Ahamed v Victoria University
[2025] VSCA 66
•7 April 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0124 |
| MOHAMMAD SHOHEL AHAMED | Applicant |
| v | |
| VICTORIA UNIVERSITY | Respondent |
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| JUDGES: | WALKER JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 7 April 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 66 |
| JUDGMENT APPEALED FROM: | [2024] VSC 604 (K Judd J) |
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PRACTICE AND PROCEDURE – Extension of time – Applicant sought judicial review of decision of University in relation to plagiarism in law essay – Application filed approximately 10 months out of time – Judge found no special circumstances to justify extension of time – No error of law in judge’s decision – Proposed grounds of appeal totally without merit – Application for leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2015, r 56.02(3).
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| Counsel on the papers | |||
| Applicant: | In person | ||
| Respondent: | R Walsh | ||
Solicitors | |||
| Applicant: | Not applicable | ||
| Respondent: | Meridian Lawyers | ||
WALKER JA:
The applicant, Mr Ahamed, is a law student at Victoria University. In 2022 he submitted a research paper as part of his assessment in a constitutional law subject. Following a computerised analysis of the research paper, the University concluded that the paper had been substantially plagiarised. A senior officer of the University decided that Mr Ahamed should be reprimanded and cautioned, and that he should receive a grade of zero for the research paper. Mr Ahamed appealed to the University’s Student Appeals Panel. On 20 April 2023 the panel dismissed the appeal and confirmed the University’s original decision.
On 18 May 2023 Mr Ahamed submitted a complaint about the decision to the Victorian Ombudsman. On 1 June 2023, an officer of the Ombudsman informed Mr Ahamed that they did not consider that the University had made any error and that the Ombudsman did not have the ability to direct the University to reach a different decision.
On 4 June 2023, Mr Ahamed sent an email to the University informing it of the Ombudsman’s decision and stating that he was considering appealing the University’s decision to the Court. He said that he would wait five days before doing so, ‘to leave the floor open for any discussion’. On 6 June 2023, the University re-confirmed that the decision of the Student Appeals Panel was the final decision of the University and that the University considered the matter closed.
On 30 April 2024 Mr Ahamed filed an originating motion seeking judicial review in relation to the University’s assessment decision. He also filed an application for an extension of time in which to commence the proceeding. An extension of time was necessary because Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) requires that an originating motion be filed within 60 days of the decision sought to be reviewed. Mr Ahamed’s originating motion was filed more than 12 months after the University’s Student Appeals Panel dismissed his appeal and confirmed the University’s original decision, and was thus around 10 months out of time.
On 24 September 2024, the trial judge refused Mr Ahamed’s application for an extension of time.[1] Mr Ahamed now seeks leave to appeal that decision.
[1]Ahamed v Victoria University [2024] VSC 604 (‘Reasons’).
On 25 March 2025, the Registrar of the Court of Appeal referred Mr Ahamed’s application for leave to appeal to me to determine pursuant to r 64.15 of the Rules. Having considered the materials filed by the parties, I have determined, pursuant to s 14D(3) of the Supreme Court Act 1986 and r 64.15(5)(iv) of the Rules, that the application for leave to appeal is totally without merit. The application must thus be refused. My reasons are set out below.
Detailed factual background
A more detailed factual background is set out in the judge’s reasons for decision, as follows.
On 23 November 2022, not long after the plaintiff submitted his research paper, the plaintiff left for Bangladesh.
On 25 November 2022, the plaintiff received an email from Dr Matt Harvey requesting an urgent discussion about his assessment.
On 28 November 2022, the plaintiff responded indicating that he had left a voice message with Dr Harvey and that he was overseas in a remote area with some network issues.
On 7 December 2022, Dr Harvey sent an email to the plaintiff notifying him of an allegation of plagiarism, inviting him to attend a Zoom investigation meeting on 15 December 2022 and informing him that he had the right to seek assistance from the Student Advocacy Service.
On 8 December 2022, the plaintiff sent an email to the Academic Integrity Office indicating that he had given an explanation to Dr Harvey.
On 20 December 2022, Dr Harvey emailed the plaintiff with his decision. Dr Harvey gave reasons for his decision as follows:
Having regard to the Academic Integrity Guidelines and your response to the allegations I note that the plagiarised passages constitute a large proportion of the assignment, that you are an experienced student, and that your failure to acknowledge the evidence provided to you suggests that your actions were deliberate and planned.
Dr Harvey also informed the plaintiff that he had a right to appeal and that if he needed assistance he should contact the Student Advocacy Service.
On 18 January 2023, the plaintiff lodged an appeal against that decision. The plaintiff remained in Bangladesh at this time and he subsequently filed a report dated 20 January 2023 from Dr Syed Mushfique Hasan certifying as follows [sic]:
It hes been certified that Mohammad Sohel Ahmed, 40 years of age is came to me with the coplain of Low Back Pain with Restriction of the movement of Right Leg. His back pain is radiating btowards lowe limb with numbness, After all physical and clinical examination Mr. Mohammad Sohel is diagnosed a case of PLID, in L3-L4 and L5-S1. His pain is severe in nature. He needs complete bed rest for 6 month with pelvic traction. He is unable to journey for long period for 12 months.
On 20 April 2023, the plaintiff was advised that an Appeal Panel Chair had dismissed his appeal as being without merit. The material provided to the plaintiff concluded:
… the original decision of the University has been confirmed and the outcome will be communicated to the original decision maker for closure.
The decision of the Student Appeals Panel is the final decision of the University.
If you feel that you have grounds, you may seek an external review of the process for determining the University decision, including the appeal decision, from an appropriate, independent external body such as the Victoria Ombudsman.
The plaintiff affirmed that:
After my application for panel hearing was rejected on 20 April 2023 by Victoria University, I approached both the Victoria Legal Aid and Justice Connect but they could not help me as the matter was not within their scope of practice.
On 18 May 2023, the plaintiff submitted a complaint form to the Victorian Ombudsman (the Ombudsman).
On 19 May 2023, the plaintiff informed the University by email that he had appealed to the Ombudsman and on 23 May 2023 provided proof of lodgement.
On 1 June 2023, an Investigation Officer with the Ombudsman informed the plaintiff that:
As the university has made its decision in line with the Student Misconduct Regulations 2019, I do not consider the university has erred in responding to your complaint. Our office does not have the ability to direct the university to reach a different decision about this.
On 4 June 2023, the plaintiff sent an email to the University stating that he had received the outcome from the Ombudsman and was considering appealing the University decision to the Court. He further stated [sic]:
I will be waiting 5 days between 5 June 2023 till 9 June 2023 business hours to leave the floor open for any discussion and if we did not achieve anything then I have to seriously consider filing documents to court from the following week and onwards
On 6 June 2023, the University re-confirmed that the decision of the Student Appeals Panel was the final decision of the University and that the University considered the matter closed.
As part of his material, the plaintiff exhibited a further report from Dr Hasan dated 22 February 2024 certifying as follows [sic]:
It has been certified that Mr.Mohammad Shohel Ahmed, Aged- 42 years is under my treatment since 20 January 2023. Initially he was diagnosed with PLID in L3-L4 & L-5 – S-1 .His pain was severe in nature & He was unable for sitting as well as standing for long time ,which prevents him to have a long flight. He Develops Same physical condition with sever radiating Low Back Pain from 17.01.24. After examine him both physically & clinically I found that he have got repeted PLID with Herniation in L5-S1 as well as Disc Prolapses this time. His physical condition is worse then previous PLID. Now Mr. Mohammad Shohel Ahmed, 42 Years need complete bed rest for )6 months with medication with Physiotherapy ( 1. Pelvic Traction , SWV ) at least for 09 months .In this physical condition Mr. Mohammad Shohel Ahmed is uncertain as to when he will able to travel.
On 20 April 2024 the plaintiff arrived back in Australia. On 30 April 2024 he filed the Originating Motion. On 27 May 2024 he served the Originating Motion on the defendant.[2]
[2]Reasons, [10]–[26].
The judge’s reasons
After setting out the factual background, the judge observed that r 56.02(3) permits the time limit to be extended, but only if special circumstances are demonstrated. Her Honour said that the phrase ‘special circumstances’ is ‘deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words’,[3] referring to Mann v Medical Practitioners Board.[4] Her Honour then quoted the following passage from Naik v Monash University:
The factors that typically bear on whether there are special circumstances that warrant extending time include the period of the delay, the reasons for the delay, whether the plaintiff has an arguable case, justice to both parties including any prejudice occasioned by the delay, and the public interest in the finality of litigation. No one circumstance is necessarily determinative; all relevant factors (positive and negative) need to be considered.[5]
[3]Reasons, [28].
[4](2002) 18 VAR 458, 462 [18] (Osborn J); [2002] VSC 256, upheld on appeal in Mann v Medical Practitioners Board (2004) 21 VAR 429; [2004] VSCA 148.
[5][2018] VSC 605, [28] (Richards J) (citations omitted).
The judge then considered whether Mr Ahamed had demonstrated special circumstances that would justify an extension of time. She observed that he relied on two primary considerations:
(a)due to a lack of help and his personal lack of legal knowledge and resources, he could not file the application in time; and
(b)he was unable to return to Australia due to medical issues.
Her Honour then said this:
In terms of prospects of success, I accept the defendant’s submission that there is considerable doubt as to whether the Supreme Court has supervisory jurisdiction over the University in respect of an assessment decision. It is not necessary for me to determine this question, nor is it necessary for me to give any detailed consideration to the merits of the proceeding. Even assuming that the plaintiff has an arguable case, the plaintiff has not established that special circumstances exist so as to justify an extension of time.
The considerations relied on by the plaintiff must be considered in the context of a 10 month delay and the need for finality.
In respect of the first consideration, as a law student, the plaintiff was better placed than most to research and progress a Supreme Court proceeding. At the relevant time he was able to pursue his grievance with the University and make a complaint to the Ombudsman. He has ultimately demonstrated that he was able to prepare and issue an originating motion, together with affidavit material. Further, the plaintiff could not simply reach out to Victoria Legal Aid and Justice Connect in the hope that legal assistance might be provided at some point in the future. The evidence relied on by the plaintiff was not precise as to the dates that he received notification from Victoria Legal Aid and Justice Connect. However, even accepting his oral submission that he did not receive notification from Justice Connect until some months later, the plaintiff, by around April 2023, had to make a decision as to whether he would continue to seek legal assistance other than through Victoria Legal Aid or Justice Connect or progress a court proceeding without that assistance.
In respect of the second consideration, this is more concerned with the question of whether it was practicable for the plaintiff to serve the originating motion within the meaning of r 56.03 of the Rules. In any event, the plaintiff’s affidavit material does not address whether he might have been able to effect service other than by the plaintiff, himself, performing the act of personal service. In this regard, the plaintiff has not addressed whether he could have engaged somebody to effect service on his behalf, nor has he explained why he could not have emailed the University to ascertain whether service could be effected by another method, for example by service on the University’s solicitors.
In all of the circumstances of this matter, I am not persuaded that any of the considerations relied on by the plaintiff, whether alone or in combination, are sufficient to constitute ‘special circumstances’ within the meaning of r 56.02(3) of the Rules.[6]
[6]Reasons, [31]–[35] (citations omitted).
The grounds of appeal
Mr Ahamed’s application for leave to appeal set out a single proposed ground of appeal, namely ‘errors of law’. In the part of the form directed to the questions of law on which the appeal is brought, he set out 21 questions. For present purposes, I will treat the 21 questions as the proposed grounds of appeal.[7] The questions were as follows:
[7]I will refer to these questions as the proposed grounds of appeal, for convenience.
1.Was the primary judge in trial division correct to decide that applicant could send origination motion via e-mail to the respondent under order 6.02 of the Supreme Court rules 2015?
2.Was the primary judge in trial division correct to decide that applicant’s friend could send origination motion to the respondent under order 6.02 of the Supreme Court?
3.Does respondent’s non-compliance of the Supreme Court rules 2015 meant that the primary judge’s decision is void under order 2.01(1)?
4.Was the respondent non-compliant with order 8.04 meant that the Applicant could seek judgement against the respondent under order 21.02?
5.Was the primary judge correct to view that these non-compliances by the respondent did not matter because that was not why she was there for?
6.Was the primary judge correct to view appealing, Mr. Matt Harvey decision to governance and secretariat at Victoria University is same as appealing to the Supreme Court?
7.Was the primary judge correct to view that appealing to ombudsman is same criteria as Supreme Court?
8.Did the primary judge misunderstand applicant’s circumstances under order 56.02 (3) when considering special circumstances?
9.Applicant provided two medical certificates and airfares tickets in relation to the special circumstances, also told the primary judge no legal assistance were provided either by Victoria legal aid or by justice connect also provided oral evidence of the e-mail by justice connect dated 1 February 2024 that they were not providing applicant with legal assistance, does this amount to special circumstances when extending time for judicial review?
10.Was the primary judge correct to view that respondent’s false statement did not matter under ss17 and ss 21 of the civil procedure act 2010?
11.Should the primary judge have imposed sanctions to the respondent for the contravention of ss 17, ss 21 of the civil procedure act 2010?
12.Should the primary judge have imposed sanctions to the respondent for contravening supreme court orders 8.04 (a) 8.08 (4), and order 4, of the judicial registrar, Englefield dated 31 July 2024?
13.Was the respondent allowed to breach ss 17 and ss21 of the civil procedure act 2010?
14.Was the respondent allowed to breach supreme court orders 8.04(a), 8.08(4) and finally order 4, of the judicial registrar Englefield dated 31 July 2024?
15.Was the primary judge’s case laws Mann v Medical Practitioners Board [2002] VSC 256 [18] & Naik v Monash University [2019] VSCA 72 [14]; [2018] VSC 605 [28] has any similarity to the plaintiff’s circumstances when considering special circumstances under rule 56.02(3)?
16.Was it ok for primary judge to proceed to the extension of time issues first despite the applicant asked the judge to deal with breaches of ss 17, ss 21 of civil procedure act 2010 and Supreme Court orders 8.04(a), 8.08(4) and finally order 4, of the judicial registrar, Englefield dated 31 July 2024 of the Supreme Court rules 2015?
17.Was senior officer, Mr. Matthew Harvey allowed to breach student misconduct procedure ss60, ss61, ss62(a) prescribed by Victoria University when making a decision dated 20 December 2022?
18.Can Mr. Matthew Harvey act as an alleger, investigating officer and then judge at the same matter and if he is allowed to do that then would there be a procedural issues in law?
19.Can governance and secretariat office of the Victoria university deny a hearing to the Applicant when the matter involved punishment?
20.Does Supreme Court of Victoria has jurisdiction over state university of Victoria?
21.Is it compulsory for an applicant to seek private law firms advise when he has no funding for those firms?
It is convenient to group some of the questions together, largely in the manner proposed by the respondent in its written submissions.
Consideration of ground 1
Ground 1 is directed to whether the judge was correct ‘to decide that applicant could send origination motion via e-mail to the respondent under order 6.02 of the Supreme Court rules 2015’. Embedded within this ground is a premise, namely that the judge made such a decision. Plainly, however, her Honour did not decide that Mr Ahamed could have effected service by email under r 6.02 of the Rules. Rather, in the context of considering the applicant’s argument that he could not effect personal service himself, the judge observed that he could have, but did not, contact the University ‘to ascertain whether service could be effected by another method, for example by service on the University’s solicitors’.[8] In that regard, r 6.09 expressly provides for the acceptance of service by a solicitor; and it was open for the University, through its solicitors, to accept service by email, notwithstanding r 6.02.[9]
[8]Reasons, [34].
[9]In that regard, r 6.11 provides for the recognition of informal service.
Ground 1 must therefore fail.
Consideration of ground 2
Ground 2 is directed to whether the judge was correct ‘to decide that applicant’s friend could send origination motion to the respondent’ under r 6.02. Mr Ahamed submitted as follows:
Applicant did not have any friends who would do that for him and in the trial the primary judge did not even ask him whether he has any friend who could affect that service, thus her Honour presumption is wrong
Like ground 1, this ground of appeal is based on a false premise, namely that the judge decided that Mr Ahamed could have arranged for a friend to serve the originating motion on the University. She did not make such a decision. Rather, her Honour observed that personal service could be effected by a person other than Mr Ahamed. Her Honour said that Mr Ahamed had not addressed whether he could have ‘engaged somebody to effect service on his behalf’.[10] Her Honour made no reference to Mr Ahamed arranging for a friend to effect service. Indeed, the word ‘friend’ does not appear in the judge’s reasons.
[10]Reasons, [34].
Ground 2 must therefore fail.
Consideration of grounds 3, 4, 5, 12 and 14
Grounds 3, 4, 5, 12 and 14 are directed to Mr Ahamed’s contention that the University had, in the course of the litigation, failed to comply with various time limits prescribed by the Rules. On this issue, the judge said as follows:
The defendant accepted that it filed its affidavit material in reply to the extension of time application one day later than required, however I am not satisfied that the defendant otherwise failed to meet time requirements. In any event this issue has no bearing on the outcome of the plaintiff’s application for an extension of time.[11]
[11]Reasons, [36].
The judge found, as a matter of fact, that the University had failed to comply with only one time requirement, namely in relation to the date for filing of affidavit material (which was filed one day late). There is no challenge to that factual finding.
Plainly, the University’s failure to file affidavit material on time does not result in the judge’s decision to refuse an extension of time being ‘void’ (ground 3). To the contrary, r 2.01(1) (on which Mr Ahamed erroneously relied) provides as follows (emphasis added):
A failure to comply with these Rules is an irregularity and does not render a proceeding or any step taken, or any document, judgment or order in the proceeding, a nullity.
Ultimately, the judge was correct to conclude that the University’s short delay in filing affidavit material had no bearing on the outcome of the applicant’s application for an extension of time.[12]
[12]For completeness I note that even if the other delays alleged by Mr Ahamed were made out, they, too would have had no relevance to whether there were special circumstances that warranted extending time for him to file his originating motion.
Grounds 3, 4, 5, 12 and 14 must therefore fail.
Consideration of grounds 6 and 7
Grounds 6 and 7 are to the effect that the judge was not correct to equate appealing the initial University decision to the University’s Student Appeals Panel, and filing a complaint with the Ombudsman, as being the ‘same as appealing to the Supreme Court’. Mr Ahamed’s written case explained these grounds as follows:
6.When deciding extension of time issues the primary judge of the view that the applicant appealed, senior lecturer, senior officer, alleger, investigating officer, and a judge, Mr Matt Harvey’s decision on time and further appealed his decision to the same university governance and secretariat office on-time therefore, he should have applied to Supreme Court for a judicial review on time.
7.After denying hearing at the Governance and secretariat, the applicant appealed its decision to the ombudsman on time therefore the primary judge of the view that the applicant should have applied to the Supreme Court on time.
As best I can discern, this aspect of Mr Ahamed’s case concerns the judge’s statement that Mr Ahamed ‘was able to pursue his grievance with the University and make a complaint to the Ombudsman’, which was part of her Honour’s rejection of Mr Ahamed’s claim that his failure to file his application in time was ‘due to a lack of help and his personal lack of legal knowledge and resources’.[13]
[13]Reasons, [33].
It is plain from her Honour’s reasons that the judge did not treat the application for judicial review as if it was the same as the University’s internal appeals process or as complaining to the Ombudsman. The judge expressly referred to Mr Ahamed’s submission that seeking relief in court was a more complex task.[14] Nonetheless, her Honour was entitled to have regard to the fact that Mr Ahamed had not apparently had difficulty in engaging with those processes, together with the fact that he was a law student.
[14]Reasons, [30(a)].
Grounds 6 and 7 must therefore fail.
Consideration of grounds 8 and 9
Grounds 8 and 9 are to the effect that the judge erred in determining whether Mr Ahamed’s circumstances were ‘special circumstances’. These grounds were elaborated on in Mr Ahamed’s written case as follows:
8.Applicant provided two medical certificates and airfares tickets in relation to the special circumstances, also told the primary judge no legal assistance were provided either by Victoria legal aid or by justice connect also provided oral evidence of the e-mail by justice connect dated 1 February 2024 that they were not providing applicant with legal assistance, thus this amount to special circumstance when extending time for judicial review.
9.Legal question 9 has been answered in para 8 above.
I accept the respondent’s submission that these grounds seek impermissibly to reagitate the merits of the judge’s decision. In short, Mr Ahamed seeks to contend that his circumstances were ‘special circumstances’, so that time ought to have been extended.
It is relevant to observe that the judge’s decision whether to grant an extension of time or not was a discretionary decision. Thus any appeal is determined on the House v The King[15] standard, not on the correctness standard.[16] The question for me is not whether I consider that Mr Ahamed has made out exceptional circumstances, but whether it was open to the judge, on the material before her, to conclude that he had not. In the present case, her Honour’s conclusion was plainly open.
[15](1936) 55 CLR 499; [1936] HCA 40.
[16]See, eg, Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47, [72] (Warren CJ, Tate and Beach JJA).
I add, for completeness, that I consider her Honour was correct to conclude that Mr Ahamed had not made out exceptional circumstances that would justify an extension of time.
These grounds must therefore fail.
Consideration of grounds 10, 11 and 13
Grounds 10, 11 and 13 allege misrepresentations on the part of the University, and allege that the University breached the overarching obligations of the Civil Procedure Act 2010. In his written case, the applicant elaborated on ground 10 as follows:
10.Respondent’s counsel submission dated 17 September 2024 in para-J talked about plaintiff’s age where they misrepresented applicant’s age in that regard the calculation is right, he was 40 years of age in 20 January 2023. In the same submission in para “r” Respondent counsel made a false claim that the medical certificate provided by the applicant dated 22 February 2022, he was 40 years of age I would like to submit to this court no medical certificate provided under that date the defence counsel mention.
There is no basis for Mr Ahamed’s allegations against the University; at best, Mr Ahamed appears to have discerned a typographical error in the University’s written submissions.[17] Furthermore, neither Mr Ahamed’s precise age, nor the date of one of the medical certificates, had any relevance to whether he had demonstrated exceptional circumstances that warranted an extension of time.
[17]The University’s written submissions pointed out that, on one of the medical certificates Mr Ahamed had produced, dated 20 January 2023, his age was reported as 40, whereas on a different medical certificate his age was reported as 42. That second medical certificate was dated 22 February 2024; the University inaccurately stated the date of that certificate as 22 February 2022.
These grounds must therefore fail.
Consideration of ground 15
Ground 15 takes issue with the judge’s reference to Mann v Medical Practitioners Board and Naik v Monash University.[18] In his written case Mr Ahamed said that his ‘circumstances are different from those case laws’ and referred back to ground 8 (where he sought to make out exceptional circumstances in his case).
[18]The application for leave to appeal referred to Mann v Medical Practitioners Board (2002) 18 VAR 458; [2002] VSC 256, Naik v Monash University [2019] VSCA 72, and Naik v Monash University [2018] VSC 605.
This ground of appeal appears to misunderstand the manner in which other cases can be used by judges to guide their reasoning in the proceeding before them. The judge, quite properly, identified general principles that emerged from the two cases to which she referred; and then she applied those general principles to the facts of Mr Ahamed’s case. There was no error in approaching the exercise in that manner; to the contrary, this is an ordinary approach to judicial decision-making.
This ground must therefore fail
Consideration of ground 16
Ground 16 asserts that the judge erred by determining Mr Ahamed’s application for an extension of time before determining his allegations that the University had breached the Civil Procedure Act, certain of the Rules, and an order made by Englefield JR.
It was plainly open to the judge to decide the extension of time application before any of the other matters Mr Ahamed sought to raise, given the centrality of the extension of time application to whether the matter would proceed. If the matter were not to proceed, then there would be no utility in determining the other matters.
This ground must therefore fail.
Consideration of grounds 17, 18 and 19
Grounds 17, 18 and 19 are directed to the merits of Mr Ahamed’s application for judicial review of the University’s decision. In his written case, Mr Ahamed elaborated on these grounds as follows:
17.Senior officer, Mr. Matthew Harvey breach student misconduct procedure ss60, ss61, ss62(a) prescribed by Victoria University when making a decision dated 20 December 2022?
18.Mr. Matthew Harvey act as an alleger, investigating officer and then judge the same matter, thus a procedural issue arises in law.
19.Governance and secretariat office of the Victoria university denied a hearing dated 20 April to the Applicant when the matter involved punishment.
The merits of Mr Ahamed’s application for judicial review are relevant to his application for an extension of time in so far as they are directed to whether he had an arguable case (being one of the factors that is relevant to the decision whether to grant an extension of time). The judge recognised that this was a relevant factor. She said that it was not necessary for her to given any detailed consideration to the merits of the proceeding, rather she assumed that Mr Ahamed had an arguable case. There was no error in her Honour’s approach.[19]
[19]Indeed, the judge’s approach was consistent with the approach Mr Ahamed had outlined in his written submissions below, where he submitted that a hearing of an application for an extension of time ‘should not be transformed into a de facto full hearing’, and that if a judge ‘travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review’, that is not a function appropriate to a discretionary decision concerning an extension of time. Rather, ‘the correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”’ (quoting from the judgment of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, 597–8 [62]–[63]; [2015] FCA 1391).
Nor is it necessary or appropriate, on the present appeal, for this Court to determine or express any views on the matters identified in grounds 17, 18 and 19, other than to assume, as the judge did, that they raise an arguable ground of appeal.
These grounds must therefore fail.
Consideration of ground 20
Ground 20 is directed to the question whether the Supreme Court of Victoria has jurisdiction over Victoria University. In his written case Mr Ahamed elaborated on this ground as follows:
20.In para 31 of the primary judge’s decision dated 1 October 2024 states that “I accept the defendant’s submission that there is considerable doubt as to whether the Supreme Court has supervisory jurisdiction over the University in respect of an assessment decision”.
Ground 20 thus appears to assert that the judge erred in making this remark.
As noted when dealing with grounds 17, 18 and 19, the judge assumed for the purposes of her decision that Mr Ahamed had an arguable case. Her expression of doubt about whether the Court has supervisory jurisdiction in relation to assessment decisions made by Victoria University was thus by way of obiter, and displays no appellable error.
The judge’s remark was consistent with the remarks of this Court in Naik v Monash University, where Priest AP, Beach and Niall JJA said this:
Although [Monash University] accepted before the judge, at least for the purposes of its summary judgment application, that the Supreme Court had jurisdiction to judicially review the decision of the University to assess a student at a particular mark, that conclusion is not self-evident. Likewise, the amenability of a record of student assessment to a writ of certiorari is by no means clear.[20]
[20][2019] VSCA 72, [36].
The Court did not find it necessary to decide that issue.
This ground must therefore fail.
Consideration of ground 21
Ground 21 is as follows: ‘Is it compulsory for an applicant to seek private law firms advise when he has no funding for those firms?’.
In his written case Mr Ahamed elaborated on this ground as follows:
21.In para 33 of the primary judge’s decision … states that “However, even accepting his oral submission that he did not receive notification from Justice Connect until some months later, the plaintiff, by around April 2023, had to make a decision as to whether he would continue to seek legal assistance other than through Victoria Legal Aid or Justice Connect or progress a court proceeding without that assistance”. The applicant did not have funding for private firms to support his case.
To the extent that this ground implies that the judge decided that Mr Ahamed ought to have engaged a private firm to represent him, it, like grounds 1 and 2, is based on a false premise. The judge reached no such conclusion. Still less did she decide that it was ‘compulsory’ for an applicant to obtain advice from a private firm when they lack funding to do so.
Rather, in the relevant passage the judge was dealing with Mr Ahamed’s argument that his delay was explained, at least in part, by the fact that he was waiting for a response from Legal Aid and Justice Connect in relation to his application for assistance with those entities. The simple point the judge made was that, rather than letting the time for filing his application pass while waiting for a response, the applicant needed to decide whether to seek other assistance or to engage in the court proceeding without assistance.
There was no error in the judge’s reasons.
This ground must therefore fail.
Conclusion
For the reasons set out above, all of the grounds upon which Mr Ahamed seeks to rely in his application for leave to appeal are doomed to fail. For that reason, leave to appeal is refused.
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