about what might have been in the student's mind. At AB 196, at PN 905, you'll see there:

PN248

Now, you'll accept that by placing the student in the situation that she was in, that the university should have been notified about the fact of what had occurred so as to ensure that the student should be properly supported?‑‑‑Yes. I wish I had said something earlier to the university and as I've stated several times before I felt extremely constrained by what the relevant student had said to me and I was conflicted by that and worried by that.

PN249

He's putting his own interests first. He's not putting the relevant student's interests there. Then at PN 906:

PN250

And conflicted by your own concern for yourself and the ramifications it would have upon you?‑‑‑Of course, yes.

PN251

But DP Dean didn't take that into account. Finally, Professor Morrison accepted that he didn't take any accounts to ensure the wellbeing of the relevant student when he knew that his wife would be commencing work at the Institute the following year. So in our submission the finding that Professor Morrison took steps to ensure the wellbeing of the student is a significant error of fact because it's contrary to all of the evidence, including Professor Morrison's own concessions in cross-examination. Further, it's a significant error because it's foundational, because it's one of the reasons the Deputy President refers to, in concluding that there is no valid reason for termination.

PN252

So returning to the reasoning of DP Dean at paragraph 92 of her judgment - DP Dean says:

PN253

It is likely that Dr Morrison's unwillingness to engage in a relationship with her upset her, culminating in her complaint to the university some 18 months after the interaction.

PN254

This finding is pleaded in ground 1(f) of the amended appeal. It is without doubt an unnecessary and pejorative remark ascribing some mischief to the student for making a complaint. Put simply, there is no evidence whatsoever to make that finding. It was not even a proposition that was put to the relevant student in cross-examination. The final matter that DP Dean - - -

PN255

VICE PRESIDENT HATCHER: Sorry, Ms Nomchong - which finding?

PN256

MS NOMCHONG: The finding at paragraph 92 of the judgment, Vice President.

PN257

VICE PRESIDENT HATCHER: Yes, thank you.

PN258

MS NOMCHONG: What that does, what that paragraph does, is disclose DP Dean's admonition of the relevant student. She really didn't like her. She thought that she made this complaint out of some mischief-making thing because she was a woman scorned. That's not the way to look at it and certainly there should be no victimisation of anyone who makes a complaint of this kind. But the final matter that DP Dean looked at in determining whether Professor Morrison had engaged in conduct that would warrant his dismissal was her finding that he did not attempt to preclude the student from attending his seminars when he told her to keep away.

PN259

That's at paragraph 93 of the judgment. Now, I'd like to take the Full Bench to appeal book 1332. This is an annexure to the relevant student's witness statement and you'll recall earlier in my submissions today I referred to an email sent from a private email address and this is it. So at the bottom of the page - and it's because all emails go in reverse order - from Scott Morrison to the relevant student:

PN260

If you've got something you need to say, could you please say it? I didn't like being followed on Friday. I'd appreciate if you could just try to keep away. Particularly I'd like to be able to run my seminar without being stressed about this. If you need to interact with Kate at work please just do so in the most straightforward way possible.

PN261

Now, the consternation and sternness jumps off the page. The relevant student's evidence about this email is at page 1318. Starting at paragraph 42, she states that on this day she attended a presentation in the Friday (indistinct) series. Then at paragraph 43 she talks about deciding to go for drinks afterwards and that Professor Morrison was also at the drinks. She didn't speak to him, she didn't interact with him. Then on 11 November, which is two days later, she gets the email that I've just read to you.

PN262

So when DP Dean comes to the conclusion that that email was to be read as keeping away from him was not a reference to keeping to the seminar he was conducting - nothing could be further from the truth. Of course it's directed at the seminar. He even says it. So we say that was a further wrong factual finding.

PN263

VICE PRESIDENT HATCHER: Did Mr Morrison explain why he thought that student was following him in reference to the incident in paragraph 43?

PN264

MS NOMCHONG: It is in his statement. I can get the reference for you in just a moment, Vice President or would you like me to do that now?

PN265

VICE PRESIDENT HATCHER: No, no, when you're ready.

PN266

MS NOMCHONG: Thank you. In addition there is no reference in these couple of paragraphs where DP Dean is looking at whether his conduct is antithetical to a senior academic at the ANU, no reference to the effect of the interaction with his wife, Kate Lessinger, in January 2018 where she is yelling down the phone at the student, 'Leave us alone, don't go past Scott's office, don't make eye contact with him in the hallway'. You can find that evidence at AB 1325 at the bottom of the page, the last paragraph on the page. So the combined effect of those interactions in the context of the events from November 2017 through to 2018 would have clearly had the effect of discouraging the student from attending lectures or any seminars when Professor Morrison was present.

PN267

So we say that the Full Bench has a very sufficient basis to conclude that the finding pleaded at ground 3(d) of the amended appeal is a significant error of fact. I now want to turn to ground two of the appeal; that is the failure to find that the dismissal was not harsh, unjust or unreasonable. First, only by reason of something that was raised in the respondent's submissions, I want to say that this is not a matter in which it could be said that this was conduct - out-of-hours conduct - that had no relationship to the workplace. I think this was something you asked me earlier, Vice President Hatcher; that is it was an academic retreat, it was conducted by the ANU, people who attended ANU, including the student, were at it.

PN268

Professor Morrison was the student's supervisor and continued to have a role in her academic progression throughout 2017. So when we look at the pleading decision on out-of-hours conduct, Rose v Telstra Corporation [1998] AIRC 1592 and VP Ross, as he then was, held that a valid reason for dismissal can exist as a consequence of an employee's out-of-hours conduct. It has to be where there is a viable relationship to the workplace and I don't think I need to convince the Full Bench further on that particular issue.

PN269

VICE PRESIDENT HATCHER: Sorry, Ms Nomchong, by reference to the question asked before, out-of-hours conduct is an expression used to describe conduct which doesn't occur during the employment itself. I thought you said earlier that it was accepted that this conduct - that is the beach incident - occurred during the employment since this was a work function.

PN270

MS NOMCHONG: That is correct. That is correct.

PN271

VICE PRESIDENT HATCHER: I'm struggling to understand why Rose v Telstra is even relevant.

PN272

MS NOMCHONG: Well, it's just because there was remark in the respondent's submissions but perhaps - I don't think it's relevant, I must say. I think that there is no question that this is part of the employment process, particularly the events which followed the retreat. So not only did the events of the Kioloa Retreat have the capacity to damage the university's interests it was also incompatible with Professor Morrison's duty as an employee for the reasons I've already discussed, predominantly those because of the matters, the conflict with the code of conduct and the conflicts policy.

PN273

The two decisions that I refer to - the other two decisions in which members of the Commission have talked about relationships between tertiary institution, academics and sexualised conduct with students, the first is a decision of Commissioner Raffaele from 1999 called Formby v University of Wollongong [1999] AIRC 871. That's at number four in the list of authorities, commencing on page 69. If Your Honours go to paragraph 120, which is on page 88 of that decision, Commissioner Raffaele held this - first of all he's looking at the controversy in the evidence. he's saying either it's sexual harassment or it's agreeing to continue a relationship with a student.

PN274

He's talking about the latter: that is even if this was consensual, right? So when he describes in the latter, he's going back on the previous two paragraphs:

PN275

I consider that there was also a valid reason for termination. Dr Formby was in a position to influence of affect the academic career of Ms Gilmore. In the face of her feelings towards him he did nothing to ensure that their relationship remained within strict bounds. Whatever friendliness or informality might have been acceptable in normal circumstances between academic and student, in these circumstances the level of interaction between them, augmented when Dr Formby became her thesis supervisor, the friendliness and informality was inappropriate.

PN276

I don't read the statement that he sets out from the witness's statement but at the bottom, after that quotation:

PN277

Dr Formby, by his conduct, did little to dissuade Ms Gilmore from considering that a close personal relationship existed between them. He should have expected that any disappointments that Ms Gilmore may have had with their relationship would have impacted on her academic (indistinct). He has disregarded this over a long period amounted to misbehaviour on the part of an academic. He was derelict in his duty of care as a teacher to ensure, amongst other things, that her education was not impeded or prejudiced.

PN278

The second decision I want to take you to is called Farnhill v Australian Business Academy and that is at page 2 of the bundle. This is a decision in January 2016 of (indistinct). The paragraph that I will take you to is at paragraph 57. Vice President Hatcher, I think you might have your - not mute on and we can hear you scrolling through the - thank you very much. At paragraph 57, which is on page 19, DP Kovacic says this:

PN279

The above extract supports a finding that Mr Farnhill's conduct was not only inconsistent with ABA's policy (ABA is the teaching academy), particularly as set out in the ABA team handbook regarding the importance of maintaining professional relationships between ABA staff and students but also with the terms of his employment contract which required Mr Farnhill to comply with ABA policies and not put at risk ABA's reputation or business.

PN280

This is the important part of this paragraph:

PN281

Given the importance generally attached to educational bodies maintaining a professional relationship with students I consider that crossing the line in that regard is likely to carry with it the risk of reputational damage and diminished community confidence in the relevant educational institution which may in turn impact on the particular institution's business. ABA's concern in this case was therefore reasonably based in the absence of Mr Farnhill providing prior to his dismissal any compelling evidence for allowing Mr Plum (who is the student) to stay at his residence on the night of 11 December 2014.

PN282

Further, I consider Mr Farnhill's factions fall within the definition of serious misconduct set out in the ABA workplace behaviour handbook.

PN283

Now, in the respondent's written submissions they say that these cases can be distinguished in and in relation to the latter, they point to the fact that what DP Kovacic was pointing to were matters that were in the employment contract. In this matter I'd invite the Full Bench to go to AB 1369. This is Professor Morrison's employee contract. I apologise that it for you, VP Hatcher, it's on its side - and Commissioner Bissett. There also appears to be some miniscule font. But in this contract if you go to page 1370 you'll see that - at the bottom, after the signing page, there are enclosures to the completed to return form. Then there are further enclosures for the information of the person and the last dot point is the code of conduct.

PN284

So the code of conduct is relevantly set out in the employment contract. Now I can ask you to go to AB 746 because it's uncontroversial that the relevant enterprise agreement covered the terms and conditions of Professor Morrison's employment and you can see at clause 71.3 - and this on appeal book 824 - do Your Honours have that? Yes?

PN285

DEPUTY PRESIDENT ASBURY: I do. I've got paper. I'm very quick.

PN286

MS NOMCHONG: Me too. Clause 71.3 of the enterprise agreement defines serious misconduct. So this was all available to Professor Morrison if he was under any misapprehension. This is 71.3(b):

PN287

Serious misbehaviour which may be a single occurrence or of a kind which constitutes a serious impediment to carrying out the staff member's duties, to other staff carrying out their duties or a serious risk to the safety of staff, students or visitors - - -

PN288

We're saying obviously this was a serious risk to the emotional and psychological health of the student:

PN289

- - - a serious risk to the university's property, serious misconduct in research, a serious dereliction of duties (which we say this was).

PN290

Then it goes on and the last paragraph says:

PN291

Behaviour that constitutes serious misconduct can take many forms but could include serious and persistent harassment, bullying or a criminal offence.

PN292

So Professor Morrison was well aware by the terms of his contract that he was bound by the code of conduct; he was well aware of the code of conduct and what that meant and the enterprise agreement told him what was meant by, 'serious misconduct'. In our submission therefore the respondent's submissions bear some distinguishing feature in Farnhill and Formby to this matter. We say that's not correct. Of course part of our grounds for permission to appeal is that this decision of Deputy President Dean stands in stark contrast to D v Charles Sturt University, to Formby and to Farnhill.

PN293

We submit that taking into account all of the matters listed in grounds 2(b)(i) to 2(b)(iv) of the amended appeal, those matters properly support a finding that the dismissal was not unfair. So the plethora of evidence that DP Dean had to look at this alternative proposition was given short shrift in four or five paragraphs, none of which went to salient evidence. But there were two further matters that DP Dean had available to support this finding that the dismissal was not harsh, unjust and unreasonable. The first is the evidence that came from the new witness and secondly, the evidence that Professor Morrison's responses in the internal investigation lacked candour.

PN294

Let's turn first to the new witness. In relation to the new witness DP Dean made findings that this meant that the events of involving the relevant student were not the first time so this wasn't a one-off occurrence. 18 months before he'd done exactly the same - well, not exactly the same thing but he had certainly stripped naked, he had certainly sat in front of her cross-legged, I think it was, his legs apart on the rock while he was having his lunch for 15 or 20 minutes. He had sent her messages - the new witness had been housesitting for Professor Morrison and Ms Lessinger and then after the housesitting he sent her a Facebook message saying that he'd been thinking about her sleeping in his bed.

PN295

When finally the new witness came to the conclusion that she had to be up front with him and told him she didn't want a relationship he sent her another text saying he'd have to invent some new fantasies about her. So what DP Dean had available to her, that this wasn't a one-off occurrence - and of course Professor Morrison took no steps to bring that interaction with the 19-year-old student to the attention of the university and in fact, we say as I'll come to in a minute that her approach to the new witness evidence was all wrong. So DP Dean wrongly took the approach that because the new witness didn't tell Professor Morrison at the time that she was uncomfortable with him stripping naked in front of her and sitting naked with him while he was eating lunch, and because she didn't tell him that she was uncomfortable when he said to her, 'I've been thinking about you sleeping in my bed', that there was nothing inappropriate in that relationship and that can be found at paragraphs 95 and 96 of the decision.

PN296

But the test for sexual harassment doesn't involve the victim making an objection. If I could take Your Honours to the decision in Hughes v Hill [2020] FCAFC 126 - Your Honours might remember this as being the decision where the senior counsel for the perpetrator described his client's actions as being acting like Mr Darcy. Anyway, in that His Honour Perrin J, a member of the Full Bench, set down or reiterated the principles in relation to sexual harassment and at page 334 of your list of authorities, Perrin J looks what that constitutes sexual harassment. As Your Honours will be familiar there is a subjective and an objective element to this conduct.

PN297

So subjectively, the victim has to be - the conduct has to be unwelcome and the paragraph 23, we'll say that that unwelcome conduct is usually - evidence is simply given of that by the person. So at paragraph 23:

PN298

If an identified formal contract is established subsection (1) requires it must be unwelcome to the person allegedly harassed. This is a question of fact which is subjective and which turns only on the alleged harassed person's attitude to the conduct at the time. Even if the court had concluded under the first limb that one person had engaged in conduct of a sexual nature towards another person, it will not constitute sexual harassment under the provision if it was not actually unwelcome. Ordinarily this will be proved by the person alleged giving evidence that the conduct was unwelcome. That mode of proof is not dictated by the statute and proof of this fact like proof of any other fact may be done in a variety of means.

PN299

In some cases - and I suspect this is one - the unwelcome quality of the conduct will be painfully obvious.

PN300

So what Perrin J is telling us is that you don't have to - the victim doesn't have to say, 'Stop, this is unwelcome'. She has to - as the new witness did in this, and I've already read the passages to you - say that she was extremely uncomfortable with him stripping naked, said that she was extremely uncomfortable with the Facebook messages. The objective nature of sexual harassment is then set out at paragraph 24:

PN301

Thirdly, once it's established that there was conduct of a sexual nature towards another and the conduct was unwelcome the provision imposes an objective delimitation on the provision's ambit. The circumstances must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct.

PN302

The circumstances are defined broadly and include, importantly for this case, the relationship between the harasser and the harassed.

PN303

VICE PRESIDENT HATCHER: Sorry, Ms Nomchong, in relation to the New Witness when we're talking about sexual harassment, under what, under the Sex Discrimination Act or under some policy, what's the ‑ ‑ ‑

PN304

MS NOMCHONG: Well, under the Sex Discrimination Act, what I wanted to say, Vice President Hatcher, is this, is that when you look at the decision of DP Dean, DP Dean wrongly looks at the - of the Evidence Act of the New Witness because she said it didn't - the New Witness didn't say anything about it making her feel uncomfortable.

PN305

So what I want to say is that that's a wrong test because on any version of events sexual harassment under the Sex Discrimination Act or the ACT Antidiscrimination Act does not involve an element where the victim has to communicate an objection or some - has to communicate to it. So by relying - I hope I'm making myself clear here, but that is by looking at this conduct, by saying 'Because she didn't object, everything was okay.' That's not how harassment works.

PN306

VICE PRESIDENT HATCHER: No, I understand that but does the Sex Discrimination Act apply to the circumstances of Mr Morrison's interactions with the New Witness, that is, in some private canyoning activity and whatever happened subsequently.

PN307

MS NOMCHONG: I would say it would because sexual harassment under section 20A talks about workplace participants and certainly that a participant would be someone who would be - so certainly for the ANU, I mean, I haven't turned my mind to this question but certainly I would think that this canyoning trip done, as it was, under the auspices of the ANU, there's certainly been many decisions talking about sponsored events, you know Christmas parties and the like, where harassment is said to occur and certainly if I had to argue this in the Federal Court I'd be comfortable with saying that the interaction was something where the SDA applied.

PN308

DEPUTY PRESIDENT ASBURY: Now, Ms Nomchong, as I understand it, what you're saying is it's not whether or not it was sexual harassment according to the statute it's the prism through which the Deputy President looked at it.

PN309

MS NOMCHONG: Yes.

PN310

DEPUTY PRESIDENT ASBURY: Looked at the conduct, that is the issue and you're using it as an illustration of the error of that sort of prism generally.

PN311

MS NOMCHONG: Yes. Thank you very much for that, Deputy President. It's precisely what I'm trying to say. I'm not inviting the Full Bench to make a finding that there was a contravention of the SDA, certainly it doesn't have the jurisdiction to do that but the - you know, that is - it's exactly - just looking at the prism of the way that they looked at it because all of this DP Dean also looked at this interaction with the New Witness as being absolutely okay.

PN312

So I was then going to take you to the decision in San v Dirluck [2005] FMCA which is a decision of Federal Magistrate Raphael and - but I won't take you to that, I could just invite you to read paragraphs 23 and 32 of that decision because therein Federal Magistrate Raphael said:

PN313

I do not subscribe to the theory put forward by the respondents that because Ms San did not make direct complaints to Mr Lamb and did on occasion answer him back, this indicated that she accepted the remarks as ordinary banter.

PN314

And then he goes on to talk about the power of imbalance because of the seniority. So just to reiterate, in that context the evidence of the New Witness about the events at the rock pool and I've taken you to this, really constituted a piece of evidence for DP Dean to say this is the second time in 18 months that Professor Morrison's acted like this with a student.

PN315

Now, just before I leave that, I think it's probably important that I take you to these texts. So if you go to page 1642 of the appeal book and you go to paragraph 26, this is the paragraph and I don't need to read it to you but New Witness sets out that after the house sitting that Professor Morrison says, 'Okay. Now, completely inappropriately', so recognising again that his own conduct's appropriately - 'I'm thinking about you sleeping in this bed. I better stop that.'

PN316

And then over at paragraph 34 you'll see that this is the where New Witness actually does say to him, 'I enjoy being friends with him but I didn't want any more than that', in which Professor Morrison responded that he had a bit of a crush on her and that he would cancel that line of thought and then further down that paragraph is the text where it says he's 'Torn between saying now I just need to think up some new fantasies and I hope we can still ask you to be housesitting the next time we go away.'

PN317

So this is the conduct that Professor Morrison that he was okay to engage in with a 19‑year‑old student. Now, more importantly there were really definitely similarities between the events involving the Relevant Student that DP Dean failed to take into account with the evidence of the New Witness. Stripping naked immediately and going swimming, making sexualised comments and inviting a relationship, an imbalance in age, an imbalance in the power relationship between the two.

PN318

So rather than dismiss those - that evidence of the New Witness as she did, DP Dean erred because she should have relied on it as supporting the version of events put forward by the Relevant Student in terms of Professor Morrison and more importantly DP Dean should have looked at is the second known occurrence of sexualised conduct with a student.

PN319

The next issue and I'll just deal with this briefly because it's not our biggest point but it is a point, and that is the lack of candour in the investigation, DP Dean had available to her to support a finding that the dismissal was unfair and this again of course comes into whether reinstatement was appropriate and let's go to paragraph 99 of DP Dean's decision and this is at appeal book 20.

PN320

This is pleaded as a significant error of fact of ground 3E of the amended appeal. At paragraph 99 DP Dean says:

PN321

Finally, I do not accept as put by the ANU that the evidence shows Dr Morrison was dishonest and untruthful during the investigation and reviewed process he answered questions that were put to him openly and honestly.

PN322

So not only is it a significant error of fact, it's another example of a failure to give reasons, this blanket statement without any reference to the evidence of which there was much, doesn't give the appellant or indeed anyone the opportunity to understand how she arrived at that conclusion. Professor Morrison was afforded a number of opportunities to respond to the allegations before he was dismissed and DP Dean rejected the assertion that he hadn't been afforded procedural fairness and you'll see that at her decision at paragraph 105.

PN323

But we've set out in our written submissions that Professor Morrison lacked candour in three respects. First, he failed to tell or to agree to the allegation put to him by the University that he offered oral sex to the student whilst on the beach. All he said was that they did was touch and kiss.

PN324

Secondly, he failed to advise the university that during the discussion at the O'Connor Ridge, he told the student that he and his wife had sex and it was great. And thirdly, he told the university that after the events he'd had nothing but cordial interactions with the student and failed to advise the university of the email that I've just taken you to where he told her to keep away from his seminars.

PN325

So in each of these three areas his lack of candour should probably be seen by DP Dean as trying to paint himself in the best light rather than be open and honest. He didn't tell them about the offer of oral sex because that would have looked like exactly what it was, that he wanted an intimate encounter on the beach.

PN326

He didn't tell the university that he told the student that he had a great night of sex with his wife because he knew how inappropriate that was and he didn't tell the university that he told her from his private email to keep away because that would have involved him excluding her from university functions. I don't intend to go to any more of the evidence in relation to that but ‑ ‑ ‑

PN327

DEPUTY PRESIDENT ASBURY: Ms Nomchong, I'm sorry to interrupt you, before you leave that point, can I just confirm that somewhere I read, was it the applicant's first - initial response to the university, it wasn't so much that he denied the oral sex allegation as so much as it was he just didn't address it.

PN328

MS NOMCHONG: That's correct. If you have a look at - that's exactly correct, Deputy President. If you go to the termination letter which is really quite comprehensive and it's at AB1524, this is perhaps where you're thinking about it, is that each of these allegations that you go through is that - so for example, it's at paragraph 11 on 1527:

PN329

So on 21 November 2017 you kissed the Relevant Student, touched her physically underneath her sports bra and swimming bottoms, asked her if you could go down on her.

PN330

So that's the relevant allegation and then the paragraph after that:

PN331

It's noted you've not addressed or denied this in this allegation.

PN332

Is that what you were thinking of, Deputy President?

PN333

DEPUTY PRESIDENT ASBURY: I think there's actually a table of allegations and then there's an initial response the applicant provided to that table as well where it doesn't seem to address that matter and then it's his second witness statement in - I think in the proceedings before Deputy President Dean and I'm not aware there's any earlier concession in that regard and then it was - so it was conceded in the second witness statement, as I understand it, and then confirmed in cross‑examination.

PN334

MS NOMCHONG: That's correct, Deputy President. And that's what ‑ ‑ ‑

PN335

DEPUTY PRESIDENT ASBURY: So you say there's nothing earlier that was conceded to the university about that allegation.

PN336

MS NOMCHONG: That's our submission, yes.

PN337

DEPUTY PRESIDENT ASBURY: I understand. Thank you.

PN338

VICE PRESIDENT HATCHER: Ms Nomchong, the reference to the - I was looking at paragraph 11 of the letter.

PN339

MS NOMCHONG: Yes.

PN340

VICE PRESIDENT HATCHER: With reference to the invitation to happen to have a shower, did he accept or deny that ultimately?

PN341

MS NOMCHONG: I'm not sure. Just excuse - he denied that, your Honour.

PN342

VICE PRESIDENT HATCHER: And at (indistinct) (b) the distraction at seminars, did he accept or deny that?

PN343

MS NOMCHONG: I think he also denied that but I'll get my junior to have a look at that and just before we break I'll come back to all of the questions that you're asking me along the way, if that's all right, Vice President.

PN344

VICE PRESIDENT HATCHER: All right. At some stage can you address one other matter and that is that the Deputy President having seen and heard the witnesses in presumably over video‑link, made a general credit finding favouring Mr Morrison over the student in paragraph 5 of the decision.

PN345

MS NOMCHONG: I'm sorry. All right. Yes, I will address you on that because I think that's the full frontal of the respondent's submissions. I intended to deal with that in the reply if I could.

PN346

VICE PRESIDENT HATCHER: All right. Thank you.

PN347

MS NOMCHONG: Thank you. Just before I leave this lack of candour issue and I said I was going to go to the evidence in detail, in relation to the second issue, that is, the failure to advise the university that he told the student that he'd had great sex with his wife a few days after the events at Kioloa, if your Honours go to appeal book 1135, you'll see the second dot point from the bottom, this is his evidence about what happened at that - in that conversation.

PN348

And you'll see that no part of that was the, you know, as the Relevant Student had put it, asking about her prior sexual experience with boyfriends or telling her that he'd had great makeup sex with his wife but in cross‑examination, if you go to paragraph - sorry, appeal book 97 at PN730:

PN349

You told her you'd talk to Kate and then you'd have really good sex?‑‑‑I don't recall how I phrased it but I did say I'd talk to Kate and I did say we'd had sex.

PN350

So he does admit it but that's an omission that he just leaves out of his very cordial way in which he's described it to the university at AB1135. And then over the page on AB98:

PN351

You accept that this was you were engaging in kind of further intimate discussion with her on that occasion?‑‑‑Certainly. It was a frank and personal conversation.

PN352

And then:

PN353

In the sense that it's unusual to be talking about the facts of you having sex with someone else?‑‑‑It was an unusual situation that we were in, I think.

PN354

That's true that you accept that it was highly inappropriate again for you to be talking to her about intimate sexual behaviour you were having with somebody else?‑‑‑Throughout the conversation I was trying to be clear about the situation between myself and my wife and the importance of that relationship and whatever I said was in context.

PN355

Well, she told you in response to you telling her that you'd had really good sex and I know you dispute that but I think - so I'm putting to you that's what you did say to her that you - that she told you that you shouldn't have told her that?‑‑‑Yes. And she did seem upset that I told her.

PN356

So you were continuing to send her very mixed and conflicting messages?‑‑‑I think during the conversation both of us were sending mixed and confusing messages. I think both of us were confused during that conversation.

PN357

But you accept, don't you, that you told her you'd really like to see her occasionally and that you thought that you could make things work?‑‑‑I think I did say something along those lines, yes.

PN358

So ‑ ‑ ‑

PN359

VICE PRESIDENT HATCHER: Ms Nomchong, in that question when the reference to 'See her occasionally', how are we to understand that expression?

PN360

MS NOMCHONG: You're to understand that he wanted to continue having a romantic relationship with her occasionally. That's clearly what that means.

PN361

VICE PRESIDENT HATCHER: Yes. All right. Thank you.

PN362

MS NOMCHONG: And that's informed by, 'I think I can make it work', which is either hiding it from his wife or getting his wife to agree that he can continue having a relationship with her. Now ‑ ‑ ‑

PN363

VICE PRESIDENT HATCHER: So, which conversation was this again?

PN364

MS NOMCHONG: This is the conversation at O'Connor Ridge on the Saturday.

PN365

VICE PRESIDENT HATCHER: Yes. All right.

PN366

MS NOMCHONG: So I want to now just - and I think I can go to this on many occasions throughout the failure to give reasons here but the statement at paragraph 99 is no more than a blanket statement but there - and there were real reasons to resolve this controversy because it was something that the appellant relied upon for the valid reason for dismissal and also in relation to the reinstatement. If I can ask you to go to the decision in TechnologyOne which is at item 7, if I can find it and it commences at page 138 of the book and ask you to go to paragraph 108:

PN367

The trial judge's reasons must, as a minimum, be adequate for the exercise of a facility of appeal.

PN368

And refers to Soulemezis v Dudley (Holdings) and also to Beale v the GIO:

PN369

Failure sufficiently to expose a path of reasoning is an error of law.

PN370

At 109:

PN371

A judge is not obliged to spell out every detail of the process of reasoning to a finding, but it is essential that he or she expose the reasons for resolving a point critical to the contest between the parties.

PN372

And reference is made to Soulemezis:

PN373

The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments have been understood and accepted.

PN374

Again, a reference to the judgment in Soulemezis:

PN375

And it is also necessary that the primary judge 'enter into' the issues canvassed and explain why one case is preferred over another -

PN376

- citing Jones v Bradley:

PN377

As Samuels JA said in Mifsud v Campbell, 'Failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge may promote a sense of grievance in the adversary and create a litigant who is not only disappointed but disturbed.'

PN378

So - and then at paragraph 113:

PN379

Finally, 'bald findings on credit' -

PN380

- and this might answer your question, Vice President Hatcher -

PN381

Bald findings on credit where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge's common law duty to provide the parties, and the appellate court, with the basis of his decision.

PN382

Citing Palmer v Clarke. DP Dean engaged in an error failing to give reasons not only here but throughout the entirety of this decision because she failed to engage with submissions, she dismissed significant facts that were relevant to the appellant's case but in any event the Full Bench would find that the finding at paragraph 99 was contrary to the evidence and was therefore erroneous.

PN383

So in conclusion about whether there was a valid reason for the dismissal, we'd say that the Full Bench would be satisfied that the amended - that the errors pleaded in the amended grounds of appeal have been made out, that those errors vitiate the decision that there was a valid reason - sorry, that there was not a valid reason for dismissal and instead the Full Bench would be satisfied that it could substitute its own decision that there was a valid reason for dismissal based on all of the matters which I have taken you to, the totality of the evidence, the failure to comply with the Code of Conduct, his antithetical behaviour because the evidence of the New Witness established that this was at least the second known occurrence of this sort of conduct.

PN384

So I now wish to turn to reinstatement and the error. So I'm turning to this, we say that you will be well satisfied that the dismissal was fair and if you do, you don't need to go any further but if you don't, if you're against me on that, then I make the following submissions that the finding about reinstatement is an appropriate remedy was also in error.

PN385

DP Dean considered reinstatement as the appropriate remedy in paragraphs 118 to 121 of her decision. We say that in exercising her discretion to order reinstatement, she engaged in appealable error of the kind enunciated in House v The King. That is, she failed to take into account a number of material considerations and she also took into account irrelevant considerations.

PN386

The principles relevant to the Commission's consideration of reinstatement and as to the appropriate remedy is set out by the Full Bench in Nguyen v The Vietnamese Community of Australia [2014] FWCFB 7198 but more recently summarised by the Full Bench in Seitz, S‑e‑i‑t‑z, v Ironbay Pty Limited [2018] FWCFB 1341.

PN387

In particular, at paragraph 15 and one of those principles, I don't need to remind this Full Bench about those principles, but one of those principles is the consideration as to whether reinstatement is appropriate involves an assessment much broader than practicability:

PN388

In relation to the impact of a loss of trust and confidence would have -

PN389

- and this is a quote directly from Nguyen:

PN390

- is that an allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise the claim that reinstatement is inappropriate because of a loss of trust and confidence. The onus of establishing loss of trust and confidence rests on the party that's making that assertion.

PN391

Now, below, that's exactly what we put that you shouldn't reinstate Professor Morrison because we have completely lost trust and confidence in him, really predominantly for the matters that were just referred to in relation to whether there was a valid reason for dismissal. At paragraph 120 of the judgment, the Deputy President said, and with respect to the Deputy President, she did set out and articulate the correct test:

PN392

The ANU argued strongly that reinstatement was not appropriate and asserted that it had lost trust and confidence in Dr Morrison. As counsel for Dr Morrison correctly contended, the mere assertion of a loss of trust will be insufficient to avoid an order for reinstatement. There must be a rational basis for the perceived loss.

PN393

The evidence clearly shows that Dr Morrison's former colleagues had advocated for his reinstatement, and the Director of the MSI was open to the possibility of a lesser sanction than dismissal. The evidence is also clear that Dr Morrison had appropriately and successfully supervised many female students both before and after 21 November 2017.

PN394

That's the date of the Kioloa retreat.

PN395

Two female students gave evidence that they had observed and been subject to respectful and appropriate relationships between Dr Morrison and his female students. Further, the evidence is clear that Dr Morrison's strong work performance had been rewarded with a number of promotions during his employment with the ANU, and he was described by some colleagues as 'a phenomenal colleague' and an asset to the ANU.

PN396

So as I've said, the statement of principle was correct but where the failures happened was that the Deputy President erroneously focussed on the statements made by Professor Morrison's supporters and at 121(a) comes back again to the interaction on the beach, so not taking into account the whole of his conduct but at 121(a) of the decision focussing only on the interaction.

PN397

At 121(b) DP Dean returns to her erroneous characterisation of Professor Morrison's conduct toward this failing to appreciate that he shouldn't be naked in front of her, sending sexualised texts and making an approach with this 19‑year‑old student was grossly inappropriate and instead by brushing it off, saying that once she said she wasn't interested he didn't pursue her and stated that this approach is inconsistent, and as we've said, it's inconsistent.

PN398

The remainder of DP Dean's reasoning that Professor Morrison posed no threat to the safety and welfare of other students and staff and is said to be supportive and professional. With respect, whilst that evidence was available, the fact that he may have acted professionally with other students doesn't mean he didn't with the Relevant Student and the New Witness. They're the two known occurrences about which we know.

PN399

VICE PRESIDENT HATCHER: Well, for the (indistinct) here though is that of course when the Deputy President got to this stage of the case she'd already found there was no valid reason for dismissal.

PN400

MS NOMCHONG: That's correct.

PN401

VICE PRESIDENT HATCHER: And that (indistinct) the whole analysis. If you proceed on that premise then it puts it - you have to look at this a different way, don't you?

PN402

MS NOMCHONG: Yes, indeed. Exactly. So that that is, by finding that there was no valid reason for the dismissal, he didn't do anything wrong therefore he should be reinstated, that's exactly how she came to her conclusion but looking at the way in which - this is again a failure to give reasons and a failure to engage with the appellant's argument below which I've just taken you to in TechnologyOne is that the material relied upon by the university not considered at all by DP Dean in this reasoning, falls into three categories.

PN403

First, the evidence given by the university witnesses with respect to the particular circumstances of the university as an education provider, the evidence that it had a duty of care to its students, the evidence that there was a reputation or risk associated with the perception that staff student sexual relationship are condoned.

PN404

Secondly, the lack of insight by Professor Morrison into the power and responsibilities of his senior academic position and thirdly, Professor Morrison's demonstrated lack of candour with respect to the university and the investigation. We say that these matters provided a sound rational basis for the university to have lost that trust and confidence and the conclusion that the trust and confidence cannot be restored, you know, that could there be a viable and productive relationship.

PN405

So I just want to go to those three areas in a bit more detail because I want to take you to the evidence about it. First, the university's position as an education provider. So nowhere in here is any reference to the evidence given by Dr Nadine White, the university's HR director, or Professor Stephen Roberts who was the director of the MSI. Dr White gave evidence that the duty of care that the university owes to students was to provide a safe and respectful environment. You can find that at paragraph 56 of Ms White's statement at AB1361.

PN406

DP Dean erred when she failed to take into account the particular nature of academic employment in giving primacy to whether reinstatement was appropriate because both Dr White and Professor Roberts gave evidence of the high level of autonomy afforded to academics and the power imbalance between academics and students. I invite you to read paragraph 58 of Dr White's statement and that is at AB1361. Professor Roberts said:

PN407

All academics in the school have a duty of care to students in the school and should maintain supervisory like relationship when they're with students of the school.

PN408

That's at paragraph 57 of his statement at AB156. The corollary is that the university has to be able to trust academics to maintain that professional, supportive relationship. Most significantly both Dr White and Professor Roberts gave evidence that they'd lost confidence in Professor Morrison to interact safely with the students. At AB1362, paragraph 62:

PN409

I have lost confidence that Professor Morrison could be trusted to safely interact with students. His actions show a disregard for the standards of professional required by university staff.

PN410

Professor Roberts at AB1597 said he had little confidence that Professor Morrison could be left alone with female students. That was something that of course was echoed by Ms Dancso, allegedly one of his supporters. Professor Roberts said from a management perspective and of course this goes to paragraph 115 of DP Dean's decision:

PN411

If he is returned to work he'd need to be constantly supervised and that could only be done by someone who's a very senior member of staff.

PN412

Well, it was put to Professor Roberts that his opinion would have to change that if the - again some question related only to one student, his evidence was:

PN413

I think my basic rule would be even if the student was initiating it, the job of the academic would be to say that that is inappropriate and it can't happen.

PN414

And then he said that he found it extreme - the behaviour to be quite extreme and this is all at PN3791 and PN3836. Now, when Professor Roberts was giving his evidence in cross‑examination the New Witness evidence hadn't come through. He was being asked, 'What is this is just a one‑off?' But we now know it wasn't a one‑off.

PN415

The second part of the evidence is about reputational risk. So beyond the safety and reputational risk even based on the version of events put forward by Professor Morrison, the reinstatement of Professor Morrison poses a serious reputational risk to the university as an education provider and Dr White identified that risk and if you can go to AB1362, this is the statement of Dr Nadine White, and go to paragraph 67, Dr White says:

PN416

There is a serious reputational risk for education institutions that do not ensure that professional relationships with students are maintained. If it becomes known that the university sanctions or reinstates an individual who engages in inappropriate conduct with a student the reputation of the university may be harmed. Staff, students and the public may also lose confidence in the university which could affect the operation of the university including whether students apply to study at this institution.

PN417

So the inappropriate behaviour Professor Morrison engaged in and which he admitted was inappropriate, he admitted that it was inappropriate, that's at AB68, PN408 to PN410, was a transgression of that relationship between staff and student and the university - it stands in contradistinction to the university as a reputable education provider.

PN418

So we say that these matters regarding the nature of academic employment outlined in the evidence of Dr White and Professor Roberts are relevant to the assessment but DP Dean failed to engage with that argument, failed to even refer to that evidence. Second, DP Dean failed to engage with the argument that Professor Morrison's conduct demonstrated a lack of insight into his responsibilities as a senior academic and an inability or an unwillingness to recognise the effects on the students.

PN419

At paragraph 63 on that same page that we're looking at, AB1362, Dr White said she was concerned that Morrison's responses to the university demonstrated a lack of insight into the nature of his position and the way in which he should behave in front of students and that his lack of insight was illustrated by his failure to understand the power that came with this position as a senior academic and the HDR (indistinct) of course no longer to the students and when I say, 'The student', I mean, the Relevant Student's position in her career prospects and the potential for conflicts of interest to arise.

PN420

That lack of insight is demonstrated by the fact that in his response to the university and his statements to this Commission, Professor Morrison focussed solely on the fact that he had finished teaching a course in which the Relevant Student was enrolled and I don't need to take you to all of that evidence again. It's also relevant that he didn't disclose the evidence because he didn't want the university to know.

PN421

At - in his second statement to the Commission, once he had seen the university's evidence about the supervisory role he played, Professor Morrison said this - could I ask you to go to page AB1235? I'm taking you to this because these are examples about Professor Morrison's manifest lack of insight into his behaviour. At paragraph 5 he explains away any informal assistance he'd given to the Relevant Student in the honours program as something that he offered to all students when of course that's not the point.

PN422

The point is that he can't say, 'I wasn't in a supervisory role because I'd already handed in the marks', and in the same breath say that he'd continued to provide informal assistance to all of the students. Over the page at 1240 at paragraph 66 he says:

PN423

By 2018 I was eager to keep out of the Relevant Student's way.

PN424

Eager to keep out of her way, not offer her assistance. Not promote her, not provide her with guidance.

PN425

And would happily have found someone else who could process her PhD application and entry line or more simply recuse myself from any position of influence.

PN426

The very statement admits that he did have a position of influence because he had to recuse himself from it. So that is an acknowledgement by Professor Morrison that he had a position of influence and yet he approached the university and approached this Commission saying, 'Because I'm making remarks, I didn't have any further role.'

PN427

We repeat our submissions as to the significant error of fact in finding that Professor Morrison didn't have a supervisory role and we're confident that the Full Bench will find that he did. So the failure of DP Dean to take into account his manifest lack of insight or his wilful blindness to the role that he played at the MSI, vis‑à‑vis the Relevant Student meant that her Honour failed to take into account a highly relevant factor in considering reinstatement.

PN428

We say that Professor Morrison's failure to appreciate the power inherent in his position demonstrated that lack of insight. Moreover there was a clear preparedness of Professor Morrison and DP Dean for that matter to blame the student for his inappropriate behaviour and failed to understand the comparative position of power, influence and responsibility. It's up to Professor Morrison to set the boundaries, not the student.

PN429

As we've repeatedly noted throughout our submissions, DP Dean failed to engage with the conduct of Professor Morrison after the retreat erroneously focussing all of her consideration really on the interaction. As such, DP Dean failed to engage with the evidence and the submissions that Morrison had little regard to the safety and support he should have offered. At AB109, PN840 he says:

PN430

Yes, I agree. I did not make any specific statements about support.

PN431

And he agreed that she told him that she was vulnerable. Professor Morrison's failure to recognise this, again, I know I'm repeating myself, but this is a manifest failure. How can you put someone back to work in circumstances where a student because of his sexual interaction with her, says, 'I'm vulnerable, I'm confused', and he says, 'I don't tell the university because in part I don't want them to know.'

PN432

DP Dean failed to take into account the bizarre conduct of Professor Morrison referring the student to his wife when she needed to speak - when the Relevant Student said she needed to speak to him. It was done in a context knowing that his wife was already upset. Where did he think that was going to lead? It's difficult to see how it could have achieved anything other than to further involve the student in his marital problems.

PN433

The real issue with the involvement with Professor Morrison's wife was of course again his failure to understand that when Ms Lessinger got a job in - an administrative job with the MSI that then the Relevant Student and his wife had to interact. So again, this lack of insight about how the myriad of problems that he himself created by not establishing professional boundaries had to be taken.

PN434

And of course, I suppose, and I've mentioned this before but it's worth saying again, the interaction with the New Witness and his failure to identify that to the university really shows that he has no appreciation because I think in a lot of ways that that interaction was just as bad as the one with the Relevant Student, that is, she was much younger, they were - he was telling her about his sexual fantasies of her being in the same bed that he slept in. He was inviting her into a sexual relationship and he doesn't think that that's anything that he should have told the university.

PN435

VICE PRESIDENT HATCHER: But he had no teacher student relationship at all with the New Witness, did he?

PN436

MS NOMCHONG: I think that's right but she was still a student at the university.

PN437

VICE PRESIDENT HATCHER: I thought the policy doesn't prohibit consensual relationships between academic students per se.

PN438

MS NOMCHONG: But it requires the academic to notify the university.

PN439

VICE PRESIDENT HATCHER: Right.

PN440

MS NOMCHONG: Yes. So whatever way we look at the New Witness' evidence he didn't notify the university that he was propositioning the New Witness. DP Dean also failed to address the inconsistency of Professor Morrison's assertion that he didn't advise the university because he wanted to respect the Relevant Student's request for privacy. In the face of the evidence that that concern for her privacy didn't stop him telling his wife, didn't stop him telling Dr Dancso, didn't stop him telling his friends when he went to America. It was a highly relevant consideration that Professor Morrison tried to hide behind this notion of protecting privacy in circumstances where the true reason was that he just didn't want the university to know.

PN441

Lastly, because DP Dean rejected the university's contention that Professor Morrison exhibited a lack of candour in the investigation process meant that that error wasn't taken into account also in the consideration for reinstatement.

PN442

So I want to turn now to what the relevant considerations - irrelevant considerations DP Dean took into account. At J120 DP Dean talks about two female students giving evidence of observing the respectful relationships of Professor Morrison. DP Dean doesn't name them, only one former student, Jane Tan gave evidence Professor Morrison. Dr Dancso, we have to guess might be the other person but she wasn't a student of Professor Morrison, she was at the MSI as a post‑Doctoral fellow albeit (indistinct) of Professor Morrison's.

PN443

But in any event as I've already submitted, Ms Dancso believed that Professor Morrison's conduct was inappropriate and that if he were to be reinstated because he had to conduct all of his business in glass‑walled rooms or in public spaces. Ms Tan's evidence on this point was limited to, and this is at paragraph 5 of her statement at AB1282:

PN444

I had positive interactions with Professor Morrison throughout my time at ANU.

PN445

Now, DP Dean placed weight on this evidence even though it only came from one student. Further, DP Dean said at J120, in judgment 120:

PN446

Many of Professor Morrison's former colleagues had advocated for his reinstatement.

PN447

Again, DP Dean doesn't tell us what she's referring to. It might be the email of the Vice Chancellor dated 19 May 2020 - to the Vice Chancellor, I'm sorry, and let's go to that, it's at page 1295. So you can see here, this is an email from Joan Licarta, someone who gave evidence for Professor Morrison to Brian who was the Vice Chancellor and then sets out the reasons why think that the process has been unfair towards Professor Morrison.

PN448

Vice President Hatcher, may I ask would it be all right if you put yourself on mute? Thank you.

PN449

So the only evidence about what any of these colleagues were told about the events that led to Professor Morrison's dismissal was the evidence given to them by Professor Morrison himself. So if we go to AB1289 at paragraph 27 this is what Joan Licarta said was told to her in April 2020. So this is, you know, a truncated version of what happened.

PN450

So I don't need to point out to you and I won't repeat myself but as you read through that, there's a large amount of material, certainly from the university's case that's left out of that and the same we see at paragraph 34 and 36. So they get hearsay evidence or a hearsay story from Professor Morrison and then on the basis of that, they write to the Vice Chancellor.

PN451

If the Full Bench wants to look at what Mr Licarta was told that it is at paragraphs 34 and 36 of his statement at appeal book 1306 but it's more in the same vein. So DP Dean was in error, in our submission, in placing any weight on the evidence given by these colleagues, Dr Dancso, Tony Licarta or Joan Licarta because the fact that he'd engaged in supportive and professional interactions with students didn't mean that all of his interactions were bad. None of those three witnesses were asserting that Professor Morrison's conduct was supportive or professional. Tony Licarta at paragraph 37 of his statement says:

PN452

I do not condone Scott's actions.

PN453

But says he was surprised that his actions led to the termination. Joan Licarta said:

PN454

I do not think it is appropriate to engage in physical relationship with a student even a consensual one -

PN455

- and that's at paragraph 38 of her statement. So when DP Dean selectively says that, you know, he had the full support for reinstatement, it doesn't make reference to taking into account these other considerations. Even Professor Morrison conceded in cross‑examination that his conduct was inappropriate and swimming naked with a student was inappropriate and intimate relationships with a student in the faculty is inappropriate and the Full Bench can find that at AB1138 and AB68.

PN456

So further, as we've said, it was an irrelevant and erroneous consideration for DP Dean to take into account that Professor Morrison accepted the new student he did not wish to pursue an intimate relationship when he made his feelings known to her and in no way coerced her. Sorry, new student, sorry - New Witness. I've said that wrong. So that's an irrelevant consideration.

PN457

The fact that he didn't pursue a relationship with the New Witness or coerced or pressured, that's an irrelevant consideration to reinstatement. The fact that he engaged in it in the first place is the relevant consideration. Further, DP Dean ignored the fact that after the New Witness said she didn't want a relationship, he said he was torn between saying, 'I just need to think up some more fantasies.'

PN458

So in conclusion we say that DP Dean engaged in House v The King errors by taking into account irrelevant matters and failing to consider relevant matters and most significantly, failing to consider and engage with the argument put by the university. If the decision of DP Dean is allowed to stand, it puts the university in almost an unworkable position.

PN459

It brings us back to that comment in J115, if, and Professor Morrison repeats, 'This type of conduct', whatever that might be, he ought to expect to be dismissed. In essence what DP Dean's requiring the university to do is to surveil Professor Morrison because it's clear that he doesn't think he would - you know, it's clear he doesn't dispose of these sorts of events himself.

PN460

So lastly, just before the luncheon break I'll deal shortly with permission to appeal. From these submissions it will be apparent to the Full Bench that this is a matter in which permission to appeal should be granted. The multiplicity of errors including significant errors of fact create a manifest injustice and somewhere that the appellant intervention is required.

PN461

Further, and we've said this in our submissions, our written submissions, there is really an error or jurisdiction in that DP Dean by reason of these failure to give reasons by reason of the failure really to engage with the statutory task that was required of her under section 397A engaged in the type of jurisdictional error that we saw and Coal and Allied at paragraph 31 of that decision.

PN462

Next, the decision is of course, inconsistent with the expressions that we've seen in C v Charles Sturt University, it's inconsistent with Thornhill (indistinct) and Thornby, so you've got three decisions that go one way that say that sexualised conduct with students is a breach of trust not only to the student but to the university so it's a point where a (indistinct) of intervention should come in to resolve that inconsistency and of course the decision itself is replete with failure to give reasons and that invokes the TechnologyOne problem that we've said.

PN463

Finally, of course, this is a matter of importance not only to ANU as to how it's to manage Professor Morrison in the face of the knowledge that he's engaged in sexualised conduct with students on more than one occasion but also for all tertiary institutions about whether it can (indistinct) they can discharge this duty of care to students and staff in the face of sexualised conduct.

PN464

They're our submissions and I'd just now briefly like to answer the Vice President's questions before I give up my seat. Right. Vice President Hatcher, you asked about what Professor Morrison's evidence was in relation to what I'll call (indistinct) email and his evidence in this is at AB1240 at paragraph 58.

PN465

Vice President, you asked about the shower invitation. The Relevant Student sys that Professor Morrison specifically invited her to shower with him and that's at AB1322. Professor Morrison in his second statement said - on the walk back from the beach he said, 'We both need a shower', but he didn't invite her to join him and that is at paragraph 37, AB1238.

PN466

And I'm going to deal with the issue about the credit findings, I've already taken you to that passage in TechnologyOne on which we rely but I will address you on how to deal with the credit findings after we hear from my learned friend.

PN467

VICE PRESIDENT HATCHER: All right. Ms Nomchong, in the event that we found that there were the significant errors of fact in the conclusion as to valid reason, what course should we then take? Do we then - do you ask the Full Bench then to redetermine the entire case itself or to remit to somebody or some other course?

PN468

MS NOMCHONG: No, your Honour. I think that this case has gone on long enough and of course the Relevant Student and the New Witness have no say in how these appeals are presented. We would invite the Full Bench to substitute its own decision. As I said at the beginning of my oral submissions, what we're inviting the Full Bench to do is set aside the findings of DP Dean in relation to a valid reason for dismissal and to make a finding that there was a valid reason for dismissal and also to make a finding that (indistinct).

PN469

VICE PRESIDENT HATCHER: Sorry, Ms Nomchong, that last sentence cut out. Can you repeat it?

PN470

MS NOMCHONG: We are inviting the Full Bench to dismiss - to set aside DP Dean's finding on valid reason for dismissal and substitute its own decision that there was a valid reason for dismissal. We are asking the Full Bench to set aside DP Dean's finding that the decision was not a harsh, unjust and unreasonable and substitute its own decision that the dismissal was not unfair in the statutory sense.

PN471

VICE PRESIDENT HATCHER: All right. Thank you. Well, is it convenient if we now take the luncheon adjournment and resume at 1.40 pm?

PN472

MS NOMCHONG: That's suitable to us, Thank you, Vice President.

PN473

MR BRENNAN: Yes. Thank you, Vice President.

PN474

VICE PRESIDENT HATCHER: All right. We'll now adjourn then.

LUNCHEON ADJOURNMENT [12.40 PM]

RESUMED [1.41 PM]

PN475

VICE PRESIDENT HATCHER: Mr Brennan?

PN476

MR BRENNAN: Thank you, Vice President. Can I deal with the matter in this way, firstly to address four questions, identify for you the primary facts as found by the Deputy President as to the dealings between the two students and Dr Morrison. Secondly, to deal with the question of the stand that the appellant review with respect of those primary facts.

PN477

Thirdly, to deal with what we say is the appellant's fundamental and erroneous elision between the concept drawn from the conflicts policy, that is of teaching, supervision or administrative roles on the one hand and the quite distinct concept of Dr Morrison having influence or authority with respect to the Relevant Student on the other. Put briefly, we say Dr Morrison always accepted that he had influence and authority with respect to the Relevant Student and the Deputy President proceeded and it's to be understood (indistinct) proceeded on that basis.

PN478

That's not an answer to whether there was a breach of policy which operated by reference to specific terms of teaching, supervision or administrative roles. Fourthly, to deal with the three other cases that the appellant relies on to say that there's some disharmony between this decision and other decisions of the Tribunal - of the Commission, at that point I'll deal with the question of permission to appeal.

PN479

So those are the four issues which need to be addressed in addressing permission to appeal on the facts of this case and if permission is granted you'll need to address each of the four issues in any event in dealing with the appeal. I'll then go on to deal with the two distinct cases as the Deputy President dealt with them, the breach of policy case that the appellant ran and then the separate case of that what was done was antithetical to the respondent's role as a senior academic at the university.

PN480

As I apprehend it, that then leaves on the valid reason question, the dishonesty case or I think as it was put this morning, failure to deal openly case and that's the valid reason case. I then need to deal with the question of reinstatement. So that's the way in which I would seek to deal with it.

PN481

Can I take you to the reasons for decision to deal with the primary facts firstly, and they are firstly at paragraphs 4 and 5. In paragraph 4 you'll see in the last three lines three facts found what has been described as sexually intimate conduct, that's not a finding that it was sexually intimate, it's a finding that's described as that, was that they kissed on two occasions. Secondly, the kissing was wholly consensual and thirdly, that the kissing was encouraged by the relevant student.

PN482

In paragraph 5 as you've observed, Vice President, there is then a credit finding noting at the outset that much that what happened was common ground but where there were differences in recollection the evidence of Dr Morrison was preferred. Express findings that he gave his evidence in a manner that was forthright and considered, I was left with the impression that his recall of the events was more accurate than that of the Relevant Student.

PN483

Pausing there, these hearings were heard over five days but you're incorrect, Vice President, to think that they were head by video conference, they were heard in person. The Deputy President had the distinct advantage in a case that turns very much on the nuance of dealing between really two people in a very difficult set of circumstances of observing them very closely.

PN484

There's no doubt just from reading of the transcript that the Relevant Student at various points found the giving of evidence very difficult. There's no doubt that the Deputy President was immensely assisted by two highly experienced and one might, if I might, with the benefit of standing apart from it, say perhaps very vigorous cross‑examiners. Dr Morrison was tested very closely. The Relevant Student was tested very closely and vigorously by counsel.

PN485

The primary fact finding then in large part occurs from paragraphs 13 to 34, most of which my learned friend or in fact all of which my learned friend did not go to except where she sought to point to error and so there are three findings in paragraph 13 that Dr Morrison was the coordinator of the Mathematics retreat at the Kioloa Campus and I can, having owned a holiday house there for 10 years, I can assure you that's the correct pronunciation, it's Kioloa.

PN486

The student was enrolled from June 27 - 2017 in the mathematics course and she was one of the students who attended the retreat. There's a finding of relevant ages at paragraph 14. The finding as to going to the beach at paragraph 15.

PN487

Importantly at 16, this is no generalised finding of credit, at 16 the Deputy President records Dr Morrison's evidence that he asked the Relevant Student whether she objected to him taking off his clothes and she did not object. Her evidence on the other hand, was that Dr Morrison did it - did not ask whether she consented to him swimming naked. 17:

PN488

Having listened to the evidence carefully I'm satisfied that Dr Morrison's evidence should be accepted.

PN489

So she's had the benefit of hearing them both and watching them both very closely. She has then reasoned as well by reference to how that evidence fit with the rest of what happened. It confirms by what happened immediately following.

PN490

VICE PRESIDENT HATCHER: Mr Brennan, I asked Ms Nomchong this earlier, was it accepted at first instance that the conduct that's being described in this part of the decision occurred in the course of the employment, that is, in effect, Professor Morrison was at work when this occurred?

PN491

MR BRENNAN: Yes. Yes.

PN492

VICE PRESIDENT HATCHER: Thank you.

PN493

MR BRENNAN: So he having taken off his clothes, the finding is:

PN494

The Relevant Student took off most of her clothes and entered the water in her underwear. She swam out to Dr Morrison and without being asked or encouraged, wrapped her legs around him and kissed him. He reciprocated.

PN495

Now, I don't need to take you to it but there was detailed cross‑examination of the student on this very question and she ultimately accepted those precise propositions. So he has got in the water, she accepted at that point, she felt that she could have left - simply left the beach but she did not, she got in the water, she swam to him, she wrapped her legs around him and she kissed him and he then reciprocated.

PN496

In paragraph 18 there's then the finding of what happens when they return to the beach:

PN497

They sat on a grassy area and continued to kiss.

PN498

The second sentence the student herself gave evidence she then took off the rest of her clothes. My learned friend put the finding in the next sentence or the evidence about the next sentence as being that Dr Morrison proposed oral sex, that's not - wasn't the evidence, evidence was he asked whether the student wanted oral sex. She said she did not and the matter was not pressed any further.

PN499

There was contested evidence as to the request for the discussion as to a shower that my learned friend referred to, going back from the beach. I'll give you in due course the detailed references to all the evidence in the event that you need to go to it by saying ultimately you won't go to it but if you do go to it (indistinct) because these are the findings that have been made on the basis of the Deputy President having actually watched and heard these people.

PN500

And you simply are not equipped by a review on the papers to come to conclusions on the detail of what happened and the law is clear that appellate tribunals are suffering from the natural disadvantages that you suffer from, are not asked to and are not authorized to engage in review of fact finding of this kind which is based upon the detailed observation of witnesses.

PN501

So there was contested evidence about whether it was simply Dr Morrison saying, 'Well, we're both sandy, we're both going to need a shower', or whether it was, 'Come back to my cabin and have a shower', it was uncontested that Dr Morrison's children were in his cabin, that that was known to the Relevant Student at the time and that it was an extraordinary proposition if indeed it had been proposed in that there may have been some slight suggestion of it in the student's statement in adversity that there was something sexualised in the suggestion to have a shower in a cabin where the children were present.

PN502

But ultimately the Deputy President dealt with that by making the findings she made at the top of page 7 of the judgment. They both left the beach and returned to their separate accommodation, in my submission, it's an appropriate finding to make where that's the nature of the evidence.

PN503

In paragraph 19 there's a finding that the interaction on the beach and in the water was for a total of 30 minutes. The second sentence, that physical contact was the only physical contact to ever occur between the two of them. Third sentence, unarguable, the contact was fairly described as intimate. Fourth sentence, importantly, there was no sexual activity.

PN504

And then paragraph 20, there are two findings, not only that the conduct was consensual but that it was instigated by the Relevant Student. So - and that's the contact both in the water and on the grassy area.

PN505

21, the first sentence is important, because part of the student's complaint and the findings of Dr White in the termination were that Dr Morrison had sought some form of sexual relationship with the student and that what happened on the beach was by way of planning and design, by reason of things that had gone before. The first sentence of 21 is a rejection of that part of the complaint. There was no close or personal relationship.

PN506

22 I'll need to return to when I deal with the elision, as I put it, but there's no challenge to the findings of primary fact that by 15 November all grading of the students enrolled in Dr Morrison's course had been completed, including him having marked and returned to students their final exam.

PN507

That is important as a part of the answer to the question that you asked my learned friend, Vice President. The student knew the mark she received from Dr Morrison. He had returned all of the work to her with markings by the time of the retreat.

PN508

There's no question, and there was cross‑examination on it; I can take you to it if needs be, that the student knew the only possibility of any change was if there was going to be some form of scaling after this point. She knew the marks.

PN509

Objectively, whilst she might not have known the rest, as in the finding, again not challenged, Dr Morrison had signed and submitted the final grade sheets for each student, and so then there's the finding which is challenged, that Dr Morrison did not have a teaching, supervision or administrative role with respect to the Relevant Student except insofar as he was one of the retreat.

PN510

We say that finding is unambiguously correct. That does not mean that it is not a finding that he did not have authority influence with respect to the class student, and with respect to the student as a potential young mathematician or other professional academic.

PN511

At paragraph 24 is the reference to the findings as to the conversation that occurred on the Thursday that my learned friend went to, again, highly contested, very closely cross‑examined on by both protagonists. The findings are that what Dr Morrison said was a good person and attractive in many ways, but his relationship with his wife was more important, a finding that he told the student, 'I don't think this' - that is a reference to what had occurred at the beach - 'is a good idea', and a finding that during that conversation the student asked him not to tell anyone about what had happened.

PN512

They are all very specific findings as to what occurred in that conversation, and the appellant simply ignores those findings in saying to you that there is misconduct in this conversation by the causing of confusion. There are clear findings of what was said.

PN513

As I go through it you'll see the complainant's case was in the series of conversations on the 23rd, on the Thursday, at Kioloa, 25th back in Canberra, on the Saturday, and then in January, at the end of January, at the university, that what Dr Morrison was seeking was continuation of the sexual relationship while the student was resisting it. That was the student's complaint.

PN514

You'll see the findings are the opposite was the case. The student was, in these conversations, seeking a sexual relationship and Dr Morrison was seeking to do two things. One was to say, 'That's not on', but, secondly, seeking to cease personal but not professional conduct. That's what these conversations are about, and that's the effect of the findings.

PN515

So at 25, the first three words are a rejection of the student's case and an acceptance of Dr Morrison's case that the conversation was at the student's request. It was common ground they met on O'Connor Ridge on 25 November, then you'll see in the second and third sentences what the effect of Dr Morrison's evidence was, that the Relevant Student expressed an interest in an ongoing relationship.

PN516

Dr Morrison said it was apparent she was more interested in pursuing a relationship than he had anticipated and he was concerned not to hurt her feelings. For this reason, he may not have been as clear as he should have been with her that he did not want to be in a relationship with her.

PN517

So the acceptance by him that what he's seeking to do - his evidence is to the effect he's seeking to say, 'This can't happen', 'this' being a sexual or romantic relationship, but he also accepts that he might not have been as clear as he should have been in this conversation.

PN518

26, first sentence, a correct finding that the student denied saying she wanted to pursue a relationship. So again, the Deputy President is dealing with a direct conflict of oral testimony and she makes the finding it's more likely than not the Relevant Student did express an interest in an ongoing relationship with Dr Morrison, given that on several occasions she would call Dr Morrison and make efforts to meet him. 'I find that she was in fact keep to pursue a relationship with him.'

PN519

The Deputy President has been a little restrained in the making of that finding. Could I take you to appeal book page 210 and you will see PN1976. This is a question concerning the conversation that occurred on 25 November:

PN520

Would you agree with me you wanted a relationship with him, a romantic relationship with him, at this point in time?‑‑‑So at that point in time, yes.

PN521

This is not a member of the Commission engaged in some frolic. The Deputy President heard from the Relevant Student for almost a full day. She heard from Dr Morrison for almost a full day, split over two days, and she's made the finding that she has.

PN522

27 is the start of the findings about what my learned friend says is the involvement of the wife.

PN523

VICE PRESIDENT HATCHER: Mr Brennan, before we leave that page, the proposition that's put at PN1978 ‑ ‑ ‑

PN524

MR BRENNAN: Yes, Deputy President?

PN525

VICE PRESIDENT HATCHER: Was there ever an answer to that question?

PN526

MR BRENNAN: There was, and so it remained firmly denied by the Relevant Student.

PN527

VICE PRESIDENT HATCHER: Right.

PN528

MR BRENNAN: That was Dr Morrison's evidence, denied by the student. There's no specific finding on it, so the only finding is the generalised credit finding at 5. Ultimately - it's partly why I'm going into some detail through the judgment. I don't seek to rely upon that fact, notwithstanding that's what Dr Morrison said, as being the fact found, notwithstanding the terms of 5.

PN529

VICE PRESIDENT HATCHER: Thank you.

PN530

MR BRENNAN: Returning to the judgment at paragraph 27, so about two weeks after the discussion at O'Connor Ridge there's a series of phone calls from the student to Dr Morrison's mobile phone which he does not pick up.

PN531

She then sends him a text message. She has important information to tell him, and that's the finding in the third sentence. Again, that was well supported by the detailed cross‑examination on the question and indeed by the evidence‑in‑chief from Dr Morrison.

PN532

Dr Morrison replied by text he did not wish to speak with her, but if she wanted to pass on information she could do so through his wife. So this was not an invitation to the Relevant Student to deal with the wife on any matter, it was an assertion by the Relevant Student, it would seem, rather incredible at the time, that she had important information to pass on, and Dr Morrison saying, 'Well, if you've got important information to pass on, give it to my wife', and he gave the Relevant Student the wife's mobile number by text.

PN533

VICE PRESIDENT HATCHER: So were these text messages in evidence? I thought Dr Morrison had lost his phone or (indistinct) his phone or something.

PN534

MR BRENNAN: I think the answer is one of them might have been, because there was a screenshot, but otherwise, no, they weren't. So the evidence was secondary, but it was not contentious that an exchange to that effect had occurred.

PN535

VICE PRESIDENT HATCHER: So the student didn't have the messages either.

PN536

MR BRENNAN: No, but what did then occur was the student then called Dr Morrison's wife. There was some cross‑examination on that, and the student's explanation for why she called was that it was impulsive and she was emotional and she couldn't really explain.

PN537

There was a dispute as to whether the conversation then found occurred, but it's found that the student then said to the wife that she had a special connection with Dr Morrison.

PN538

What's clear from the whole of the detailed cross‑examination, there was certainly no special information to be passed on. The conversation to be had was a conversation about the student's desire to have a relationship with Dr Morrison, and you'll see what the Deputy President says of that in the second two sentences of 28.

PN539

In 30 there's then the finding that the Relevant Student continued to contact Dr Morrison after 9 December 2017. At her request he agreed to meet her on 31 January. These findings of primary fact I'm about to go to are important in assessing the appellant's submissions that nothing was done to seek to establish professional boundaries - and I recognise my learned friend attacks the findings at 30, but I'll come to that.

PN540

Firstly, express finding, Dr Morrison apologised to the student for his lapse in judgment. So there's an apology. Very important in establishing proper boundaries.

PN541

Secondly, he suggests it would be best if they did not have further personal contact, a finding of continuing the conduct of seeking to put in place proper boundaries, and that he wanted things to return to how they had been before the interaction. He told her he did not want her to be uncomfortable. Then an express finding of, 'The Relevant Student denied that Dr Morrison ever apologised, but I prefer the evidence of Dr Morrison on that question.'

PN542

That set of findings is attacked by my learned friend this morning by reference to appeal book page 98. My learned friend referred you, Deputy President, to the - or said to you in answer to a question about PN737 that the reference to making things work and to liking to see her occasionally was a reference to seeking a romantic or sexual relationship.

PN543

That, with respect, is simply untenable when you read the answers to 739, 740 and 741, and I've already shown you the answer that the student gave as to seeking a romantic relationship.

PN544

So when I come to address you on the question of the standard of appellate review, what my learned friend has put to you on this paragraph is emblematic of why appellate tribunals do not engage with findings of this kind unless it meets the standard of being so implausible as to be required to be rejected.

PN545

31, so there's continuing findings as to what happened in the meeting on 31 January, that the relevant student wanted to understand better what had happened. He replied he found her attractive and she was a great person, and him not wanting to pursue a relationship with her was not a rejection of her, a finding which you must reject if you are to find, as my learned friend suggests, that this was a conversation which was not seeking to put in place professional boundaries. He said to her his priorities lay with his wife and family.

PN546

Importantly then, a further finding the relevant student again reiterated she did not want anyone to know what had happened between them, and Dr Morrison responded he too wanted to keep the matter private.

PN547

32 and 33 are about the quantum mathematics seminars. So they're, I think, fortnightly or monthly seminars, organised by Dr Morrison, to which academics and students were invited. Usually academics presented, sometimes students.

PN548

33, the first sentence is correct. The Relevant Student sometimes attended them. As part of reinstating appropriate professional boundaries, the finding is Dr Morrison was careful to ask the relevant student in this conversation of 31 January whether she wanted to continue to receive emails from him inviting her to those seminars. She said she did, and she continued to be invited and she continued on occasions to attend.

PN549

Then in 34, the first sentence, 'The Relevant Student completed her studies at the ANU around June 2018.' That finding is of some importance when it comes to the 'keep away' email that I'll deal with in due course, because on no view was this person a student at that time. She was at that time a research assistant in the linguistics department and a junior academic as a tutor in the mathematical sciences institute.

PN550

But we don't take any point that she's not a student, therefore there was no relevant relationship. We accept that even at that point, Dr Morrison, as a senior academic and as an acknowledged expert in the research field, continued to have some degree of influence and authority with respect to her career and so there remains some duties as to appropriate conduct, but the appellant does gloss over the dealing with the 'stay away' email, the fact that on no view was the so‑called Relevant Student a student at all at that point. She wasn't enrolled in anything.

PN551

There are then findings of primary fact with respect to the New Witness from 39 to 44 of the judgment. 40 is uncontentious. The only connection with the ANU was that the student was enrolled in a completely different part of the ANU, had nothing to do with Dr Morrison or his field of academic endeavour. I think she was an arts student and he was a mathematician.

PN552

They met through the scuba club. At 41, Dr Morrison and another male professor went on a canyoning trip together. There's then set out an extract from the witness statement of Dr Schwich, the other male professor. He wasn't cross‑examined on that statement at all, so the Deputy President's acceptance of it is unsurprising.

PN553

You'll see what he says in the second sentence of his paragraph 13. He did not recall anything unusual about the way in which Scott prepared for the swim or got in the water, and he goes on to talk about nude swimming.

PN554

Could I just make this general observation before going further. This was a canyoning trip in the middle of summer to a very cold river, where the evidence was they walked in for two and a half hours to the canyon. They then did canyoning - and I don't quite understand what that is, but it seems to involve rappelling off ropes down cliffs into water. So they're all at that point wearing wetsuits and engaged in very strenuous physical activity, which includes immersing themselves in very cold water.

PN555

They finish that just before lunch and they walk just down the river about 100 metres to a swimming hole, at which point the evidence was that both of the men wearing wetsuits take off their wetsuits and get in the water.

PN556

There was a dispute about where people were positioned, but I think there was no dispute about these propositions. First of all, if you go in a group of adults for a full day to a remote part of Australia it is very likely that each of them at some point is going to take off their pants, and it is very likely that's not going to occur in a toilet. That's just a biological fact.

PN557

There was ample evidence that it was an accepted practice in bushwalking and other activities in remote regions when an opportunity for a swim arose to take the opportunity without wearing clothes, and so one of the pieces of evidence was a commercial bushwalking organisation's manual, which said, 'We will come across rivers, there will be opportunities for swims, and being in remote areas, it is likely that some of the walkers will do so without wearing clothes.'

PN558

There was nothing to suggest that it was something unusual for either of the men to do what they did, and the evidence that was accepted by the Deputy President is that which is set out at paragraph 13 of Professor Schwich's statement.

PN559

I can also say, and I don't think I need to take you to it, there was an enormous amount of detailed evidence as to where the different people were, and that was all contested.

PN560

My learned friend has taken you to the New Witness's statement, that the undressing occurred in front of her. That was all contested and it's not found as having occurred, but there's no doubt - I'm sorry, and the other is that it was clear beyond question that while participating in scuba club events, all of these people saw each other in various stages of undress when on boats, which makes sense.

PN561

So ultimately, we say, if I could draw your attention to the findings that are made, and at 14 of Dr Schwich's statement, in the first sentence, 15, the first sentence - and I can add to that, and I don't think it's contentious, from what my learned friend said this morning.

PN562

So the evidence, including the New Witness, was to the effect that Dr Morrison was wearing a wetsuit, was probably not wearing anything under the wetsuit. He took off his wetsuit, he got in, had a swim, he got out and he then ate some cheese and biscuits for 10 to 15 minutes and then got dressed and walked out.

PN563

16, there are the findings of each of the individuals seeing each other in stages of undress as part of the scuba club, and then 17, that any time spent undressed would have not been long, because there was the long hike out to occur.

PN564

19, there's an important finding. There was no shock expressed, and indeed continued rollicking engagements between these individuals about further possible adventures.

PN565

42 of the judgment is a finding that there are differences of recollection and an express preference of Dr Schwich's evidence, he being independent, and his evidence closely matching that of Dr Morrison, and as I say, while both the New Witness and Dr Morrison were cross‑examined closely, Dr Schwich wasn't cross‑examined at all.

PN566

Then 43, there is a finding of housesitting, then a finding of an expression of romantic interest. That's done by Facebook Messenger. Then a finding after that that the New Student had dinner at his house with his family. Cross‑examined on that. There was the express option of - was she was to house‑sit again, and there was the option of, 'Just come and pick up the keys.' 'No, I'll come and have dinner.'

PN567

Then later the New Student advised Dr Morrison she was not interested in him in a romantic way and only wanted to be friends. His response was that he had a bit of a crush on her but he would cancel that line of thought. Then the finding, 'There is no suggestion he tried to pressure or coerce her in any way to become involved with him after that time.'

PN568

While this is taken a little out of order, can I just say this. With respect to the findings of nudity, there is no suggestion of anything sexualised. There is no suggestion of anything intimate. All it is, is people in a remote river going for a swim, where two of them have wetsuits, without swimmers on, and they have the swim, they take the wetsuits off.

PN569

That is a completely different circumstance from what happened on the beach at Kioloa, and the suggestion that there is some rational inference to be drawn by way of tendency evidence is in my submission ludicrous, but in any event, you don't need to get there, because it certainly won't satisfy any test of appellate review.

PN570

Continuing then with the findings of primary fact, I say that at 60 is important, and what's important is simply the finding of the express acknowledgement of poor handling, and in the middle of that expressed acknowledgement on page 14 of the judgment:

PN571

I am acutely aware that my foolishness in allowing anything to happen directly that lead to the emotional distress she experienced and I am deeply regretful for this.

PN572

Then at 84 to 96 are the remainder of the findings of primary fact. The first sentence of 84 is important. It's an express rejection of the case my learned friend put to you, that there was something planned about getting a student onto the beach. The interaction was not premeditated. Then you will see what's said in the second sentence. Given the findings I've already taken you to, it must correct. The rest of 84 was well supported by the cross‑examination.

PN573

85, it might be said the first sentence is an inference rather than a finding of primary fact, but even if so, it is an inference well drawn. The student made a conscious decision to follow Dr Morrison into the water, no doubt to make contact with him. She was on the beach, he was in the water. She accepted she could have at that point simply left the beach.

PN574

It might be of assistance to - it emerges a little in the evidence. The beach is a small, relatively isolated beach, but it's got a track about 150 metres from the ANU campus to the beach which tracks through bush. It's not a long walk. There is no prospect of finding anyone on it other than from the ANU campus. The student repeatedly accepted that she could have simply left the beach. She didn't. She got in the water.

PN575

VICE PRESIDENT HATCHER: What is that inference actually based on?

PN576

MR BRENNAN: Which inference, Deputy President?

PN577

VICE PRESIDENT HATCHER: 'No doubt to make some contact with him.' 'No doubt'.

PN578

MR BRENNAN: That she got in the water when he was in there, knowing him not to be wearing clothes.

PN579

VICE PRESIDENT HATCHER: Yes.

PN580

MR BRENNAN: And she swam up to him. What else was she doing? So she accepted she swam up to him. She placed her legs around him. There can be no doubt by the time she has swum up to him and placed her legs around him that her purpose at that point is to make contact with him.

PN581

VICE PRESIDENT HATCHER: Speaking frankly, the problem I have with this is that you've accepted that this is all happening in the course of employment. Regardless of what her intentions or her desires were, the fact is that a professor took a student down to the beach, alone, in the middle of the night, took his clothes off and swam with her. I mean, that's not in dispute, is it?

PN582

MR BRENNAN: It depends upon what you mean by took her down to the beach, but I accept ‑ ‑ ‑

PN583

VICE PRESIDENT HATCHER: Invited her down.

PN584

MR BRENNAN: Invited her and a group of other students down and she was the only one who accepted, and he proceeded to the beach with her.

PN585

VICE PRESIDENT HATCHER: Even if you stop at that point, at the point where she's the only person who accepted, wasn't the right thing to do to say no because of the very situation you might end up in, this compromising situation? I mean, again, this was not out of hours conduct, this is conduct during a work function or organisation.

PN586

MR BRENNAN: The answer to that, Vice President, is this, that undoubtedly the more prudent course would have been to say no, firstly. The question for the Deputy President was whether the failure to say no was misconduct of a kind constituting a valid reason for termination.

PN587

VICE PRESIDENT HATCHER: That's one step in the factual process. For example, the next step is whether she gave permission or not, he's effectively at work, he's alone with a young female student and he takes his clothes off. Leaving aside the question of whether he asked permission or not, how is that appropriate workplace behaviour?

PN588

MR BRENNAN: We don't seek to say that it is appropriate, but we do say it is not such as to constitute a valid reason for termination, and the Deputy President didn't find it was appropriate.

PN589

VICE PRESIDENT HATCHER: The question of valid reason is ultimately a factual inference drawn from the primary facts.

PN590

MR BRENNAN: Yes.

PN591

VICE PRESIDENT HATCHER: Aren't we in as good a position as the Deputy President, based on her own factual findings, to draw that inference, or to draw a different inference?

PN592

MR BRENNAN: Yes. Yes, and so if on the basis of - I cannot gainsay the proposition that if you proceed on the basis of these primary facts that I'm taking you to and you find they constitute or some part of them constituted a valid reason, then I lose. I accept that.

PN593

VICE PRESIDENT HATCHER: All right, thank you.

PN594

MR BRENNAN: At 86, the first sentence is a repetition, really, or part of support for the finding in the first sentence in 84, and then the next sentence in 86, 'There is nothing in his behaviour which would have in some way made it difficult for the Relevant Student to leave the beach.'

PN595

That all then supports the findings in 87. No doubt in the Deputy President's mind that the interaction was fully consensual. 'The Relevant Student was a woman in her early twenties. There is no basis to doubt that she knew what she was doing.'

PN596

88, there's an express rejection of the Relevant Student's evidence that she was shocked when Dr Morrison stripped naked and that she felt uncomfortable, and there's reasons given for that.

PN597

89, 'Part of the reason' - so it's not a finding that this is the only reason. 'Part of the reason Dr Morrison didn't disclose the interaction to the ANU was because of the request by the Relevant Student not to tell anyone what had occurred.'

PN598

Then my learned friend has taken you to the findings of primary fact concerning the events after the retreat at 90 to 93. Can I just say these things about the findings at 90. The first is you'll see the conclusion in the third sentence of 90. 'While his poor judgment might have resulted in some disciplinary action, it was not a valid reason for his dismissal.'

PN599

That belies or denies the appellant's opening proposition, by reference to paragraph 115, that the Deputy President found that everything that Dr Morrison had done was okay. She was well alive to there was a case for discipline that arose from these events. She so found. The question was, was it such as to amount to a valid reason for termination?

PN600

The complaint by my learned friend that the finding in the first sentence of 90 is somehow or other simply a wrapped up conclusion without reasons, fails to take account of the detailed findings I've already taken you to in 27 and 28.

PN601

Importantly, the Deputy President, in the first sentence, is alive to the real issue. So the real issue for the post‑beach conduct, given that this man did have significant influence and authority with respect to this student, was had he exploited that position in some way, finding no evidence that he had done so, and to the opposite, he had attempted to ensure he did not in any way exploit the position.

PN602

In 91 the finding is that he took some steps to establish a professional relationship. The example given at the retreat is not the full extent of that finding and my learned friend's submissions on that question would be readily rejected.

PN603

There's then the reference to the 31 January meeting, where the Deputy President has made detailed earlier findings as to what happened at that meeting, so the conclusion that that meeting was for the purposes of re‑establishing professional boundaries in my submission was well supported by the findings which she had earlier made.

PN604

92, 'The unwillingness to engage in a relationship with her upset her, culminating in her complaint to the university some 18 months after the interaction', well supported by the findings and evidence that she was seeking a relationship through this series of discussions and that he had rejected the proposition of the relationship.

PN605

Then 93, ultimately, I think, is a question of inference, a question of construction of the email in its context, and I'll come to that and deal with that.

PN606

Then the primary findings at 94 to 96 on the New Witness, again, I say, are unimpeachable.

PN607

The standard that is applied by appellate tribunals, those findings that I've taken you to, and I'll come to other findings, is set down by High Court authority, first in Fox v Percy. That's at tab 15 of my authorities, and the relevant paragraph is paragraph 23 - sorry, tab 18 of the authorities.

PN608

This is an appeal by way of rehearing if leave is granted, and you'll see that at the bottom of the page there the plurality says:

PN609

On the other hand, it must, of necessity, observe the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record -

PN610

which is your position:

PN611

These limitations include the disadvantage the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility -

PN612

and as importantly, the feeling of the case, which you cannot fully share from reading the transcript.

PN613

Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial.

PN614

That's certainly the case here:

PN615

Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

PN616

This is a hearing that ran over five days. The Deputy President reserved for nine months. She had those opportunities. They're opportunities which are denied to each of you. So they are the reasons why there is restraint exercised in these cases, and the rule of restraint is the rules articulated by the court in Robinson Helicopters v McDermott, which is in my authorities at tab 31.

PN617

If I go to paragraph 43, and you will see at line 44 and over to the next page:

PN618

A court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by incontrovertible facts or uncontested testimony or they are glaringly improbable or contrary to compelling inferences.

PN619

So they're the tests, and of course when my learned friend says to you, 'Well, if you find error, we'd ask that you remake the findings of fact', it highlights the invidious position you are placed in unless you observe those constraints as articulated by the High Court, because then you are left having to find the primary facts, knowing that there has been days and days of cross‑examination, knowing you haven't had the benefit of that, knowing that you haven't been taken to the full record, but being left to do the best that you can by going to snippets of transcript.

PN620

It's because of that position, one of the reasons, why the restraint articulated by the court in Robinson Helicopters is the law, because otherwise appellate tribunals are placed in an impossible position. You find error and then you're left with, 'Well, what do we do?' and you end up having either arbitrary decisions being made or an enormous number of cases on appeal being remitted, neither of which is desirable.

PN621

So we say you will err if you depart from any of those primary findings that I've just taken you to, and what is necessary for the appellant to succeed is to show either error against one of those tests articulated in Robinson Helicopters or to show that an inference drawn from the facts as found by the Deputy President is wrong, in the sense that you would draw a different inference.

PN622

As to the first of those, we say the appellant has not sought to engage at that standard with any of its attacks on the findings, and so you do not need to go to the underlying evidence. Rather, you are obliged to proceed on the basis that each of the findings as made is the fact, and then to proceed to ask yourself whether the inferences drawn from those facts are correct or incorrect.

PN623

Can I then go to the third issue that I indicated I would address, which is the elision in between teaching, supervision and administrative roles with the question of influence and authority.

PN624

Could I start by taking you back to what my learned friend has already shown you at appeal book page 64, the cross‑examination of Dr Morrison commencing at PN366, and then she took you also to 379 at page 66, to 386, 387 and 388, 400, 401 and 402.

PN625

The proposition I seek to draw from those is the simple one that the whole proceeding below was conducted on the basis, as Professor Morrison readily acknowledged in those answers, he had influence and authority in respect of this student.

PN626

He was one of the country's leading academic mathematicians. She was studying as an honours student in maths, and one of her possible career paths was as an academic mathematician. It's a small community in Australia, and indeed not a particularly big community in the world. Of course he had influence and authority with respect to her future career. No one contended otherwise.

PN627

In contrast, if I could take you to the judgment at paragraph 22 - perhaps if I commence with the judgment at paragraph 10, where the Deputy President sets out the relevant provisions of the conflict policy. You will see at paragraph 22 of the policy the substantive guidance as to conduct. What the staff member should do if there is a close personal relationship is not be ‑ ‑ ‑

PN628

VICE PRESIDENT HATCHER: Sorry, can you give me the page reference again?

PN629

MR BRENNAN: It's page 3 of the judgment in the appeal book.

PN630

VICE PRESIDENT HATCHER: I thought you were referring to the policy.

PN631

MR BRENNAN: Yes. The Deputy President sets out all the relevant provisions, so I was taking you to it in the judgment.

PN632

VICE PRESIDENT HATCHER: I see, yes.

PN633

MR BRENNAN: So it's in paragraph 10 of the judgment, which is page 3 of the appeal book.

PN634

VICE PRESIDENT HATCHER: All right, thank you.

PN635

MR BRENNAN: Paragraph 22. So it's quite specific guidance. So if there exists a close personal relationship, the staff member should not be involved in the supervision, progress, assessment, examination or grading of students.

PN636

So that's the guidance for what staff members should not do if a close personal relationship exists, and of course it's put in those rather practical and sensible terms because 'close personal relationship', as my learned friend took you to, is a very broad term. It includes parent-child, it includes spouses, siblings, sexual partners, estranged sexual partners.

PN637

The evidence in this case was the student's father is a most eminent quantitative economist employed by the ANU. The fact he's her father means he's got a close personal relationship. The fact he's a quantitative economist and she's doing honours in pure maths and indeed in modelling, infractibles, means there's a possibility she may apply to his department to do a PhD.

PN638

None of that enlivens any obligation on the father at that point in time to do anything under paragraph 22. If she does apply to his department, he'll need to ensure he's not involved in the things listed in 22.

PN639

Then in 23 you'll see that:

PN640

Where a staff member is involved in a course that includes the student with whom they have a close personal relationship with and the staff member or student's involvement in the course is unavoidable, steps to redress the conflict may include -

PN641

- having someone else set an assessment, having someone else do the ranking, and then the third dot point -

PN642

In the case of graduate students, staff should not be involved in the supervision, assessment or examination of a student who is in a close personal relationship.

PN643

It's in the context of that policy but also the broader case being run that the Deputy President turns at 22 to address a particular question of fact, and the finding that she makes is that as at the date of the retreat, there was no teaching, supervision or administrative role.

PN644

We say of that finding, with the appropriate caveat, it's simply correct. It doesn't say, 'And therefore he did not have influence and authority with respect to this student - qua(?) student, or this student, qua young professional.'

PN645

That becomes perhaps a little clearer at J87, which is the counterpart finding - sorry, 79. So the detailed findings at 79, it's held before the end of semester, he's no longer involved in her supervision, assessment, et cetera. So referring back to the terms of the policy, because she's making findings at this stage on the case alleging breach a policy:

PN646

He did not make any attempt to change her grades after the interaction, noting it would have been difficult for him to do so in any event. Further, while it might have been theoretically possible for him to have a supervisory role in relation to the Relevant Student had she enrolled in a subject he taught after the retreat, this did not happen.

PN647

On the terms of the policy, that finding is correct and is conclusive of there was no breach of the obligation articulated in the policy to not be involved in those things. The policy did not say staff and students cannot have intimate contact, and of course it could not say that, probably could not say that at any university.

PN648

Certainly one of the size of the ANU, in a city the size of Canberra, there are numerous academics who are married to students at the university. It would be ludicrous for a policy to say there cannot be intimate contact.

PN649

That's not to suggest there mightn't be a much more difficult question to be asked on the broader incompatibility case, but there is no case under the conflicts policy which says the fact of intimate relationship or close personal relationship is enough to establish breach.

PN650

To the contrary, the policy expressly acknowledges that close personal relationships will exist and will properly exist between students and staff. So it's in that context that we say the decisions of the Commission that the ANU relies on are simply distinguishable on the facts.

PN651

If I could take you firstly to the decision in Farnhill, which is in my authorities at tab 16. You'll see at paragraph 54 of the decision, one of the points of distinction in that case is that there was a policy which expressly provided that:

PN652

A professional relationship may be compromised if we attend parties or socialise with students or invite a student or students to our home, particularly if no one else is present.

PN653

That's what occurred in this case. At 56, there was also, as part of the employment contract, an obligation - no, I don't need to take you to 56. 57 my learned friend took you to this morning.

PN654

At paragraph 60 you'll see that one of the intriguing aspects of the case was that the employer had asked - so what had happened was Mr Farnhill was out drinking a very large amount of alcohol with a number of students until - some would say early, some would say reasonably late in the morning.

PN655

It would seem from the report Mr Farnhill and perhaps the student were gay, but in any event, Mr Farnhill and a male student, Mr Plumb, were seen getting into a taxi and going home to Mr Farnhill's home. Mr Farnhill was asked the next day was there any reason for it, and he indicated that there was not and that it was just silliness on his part.

PN656

But then in the Commission he ran a case that in fact Mr Plumb was diabetic, had been denied access to, I think, the medicine that he needed - in any event, was at significant risk because of his diabetes and the amount they'd been drinking that night, and he had been locked out of his home, and so taking Mr Plumb home that night was for the purposes of looking after Mr Plumb's health.

PN657

That was the basis upon which issue was joined, and you see that at 60 to 61 and then 63. So that it's both the failure to maintain a professional relationship and the absence of any explanation which leads to the finding of valid reason in that case.

PN658

If I then go to Formby, commencing at paragraph 102, and say - before going there, again, the facts of this case were very difficult. The complainant was a student and a research assistant, and her complaint was that on one occasion she had been raped by Dr Formby. Dr Formby denied that and said rather, on that occasion he had been seduced by her while they were at a remote farmhouse owned by him.

PN659

The Commission ultimately found it could not, to the relevant standard of satisfaction, be satisfied as to the allegation of rape, but the Commission went on to say, well, accepting then what Dr Formby says about the occasion which the student says was a rape, that this student has seduced him and had sexual intercourse with him because she is absolutely fixated on him, then what followed later, which was firstly taking the student to further isolated camping trips, but, most importantly, then accepting the role of being her honours thesis supervisor, was wholly incompatible with his duties as academic.

PN660

If I just give you the references. It's paragraph 102, 105, 111, 113, 118, 119 and 120. We draw two things from Formby. Firstly, in response to the proposition that you put to me, Vice President, the fact of sexual intercourse between Dr Formby and his research assistant was not sufficient to constitute misconduct.

PN661

I accept it was an out of hours case, in the sense of they had gone, albeit for a work‑related purpose, to a farmhouse, it appears, on the weekend. So there's a point of distinction there, but nevertheless, the mere fact of intimacy between a consenting adult student and an academic is not sufficient to constitute a valid reason.

PN662

Secondly, that what Dr Formby was ultimately found validly dismissed for was his failure to take steps to seek to limit the contact with the student following what he said was the occasion of inappropriate sexual contact.

PN663

My learned friend's already taken you to Charles Sturt University. Can I indicate the relevant paragraphs we would rely on. Paragraph 77 is the ultimate finding, which picks up and operates by reference to paragraph 8, allegations 1 to 4, and paragraph 27.

PN664

The finding of misconduct is a finding of sexual assault, that is, kissing without consent, and then when the student runs away and says, 'Stop it', the academic chases her and grabs her and seeks to kiss her again, a completely different proposition.

PN665

Can I indicate that I've received some instructions, as these things happen in this age, by WhatsApp to withdraw the concession that what occurred was in the course of employment. We accept that the Kioloa retreat was in the course of employment and Dr Morrison was the organiser of that retreat.

PN666

The evidence was clear that the events for the retreat had finished for the night at the point when he invited the group of students down to the beach, and we say that what occurred then at the beach was much like what would occur had they been in Canberra, where a workshop was being run in Canberra, the event finished and they'd gone off home. It is out of work, albeit it arises in the context of being at Kioloa, is the submission.

PN667

VICE PRESIDENT HATCHER: Sorry, was the concession ever made at first instance, or was this issue discussed at first instance?

PN668

MR BRENNAN: No, it wasn't, Vice President. It was simply run on the basis that these were the facts and Dr Morrison said it didn't get to being a valid reason.

PN669

So dealing with the question of permission to appeal, our case is this; that this is not an appropriate case for permission to be granted, because you must proceed on the basis of the primary case as found. There has been no attack made which articulates a legally acceptable standard of appellate review of any of those primary facts. And each of the attacks which is made is predicated on the proposition that one or more of those primary facts is wrongly found. That's just not an appropriate vehicle to - there are - we have to accept thee are some difficult and complex questions of where you draw the line and who (indistinct) between - in intimate contact between adult - young adult students and academics in tertiary institutions.

PN670

Ultimately, much of that must be the institutions responsibility by way of policy. Some of it might be for the Commission to do, but ultimately we say this is not an appropriate case unless the appellant can identify for you a set of inferences which it says are wrongly drawn, accepting all of the primary facts as found. By primary facts, I mean, those I've taken you to already as being primary facts subject to the Fox v Percy restraint. And the appellant has failed to do that. And if the appellant continues to fail to do that, then there is just no proper vehicle to start to address the rather more difficult questions that arise once you get to what's the standard of conduct and what the inference is to be drawn by reference to that standard.

PN671

Can I then on the assumption that the permission is nevertheless granted deal with first of all the way that the Deputy President dealt with the matter? It's rather important. You will see the judgment at paragraph 3 she expressly records that she hasn't sought to record all of her reasons. The ANU has written closing submissions of 45 pages. There is no need for anyone, any judicial officer to make a finding with respect to everything that's put in 45 pages and the Deputy President has recorded that she wasn't seeking to do so.

PN672

As I heard my learned friend Ms Nomchong this morning, she was not pursuing Ms Raper's earlier case that there was a failure to press the second case of the fundamental failure to exercise appropriate judgment (indistinct) academic. If that is pressed, paragraph 6 is proof that it's incorrect. The Deputy President well understood that the ANU had terminated for the reason that there had been a breach of policy. Ms White's termination letter (indistinct) that effect. But the ANU in defending valid reason in two cases; one was breach of policy and in the alternative, fundamental failure to exercise appropriate judgment as a senior academic and that's recorded at 6.

PN673

At paragraph 45 to 62, the Deputy President summarised, we say accurately albeit pithily the ANU's case and Dr Morrison's case. And the ANU doesn't point to any aspect of that to say, 'Well, there's been a fundamental misunderstanding of our case.' The question of reasons is dealt with much more at the - well, there isn't a particular - when we said that he was in a position of influence and authority (indistinct) research coordinator, she didn't specifically find that he was the higher degree research coordinator, but not his authority - we say more or less necessary - she proceeded on the basis that there was influence and authority and she made her findings on that basis.

PN674

And she well and truly understood, for example, paragraph 52 that one of the ways in which the influence arose is that the student was a potential PhD student. Potentially (indistinct) or potentially another university. It didn't really matter because Dr Morrison might well have (indistinct) either way.

PN675

Paragraph 63 to 68, the Deputy President set out the principles for assessing the unfair dismissal application. There is no criticism of any of that. Then at paragraph 74 she deals with the question of valid reason and again correctly identifies that the onus was on the ANU to prove the existence of misconduct upon which it relied to demonstrate the valid reason. At 75 and 76, she returns to the two separate bases upon which the ANU put it's case. She well and truly understood those two separate bases.

PN676

And then having dealt with those two separate bases at 101 to 105, she deals with questions that are really of no moment on the appeal. And then she deals with the question of - her conclusion at 114 and deals with remedy.

PN677

So could I go firstly then to the breach of policy case, which was a case the ANU ran and needed to be dealt with. So the Deputy President sets out the policies - the relevant terms of the polices at paragraphs 8 to 12. Sorry, paragraphs 8 to - yes, 8 to 12. And my learned friend makes no criticism of any of that. She well understood the case.

PN678

Having set out those policies, she went to the primary facts that I've taken you to at paragraph 13 and following, and then made the findings on the breach of policy case at paragraph 77 and following.

PN679

Now, we say the finding at 78 - the findings at 78 are correct. So the first question - so we're not talking about the broader case here. We're talking about is there a breach of the conflicts policy. So the first question there is did this student and Dr Morrison has a close personal relationship? The finding is no they didn't. The only thing that could amount to a relationship was the 30 minutes contact on the beach. And on any (indistinct) it falls short of a relationship. We say that's correct. But contrary to my learned friend's submissions, that's not the only basis upon which the Deputy President decided the case at 78. So the second basis was to say, 'Well, if I'm wrong about that,' or what flowed from the conflicts policy. There was no involvement in any supervision or teaching or assessment after that. What the ANU said was by way of, sort of, a sub text extension of things not actually spelt out in the conflicts policy was there was an obligation to notify. Well, if that's the obligation that was breached, then the Deputy President says, 'That couldn't reasonably be a valid ground of dismissal.' So assuming the conduct occurred on the beach - we don't have to assume, it's found the conduct occurred on the beach as found - assume there was then an obligation under the policy to notify the ANU. Well, what flows from that? The Deputy President's finding is valid reason for termination is not the answer. It may well be a breach of policy, it may well be ground for discipline, but not termination.

PN680

Now, the ANU then this morning says, well, the further difficulty is that the reasoning is limited to the interaction. We say, well, at what point other than the interaction - what else was relevant to assessing when there was a close personal relationship, which is what's been done in the first sentence of 78. Answer, nothing. There is no error by focusing on close personal interaction in the first sentence. The second sentence that if I'm wrong is not limited to the interaction on the beach. And if it be said by the ANU there was a failure to meet the conflicts policy because there should have been a disclosure at some point after the interaction on the beach, again never articulated, more importantly what difference would it have made And unless that can be answered clearly, how can it possibly be a valid reason for determination. So we say 78 is wholly correct.

PN681

Paragraph 79 is an expansion of the proposition of nothing actually prohibited by paragraph 22 of the conflicts policy was ever done. Of course, if there was an indication that this student wished to enrol as a PhD student in this institute, Dr Morrison had an issue he would have had to address as HDR coordinator under the conflicts policy. Assuming, against us, that there was a close personal relationship. But that circumstance just didn't arise. So when dealing with the breach of policy, there just is no breach, which is identified.

PN682

And then the finding at 81 of no evidence to support a finding that the conduct was unwelcome. So the express findings are that it was not only consensual, it was instigated and encouraged by the student. It cannot possibly meet any definition of harassment.

PN683

And so what we are left with is the proposition which I think underlies the question you asked, the last question. Does the suffering or the permitting of intimate contact between lecturer and young adult student consistent with policy - with conflicts policy nevertheless constitute a conduct which is inconsistent with the ANU's interests in someway articulated in the code of conduct.

PN684

And we say the findings as to what was done are just - prevent a finding to that effect. It is the Commission operating as a writer of tertiary institution or polices or as a legislator for the Commission to take the step to say that, 'Well, the university hasn't articulated a standard against any form of intimate contact, but we say any form of intimate contact regardless whether it's instigated and encouraged and consented to by the adult student, we say that is necessarily serious misconduct. We just say that is not the role of the Commission. If that's what the ANU wants as its employment policies, it's free to articulate them - articulate that, but it hadn't done so.

PN685

So we say the Deputy President has properly dealt with the policy case. The broader case, we accept, is the more difficult case to deal with. And the Deputy President flags that she is dealing with that at 83 and gives us the reasons that follow, the reasons why she disagrees that the conduct was plainly inappropriate and antithetical to his role as a teacher. So that's the case as the ANU ran it below. And that's the case that Dr Morrison met. And that's the case that they need to be held to on this appeal so that the conduct was plainly inappropriate and antithetical to his role as a teacher.

PN686

MS NOMCHONG: Vice President, I wonder if I might just interrupt my friend and I do apologise. I wonder if we could just have a very short comfort stop at this stage?

PN687

VICE PRESIDENT HATCHER: We will adjourn and resume at 3.35.

PN688

MS NOMCHONG: Thank you very much. I apologise to my friend for interrupting.

SHORT ADJOURNMENT [3.22 PM]

RESUMED [3.34 PM]

PN689

VICE PRESIDENT HATCHER: All right, Mr Brennan.

PN690

MR BRENNAN: Thank you, Vice President. Could I just deal with the course of employment question a little more fully than I have. I refer the Commission firstly to appeal book page 737 at paragraphs 34 and 35. This is the statement of Dr Morrison. So you will see:

PN691

At 9 pm on the evening, when the last talk of day ended I announced to the participants the previous evening I had seen bioluminescence in the water at the beach and it was worth seeing. I then left with a group of participants towards the kitchen building and have the conversation with the group of people including the Relevant Student (indistinct)

PN692

I don't think I need to take the Commission to it, but at page 183, PN1637, the Relevant Student agreed that everyone had finished for the evening when that conversation occurred. But more importantly, the case as run, it is found that AB, page 595, at paragraph 116. So the case was not run that this was conduct in the course of employment. It was run and, indeed, it explains quite a deal of the Deputy President's reasons in the section I'm now coming to which is by reason, given the seniority of the position and his supervisory relationship. That's the case that the ANU ran and that paragraph 116 is from their final written submissions and forward flowed (indistinct) valid reason flowed from that paragraph.

PN693

So when we then come to deal with the reasoning following paragraph 83 of the judgment, we say the correct way for the Commission to deal with it is as I have put by accepting the findings of primary fact as made and proceeding on that basis. If that's not right, my learned junior has prepared for me a table which sets out evidence references for each of the 15 detailed episodes that seem to be in play. Rather than taking you to them, it might be convenient for the Commission if I were to simply arrange to send that to the Commission following today so that if you perceive that you need to go further and look at the evidence, this document would give you indications of the scope of the evidence. On almost every issue there's competing statements and there's cross-examination of the two protagonists.

PN694

So it's not a simple exercise. But if I could say briefly of the findings that follow these things, the invitation you've just seen Dr Morrison's evidence-in-chief on that. It was an invitation addressed to a group of students, accepted only by the Relevant Student. The invitation when issued was:

PN695

Well, let's do it after we've gone to the kitchen?‑‑‑No. Let's do it now.

PN696

and accepted.

PN697

The information on the taking off clothes at the beach. I don't need to take you to it, but at AB 185, PN1697 and following, is cross-examination which expressly supports the submissions I have put to you that the student well and truly accepted. For example, at 1699:

PN698

You could have left at any time?‑‑‑Yes. Yes.

PN699

And you didn't leave, did you?‑‑‑No.

PN700

And you didn't say to him you had any problem with him getting undressed, did you?‑‑‑No.

PN701

And you didn't leave?‑‑‑No.

PN702

(indistinct) he was having a swim, did you?‑‑‑No.

PN703

You got in right next to him, didn't you?‑‑‑Yes.

PN704

In your underwear?‑‑‑Yes.

PN705

Then the events in the water, leading to the Deputy President's finding that the - while there was some initial resistance, but ultimately acceptance that what the student did was swim up to Dr Morrison and wrap her legs around him and commencing kissing him was well and truly supported and that was from PN1707 through to 1749.

PN706

At PN2105 she was asked of the decision to swim up to him and to commence kissing him.

PN707

That was your decision, wasn't it?‑‑‑Yes.

PN708

The events on the beach, after the water, there was a debate in the evidence as to whether Dr Morrison sought to leave the beach. There was no debate that it was the student who said, 'No. Let's go for a run.' And he said, 'I can't. I've got a gammy ankle.' And then she said, 'Well, let's go for a walk.' They went for a walk and then during the walk they again commenced kissing and there's no dispute that it was then that she took off all her clothes.

PN709

And that's at PN1752 through to 1825. The invitation to shower, I dealt with briefly. That's dealt with at PN1847. The conversations were the subject of very detailed evidence and I won't take you to any references to those. The document will be more useful for that. Importantly the 31 January conversation, having accepted that they sought a romantic relationship at PN2304, the student was asked:

PN710

So you very clearly understood that he was prioritising the needs of his family over a relationship with you, didn't you, from that conversation?‑‑‑Yes. Agreed.

PN711

And it's said against him that he took no steps to re‑establish professional boundaries and somehow in this conversation is confusing her. It couldn't be clearer.

PN712

The 9 November 2018 conversation, you've been taken to the email. And that's at AB page 1332. Could I take you to that?

PN713

VICE PRESIDENT HATCHER: Can you give me that page number again, please?

PN714

MR BRENNAN: Page 1332. Now, we say a few things like this. Firstly, taking the email on it's face with that in context, whether he is asking her to stay away from any seminar depends on (indistinct) grammar from what the word 'this' means in 'about this', in brackets. I don't need to go any further because of the context I will take you to, than to say quite obviously as a matter of grammar and syntax, that this may refer to being followed. And, indeed, just reading the document, that is the most natural reading of it:

PN715

I want to be able to run my seminars without being stressed about being followed by you.

PN716

Now, that that is what it in fact meant is supported firstly by the finding that the Deputy President had made that at this point he believed he was being followed, that's at J93. But the evidence made that matter not just a belief, it was an objective fact. So there was significant evidence on it that they'd both been to a seminar. The group that were at the seminar then went to the university bar. After 15 minutes or so, he stood up to leave and almost immediately she stood up to leave. They both rode bikes and they both rode - their ordinary route home was using the Lyon bike path, which is a bike path just to the north of ANU campus.

PN717

He, observing her as getting on her bike almost immediately after him thinks, 'I will avoid the bike path, so we don't run into difficulties.' And so he rides over, in a street one parallel to Northbourne Avenue, and the Commission will know Northbourne Avenue is the last six-lane road that goes in from Sydney (indistinct) Canberra. And so he rides up Moore Street, which is a two-block street running from Barry Drive, which is the northern end of the campus and the CBD, up to Haig Park, which is a string of pine trees, about 150 to 200 metres wide. He rides through Haig Park and when he's north of Haig Park, he observes her still following him.

PN718

Now, she gives an explanation for that that well, she was going to a friend's drinks in Lonsdale Street. The problem with that explanation not touched in cross-examination whether that was the ANU's forensic choice or because senior counsel went to the University of Sydney, so unlike some of us didn't spend her student life riding these streets, but Lonsdale Street only runs to the southern end of Haig Park. And she's observed to the north of Haig Park, following him.

PN719

So she's ridden from south of where either of them is riding to north of where she's headed and says she's on the same path as him, because she's headed to Lonsdale Street. It was a nonsense explanation. The Deputy President didn't need to go that far. She quite properly simply found he genuinely believed she, having been at the seminar had gone to the drinks, had got up when he got up to follow him, and had followed him on his ride home. He gives evidence that he had to hide in a garage off the street he was riding on in order to avoid her.

PN720

Now, that was all genuinely believe by him and that's the context of this email. We say it's natural meaning has nothing to do with seminars. And in context, it's clearly got to do with following him. And that, of course, is supported by the finding and the abundant evidence that through the series of conversations she sought a romantic relationship with him.

PN721

VICE PRESIDENT HATCHER: I'm just trying to understand her email in reply. She says, 'Yes. I deserve an apology.' Was this raised with her in cross-examination? I assume that's responsive to (indistinct)

PN722

MR BRENNAN: Yes, that's right. I'm not sure that the reference to - it's at appeal book page 251, Vice President.

PN723

MS NOMCHONG: I didn't hear that reference. Could Mr Brennan say it again?

PN724

MR BRENNAN: Page 251, PN2498 and following. The only cross-examination on it is at 2546 and 2547. So there are two aspects to that response. Firstly, 'I deserve and apology', and that is clearly is in response, 'Have you got something to say?' And that is expanded on at 2547. The second is, 'You name a time (indistinct) can meet.' So she is seeking to meet again. Why she needed to meet to receive the apology is never explained. She wasn't asked to explain it. And this is the occasion where we do say we don't place great weight on it for anything, but we do draw attention to the fact she's not a student at this point. She's a junior academic.

PN725

Now, we then - the next case run is the dishonesty case and the propositions put there were the (indistinct) we include in our references that we sent to you Deputy President, the request by the ANU for a submission. The answer to the whole of the proposition of a lack of candour is to read what the ANU said. It sent a set of allegations. It asked for any response that he wished to make and it said that, 'If you choose not to respond to any particular, then we will proceed on the basis of the material before us without any response you can give.'

PN726

The response that he gave did not, in terms, respond to the particular paragraph that Ms Nomchong took you to this morning. It responded to a more general allegation and is silent on the paragraph which referred to the request for oral sex. And so it's at appeal book 988. The letter starts at 985 and the relevant requests are at 988.

PN727

We say that requires careful reading. It was expressly an invitation to say what you want to say, but don't say anything you don't want to say at this stage and we will proceed on the material before us.' There is no lack of honesty or candour to remain silent on some questions but whether it is the request made. The ANU Doesn't get a free pass, it being resourced as it is, for what might be thought to be incompetence in (indistinct) work at that stage of the process.

PN728

The conclusions; we draw attention in particular to the Deputy President's conclusion at paragraph 14 of the judgment:

PN729

To make a ruling that the applicant in this case was liable for how a student felt about having her romantic attentions ultimately rejected in one case, or having to tell him that if he was interested in anything beyond friendship she was not in another, would be to uphold disciplinary action not authorised by policies, his contract or the law. It is also essentially paternalistic behaviour towards women that subjugate them to social norms rather than the law or policy and their own free agency.

PN730

And pausing there we stress, this is not a school case. This is a tertiary case. The student was an adult. Sure, a young adult of 22 or 23 at the time. She had agency. She accepted she had agency and the conduct was to be assessed and the Deputy President correctly proceeded on the basis with her assessment on that basis.

PN731

Dealing with the question of (indistinct) statements - - -

PN732

DEPUTY PRESIDENT ASBURY: Sorry, Mr Brennan. Could I just ask you a question about the point you made in relation to the allegations letter that you took us to, starting at page 985 of the appeal book?

PN733

MR BRENNAN: Yes, Deputy President.

PN734

DEPUTY PRESIDENT ASBURY: So are you saying that the paragraph at the top of page 988, that the applicant could consider that he could choose to respond to some of the allegations in writing and not to respond to others and that that that - so that that sentence doesn't refer to, 'If you choose not to provide a response in writing at all, I'm just going to go ahead and make a decision.' Are you submitting that what that sentence could be construed as saying is that you can pick which parts of the allegations you want to respond to and ignore others?

PN735

MR BRENNAN: That sentence read with the previous three paragraphs. So the three paragraphs at the bottom of page 987. So what she is seeking to do is provide an opportunity to make comment - to respond. There's an express reference to the relevant clause of the enterprise agreement.

PN736

DEPUTY PRESIDENT ASBURY: So you say that is telling the applicant that he could choose to respond to part in writing and not respond to other parts and - - -

PN737

MR BRENNAN: Yes.

PN738

DEPUTY PRESIDENT ASBURY: So what do you say arises from that? A perception on his part if he had it?

PN739

MR BRENNAN: We say that the letter is precisely to that effect. It is an invitation to provide such comment and response as you wish in accordance with the enterprise agreement. It is not a direction to provide such information as you hold. And so, yes, he was free to respond to that invitation in respect of those matters upon which he saw it in his interest to respond and to remain silent on those matters where he judged that it was not being in his interest to respond.

PN740

DEPUTY PRESIDENT ASBURY: Does it follow that what you are submitting is that if the applicant chose not to respond to part of it, then no inference could be drawn that he wasn't being fulsome in his response or truthful?

PN741

MR BRENNAN: Certainly no inference could be drawn that he was being truthful and the question of fulsomeness does not arise. So in our authorities at tab 25 is the decision of Patty v The Commonwealth [2000] 101 FCR 389. In paragraph 95 - - -

PN742

DEPUTY PRESIDENT ASBURY: Yes.

PN743

MR BRENNAN: Is the statement

PN744

The duty on the employee is conditioned by a corresponding obligation on the employer to seek the information by questions that are fair and reasonable.

PN745

That obligations of the employer, if they said that there should have been express disclosure of the oral sex was not discharged in this case.

PN746

DEPUTY PRESIDENT ASBURY: So you say in fairness the employer should have said in the letter, 'And if you don't respond to any of these allegations we are entitled to' or, 'we will be drawing a negative inference in relation to any failure to respond'?

PN747

MR BRENNAN: No. I say if the employer was to run a case in this Commission that the failure to refer to the request - an inquiry whether the student wanted oral sex, which didn't ever happen, but it said, 'Well, that failure to refer is a failure of honesty and candour.' If that case was to be run, then the employer needed to ask a question and give a direction that the question was to be answered.

PN748

DEPUTY PRESIDENT ASBURY: I understand. Thank you.

PN749

MR BRENNAN: But it was very clear that if we chose not to respond, the decision would be made on the basis of the material before the decision-maker. We accept that. That's a different proposition from the case that the ANU seeks to run that a valid reason for termination with a lack of candour or honestly.

PN750

On the question of reinstatement, Vice President, I'm saying you are right in your observation that the difficulty for the ANU on reinstatement is that it's whole case was conditional on there being a valid reason and the finding is there was no valid reason.

PN751

Ms White's evidence was expressly based on her assessment that what is put to you as errors today by Ms Nomchong (indistinct) this relationship was sought by Dr Morrison, where he pre-planned things. He got the student on the beach. That he sought the sexual relationship. In the follow-up discussions he persistently sought the sexual relationship while she resisted and he sought to exclude her from seminars. Now, that case has all been rejected. That case being rejected, Ms White's evidence that there was a loss of confidence falls away.

PN752

The ANU could have - all that cross-examination had occurred before Ms White gave evidence - of the Relevant Student occurred before Ms White gave evidence. The ANU could have - and presumably it knew the answer - could have adduced further evidence-in-chief from Ms White as to her opinion on the assumption is that the cross-examination had been successful. It didn't see to do so. Represented by very experienced counsel, it did not seek to go anywhere near the proposition of 'If the reason we say for dismissal doesn't exist, can you still have trust and confidence?' it had the onus, it just didn't discharge it. And Dr Dancso's evidence simply doesn't have the effect that Ms Nomchong submitted this morning, quite clearly so, to the further fact of the physical sign of the MSI offices does not carry with it the further proposition that unless the doctor is accommodated in those offices that he would somehow or other be a danger. So it's for those reasons we say the appropriate course is to refuse - - -

PN753

DEPUTY PRESIDENT ASBURY: Mr Brennan, sorry to interrupt you again, doesn't Dr Morrison actually make that point in himself in some of his material? 'If I came back, I'd be in a glass office, and I would conduct my meetings henceforth in an open space and I would not engage with' -you know, doesn't he make that point himself? And if he does, why does he make it if he's not suggesting, 'Well may you not trust me, but gee, I'll be in a fish bowl, so everyone will be able to see me.'

PN754

MR BRENNAN: Because he was faced with the proposition that 'We don't trust you and we don't trust you for the reasons that Ms White gave.' That doesn't help - Ms White's evidence - once those reasons are found not to exist. So he is saying in the context of 'Even if there be a valid reason I could safely come back', is the effect of that evidence. That does not say, 'It would be unsafe, if that's not in place.' He doesn't say that and Dr Dancso doesn't say that. Nothing further (indistinct).

PN755

VICE PRESIDENT HATCHER: Mr Brennan, just one matter. Ms Nomchong - I think she opened her submissions with this - took us to - if you could just bear with me for a second. Yes, 115 of the decision. The second sentence.

PN756

MR BRENNAN: Yes. Yes, it is simply a misconceived submission, because there is the express finding at 90 that there had been poor judgement justifying disciplinary action. Ms Nomchong's submission was the Deputy President has found everything as fine and there was nothing justifying disciplinary action when she says, 'Well, if it happens again, termination.' That wasn't at all the effect of - it's not just an unfair reading of the Deputy President's reasons. It's a quite inaccurate reading.

PN757

I've sought, by taking perhaps too much time on the primary facts, to show you the way in which the Deputy President has quite carefully identified exactly what happened, at various points making criticism of what was done. We don't stand here and seek to say it was prudent conduct to behave as he did on the night. The Deputy President doesn't say that anywhere. At paragraph 90 she acknowledges there could have been disciplinary conduct. At paragraph 78 she acknowledges that if there had been a close personal relationship, there was likely a breach of the conflicts policy, which again may result in discipline, but was not a valid reason for termination; the breach being a failure to disclose.

PN758

Now, that being so, if there were for example a repetition of a close person relationship and a failure to disclose, the reasoning in J115 is unexceptional.

PN759

What Ms Nomchong has sought to do is run a case which simply ignores the detail of what the Deputy President has done. No one ran - Dr Morrison did not run a case and the Deputy President did not find a case of this conduct was all okay. But that wasn't the question. The question was was it a valid reason for termination.

PN760

And so if the commission is content for me to then send through as an aide memoire the evidence references (indistinct) that's all I have to say.

PN761

VICE PRESIDENT HATCHER: Thank you. When do you think you might be able to do that by?

PN762

MR BRENNAN: We can do it by COB today, Vice President?‑‑‑

PN763

VICE PRESIDENT HATCHER: All right. Thank you. Ms Nomchong, reply?

PN764

MS NOMCHONG: Thank you. Mr Brennan, I wonder if you might be so kind as to put yourself on mute? Thank you. I want to start first with the very extraordinary proposition whereby my learned friend with true the concession that this was not an employment relationship. First of all, there was no case run below that this was out of hours conduct. there is nothing in the opening oral submissions made by Ms Edwards below that refers to that. And, in fact, everything that was said by Ms Edwards in her opening submission seems to imply that this all occurred within the employment relationship.

PN765

It was not put in response by Professor Morrison to any of his responses to the university. At no point did he say, 'Sorry. this is no part of your business because this was out-of-hours conduct. No mention to Rose v Telstra below. So when my learned friends pointed, after we came back from the break to our submissions at AB 696, 116, and said - - -

PN766

VICE PRESIDENT HATCHER: Ms Nomchong, what was that again? That reference?

PN767

MS NOMCHONG: Sorry, your Honour. AB 696. Perhaps I'm rushing through this, because I note the time, but what Mr Brennan said is that the ANU ran the case that this was out of hours conduct and he pointed to paragraph 116 on AB 696. Now, that paragraph says anything but, because what it says is that Dr Morrison's conduct with respect to the Relevant Student, both at the Kioloa retreat and afterwards provides a valid reason for his dismissal, particularly given the seniority of his position, i.e. his job, and his supervisory relationship of the Relevant Student, i.e. his job. So what - when I raised the Rose v Telstra matter this morning and Hatcher VP raised it with me, I said, 'Well, look, there was something in the written submissions'. So if you look at the respondent's written submissions there is throwaway line at paragraph 28.

PN768

VICE PRESIDENT HATCHER: Sorry - this is the appeal submissions, you mean?

PN769

MS NOMCHONG: It is the appeal submissions, I'm sorry. This is the first time we hear this, paragraph 28 of the written submissions filed on 8 April 2022, a throwaway line at paragraph 28 says:

PN770

Such factual findings won't support a conclusion there was no valid reason for the dismissal. Importantly, this is not a case in which the appellant's policy was silent on the impugned after-hours conduct.

PN771

Now, what that's seeking to do is to breach the principles in Coulton v Holcombe, the High Court decision with which we will all be familiar, [1986] 162 CLR 1, which says that you cannot run a case differently on appeal than you did below. So no part of the case below was that this was out-of-hours conduct. In any event, there was evidence put forward by Dr Nadine White and if I can invite you to go to appeal book 1360, this is Dr Nadine White's statement. Anticipating this might have been an argument, we put in evidence about the relationship between the Kioloa retreat - so paragraphs 53 and over the page at 54, there is evidence about how the ANU paid for it, how they subscribed to it, what they did with it.

PN772

This Full Bench will not entertain the view expressed by my learned friend that this was out-of-hours conduct and therefore had no relationship to the employment of Professor Morrison. The second point I want to deal with is the Fox v Percy argument. If we go to Fox v Percy, which is in the respondent's list of authorities, what my learned friend did was took you to paragraph 23 but didn't take you to the way in which the High Court then developed the exceptions to this rule. Basically, what the High Court said was where there are credit findings that have been made, we have to exercise constraint because you don't have the advantage of the trial judge being present.

PN773

But on page 128 at paragraph 28, the High Court says this:

PN774

For more than a century this court and courts like it have given instruction on how to resolve the dichotomy between the foregoing appellant obligations and appellant restraints. From time to time, by reference to considerations particular to each case, different emphasis appear for such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witness of one party over those of another does not and cannot prevent the performance by a court of appeal of the functions imposed on it by statute. In particular, cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous even when they appear to be or are stated to be based on credit findings.

PN775

At paragraph 29:

PN776

This is demonstrated in several recent decisions of this court. In some quite rare cases although the facts fall short of being incontrovertible, an appellant conclusion may be reached that the decision at trial is glaringly improbable or contrary to compelling inferences. In such circumstances the appellate court is not relieved of its statutory functions by the fact that the trial judge has expressly or implicitly reached a conclusion influenced by an opinion concerning the credibility of the witness.

PN777

That's exactly what Mr Brennan is asking you to do. He's saying because DEP Dean made a credit finding you can't go there. The High Court says you can go there and in fact you have a duty to go there under the statute because you have to look at all the of the evidence and see if there is this exception: is there something that is glaringly improbable or contrary to compelling inferences? Now, everything that we have said today, in our submission, falls into that category so further, as I took you to - and I won't repeat it - I refer you to the bare assertion of credibility findings, which is exactly what we have here, just one statement: 'I prefer the evidence of Dr Morrison rather than the relevant student'.

PN778

At 114, TechnologyOne tells us that is an error of law. Further, and most significantly, most of the (indistinct) referred to by my learned friend weren't credit findings at all so at paragraph 5, DEP Dean says:

PN779

To the extent there are differences in their evidence, I prefer the evidence of Dr Morrison.

PN780

But it's not clear what DEP Dean is actually relying on for this finding. We've taken you to all of the concessions that were made by Professor Morrison in his cross-examination. So surely, DEP Dean is referring to all of those concessions: that he did have a supervisory relationship, that he did have the ability to control and influence her. So they're not credit findings or if they are, she's preferring, she's adopting all of those. There is no general finding that the relevant student was an unbelievable witness. It doesn't find that she's unreliable, just simply that she prefers.

PN781

So essentially DEP Dean made very few specific credit findings. (Indistinct) wrong about that and Fox v Percy does come into play, let's look at what the credit findings are. We're really limited. We say that our case can run without those credit findings. We don't rely - we're not relying on them. So the credit findings that whether the student objected to taking off his clothes or whether she didn't object, or so what; whether the relevant student denied saying that she wanted to pursue a relationship with Dr Morrison: 'I find it more likely than not that the relevant student did express an interest'.

PN782

We say that that is exactly what happened because Dr Morrison didn't establish those boundaries. On the O'Connor Ridge conversation even he in cross-examination said, 'I'm interested in an ongoing relationship'. So that doesn't take the respondent anywhere. We don't walk away from that - rather, we embrace it because this is about the blurring of those professional and personal lines. At paragraph 30, during the meeting on 31 January 2018 - so this is well after, months after - Dr Morrison apologised to the relevant student for his lapse in judgment and the relevant student denied he ever apologised to her.

PN783

But again, so what? So the key fact in findings here - sorry, I should say in reality those limited credit findings don't affect the heart of what we say is the decision-making errors of DEP Dean. It doesn't affect whether Professor Morrison set the scene at the beach. There was no credit finding on that. It doesn't affect whether DEP Dean failed to look at the totality of the evidence rather than focusing on the kissing in the water, being the interaction. It doesn't affect whether DEP Dean was wrong about there not being a close personal relationship. It doesn't affect whether there had been a breach of the code of conduct or the conflicts policy. It doesn't affect our alternative argument - I could go on and on. None of those credit findings affect our submissions in relation to the significant errors of fact and of course as I've said it only reinforces that she preferred Dr Morrison's evidence that all of those concessions in cross-examination were things that could be relied on.

PN784

In relation to the other non-credit factual findings I would think that we made it abundantly clear this morning that these significant errors of fact because (a) they invoke House v King-type errors; (b) they're glaringly improbable or contrary to the compelling inference on the face of the totality of the evidence and (c) many of the findings are available for review because there was a failure to give reasons. That deals with the Fox v Percy issue. I want to say something about the rather startling submission made by my learned friend where he said if Professor Morrison had notified the university of his intimate relationship with the relevant student, pursuant to his obligation under the code of conduct, my learned friend said, 'What difference would it have made'?

PN785

Well, the difference it would have made is obviously something that was very important to Professor Morrison because Professor Morrison's evidence was, 'I didn't tell the university because I didn't want them to know', and he didn't want them to know because of the ramifications for him. That's in cross-examination at appeal book 111, PN 855. So Professor Morrison knew what difference it would have made. He knew that the difference it would have made is there would have been ramifications clearly adversarial to him. Sensibly, it would have meant if this exists in the conflicts policy the reason you're required to notify is so that the university can put in place all of the measures to ensure that the conflict doesn't arise and to ensure that the student was supported and to ensure that there was professional boundaries established if there was going to be some relationship. That's what difference it would have made.

PN786

The next issue is that my learned friend made quite lengthy submissions about the incident at the seminar where allegedly he says the relevant student followed Professor Morrison home. If this was such a disturbing incident, if this was so much part of Professor Morrison's case, why didn't he reveal it in any of his responses to the university? The Full Bench will recall that one of the three factors that we said that he lacked candour in, one of the failure to tell the university that he offered oral sex to the student; two was the not revealing that he told the student that he had make up sex with his wife at the O'Connor Ridge appointment and the third is that he failed to reveal this very acrimonious email exchange. If this was so important to him, why didn't he raise it? Rather, his evidence to the university was everything was cordial with them afterwards. That was what he said when I took you to that evidence earlier. Finally I want to say my learned friend made an allegation against me that I had misinterpreted and in fact misled, I think, the Full Bench in relation to the effect of the decision at 115. He said that I made a wrong reading of that because of what was said in the decision at 90.

PN787

My learned friend said that Deputy President Dean said that his lack of judgment and clumsy handling of it did justify some disciplinary action. With respect to my friend, at J90, that's not what it says at all. At J90 it says:

PN788

His conduct demonstrated poor judgment. While his poor judgment might have resulted in some disciplinary action, it was not a valid reason.

PN789

So not even DEP Dean thinks that this justified disciplinary action. She said, 'it might have'. Finally, in relation to this my learned friend seemed to go backwards and forwards about whether or not there was a close personal relationship. On the one hand, my learned friend says that he wants to - he wants this Full Bench to stand behind all of the findings that were made by DEP Dean but then on the other hand, in his final submissions he said what was being referred to at J115 was if there was a repetition of a close personal relationship but DEP Dean said there was no close personal relationship. With respect, my learned friend can't have it both ways. They're the submissions in reply.

PN790

VICE PRESIDENT HATCHER: Ms Nomchong, do you say (indistinct) to respond to Mr Brennan's evidentiary note?

PN791

MS NOMCHONG: Well, I think I better because I don't know what it says. But if it's - - -

PN792

VICE PRESIDENT HATCHER: Perhaps the way to leave it to wait till you see it and then you can communicate with my chambers if you seek the opportunity to make a response.

PN793

MS NOMCHONG: Thank you very much.

PN794

VICE PRESIDENT HATCHER: The other thing is I've sent a consolidated version of the confidentiality order we propose to make. Can the parties advise ASAP whether there's any issue with the way that's drafted?

PN795

MS NOMCHONG: Thank you very much - we'll do that before we leave tonight.

PN796

VICE PRESIDENT HATCHER: All right. Mr Brennan, do you want to say something?

PN797

MR BRENNAN: No.

PN798

VICE PRESIDENT HATCHER: All right. We thank the parties, counsel, for their submissions. Subject to the receipt of any further - of the evidentiary note - any further submissions in reply we propose to reserve our decision and we will now adjourn.

ADJOURNED INDEFINITELY [4.26 PM]