Chan v Louey
[2006] NSWSC 605
•26 June 2006
NEW SOUTH WALES SUPREME COURT
CITATION: Chan v Louey & 1 Ors [2006] NSWSC 605
CURRENT JURISDICTION: Administrative Law List
FILE NUMBER(S): 30100/05
HEARING DATE{S): 16 June 2006
DECISION DATE: 26/06/2006
PARTIES:
Yau Hang Chan (Plaintiff)
Sharlene Louey (First Defendant)
TAFE Commission (Second Defendant)
JUDGMENT OF: Associate Justice Malpass
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
In Person Plaintiff
Mr M A Izzo (First and Second Defendants)
SOLICITORS:
Plaintiff (not represented)
I V Knight, Crown Solicitor (First and Second Defendants)
CATCHWORDS:
Judicial review of decisions by teachers; power; claim of procedural fairness; utility; internal procedures; unrealistic litigation; summary relief.
ACTS CITED:
Supreme Court Act 1970, s 69
Technical and Further Education Commission Act 1990
DECISION:
Order that the proceedings be dismissed. The Plaintiff is to pay the costs of the proceedings.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LISTAssociate Justice Malpass
Monday, 26 June 2006
30100 of 2005 Yau Hang Chan v Sharlene Louey & 1 Ors
JUDGMENT
His Honour: The First Defendant is employed as a part time teacher with the TAFE Commission. She has been teaching a course known as “Develop and Apply Knowledge of the Library/Information Services Industries” (the “course”). The course is held during second semester.
The Plaintiff enrolled as a student with the second Defendant in January 2005. He became a student in the course. It ran between 20 July 2005 and 30 November 2005.
The course comprises three assessments. Assessment 1 is entitled Group Presentation. Guidelines are provided for that assessment.
On 15 November 2005, the first Defendant communicated to the Plaintiff a decision made by her, to the effect that he had failed the first of the three assessments (the “first decision”).
On the following day, the Plaintiff commenced proceedings in this Court against the First Defendant. He is a litigant in person. He now proceeds on an Amended Summons against both Defendants which was filed in Court. The relief claimed in this document is as follows:-
“1.A declaration that the Plaintiff has the right to continue to attend and competency be assessed in the same manner as any other eligible students in the class (“the said class”) for the module/unit no. CULLB001A named Information Services Industry held weekly on Wednesday from 6 p.m. – 8 p.m.
2.A declaration that the Defendants are not empowered to make the decision to fail the Plaintiff in Assessment no. 1 (“the Decision to Fail the Plaintiff”) in the said class.
3.A declaration that the Decision to Fail The Plaintiff is null and void.
4.A declaration that the Plaintiff’s Right to Withdraw Without Penalty (see below) is intact.”
It also contains fifty-nine application grounds.
The proceedings came before Studdert J on 21 November 2005. His Honour stood the proceedings down so that the parties could have an opportunity to resolve the matter by consent. Instructions were sought from the Faculty Director (Katherine Curic). The Plaintiff was seeking to withdraw without penalty. His application was considered by the Faculty Director in consultation with Ms Glenis Sellwood (a Head Teacher). Information was also sought from the first Defendant. A view was formed that the Plaintiff was not eligible to withdraw from the course without penalty. The Plaintiff was informed of that view on 21 November 2005. He was further told that he could withdraw from the course but with a “Fail” mark recorded.
On 22 November 2005, the Plaintiff delivered a letter to Ms Sellwood which gave notice of a withdrawal from the class and asserting an entitlement to do so without penalty. He was told that he would not be allowed to withdraw without penalty. He delivered a further letter on 23 November 2005 which inter alia asserted that he had a right to withdraw without penalty.
There may be debate as to whether or not what happened in relation to this matter gave rise to a decision. However, I will proceed on the assumption that it did so and refer to it as the second decision.
Since the commencement of the proceedings, the matter has been before the Court on numerous occasions. There have been interlocutory applications (including an unsuccessful application by the Plaintiff to remove the second Defendant as a party and a Notice of Motion filed by the Defendants). The latter sought summary relief.
This application was heard by the Court on 16 June 2006. The Plaintiff appeared in person. The Defendants were represented by Counsel.
The proceedings were listed for hearing at 10.00 am. Although the Plaintiff was within the precincts of the Court prior to that time and although his name was called outside of it, he did not choose to make his appearance until about 10.15 am.
The parties adduced evidence. The Defendants relied on material contained in two affidavits. They read a paragraph of an affidavit sworn by the first Defendant and an affidavit sworn by the Faculty Director. The Plaintiff relied on numerous affidavits (being all those filed in the proceedings).
The parties relied on written submissions. These were supplemented by oral argument. During the oral argument the Plaintiff addressed at length with much repetition (including on a question of entitlement for cross-examination).
The Plaintiff did seek to cross-examine both Defendants. His application to do so was refused.
The cross-examination of a deponent falls within the discretionary power of the Court. In the circumstances of this case, having regard to the issues raised in this application, I took the view that it would neither assist the Plaintiff nor the Court in the determination of them. Indeed, it seemed to me that it could only lead to an undue waste of time.
As the law now stands, a party seeking summary relief bears the onus to demonstrate what has been described as a clear case for relief. The power to grant summary relief is discretionary.
Initially, I should deal with the declaration sought in the first prayer for relief. This prayer was responsible for the initial flutter of urgent activity. As I understand the position, the need for it departed from the scene sometime ago and this claim is no longer pressed by the Plaintiff. That being the case, the Court is left to deal with the remaining three grounds. These are related. They concern the first and second decision.
Whilst it can be understood that the Plaintiff may be concerned about these decisions, it is difficult to comprehend how they came to deserve the present prolix and expensive litigation. The import of the two decisions is relatively minor, when regard is had to the volume of work that has to be handled by this busy Court and its function of dealing with cases of importance. I add that this litigation has been brought despite the existence of a non-curial remedy which was bypassed by the Plaintiff. I shall return to that matter in due course.
Leaving aside that somewhat unrealistic state of affairs, there is a question of the utility of any relief that could be granted by this Court. The course expired at the end of last year and the Plaintiff of his own volition withdrew from it prior to that time.
It is unclear as to the basis upon which the relief is sought. It has not been identified in submissions. Presumably, the relief sought is inter alia that of judicial review as is now provided by s 69 of the Supreme Court Act 1970. This has been an approach taken by the Defendants. The section enables the granting of relief inter alia where error of law appears on the face of the record or jurisdictional error is involved. The granting of such relief is discretionary.
One aspect of the Plaintiff’s claim is that the decisions were made without power. Maintaining such a claim is beset with difficulties.
The source of power emanates from the Technical and Further Education Commission Act 1990 (the “TAFE Act”). In submissions, the claim was made in the most general of terms and unsupported by relevant authority.
The Plaintiff appeared to be propounding erroneous views as to the contractual relationship between the parties and this seems to have led him to a mistaken view that there was no power to decide that he had failed.
During submissions, it was suggested to the Plaintiff that this claim was hopeless. Despite this, the claim continued to be pressed with enthusiasm.
In my view, the claim is hopeless and doomed to failure.
The Defendants have made submissions on the basis that the decisions have also been attacked as involving denial of procedural fairness and fraud/improper purpose. This approach appears to have been embraced by the Plaintiff.
The Assessment 1 Guidelines contain the following:-
“Weighting: 40% Marks: 40
This assessment involves a case study of a library or information agency.
To achieve competency in this part of the unit you must participate in a small team in the collection, organisation and presentation of information about a library or information agency.
This unit is graded and you will be awarded marks for your individual participation and the overall team presentation.
Each team is required to:
1.prepare a proposal outlining which library/agency will be their case study
This will include:
A brief description of the size and nature of the library/agency
Team members, and allocated tasks and responsibilities
Evidence that sufficient sources exist (such as publications, articles about the agency, website, contact people willing to be interviewed)
2. case study presentation
The findings of the information gathered by the team will be organised and presented to the class as a whole. Each team needs to follow the specified guidelines and organise themselves in the preparation and presentation of the material
Assessment criteria
Individual participation in planning and presentation 15 marks
This will be monitored by the team members and your teacher by the use of a Progress Log Report.
If it is established that an individual did not participate in this assessment task, the result for that person will be FAIL.”
The Assessment Policy contains the following:-
“3.2 Withdrawn No Penalty - WN
WN is to be recorded to indicate that a student has commenced but not completed a module, and evidence can be provided of their participation.
3.3 Fail - F
F may be used in situations where a student has commenced but not completed a module and has a progressive assessment at a Fail level if, in the teacher’s judgement, based on evidence in the roll book, this result is appropriate to the circumstances. The teacher must consult with the Head Teacher before awarding this result. (Fail is used as result when students have unsuccessfully attempted a module).”
The material before the Court demonstrates that the two decisions were made in accordance with the relevant provisions. No error of law (be it on the face of the record or otherwise) has been either identified or demonstrated.
Mere dissatisfaction with a decision forms no basis for a challenge to it. Generally speaking, the decisions involved academic assessment (see Clark v University of Lincolnshire & Humberside (2000) 1 WLR 1988).
The basis of the allegations of denial of procedural fairness seems to come down to no more than failure to notify of a forthcoming adverse decision. The rationale for this approach seemed to be that if he had been given prior warning he would have been able to withdraw before the “Fail” decision was made.
The proposition, that prior notice should be required of such a forthcoming adverse academic decision made by an educational institution is somewhat novel. In my view, it is also misconceived. Its implementation could be expected to see the concept of student failure becoming obsolete. Such a decision is one of assessment of what has been already done by the student. It is not a matter on which the student need be further heard. If a student commits himself to a course, he or she has to accept the risk of failure. It is not surprising that the proposition was not supported by relevant authority. Accordingly, I do not consider that the Plaintiff was denied procedural fairness.
The plaintiff seems to labour under misapprehension as to the operation of the Assessment Policy. Clause 3.2 has application where a student has not completed a module and evidence can be provided of “participation”. What is contemplated by “participation” may be gleaned from “Assessment criteria”. If it is established that the student did not so participate then the assessment will be “Fail”. Clause 3.3 has application where the student has not completed a module and has a progressive assessment at a Fail level. The decision to fail is a matter for judgment of the teacher (is it appropriate to the circumstances). The judgment is to be based on evidence in the roll book. The teacher must consult with the Head Teacher before awarding this result.
I do not consider that the Plaintiff has a right to a recording of “WN” upon withdrawal. An entitlement to it is dependent upon a satisfaction of the criteria (if evidence can be provided of participation). Such participation being in a small team in the collection, organisation and presentation of information about a library or information agency. This involves the use of a Progress Log Report.
A proceeding commenced by Summons is not the appropriate vehicle to ventilate a claim of fraud. The rules require such a claim be prosecuted by a Statement of Claim. In these circumstances, it was not open to the Plaintiff to press any claim of fraud in the process chosen by him.
For completeness, it should be added that there was no mention of fraud in the claims for relief, the claim was never articulated or made the subject of comprehensible particulars. Apart from these matters, the many affidavits relied on by the Plaintiff do not provide a scintilla of evidence of fraud in relation to the decisions. The same can be said in respect of the contention of improper purpose (whatever that contention was intended to convey).
As earlier mentioned, the second Defendant provided its own internal procedure enabling the challenge to either of these decisions (see Annexure “C” of the Katherine Curic affidavit). The Plaintiff chose to immediately bypass this facility and resort to these Court proceedings. He could have pursued the faculty and still come to this Court, had he remained unsatisfied. The facility may still remain available to him.
It was a facility that would have provided the parties with a cheaper and more expeditious remedy. It was a remedy which was more appropriate for the dealing with the decisions (inter alia it was a challenge of wider scope and would have enabled the Plaintiff to bring a challenge involving the merits of the decision).
In my view, the Defendants have demonstrated a clear case for summary relief. It seems to me that the Plaintiff’s claims cannot succeed. Leaving aside these matters, I consider that the Court should also have regard to other matters (the futility of the granting of the relief sought and the availability of the non-curial remedy) in exercising the discretion.
During submissions, the Defendants have mentioned a striking out of the Summons. This is not a course available under the Rules. Rule 14.28 has application only where there is a pleading (inter alia a Statement of Claim).
Accordingly, I order that the proceedings be dismissed. The Plaintiff is to pay the costs of the proceedings.
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LAST UPDATED: 29/06/2006
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