A former law student was told by her head of college he was “not sure [that] anything did actually happen”, suggested her alcohol consumption was a problem and that “when boys are drunk, they can be quite arrogant but are underperformers”.  

ACT Supreme Court’s Justice Michael Elkaim awarded the student – referred to as the “plaintiff” – $420,000 in damages for conduct that occurred while she was studying and living at John XXIII College, controlled by the Australian National University (ANU).

The plaintiff was taking part in a bar-hopping event dubbed “Pub Golf”, the hazing ritual in which students started at the on-campus bar before moving to one not affiliated with the college. While it did offer “drinking cards” to students, it had no official connection.

College officials directed the clearly-and-overly intoxicated group to leave the campus, which the plaintiff alleged demonstrated they had breached their duty of care.

“I do not think [John’s] can be held responsible for allowing the Pub Gold to proceed,” Justice Elkaim said. “I do think the defendant breached its duty of care in directing the students to leave its premises and in the manner in which it dealt with the complaint.”

The court heard the plaintiff was raped by another student, also residing in the campus accommodation, in an alleyway next to the popular bar. She was returned to her room and woke to see her jeans and underwear had been pulled down. As it was heard as a civil case, the alleged offender has never been charged or tried for the assault.

Justice Elkaim said she was “so intoxicated that she has no memory of the event” and believed she had not consented to the activity: “Since finding out about the encounter, the plaintiff says she has suffered damages in the form of psychological injury, which has in turn led to significant suffering on her behalf, as well as economic loss arising from her diverging from the path that she had hoped to follow but for these events.”

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‘Entirely unnecessary’: Complaints process with head of college

Ten days after the assault occurred, the plaintiff was informed of the assault by a friend who said she overheard the alleged offender – referred to as “NT” by the court – telling his friends and “joking about the achievement”. With a recorder, the plaintiff spoke to NT and received an admission that the conduct occurred and that he felt “bad”.

The plaintiff then had three meetings with the head of college Geoff Johnston and the deputy head of college Stacy Curtis. During the first meeting, she requested that the college not renew NT’s residential contract and told the matter would be looked into.

Mr Johnston met with NT and informed the plaintiff that he was denying the event had occurred, suggesting that the two got “along quite well”. In the third meeting, after the plaintiff provided him with a recording of NT’s admission, Mr Johnston made a number of comments that were “gratuitous, insulting and entirely unnecessary”.

The plaintiff provided a list of comments that she believes were said to her; it includes the above comments about not being sure “anything did actually happen”. Questioned by the Supreme Court, Mr Johnston did not deny they were said.

“To say things as ‘sometimes when boys are drunk, they can be quite arrogant but are often underperformers’, and ‘I’m not even sure anything did happen in the alleyway’ is a massive departure from the pastoral duty of care Mr Johnston had,” the justice said.

Culture of ‘hard-drinking’ a ‘badge of honour’ on campus

Justice Elkaim told the court he had a “distinct impression” that the college considered its reputation as a “hard-drinking, good living establishment” was a “badge of honour”; a lure to students who thought these attributes were necessary for university life.

Former head of college Stephen Foley wrote in a 2014 report that there were certainly pressures on students to conform to this lifestyle. He said often students made flippant remarks that a “reasonable person might regard as weight and important”.

For example, the Fellows Oval was jokingly referred to as “Rape Oval”. Students also coined the term “rockspidering” for a practice that involved them knocking on another resident’s door late at night which, upon answering, interpreted to consensual sex.

In his judgement, Justice Elkaim noted: “The alcoholic consumption was voluntary but also consistent with Mr Foley’s observation of the pressure to conform.”

Justice Elkaim said considering the duty of care owed to the students on their welfare, but also its knowledge of the overconsumption of alcohol and culture of drinking, the college breached its duty of care by directing the students away from the premises.

“If the college wished to change the culture of its residents it could do so, no doubt, by instruction. I understand that if the students were told to stop drinking, they might drink elsewhere, perhaps inviting harm. But the harm is occurring at John’s anyway.”

This judgement – as well as further details on the breach of duty of care – can be found on Austlii: SMA v John XXIII College (No 2) [2020] ACTSSC 211 (7 August 2020).