Edwards v Commonwealth of Australia & Ors (No.2)

[2012] FMCA 702

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EDWARDS v COMMONWEALTH OF AUSTRALIA & ORS (No.2) [2012] FMCA 702

CONSUMER LAW – Enrolment in medical school at university – conditions on bonded medical rural scholarship student place – whether student could transfer to un-bonded place after commencing course – whether misrepresentations made by the University or the Commonwealth – cancellation of enrolment after withdrawal from scholarship – whether authorised by law or contract – Constitutional validity of MRBS Scheme – no grounds for any relief established by applicant – application dismissed.

The Constitution (Cth), ss.51(xxiiiA), 51(xxxi), 61, 109
Corporations Act 2001 (Cth)
Health Insurance Act 1973 (Cth), s.19ABA
Health Insurance Amendment (Rural and Remote Area Medical Practitioners) Act 2000 (Cth)
Higher Education Funding Act 1988 (Cth), ss.3, 13, 15, 16, 18, 34, 38, 39(1), 41, 57(2)
Higher Education Support Act 2003 (Cth)
Judiciary Act 1903 (Cth), s.78B
Privacy Act 1988 (Cth)
Privacy and Personal Information Protection Act 1998 (NSW)
Trade Practices Act 1974 (Cth)
University of Sydney Act 1989 (NSW), ss.36, 37

Dickson v The Queen (2010) 241 CLR 491
Health Insurance Commission v Peverill (1994) 179 CLR 226
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140
Kruger v Commonwealth (1997) 190 CLR 1
Lambert v Weichelt (1954) 28 ALJR 282
Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155
Smith v ANL Ltd (2000) 204 CLR 493
Williams v Commonwealth (2012) 288 ALR 410
Wong v Commonwealth (2009) 236 CLR 573

Applicant: THOMAS CHRISTOPHER EDWARDS

First Respondent: COMMONWEALTH OF AUSTRALIA

Second Respondent:

UNIVERSITY OF SYDNEY

ABN 15 211 513 464

Third Respondent: SECRETARY, DEPARTMENT OF HEALTH AND AGEING

Fourth Respondent: MINISTER FOR HEALTH

Fifth Respondent: DEPARTMENT OF HEALTH AND AGEING

File Number: SYG 1463 of 2010

Judgment of: Smith FM

Hearing dates: 21, 22, 23, 24 February 2012

Date of Last Submission: 29 May 2012

Delivered at: Sydney

Delivered on: 7 September 2012

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First, Third and Fourth Respondents: Ms A Mitchelmore

Solicitors for the First, Third and Fourth Respondents: Australian Government Solicitor

Counsel for the Second Respondent: Mr N Owens

Solicitors for the Second Respondent: Minter Ellison

ORDERS

1. The name of the fourth respondent is amended to “Minister for Health”.

2. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1463 of 2010

THOMAS CHRISTOPHER EDWARDS

Applicant

And

COMMONWEALTH OF AUSTRALIA

First Respondent

UNIVERSITY OF SYDNEY

ABN 15 211 513 464

Second Respondent

SECRETARY, DEPARTMENT OF HEALTH AND AGEING

Third Respondent

MINISTER FOR HEALTH

Fourth Respondent

DEPARTMENT OF HEALTH AND AGEING

Fifth Respondent

REASONS FOR JUDGMENT

Introduction
The funding of Medical School places
The development of the MRBS Scheme
Mr Edwards’ MRBS scholarship and student place
The cancellation of Mr Edwards’ enrolment
Mr Edwards’ Constitutional contentions
Conclusions on Mr Edwards’ claims

Introduction

1. In 2000, Mr Edwards applied for entry to the Sydney University Medical School (‘the Medical School’) under a graduate-entry four year medical degree program, in which it proposed to allocate 182 standard entry student places to new students enrolling in 2001.  After he completed the selection procedures, he was informed that the Medical School might have an additional 25 places for students willing to accept a Medical Rural Bonded Scholarship (‘MRBS’).  In early February 2001, he was offered one such place, and was given no offer of a standard student place. 

2. Mr Edwards accepted the offer of the MRBS place, although it required him to undertake his clinical education in Canberra, and to work in a rural or remote location for 6 years after completion of his medical education. These requirements were always unattractive to him, and during his first two years of study they became increasingly irksome for his preferred medical career.  He suspended his studies during 2003 to consider his future. 

3. In January 2004, Mr Edwards gave notice to the Commonwealth that he was ceasing to be bound by the MRBS contract.  He also re-enrolled for a third year of studies at the Medical School, before the Medical School could discover his repudiation of his scholarship.  By doing so, he challenged a warning which had been given to him by the University in its 2001 letter of offer:

   In the event that you do withdraw from the MRBSS, we cannot provide you with a continuing unfunded place in our program; thus, your place will be terminated and your enrolment in the University of Sydney Medical Program will be cancelled.

4. When threatened with cancellation of his enrolment in early 2004, Mr Edwards sought an injunction from the Supreme Court of NSW. After a mediation, Mr Edwards agreed on 31 March 2004 to discontinue the proceedings, and acknowledged that it would be open to the University “to proceed to cancel your enrolment in the Graduate Medical Programme”, unless he reached agreement before 2 April 2004 with the Commonwealth Department of Health and Ageing for the reinstatement of his Medical Rural Bonded Scholarship.  However, no evidence of an agreement with the Commonwealth was presented to the University, although the Department of Health had indicated its willingness to reinstate Mr Edwards’ scholarship.  The University proceeded to cancel Mr Edwards’ enrolment, and to exclude him from further medical studies at its facilities.

5. Mr Edwards has never accepted this outcome, and has pursued grievances about the ending of his medical studies against the University and the Commonwealth in a variety of forums.  In April 2010, he commenced an action in the Federal Court, which was transferred to this Court.  After significant delays to accommodate Mr Edwards, it was finally brought to a four day trial before me in February 2012.  Almost all of that time was given to Mr Edwards to explain his evidence and submissions.  At the conclusion of the hearing, I allowed Mr Edwards an opportunity to lodge supplementary written submissions.  He presented these in more than 300 pages, including replies to short written submissions from the respondents. 

6. Mr Edwards has not been legally represented, and unfortunately he has never achieved a focused presentation of his case.  In his pleadings he made claims for millions of dollars in damages and other relief with a bewildering multitude of causes of action and inadequate particulars.  He also made numerous contentions of improper and unlawful conduct, including challenges to the Constitutional validity of the MRBS Scheme and of the provisions of the Health Insurance Amendment (Rural and Remote Area Medical Practitioners) Act 2000 (Cth) which underpinned the MRBS contract.

7. Mr Edwards’ voluminous evidence and very lengthy oral and written submissions did not address the elements of the causes of action he had pleaded, nor the defences raised by the respondents.  Rather, Mr Edwards elaborated his complaints by convoluted and repetitive references to his student history, and to his close study of innumerable documents which he has located under Freedom of Information (FOI) legislation.  My discussion with him over several days at the hearing revealed many obvious misconceptions of the law and evidence on which he attempted to construct a case.  It is unnecessary, and impossible, in the course of the present judgment to cover much of this territory again. 

8. Doing the best I can to understand all of Mr Edwards’ arguments and to focus upon his principal contentions, I have been unable to find any substance for his claims that he is a victim of breach of contract, fraud, conspiracy, misleading statements, or other tortious or unlawful conduct by the respondents.  Nor for his claims that he was wrongfully excluded from an entitlement to a non-bonded standard student place at the Medical School in 2001 or 2004.  Nor for his Constitutional contentions, to the extent that I can understand them. 

9. My conclusion that Mr Edwards has shown no foundation in law or fact for the grant of any relief means that I do not need to address most of the defences raised by the respondents.  These included invoking statutory time limits, disputing jurisdiction under the Trade Practices Act 1974 (Cth), challenging the proof and causation of loss, and raising discretionary considerations arising from Mr Edwards’ previous litigation.

10. In the above circumstances, I propose to explain my conclusions in the course of examining the background to the development of the MRBS Scheme and Mr Edwards’ actions in the period from 2000 to 2004. The legislative, administrative and funding background was unknown to Mr Edwards at the time of his enrolment, except in so far as it was conveyed in the correspondence sent to him.  However, the general background to the Scheme becomes relevant, because Mr Edwards claims that it now shows that he was sent misleading correspondence and was actually misled during the 2000-2001 period. 

11. Central to Mr Edwards’ case are his claims that he was misled as to whether he might be able to convert his enrolment at the Medical School from a MRBS Scheme place to a standard student place, and whether he could continue to enrol at the Medical School if he withdrew from his scholarship before completing his course.  He also claims that, even if he was not misled, the background later discovered by him shows with hindsight that he had rights of enrolment at the Medical School outside the MRBS Scheme, which he was wrongly denied in 2001 and 2004. 

12. As I shall attempt to explain, I consider that these contentions are contrary to the evidence and are incorrectly premised in law.

The funding of Medical School places

1. The starting point is a correct appreciation of the manner in which the Commonwealth funded the provision of education to students enrolled at the Medical School between 2001 and 2005.  Mr Edwards’ submissions were replete with misconceptions about this, fed by his misreading of the internal documents obtained under FOI and his mistaken analysis of the legislation. 

2. In particular, Mr Edwards failed to appreciate that Commonwealth funding for the teaching of both standard entry and MRBS Scheme Medical School places derived both from student course fees, which were payable upon enrolment or re-enrolment each semester and were covered by the HECS Scheme, and also from additional annual grants to universities which came with conditions as to the numbers and types of enrolments which were funded for teaching.  The introduction of the MRBS Scheme did not require any departure from the legislative structure of this funding of ‘ordinary’ or ‘standard’ or ‘non-bonded’ student places at medical schools, but required the development of administrative guidelines conditioning the additional Commonwealth grants for the additional places which were provided under the MRBS Scheme.  No new funding legislation was required, and it was necessary only that the MRBS guidelines should be mutually acceptable to the universities and to the administering Departments of the Commonwealth.  As will appear, the only legislative changes which were required, were amendments to the Medical School’s rules to enable enforcement of the MRBS scholarship conditions against the scholarship holders before they had completed their courses, and amendments to the Medicare legislation to enable enforcement of the scholarship conditions against former MRBS students after they had gained their professional qualification.

3. The Commonwealth funding of all relevant Medical School places between 2001 and 2005 was governed by administrative arrangements which implemented the Higher Education Funding Act 1988 (Cth) (‘the Funding Act’). Mr Edwards’ submissions were misconceived, when they attempted to gain strength from more elaborate provisions in later legislation, the Higher Education Support Act 2003 (Cth).  Administrative processes under that Act commenced during 2004, but it governed funding for Universities only from the 2005 grants year.  Its terms can be ignored entirely when considering the funding of the student place occupied by Mr Edwards in earlier years, and the events which occurred between 2000 and 2004.

4. Chapter 2 of the Funding Act provided for “Grants for Higher Education Assistance”. Sections 15 and 16 required the payment to specified education institutions, including the University of Sydney, of “such amount as the Minister determines having regard to the educational profile of the institution” for their “operating purposes” and “limited operating purposes” in respect of each calendar year. Section 3 defined ‘operating purposes’ and ‘limited operating purposes’ as including “the general teaching purposes of the institution in connection with courses of study provided by or at the institution”.  Other provisions allowed the making of grants to education institutions for other purposes, but it is unnecessary to refer to these since they were not involved in the MRBS arrangements between the Commonwealth and the Medical School.

5. Section 18 provided statutory conditions attaching to operating grants made for teaching and other purposes. These including that the institution “will spend each amount of financial assistance received by it only in accordance with the educational profile of the institution provided to the Minister”, and that the institution would charge undergraduate and post-graduate fees for particular courses only as permitted by Ministerial guidelines made under s.13. The Minister thereby acquired the ability from year to year both to control the amount of Commonwealth grants made available to enable the teaching programmes of institutions, and to control their ability to raise additional funding from course fees. In effect, the Funding Act forced institutions such as the University to discuss and reach agreement with the Minister’s advisors each year as to the numbers and types of student places which they would be able to provide in the following year in courses such as those to be offered at the Medical School, and as to the conditions upon which they would be provided.

6. The essential point to be gleaned from the Funding Act, which Mr Edwards’ submissions did not accommodate, is that the Minister’s control over annual grants for the teaching purposes of the Medical School gave the Minister a statutory control of purse strings vital to the Medical School’s ability to provide education for all of its prospective medical graduates. No doubt, the discussions between the institutions and the Minister’s advisors were conducted with an appreciation of academic practices and the need for forward planning for courses extending over periods of years. However, the Funding Act contained no irrevocable legal commitments by the Commonwealth to the funding of particular student places for the entirety of courses lasting more than one year, and it did not impose on the institutions any legal obligation to make such commitments to its students. The Funding Act gave no rights to the students in respect of the grants made to enable their education from year to year.

7. The Commonwealth in the 2000-2001 Budget announced a new policy developed within the Department of Health to allow medical schools to provide additional scholarship places for students bonded to work in rural and regional areas. The administrators within that Department and the Department administering the Funding Act, the Department of Education, Training and Youth Affairs (DETYA), then discussed with the medical schools how provision for this additional funding would be accommodated within the structure of the universities’ teaching grants for the following year. Although the internal working documents of the two Departments and the medical schools which are in evidence show a high degree of mutual respect and cooperation to achieve the objectives of the MRBS Scheme, implicitly all the administrators must have been aware that the Commonwealth controlled vital purse strings, and that the conditions of the Scheme which were regarded as vital to the Commonwealth’s policy could be enforced on a participating medical school through the framing of its grants for the following year.

8. Students enrolling for courses of education would not be expected to know, or to want to know, the details of the Commonwealth funding for their student place through the arrangements leading to annual operational grants to the institution under the Funding Act. From their perspective, the significant financial concern was the levying on most students of course fees which, whether they were aware of it or not, would provide only part of the funds supporting their student place. Unfortunately, Mr Edwards’ submissions misunderstood this point, and he incorrectly assumed a sole or dominant role of the HECS Scheme of course fees in the planning and funding of both ‘standard’ and MRBS student places at the Medical School.

9. Course fees at the Medical School were levied and paid pursuant to the provisions of Chapter 4 of the Funding Act, which is entitled “Higher Education Contribution Scheme” (commonly known as the HECS Scheme). Compliance with the HECS Scheme was an additional condition on the Commonwealth grants of financial assistance to an institution (see s.38). The key obligation on an institution under s. 39(1) was to require every student, who was not exempt and who was “undertaking a designated course of study at the institution on the census date” of each semester of his or her course, “to pay to the institution in respect of that semester a contribution, ascertained in accordance with this section, towards the cost of the provision of that course of study”.Section 34 relevantly defined ‘census date’ in relation to a semester of a course of study such as was offered at the Medical School as, in effect, a date 14 days after the commencement of each semester of teaching in each calendar year.

10. The HECS Scheme provided for the institution always to receive the full amount of the permitted course fees for which students became liable each semester, while establishing a loan scheme for students to pay their fees or ‘contributions’, with an inducement for a student to obtain from the Commonwealth a 25% rebate on his or her liability. Section 41 provided that an institution “shall not permit” a non-exempt student “to enrol for, or undertake, a designated course of study in a semester” unless the student paid at least 75% of the contribution to the institution, and gave a request that the Commonwealth pay the balance to the institution. Alternatively, the student could elect each semester to give the institution an executed request that the Commonwealth lend to the student the unpaid contribution for that semester. Where a loan was requested, the Commonwealth was required under s.57(2), “as a benefit to the student, (to) pay to the institution” the unpaid contribution. The Funding Act also contained elaborate provisions for the recovery of Commonwealth loans using the income tax assessment system, but these provisions do not need to be examined.

11. It is apparent from the elements of the HECS Scheme which I have summarised above that, contrary to Mr Edwards’ submissions, there was nothing in the Funding Act which attached any legal obligation on either the Commonwealth, or an institution, to provide a student with access to a course covered by the HECS Scheme continuously over all of the semesters which would be required to be studied before completing the course. The HECS Scheme was not directed at this objective, but left to the individual institution the making and enforcement of its rules and practices as to the circumstances in which they would allow students to be enrolled for each semester and to complete their course. The HECS Scheme was concerned only to designate which students would be required partly to pay for the cost of their education, by way of a course fee or ‘contribution’ levied each semester in which they were allowed to enrol, and to provide for its payment by the student or on loan from the Commonwealth upon each enrolment for each semester of a course. The basic structure of the HECS Scheme revealed no concern whether, in fact, a student ever completed his or her course, and what were the circumstances in which it might not be completed. These factors were relevant under the HECS Scheme, if at all, only in relation to discretions to alleviate hardship arising from the HECS loans recovery scheme.

1. I can therefore find no support in the HECS provisions of the Funding Act for an important theme in Mr Edwards’ submissions. This was that the payment to the Medical School of his first ‘contribution’ under the HECS Scheme, upon his enrolling for the first semester of his medical course, carried a legal consequence that he would thereafter be permitted to re-enrol in every subsequent semester of the course for a student place in its teaching programme, regardless of its designation by the Medical School as a ‘standard entry place’ or a ‘MRBS place’. He submitted that once his first HECS liability was met, he could not be excluded from continuing his enrolment until the end of his course, regardless of his compliance with other conditions attaching to his continuing admission to a student place at the Medical School. In my opinion this theory has no basis in any legislation or any other source of law which I can discern.

2. Nor can I find any suggestion of the existence of such a right in any of the references to the HECS Scheme in the documents which are in evidence written by officers of the Commonwealth or the University.  I do not accept that any of those documents contained a misrepresentation that this was the effect of the HECS legislation or administration. 

3. The FOI documents obtained by Mr Edwards showing the development of the MRBS Scheme within the Commonwealth Departments and the universities must be read with the above legislative and funding structure in mind.  Because the internal documents and correspondence were not written for the information of external readers, they at times use jargon or simplifications of the funding structure which need to be appreciated. Unfortunately, Mr Edwards’ submissions showed a pervasive inability to understand the documents in their proper context.

4. Mr Edwards has pored over the internal documents obtained under FOI requests, seizing upon bureaucratic terminologies and short-hand references taken out of chronology and context, and failing to appreciate the nature of the discussions within and between universities and government departments.  In particular, he has seized upon occasional inexact descriptions of standard non-bonded medical school places as ‘HECS places’ or ‘DETYA places’ as distinct from the additionally funded ‘MRBS places’.  At times this usage was imprecise although not misleading, because undoubtedly these scholarship holders were also required to pay HECS course fees, and undoubtedly the additional grants for those places were administered by DETYA.  However, properly understood, in my opinion, none of the references to which I was taken by Mr Edwards, including in the information which he was given at the time, provides any substance for his contentions that he obtained by his enrolments between 2001 and 2004 a legal entitlement to a ‘standard student place’ or ‘HECS place’ or ‘DETYA funded place’ for the duration of his medical course, which survived the termination of his ‘MRBS student place’.  Nor, as I shall explain, was this ever misrepresented to him.

The development of the MRBS Scheme

1. The MRBS Scheme had its origin in a policy developed by the then Commonwealth government for its 2000-2001 Budget.  The Scheme was a component of a broad policy directed at the objective of “delivering more doctors and better services to rural and regional communities”.  Before and after the budget announcement, there was discussion between the government’s advisors and external groups, including the Australian Medical Association (AMA) and the universities, about providing a scholarship scheme with funding for additional places at the medical schools, which would supply additional newly qualified doctors who would be bonded by contract to work in rural and regional areas.  The minutes of a meeting on 7 June 2000 between the Committee of Deans of Medical Schools and officers of the Department of Health, show a thorough discussion of a still evolving proposal for the Scheme.  The minutes show discussion of the method of funding the additional medical school places, the promotion of the scheme, the selection of prospective scholarship holders, the legal implications for the universities taking part, the counselling of students about their career commitment, and other matters.

2. There is no suggestion in the minutes from the June meeting that the Deans thought that the scholarship scheme could not be implemented to commence in 2001.  However, everyone involved in the planning must have been aware that the medical schools were in the process of publishing their course programmes and selection procedures for new entrants in the following year.  Sydney University had published a ‘medical program’ booklet in May 2000, which explained its four year graduate entry course for 2001.  It said that there was a ‘quota’ for 2001 of 182 new places for Australian permanent residents or Australian and New Zealand citizens, and of 40 places for international students.  It explained a detailed selection process which assessed the applicants’ academic results in their undergraduate bachelor’s degrees and in the Graduate Australian Medical School Admissions Test (GAMSAT), and also gave substantial weight to the applicants’ presentation at interview.  It said “most interviews will be conducted in Sydney in the period 3-6 October 2000”, and “first round offers are normally made in late October and a small number of subsequent offers may be made in December and January”. 

3. Similar information as to entry to the Sydney University Medical School was published in an “Admissions Guide 2001” published by the Australian Council for Educational Research (ACER), which conducted a combined selection process for the graduate programmes of four universities, including Sydney University.  It is to be noted that there was a deadline of 30 June 2000 for the receipt of applications at ACER.  Necessarily, these documents made no mention of the possibility that applicants might be offered medical school places under a bonded scholarship scheme, since its details had not yet been settled.

4. A ‘follow up’ letter to the Deans from Mr Wells at the Department of Health is dated 31 July 2000.  It told them that “the allocation of scholarship places for each university is not yet confirmed”.  In relation to additional funding, he said: “DETYA advises that universities will receive $20,000 per student place. This amount includes the HECS contribution by students and the operating grant paid to the Universities.”  He also said:

   As discussed at the meeting with the Deans, the selection process for the Scheme is as follows:

   ·    all students applying to medical school will be provided with the opportunity to apply for a bonded scholarship. Each university will build on its own selection processes to recruit bonded scholars;

   ·    students will apply for the bonded scholarships through the usual university application processes;

   ·    academic merit will be the primary selection factor for all scholars, with interest in rural health and motivation to work in a rural area taken into account where the university’s selection process allows.

5. Mr Wells noted that information would be sent out to all candidates applying for medical school places in 2001, and that the Scheme would only proceed if legislation was passed by Parliament in 2000 “to allow the Commonwealth to enforce the bond”.  He said:

   I expect that graduate applicants will be asked to express their interest in the Scheme by mid-September and undergraduate applicants would be expected to express their interest in the Scheme by mid-December. I anticipate that this should provide enough time for the applicants to consider the benefits and conditions of the Scheme, before offers are made.

6. The foreshadowed legislation was introduced to the House of Representatives on 31 August 2000.  It speedily passed both Houses, and received its assent on 24 November 2000.  It took its form as the Health Insurance Amendment (Rural and Remote Area Medical Practitioners) Act 2000 (Cth), which inserted s.19ABA into the Health Insurance Act 1973 (Cth). It provided:

   19ABAMedicare benefits not payable in respect of services rendered by doctors who breach certain contracts with the Commonwealth

   (1)    Despite section 19AA, a medicare benefit is not payable in respect of a professional service rendered by, or on behalf of, a medical practitioner who has breached a contract with the Commonwealth under which the practitioner has agreed to work in a rural or remote area.

   (2)    The period during which medicare benefits are not payable under subsection (1) is a period equal to twice the length of the period that the practitioner has agreed, under the contract, to work in the rural or remote area or such shorter period as is determined in, or in accordance with, the contract.

   (3)    Subsections (1) and (2) apply whether or not the medical practitioner referred to in those subsections was a medical practitioner at the time of entering the contract or at the time of the breach.

   Application

   (4)    This section applies to contracts entered into after the commencement of this section.

7. On 14 September 2000, the Medical School was informed that the proposed additional allocations to universities “under the new budget initiative, the Medical Rural Bonded (MRB) Scholarship Scheme” had been approved by the Minister for Health, and that “the intakes allocated to your University (including the ACT) for 2001 and 2002 are 25 EFTSU and 25 EFTSU respectively”.  I understand the term ‘EFTSU’ as being jargon for “equivalent full-time student unit”, being a standardised per-student measure for Commonwealth operational grants used at that time under the Funding Act (cf. s.13(3)).

8. Letters and a detailed ‘information pack’ about the MRBS Scheme prepared by the Department of Health were posted to all medical school applicants during October 2000, including Mr Edwards.  These documents included very thorough and, in my opinion, fair and accurate, information about the proposed terms and conditions of the Scheme.  The covering letter introduced the proposed scheme in an easily comprehensible way:

   The Commonwealth Government, as part of its 2000-2001 Budget, announced 100 extra places for first year medical students commencing in 2001. These places are part of the Medical Rural Bonded (MRB) Scholarship Scheme under which 100 students will receive $20,000 tax free each, per year of university study, in return for six years of rural work. The MRB Scholarship Scheme will proceed provided legislation is passed in the Spring Sitting of Parliament 2000.

   Universities will be responsible for offering Scholarships. Having commenced their allocation of Standard Entry places universities will make provisional Scholarship offers to applicants who have indicated an interest in accepting a Scholarship and eventually working as a doctor in a rural area. Formal scholarship offers will be made provided legislation is passed in the Spring sitting of Parliament 2000.

   1f you are interested in a MRB Scholarship you will need to complete and return this Application Form directly to the university that sent you this Pack. Your Application Form must be received by a date specified by the university. Please note that this form is not binding.

   Those applicants offered scholarships will be asked to sign a legally binding contract with the Commonwealth at a later stage. When available, details of the contracts will be posted on the website for your information. Students who are offered a Scholarship will be forwarded a contract by the university.

   (emphasis in original)

9. Applicants seeking entry to Sydney University Medical School were also sent a letter from its then Dean, Professor Leeder, which explained how the Medical School would allocate the 25 additional places which had been made available to it for additional new students in 2001.  This communication is a critical part of Mr Edwards’ case, and it is appropriate to extract its contents in full.  The words in bold were emphasised in the letter dated 18 October 2000:

   Dear <<Title>> <<Surname>>

   The enclosed Information Pack on the Commonwealth Government’s proposed Medical Rural Bonded (MRB) Scholarship Scheme is being sent to all University of Sydney Medical Program (USydMP) and Combined Degree Program (CDP) applicants who attended their admissions interview this month and are therefore still under consideration for offers of places as HECS-eligible students in the program commencing in February 2001. It is also being sent to applicants who were given permission to defer their USydMP 2000 places until February 2001.

   Please note that receipt of this letter and Information Pack is in no way related to whether or not you will receive an offer of a place in USydMP/CDP 2001. As indicated in our USydMP Prospectus 2001, first round offers of places (or advice that your application was not successful) will be made by 27 October 2000.

   The purpose of this letter is to explain to you how we plan to handle applications for the MRB Scholarship Scheme places that will become available in 2001 if the appropriate legislation is passed by Parliament in time; please read this information in conjunction with the material in the Information Pack (which was supplied to us on 5 October 2000). If for any reason the scheme is not implemented by the Commonwealth Government for medical students commencing their programs in 2001, the information and procedures outlined below will not be relevant or applicable, and our normal process of filling our quota of USydMP/CDP places will continue as described in our USydMP Prospectus 2001 and in the Graduate Australian Medical School Admissions Guide 2001.

   Note that the provisions of the Scholarship Scheme are correct as at October 2000, but there may be subsequent changes; the Information Pack contains telephone and internet contact details so that you can obtain more up to date information in the coming few months. An enquiry number for our Admissions Office is also given, primarily for information about our processing and ranking of applications for MRB Scholarship Scheme places in the USydMP/CDP.

   A total of 25 MRB Scholarship Scheme places is available in the USydMP/CDP commencing in February 2001. These places are funded by the Department of Health and Aged Care (as tax-free scholarships of $20,000 p.a. per student, plus appropriate funding direct to the University of Sydney), and are additional to our normal quota of 182 places for HECS-eligible students (funded by the Commonwealth of Australia through the Department of Education, Training and Youth Affairs). The latter 182 places comprise what the Information Pack describes as Standard Entry places. Students accepting a MRB Scholarship Scheme place in the USydMP/CDP will be allocated to the Canberra Clinical School for the two full-time Clinical School Blocks in Years 1 and 2 of the USydMP, and for the full-time Clinical School placements in Years 3 and 4; this allocation will form part of the conditions of the MRB Scholarship Scheme contract, because the 25 places allocated to our medical program are specifically designated as “University of Sydney/ACT”. MRB Scholarship Scheme students will also be required to pay the standard HECS expenses and other fees and expenses associated with the USydMP/CDP as detailed in our USydMP Prospectus.

   The Medical Rural Bonded Scholarship Application Form – 2001 in the Information Pack must be returned to our Admissions Office by 5.00pm, Monday 6 November 2000 (postal address: [omitted]) if you wish to be considered for a MRB Scholarship Scheme place. When you complete this form, please write your GAMSAT number (as shown above) in the section labeled “University Application Number”. Please return the form by the deadline, regardless of your decision whether or not to request consideration for a MRB Scholarship Scheme place, so that we will know that you have received the Information Pack.

   Your expression of interest in one of these places is not binding, in that you are not obliged to accept such a place if one should be offered to you. However, you will not be considered for a MRB Scholarship Scheme place in 2001 in any circumstances if you:

   (a)tick the second box in each of the two questions; or

   (b)do not return the form by 6 November 2000 (regardless of your response to the questions).

   If you indicate that you do not want to be considered for one of these places when you return your form, you will not be allowed to change your decision and request consideration after the deadline of 6 November 2000.

   Our first round of offers of places in late October will be confined to offers of Standard Entry places. Soon after the 6 November 2000 deadline for the return of the application forms, we will offer MRB Scholarship Scheme places to recipients of Standard Entry place offers who have ticked the first box in Question 1, in the same order of ranking as is used for making offers of places (i.e. based on interview rating, then CDP rating if applicable, then overall GAMSAT and if necessary, bachelor’s degree performance), until all such places have been offered, or no further recipients of Standard Entry place offers have indicated that their first preference is to accept a MRB Scholarship Scheme place. Those offered MRB Scholarship Scheme places at this stage will have to confirm their acceptance of those places and return the signed contract that will form part of the offer. A deadline for this process remains to be decided, because we do not know when contracts will become available; you may be advised, of the outcome of your request for consideration for a MRB Scholarship Scheme place before you are able to be provided with a contract. In any event, your Standard Entry place offer will not be revoked until you have accepted an MRB Scholarship Scheme place AND returned a signed contract, in accordance with the deadlines imposed.

   Depending on the number of MRB Scholarship Scheme places accepted by the recipients of first round offer Standard Entry places, a number of Standard Entry places may then become available for subsequent offer rounds, to those applicants ranked in the normal manner for offers of Standard Entry places, but not highly enough for a first round offer. In addition, some MRB Scholarship Scheme places may be offered in subsequent rounds to those applicants who were not successful in gaining a first or subsequent round offer of a Standard Entry place but who have ticked the first box in Question 2. As for the first round of offers, those becoming eligible for a later round offer of a Standard Entry place would have preference for an offer of a MRB Scholarship Scheme place if they have ticked the first box in Question 1.

   Clearly, there may be considerable delay in offering the last of the MRB Scholarship Scheme places to those who are too low in the ranking to receive a Standard Entry place offer but are willing to accept a MRB Scholarship Scheme place. In all situations, the same order of ranking will be used for offering both Standard Entry places and MRB Scholarship Scheme places, and MRB Scholarship Scheme places will not be final until an acceptance and signed contract is returned. As stated in our Prospectus and in the Admissions Guide, offers of Standard Entry places will not be made to applicants who have not achieved our minimum levels of suitability as determined by the interview rating or the minimum acceptable levels of GAMSAT and bachelor’s degree performance; the same will apply to offers of MRB Scholarship Scheme places.

   Yours sincerely,

   Professor Stephen Leeder

   Dean

   (emphasis in original)

10. The enclosed “Medical Rural Bonded Scholarship Application Form – 2001” requested:

    Please express your interest in a Bonded Scholarship place by answering both the questions below:

    Question 1.

    Tick one box only.

    oMy first preference is to accept a place in medical school with a Medical Rural Bonded Scholarship.

    oMy first preference is to accept a Standard Entry place in medical school without a Medical Rural Bonded Scholarship.

    If you ticked the first box there is no need to answer Question 2.

    If you ticked the second box then go to Question 2.

    Question 2.

    Tick one box only.

    oI would accept a place with a Medical Rural Bonded Scholarship if I was not successful in gaining a Standard Entry place.

    oI would not accept a place with a Medical Rural Bonded Scholarship if I was not successful in gaining a Standard Entry place.

    (emphasis in original)

1. One aspect of the MRBS Scheme, which was not fully settled when this information was sent to medical school applicants in October 2000, concerned the future transferability of a MRBS medical student from his or her MRBS funded place to a ‘standard entry place’ during the currency of his or her medical course.  Some of the medical schools who were allocated additional places did not immediately perceive the significance of this issue, but it is apparent that it was of concern to Professor Leeder.  He thought that the Department of Health should give a clear direction to the universities, and that it should be clearly drawn to the attention of all applicants when they were asked to consider a scholarship offer. 

2. The issue was flagged in correspondence to Professor Leeder and other Deans from Ms Cobbold in the Department of Health, in a letter dated 15 December 2000.  In effect, this letter recorded an essential condition upon which the Commonwealth would make the additional MRBS grants to the medical schools and would offer the scholarships to prospective medical students.  Her letter, which also enclosed the approved form of scholarship contract, said:

   A key element of the MRB Scholarship Scheme is that the Scholarships are tied to the new funded university places. The Minister has made a commitment that the equivalent of 100 new Scholarships will be offered each year, and that for any student who withdraws from a Scholarship, an extra Scholarship and student will be added to the Scheme the following year. Each university would thus replace a student who withdraws from a Scholarship based at their university with an extra bonded student in the intake of the following year.

   It is important to note that no extra funding will be provided for the enrolment in Medical Rural Bonded Scholarships of extra students to replace those who withdraw from the Scholarship.

   Thus the university will need to cancel the enrolment in medicine of students who withdraw from the Scholarship. The Scholarship contract makes it very clear to students that the University place of those who withdraw from the Scholarship will not be funded under the MRB Scholarship Scheme.

3. Professor Leeder discussed the issue in a memorandum to his Vice-Chancellor dated 20 December 2000:

   I draw your attention in particular to the paragraph at the foot of the page 1 and to the first two paragraphs of page 2 of the letter. I also refer you to clause E on the first page of the contract and to clause 5 (RECOVERY OF SCHOLARSHIP AMOUNT).

   If I understand the documents correctly, a student who participates in the Medical Rural Bonded Scholarship Scheme may withdraw from the Medical Program or from the Scholarship Scheme before commencing the third year of study without penalty so far as the Department of Health and Aged Care is concerned. The Department, however, will not provide any further funding for such a student to the University. It then becomes a matter for the University to decide whether such a student may continue in the medical course.

   Clearly, if the students were to be able to accept a tax payer funded scholarship valued at $40,000 ($20,000 p.a.) for the first two years of a medical course, withdraw from the Scholarship Scheme without any penalty and then continue to gain medical qualifications, this would be a scheme of great financial benefit and attraction to potential students. It would also be a scheme that failed to fulfil the Government’s intention of recruiting medical practitioners for rural Australia. I believe that the University should make it very clear to applicants that their enrolment in the University of Sydney Medical Program will be cancelled should they discontinue their medical studies or withdraw from the Scholarship Scheme before commencing their third year of studies and so recommend you.

   Whatever decision you make in this matter should, I believe, be communicated to students when we provide them with an offer of a place in the USydMP as part of the Government’s Medical Rural Bonded Scholarship Scheme. Consequently, a decision is needed urgently so that offers of places can be made by the Faculty as early as possible in January.

4. He also raised the ruling in a response to Ms Cobbold dated 21 December 2000:

   Thank you for your letter of 15 December 2000 regarding the Medical Rural Bonded Scholarship Scheme. I was surprised to read in the documentation that students will be able to withdraw from the Scheme or discontinue their medical studies without penalty so far as the Department of Health and Aged Care is concerned provided that they do so before commencing their third year of studies. I am recommending to the Vice-Chancellor that such students not be allowed to continue in the University of Sydney Medical Program. The Faculty, however, will not be able to issue offers of scholarships until that matter is resolved.

   (emphasis in original)

5. Ms Cobbold also received queries from some other medical schools, including some who were unsupportive of a policy to exclude the re-enrolment of students who withdrew from their scholarship but were otherwise satisfactorily meeting course requirements.  However, she confirmed in a facsimile to members of the Committee of Deans dated 21 December 2000:

   ·    Paragraph 5 of the letter of Friday 15 December reads:

   It is important to note that no extra funding will be provided for the enrolment in Medical Rural Bonded Scholarships of extra students to replace those who withdraw from the Scholarship.

   Feedback has noted that this sentence may be unclear. The following para explains this more clearly:

   The students who replace those who withdraw from the course will be fully funded for the entire course. DETYA have indicated that, depending on the attrition rates, the process for replacing students who withdraw may need to be reviewed in several years to ensure that funding is maintained within the total appropriated for the Scheme in the budget.

   ·    The letter of Friday 16 December notes that the university will need to cancel the enrolment in medicine of students who withdraw from the Scholarship.

   The issue has been raised of whether it may be possible for Universities to fund the enrolment of students who withdraw from the Scholarship from a non-DETYA source. The Commonwealth could not agree to this, as this would add to the overall number of medical students graduating. As you know, the Commonwealth is working towards initiatives (such as the Medical Rural Bonded Scholarships) to deliver more doctors to rural communities.

   ·    Also, the question has been posed of whether funding will be provided for students who fail a year. DETYA have advised that the same rules will apply to funding for the Scholarship places of students who fail subjects within the course and/or years of the medical course, as apply to funding for usual medical student places.

6. After the receipt of this email, Mr Rubin, the Sydney University Faculty of Medicine Executive Officer noted on the file: “no action needed by Vice-Chancellor as DHAC has clarified that students withdrawing from MRBSS may not continue medical studies”. 

7. Ms Cobbold concluded this exchange with a facsimile dated 22 December 2000 addressed to the Committee of Deans of Medical Schools, and with copies to all Vice-Chancellors of universities:

   Dear all

   I have been advised that Universities have noted that the Commonwealth policy regarding the cancellation of enrolment of students who cancel their Medical Rural Bonded Scholarship needs to be clearly stated as a guideline for Universities. This is so that Universities can execute decisions on student enrolment according to clearly directed citable Commonwealth policy. This will ensure equity and transparency of the Program nationally.

   As outlined in my letter of Friday 15 December 2000, a key element of the Scheme is that the Scholarships are tied to the new funded university places. The Minister has made a commitment that the equivalent of 100 new Scholarships will be offered each year, and that for any student who withdraws from the Scholarship, an extra Scholarship and student will be added to the Scheme the following year.

   The Commonwealth guideline on the issue of enrolment of students who withdraw from the Scholarships is outlined below:

   The Commonwealth can not allow Universities to continue the enrolment of students who withdraw from the Medical Rural Bonded Scholarship Scheme. This is because the Commonwealth is leading a national approach to contain the numbers of students graduating from medical school, and thus reduce the oversupply of doctors in some urban areas.

   Special strategies, such as the Medical Rural Bonded Scholarships, are in place to deliver more doctors to rural communities.

   Thank you for your suggestions regarding strategies to ensure the successful implementation of the Program. Please contact me if you have any queries regarding this fax.

8. There is no evidence that the University of Sydney ever departed from its acceptance of this condition on the MRBS additional funding which it received and accepted in 2001 and subsequent years, whether in relation to Mr Edwards or any other medical student.

9. The University of Sydney later gave formal recognition of its acceptance of this condition on its Commonwealth grant of funds for MRBS student places, in an amendment to the resolution of the Faculty of Medicine “relating to the degrees of Bachelor of Medicine and Bachelor of Surgery”. The date when the rule was formally adopted is unclear, but I find that it had become legally effective in relation to all students at the Medical School prior to Mr Edwards’ efforts in 2004 to withdraw from his scholarship and to enrol in a standard entry place. Power to adopt such a rule was conferred under a chain of delegated power originating under ss.36 and 37 of the University of Sydney Act 1989 (NSW).

10. The relevant part of the Faculty resolution was:

    1(6)(c) Medical Rural Bonded Scholarship Scheme (MRBSS)

    These places are funded by the Commonwealth Department of Health and Aged Care and are additional medical school places for Australian citizens or permanent residents who enter into a legally binding contract with the Commonwealth Government. The contract requires scholarship holders to complete medical training culminating in a Medical Fellowship qualification and commence a period of six years of medical practice in a rural location in Australia. Students with MRBSS places will receive a tax-free scholarship for the normal duration of their medical school program.

    (i)A quota of places will be available for students accepting Commonwealth Medical Rural Bonded Scholarships. This quota will be in addition to the 182 standard places available to Australian citizens and permanent residents and New Zealand citizens.

    (ii)The number of MRBSS places to be offered each year will be negotiated by Faculty and the Department of Health and Aged Care.

    (iii)The selection criteria for MRBSS places will be the same as for standard places in the University of Sydney Medical program.

    (iv)Applicants for the USydMP will be asked at the time of interview, whether they wish to apply for the MRBSS. Applicants must provide final notification to Faculty of their decision to accept a Medical Rural Bonded Scholarship, or otherwise, at least 10 working days before the first date for enrolment into the USydMP.

    (v)Faculty will bear no responsibility in respect of any students decision to accept or decline the Commonwealth MRBSS offer.

    (vi)Any student who, having been admitted to the USydMP in an MRBSS funded place subsequently relinquishes the Medical Rural Bonded Scholarship, will also relinquishes his/her place in the USydMP, effective from the date of relinquishment of the Scholarship.

11. The MRBS condition against transfer to a standard place was, as I shall explain below, made very apparent in the expressed terms of the offer to Mr Edwards of an MRBS place at the Medical School.  The above background is therefore strictly irrelevant to a consideration of the legal effects of his scholarship contract and the terms of his admission to the Medical School.  However, I have set out the background to the MRBS offer to Mr Edwards, to show that the very situation which emerged in relation to Mr Edwards’ enrolment in 2004 had been anticipated, fully considered, and fairly and lawfully addressed by the relevant officers of the Commonwealth and the University in the preparatory stages of the MRBS Scheme, before Mr Edwards received and accepted his MRBS offer, and before he encountered resistance to his desire to end his scholarship and become a ‘standard place’ student. 

12. In my opinion, the pre-contractual internal documents discovered by Mr Edwards negate suggestions by him that he became a victim of a personally motivated exclusion, or of policies of the Commonwealth and University which were unfairly or unreasonably evolved subsequent to his acceptance of his scholarship and MRBS place at the Medical School. 

13. In my opinion, the documents also negate Mr Edwards’ contentions that the MRBS Scheme allowed, whether by design or inadvertence, a scholarship holder to later withdraw from his scholarship and to continue to gain enrolment in his course as a ‘standard place’ student.  His argument that this was the consequence of both types of places being ‘HECS’ funded places and, in the language of Ms Cobbold in her 21 December 2000 email, “fully funded DETYA places” was, as I have explained above, misconceived, since it overlooked the critical significance of the fact that the medical schools received their additional funding for the additional MRBS places via an additional special component of their annual operational grants. 

14. Contrary to Mr Edwards’ submissions, there was no inconsistency, illogicality, or misrepresentation involved in other references in other documents to the MRBS places being ‘funded by’ the Department of Health and being ‘DHA places’, as well as being ‘HECS places’ and ‘DETYA places’. All of these labels were true, and none of them was used in a relevantly misleading manner, on a fair and reasonable reading of these references in their contexts. As I have explained above, it was true that the MRBS places were funded under the same mechanisms as standard places, i.e. by way of grants and student fees under the Funding Act administered by DETYA. However, the references to the Department of Health were obviously also true, in the sense that the $20,000 per annum stipends paid to scholarship holders under their contracts were probably met directly from the budget of the Department of Health. They were also true because DETYA acted administratively as a program partner or conduit for the additional Commonwealth operational grants and HECS remittances, which derived from a government policy for which the Minister for Health was generally responsible. In my opinion, none of the differences in the labelling of the relevant student places which were seized upon in Mr Edwards’ submissions assisted him to establish his claims for relief.

15. There is evidence tendered by Mr Edwards that in later years there was further discussion, including some criticism, within the administering departments and universities about the Commonwealth’s guideline requiring exclusion from further enrolment of MRBS students withdrawing from their scholarship.  However, there is no evidence that this condition was ever withdrawn or modified in its application by the Commonwealth, or by the University, or by other medical schools in later years.  At best, Mr Edwards’ researches under FOI were able to discover perhaps a very few exceptional instances involving decisions made at other medical schools, for example, where a student caught by the guideline was permitted to continue studies in medicine at a different medical school.  However, the circumstances of these cases were different from those of Mr Edwards, and none of them involved a waiver of exclusion by Sydney University Medical School.  I consider that none of his tendered ‘other cases’ material provided evidence supporting his causes of action against the Commonwealth and the University, and at the end of the day I concluded that all of this material was irrelevant.

16. Mr Edwards’ submissions based on his scrutiny of internal documents discovered under FOI also took him into exchanges which occurred within the Medical School and the University during late 2000 and subsequently, concerning how the additional annual operational grant funds of $20,000 per MRBS place should be allocated under internal university budgetary arrangements. Mr Edwards came across documents debating these issues, and he argued that they provided evidence of a ‘secret commission’ or ‘profit’ which in some obscure manner motivated his subsequent exclusion from the Medical School. However, I consider that all of these submissions showed no more than that Mr Edwards had misunderstood the role of Commonwealth operational grants to universities under the Funding Act, and was misreading the internal documents. In my opinion, to the extent that I can understand what was being discussed in the documents tendered by Mr Edwards, they show no more than perfectly reasonable and proper debates about the spending of public money provided by the Commonwealth for the provision of medical education by the University, including for prospective bonded rural doctors. I do not consider that any of the documents to which I was taken by Mr Edwards provided a ‘smoking gun’ or any other description of evidence supporting any of Mr Edwards’ complaints. At the end of the day, I was unpersuaded that they provided any relevant evidence supporting the grant of the relief he seeks.

17. Mr Edwards also tendered a number of documents which traced the implementation of the MRBS Scheme in relation to new student places in years subsequent to 2001.  These documents appear to confirm that the Scheme continued relevantly unchanged throughout the period of Mr Edwards’ enrolment at the Medical School and beyond.  I consider it unnecessary to further examine the nuances in which the Scheme was discussed, modified, and presented in internal and external documents during those later years.  I do not consider that they provided support for any of the causes of action pleaded by Mr Edwards.

18. It is enough to complete my discussion of the general background to the MRBS Scheme’s history, by noting a report written by Ms Cobbold in May 2001 to an officer at DETYA concerning the implementation of the MRBS Scheme.  It is of interest, because it shows that Sydney University was not able to fill its quota of 25 additional MRBS places for 2001, and that the unused places and their attached funding were re-distributed to other medical schools:

    I am writing regarding a funding adjustment to the universities for the Medical Rural Bonded (MRB) Scholarship Scheme. All 100 MRB Scholarship places were filled for the 2001 intake. The first Scholarship payments have now been made and the students have commenced their medical studies for 2001.

    There was an adjustment to the allocation for places to the universities as not all universities were able to fill all the places allocated to them (see attachment A). As officers in our Divisions have discussed, a funding adjustment will be required in order for the Universities to receive the correct allocation of funding for the number of medical school places offered at their University. The change to the allocation is for 2001 only. The allocation for 2002 remains as outlined at attachment A, as previously advised.

    …

    Attachment A: Medical Rural Bonded Scholarship University Allocation 2001 and 2002

University	Proposed Allocation 2001	Actual Allocation 2001	Allocation 2002
University of Sydney/ACT	25	15	25
Newcastle University	10	10	9
University of Tasmania	10	12	9
University of Adelaide	5	5	4
Flinders University of South Australia	10	10	9
University of NSW	5	5	4
University of Melbourne	10	10	9
Monash University	0	0	9
University of Queensland	10	10	9
University of Western Australia	5	7	4
James Cook University	10	16	9
Total	100	100	100

1. Modifications to Sydney University’s allocation of new MRBS places in years subsequent to 2001 were explained in a later letter from Mr Wells at the Department of Health to Professor Leeder, dated 15 August 2001:

   In reply to your letter of 26 June 2001 and the letter from yourself and Professor Young of 27 July 2001, I am happy to provide the following information.

   The 2002 quota of 25 places under the Medical Rural Bonded Scholarship Scheme (MRBSS) as indicated in the letter of 14 September 2000 from the Department of Education, Training and Youth Affairs to your Vice-Chancellor, Professor Gavin Brown will be reduced to 15 as per your request. I regret that we are unable to keep 10 places in reserve as you proposed. The Minister has yet to decide on the allocation of places between universities for the 2003 intake. I have recently written to universities seeking advice on rural intakes to assist in that decision.

   In 2004 the existing allocation of MRBSS places to the University of Sydney will cease and be allocated to the new Australian National University (ANU) Medical School as part of its first intake. Thus the 25 places originally allocated to the University of Sydney in 2001 will be transferred to the new ANU Medical School when it commences operation. Future quotas that may be attached to the University of Sydney and would not transfer to the new ANU Medical School for 2004 onwards are yet to be decided, as is the case for all other universities.

   Those MRBSS students who have commenced their studies at the University of Sydney in 2001, 2002 and 2003 will complete their studies as students of the University of Sydney.

   In relation to the Canberra Clinical School (CCS) it has always been my understanding that the University of Sydney would cooperate in continuing the School until an orderly transition to the ANU Medical School takes place. As we have discussed several times there is no essential link between the Bonded Scholarship places and the CCS which operated for many years before Bonded places became available. I had understood that the CCS would continue to play a role in Sydney University’s clinical training programs as the new rural school at Dubbo is established and built up. I have received no proposal from the ANU and let me assure you that any proposed change to the existing arrangements would only be considered in close consultation with the University of Sydney.

2. Further modifications were notified to the Vice-Chancellor the following year, by letter dated 25 October 2002:

   I am writing to you concerning the allocation of Medical Rural Bonded (MRB) Scholarship places to medical schools for 2003 and 2004. The Minister for Health and Ageing, Senator the Hon Kay Patterson, has approved an allocation to the University of Sydney of nine and four places for the first year intakes for 2003 and 2004 respectively.

   In contrast to previous years where the allocation of places was generally based on the size of the medical school intake, the 2003 allocation has been determined also on the proportion of rural origin students and recognition of the need to support smaller medical schools. Places for the 2004 allocation take these factors into consideration as well as a need to fulfil the commitment to allocate 25 places to the Australian National University (ANU) Medical School which is to commence in 2004. This left a pool of 75 places in 2004 for allocation to the existing universities.

   …

3. Nothing in this correspondence, nor in any other evidence tendered by Mr Edwards, established to my satisfaction his contention that, in fact, the Medical School had available funds from which it could have provided Mr Edwards with a ‘standard HECS place’ in 2004 or any other year, even if the University was willing to incur the displeasure of the Commonwealth for its breach of the clear guideline on which it had been given its additional funding to provide a medical education to Mr Edwards as a bonded MRBS student.  More importantly, as will become clear, the Medical School was never willing, nor obliged, to disregard its acceptance of the funding condition against allowing him to transfer to a standard place.

Mr Edwards’ MRBS scholarship and student place

1. Mr Edwards completed a bachelor degree with honours in mechanical engineering at Newcastle University between 1993 and 1997.  He then decided to attempt to gain admission to a medical school offering a graduate entry program.  For this purpose, he studied and sat for the GAMSAT test during 1999 and early 2000.  He closely studied the 2001 ACER Admissions Guide for the combined entrance procedures followed by the medical schools at Flinders, Melbourne, Queensland and Sydney Universities.  I have noted above that this was published in May 2000, and provided a closing date for application of 30 June 2000. 

2. Notwithstanding that a single application was required, the four universities adopted differing methods for weighing the three components of bachelor degree results, GAMSAT results, and interview assessment.  Sydney University’s methods and proposed time-table were detailed both in the ACER Guide and the Medical School program. 

3. Students were given emphatic advice in the ACER Guide as to the pitfalls when choosing their preferences:

   Admissions policies

   There are some differences in admissions policy between the schools. Before deciding which school to indicate as your first preference, you are advised to study very carefully the information provided about the courses and the admissions policies. It might become clear that you have a much better chance of gaining admission to one of the schools than the others, or even that an application to a particular school simply cannot succeed. Please therefore, choose your order of preference with care. You may indicate up to three schools in your preference list. However, if you are not prepared to undertake the course at a particular university you should not list it. Before making a decision to commit four (or four and a half) years to a particular medical school, consider all the personal and financial implications of the move.

   Applicants are strongly advised to obtain a detailed prospectus from each of the schools to ensure they are fully informed on both admissions criteria and the course structure of the individual programs (see contact details on back cover of this Guide).

   Successful applicants will be given a firm date by which to accept an offer of a place and offers not accepted in writing by that date will lapse.

   Deferral of a place is not possible, except in particular circumstances specified by individual universities.

   Other than in exceptional circumstances, applicants who accept an offer of admission to a graduate-entry medical program and then fail to enrol without notifying the university of their changed decision, or who enrol and subsequently withdraw or discontinue without prior approval, will not be reconsidered for admission to any of the graduate-entry medical schools for two years. A new application will be necessary.

   Students commencing a medical degree program at any Australian or New Zealand medical school are expected to complete the entire program at their chosen university. Any student who is currently enrolled or has previously been enrolled in an Australian or New Zealand medical degree program is not eligible to be considered for admission to any of the graduate-entry programs for a period of two years after the year of last enrolment in that degree program.

   Transfer of enrolment between medical schools is not possible except in very exceptional circumstances and only with the approval of the Deans/Heads of the two schools involved.

   Other than in the above exceptional circumstances, no applicant will be admitted to a graduate-entry medical program with advanced standing, and exemptions from participating in part of the program will not be offered.

   …

   (emphasis in original)

4. Critical to the selection procedures of all medical schools was the final interview stage.  The ACER Guide explained:

   ·    Interview

   The total number of interviews offered by each of the schools is approximately 1.5 times the number of places available at that particular school.

   Applicants will be ranked by their first preference school based on GAMSAT overall and/or section scores (and GPA in the case of applicants to Melbourne). Academic transcripts of qualifying applicants will be checked to ensure they reach a standard acceptable to the school.

   Applications that do not reach the cut-offs established by the first preference school will be passed on to the school of second preference where they will be considered for inclusion on the interview list. Applicants unacceptable to the second preference school will be forwarded to the school of third preference, if given.

   Note that all schools will consider second and third preference applicants for interview. Each school will conduct only one round of interviews and no applicant will be invited to interview by more than one school.

   Applicants who are shortlisted for interview will be required to travel, at their own expense, to the university for an interview. The interview will be designed to assess those qualities considered by the medical schools to be associated with success in both medical school and later practice and will be conducted by a small panel of trained interviewers. Interviews will be structured or semi-structured.

   Academic performance will not be discussed at the interview.

   …

   (emphasis in original)

5. Mr Edwards completed his application by showing preferences for the University of Sydney, University of Queensland and Flinders University, in that order.  He said in his affidavit:

   31.I put Sydney first because it was geographically closer to where I lived, its course structure, mechanism of graduation, fee structure and cab rank admission offer process.

6. By letter dated 30 August 2000 he was invited by the Dean of the Medical School to attend an interview, and was told that he had reached this stage in the selection process because “for this round of selection, the minimum GAMSAT requirement was a score of 54 in each section”.  Mr Edwards accepted the invitation, and attended the interview on 8 September 2000.  He said that “the interview process took about 20 minutes they asked about 6 questions”.

7. Mr Edwards undoubtedly understood and accepted the published selection and admissions rules for the Medical School, including the rule that, in his words, he was ‘locked out’ of receiving offers of a 2001 place from the other medical schools by reason of agreeing to be interviewed for entry to his first preference.  It is not part of his case that this rule, nor any of the other exclusionary rules for entry to and transfer between medical schools, could have operated unfairly, unlawfully or unreasonably to him, if the MRBS Scheme had not been grafted onto the Medical School’s selection procedures after the interview procedure had been completed for all applicants.

8. However, Mr Edwards complained that there had been no mention of MRBS places in any of the documents upon which he made his choice of medical school, and that he had not been told about its existence and conditions until receiving the Dean’s letter and the Department of Health’s information package in the middle of October 2000.  He developed various submissions based upon this grievance, but I had difficulty understanding how any of them could support his causes of action or heads of relief against the Commonwealth or the University. 

9. A fundamental difficulty is that I am not persuaded that subjectively it would have affected his choice of preferred medical school, or his acceptance of the Medical School’s invitation to interview, if he had been given any of the subsequently prepared MRBS information before making his entry application to ACER.  Nor if he had been given any of the internal administrative material which he later discovered under FOI.  Nor if he had been told about the MRBS Scheme at his interview. 

10. Mr Edwards’ evidence and submissions were equivocal about these matters.  He constructed elaborate arguments based on the hindsight that he failed to achieve a ‘standard entry’ place at Sydney University in 2001, and that internal documents suggested that Queensland University might have been less rigorous in enforcing the MRBS condition of non-transferability, and might have had more standard places available for entry in 2001.  Even on these arguments, I am not persuaded that there is evidence proving that he could have obtained a standard place at Queensland University.  Moreover, these arguments were, in my opinion, academic, since Mr Edwards was hoping for, and subjectively had high expectations of achieving, a standard place at Sydney University at all times before late January 2001 when he received Sydney University’s offer of only a MRBS place.  On his evidence, he was never attracted by a prospect of becoming a bonded rural doctor as his first career choice.  I am satisfied that it is probable that, even if Mr Edwards had been given the fullest information about the MRBS Scheme before he embarked upon his efforts to gain entry to the Medical School in 2001, he probably would have made the same decisions to prefer Sydney University and to become ‘locked in’ by accepting its invitation to interview.

11. Moreover, even if he might have made different elections during the 2000 selection process, if he had received information about the MRBS Scheme earlier than October, he was not objectively disadvantaged nor treated unreasonably, unfairly or unlawfully, by reason of the added selection process for the MRBS Scheme followed by the Medical School.  He never lost any different opportunity to gain the standard place at the Medical School which at all times he desired, and still desires.  I conclude this because, in my opinion, the evidence shows that, in fact, he never achieved a prospect of obtaining a standard place at his chosen medical school, and was never treated unfairly or misled as to the consequences of accepting an offer of one of the additional MRBS places.  I shall now explain these findings.

12. I have above set out the full contents of the Dean’s letter of 18 October 2000, which told Mr Edwards about the additional 25 MRBS places, and how the Medical School proposed to offer them in the course of its previously announced ‘offer rounds’ for standard places, and according to the same process of ranking of all applicants.  There was nothing unfair about this proposed procedure, and it did not disadvantage a person with Mr Edwards’ career ambitions.  He was never obliged to submit himself to a selection process for a bonded scholarship student place which he was unwilling to acquire.  The Dean’s October letter clearly indicated that these were additional places to the 182 places for which the applicants had applied in June.  The letter allowed applicants to decline to be considered for a bonded place, without any prejudice to their chances of obtaining a standard place.  Mr Edwards was requested to complete a new application form if he wished an opportunity to gain both or either types of student places, and in my opinion he must have made such a request.  The subsequent events were the consequences of his election to do this, and nothing else.

13. In the course of his submissions addressing the Dean’s October 2000 letter and the enclosed MRBS information, Mr Edwards submitted that the documents were misleading whether applicants who chose to take an MRBS place might later change their enrolments to a standard place.  However, I do not consider that a reasonable reader of the October letter would have encountered any material ambiguity or misrepresentation about this.  The letter and its enclosed MRBS application form suggested no more than applicants should, before receiving any offers for either type of place, indicate their preferred type of entry to the Medical School for a course leading to the obtaining of a medical degree.  The attached information, and the very name of the scholarships for which applications were invited, indicated that acceptance of an MRBS place would carry conditions as to the location of their clinical studies and a post-qualification obligation to ‘spend a period as a doctor in a rural or remote community’.  I do not accept that, at this stage of the selection procedures, Mr Edwards received any relevantly misleading information, to the effect that if he accepted a bonded place, he might be allowed to complete his medical course without being bound by those conditions of the scholarship.

14. Moreover, in October 2000 Mr Edwards was invited only to express an interest in the option of an offer of an MRBS place.  I am satisfied that he suffered no loss by being induced to request an offer of such a place.  By the time that he was later required to decide whether to take an MRBS place, the issue of transferability had been squarely addressed by the University and had been clearly advised to him.

15. In his oral evidence, Mr Edwards disclaimed having any memory or record of whether and how he completed and returned the ‘Medical Rural Bonded Scholarship Application Form – 2001’. No such document was produced by the University, but in view of the lapse of time I would not draw any inference that it never existed.  In my opinion, the implication of the subsequent actions of the University and of Mr Edwards is irresistibly that he probably did return the MRBS application, and that he probably marked it with a preference for a standard entry place but with an indication that he might accept an MRBS place if he was not successful.  This, in fact, is what subsequently happened. 

16. I have found it impossible to arrive at a conclusion as to Mr Edwards’ state of mind in late 2000 and early 2001 leading to his acceptance of the MRBS place.  His written and oral evidence about this amounted, in my opinion, to an elaborate conscious or unconscious reconstruction, developed in later years when he became deeply disenchanted with the MRBS Scheme and was searching for a justification for avoiding clearly expressed and well understood conditions of the scholarship place at the Medical School.  Although I am prepared to accept generally that he always would have preferred to have had an un-bonded student place, I consider that his present reconstruction of his thoughts and motivations at the time is unreliable, except where it is confirmed by the contemporaneous documents and events. 

17. What is clear from the contemporaneous evidence, and is not really denied by Mr Edwards, is that in February 2001 he accepted his scholarship with his eyes wide open to its preclusionary conditions.  I accept that it is possible that at the times when he applied for the scholarship, when he accepted the scholarship contract, and when he enrolled in his MRBS student place and commenced his course, he held a hope that he might in the future find a clever way of circumventing or overcoming those conditions, or that the Commonwealth and Medical School might be induced to waive or ignore them.  But, in my opinion, any such hopes were not rationally nor reasonably based upon any lack of clarity about the effect of the preclusionary conditions in the documents which he read and accepted early in 2001.  I make this finding both as to the objective and reasonable meaning of the documents, and also on my consideration of Mr Edwards’ own mind at the time.  If Mr Edwards chose to embark upon his course at the Medical School as a MRBS scholarship holder in the belief that he could emerge at the end of his course as an un-bonded qualified doctor, then, in my opinion, he made an unreasonable assessment of a patent risk that the Medical School would not permit this.  These findings are based on a consideration of the following evidence.

18. The terms of the offer to Mr Edwards of an MRBS place at the Medical School are found in a letter from the Dean, the date of which does not appear on the copies in evidence, but which Mr Edwards agrees was received by him on or around 1 February 2001.  The letter said:

    Dear Mr Edwards,

    I am writing to advise you that you have qualified for the award of a Medical Rural Bonded Scholarship Scheme (MRBSS) place in the University of Sydney Medical Program commencing in February 2001 as a candidate for the degrees of Bachelor of Medicine and Bachelor of Surgery. Enclosed with this letter is a contract for a Medical Rural Bonded Scholarship for you to enter into with the Commonwealth of Australia, together with explanatory information provided by the Commonwealth.

    If you wish to accept this place, you must return the attached Acceptance Advice form to the Faculty of Medicine (Attention: Admissions Officer), together with a copy of the contract for a Medical Rural Bonded Scholarship which you have signed and lodged with the Commonwealth of Australia, no later than Friday 16 February 2001. In addition, if you wish to be considered a “Country-resident medical student” as defined by the contract, you must also enclose an appropriately completed statutory declaration or other appropriate documented evidence. You are strongly advised to seek legal advice as soon as possible about this contract, so that you can return it by the required deadline.

    Some specific conditions apply to an MRBSS place in the University of Sydney Medical Program. As specified in the Contract (Schedule Item A: Medical Course), your course is at the University of Sydney and the Canberra Clinical School. This means that you will be allocated to the Canberra Clinical School for the two full-time Clinical School Blocked in Years 1 and 2 of the program and for the full-time Clinical School placements in Years 3 and 4. In the remaining Blocks in Years 1 and 2 of the program, you will be allocated to one of the three metropolitan Clinical Schools.

    In the Contract (Background Section; Section 5), the Commonwealth clearly stipulates that if you withdraw from the MRBSS at any time, the funding provided to the Institution for your university place will also be withdrawn, as well as any further scholarship payments to you. Please note that MRBSS places are additional to our normal Commonwealth-funded DETYA quota of places. In the event that you do withdraw from the MRBSS, we cannot provide you with a continuing unfunded place in our program; thus, your place will be terminated and your enrolment in the University of Sydney Medical Program will be cancelled. Similarly, if you discontinue our medical program your place will be terminated and your enrolment in the University of Sydney Medical Program will be cancelled. In both instances; should you decide subsequently that you wished to resume medical studies at this University you would have to reapply for admission.

    Please note that while you have qualified for the award of a Medical Rural Bonded Scholarship Scheme place, you are not bound to accept this offer by your original expression of interest.

    Should you choose to accept this offer, please return the acceptance advice form to the Faculty office (attention: the Admissions Office) no later than 5pm Friday, 16 February 2001.

    There is a minor possibility that a small number of standard places (not MRBSS places) may become available in the near future. While the availability of these places cannot in any way be guaranteed, if you wish to be considered for a standard place if one should become available, please indicate this on your acceptance advice form.

    Please advise the Faculty as soon as possible, and no later than 5pm, Friday 9 February 2001 whether you intend to accept this MRBSS offer of place.

    Sincerely,

    Professor Stephen Leeder

    Dean

1. The reference to ‘the attached letter’ is unclear on the evidence before me, but would appear to be to a letter from the Department which contained statements substantially to the same effect as the document signed by Mr Edwards.

2. An officer of the Department of Health, Mr Wells, then wrote to the new Dean of the Medical School on 3 March 2004:

   Dear Professor Coats,

   Withdrawal of Mr Thomas Edwards from the Medical Rural Bonded Scholarship Scheme

   I am writing to advise that Mr Thomas Edwards has withdrawn from his place in the Medical Rural Bonded (MRB) Scholarship Scheme.

   As Mr Edwards provided his intention to withdraw before enrolling in his third year of the medical course, the Contract provides that he may withdraw without penalty.

   The MRB Scholarship Scheme program conditions sent to all universities in October 2002 provide that the ‘university is responsible for selecting MRB scholars to fill the places they have been allocated. This includes replacing with a new first year applicant any scholar who may have withdrawn from the MRB Scholarship Scheme in the previous year’. Accordingly, the MRB Scholarship place allocated to Mr Edwards can now be offered to a new first year medical student starting in 2004.

   As previously advised, the number of MRB Scholarship medical school places allocated to the University of Sydney for the 2004 intake is eleven. The reallocation of the vacated Scholarship place will bring the total number of MRB Scholarship medical school places available at the University of Sydney in 2004 to twelve.

   Another of the MRB Program Conditions is that universities terminate enrolment in a medical course upon withdrawal of a scholar from the MRB Scholarship Scheme. In October 2002 I wrote to all university medical schools seeking comment on the MRB Scholarship Program Conditions. The University of Sydney Medical School did not raise an issue with terminating enrolment in a medical course upon withdrawal of a scholar from the MRB Scholarship Scheme.

   I ask that you do not provide Mr Edwards with a standard entry place should he request to continue to study medicine at the University of Sydney. I should make you aware that, if you are not able to follow this course of action, I will find it necessary to permanently remove an MRB Scholarship medical school place from the University of Sydney and replace it with a Bonded Medical Place (ie no scholarship). The Australian Government has been trying to resolve this matter through the Committee of Deans of Australian Medical Schools (CDAMS) forum and I propose to raise this issue again at the forthcoming meeting on 16 July 2004.

   I would be pleased to discuss this with you should you wish to do so.

3. On 5 March 2004, Mr Edwards obtained an ex parte interim injunction from the Supreme Court of NSW directed to the University of Sydney, ordering that it “not make any change to the current enrolment of Mr Edwards until further order.”

4. It is not necessary for me to chart the course of the subsequent litigation in detail.  There were negotiations between the parties, assisted by a mediator, the Hon. Trevor Morling QC.  The parties were told by the Department of Health and Ageing by letter dated 12 March 2004 that it:

   … would be prepared to reinstate Mr Edwards’ scholarship under the Medical Rural Bonded Scholarship Scheme if Mr Edwards enters into a written agreement with the Commonwealth to reinstate his Medical Rural Bonded Scholarship contract as if that contract had remained on foot since its inception, and to be bound by the terms of that contract as if he had not withdrawn from the Scheme or terminated the contract.  The Commonwealth will, at Mr Edwards’ request, prepare a written agreement to implement the above, and will leave this offer open until 31 March 2004.

5. A draft deed of agreement which would give effect to the Commonwealth’s offer, was sent to Mr Edwards on 23 March 2004 for his consideration.

6. Mr Edwards then signed an acceptance and acknowledgment appearing at the foot of a letter addressed to him by the University’s solicitors, which is dated 31 March 2004:

   Dear Sir

   William Adams ats Thomas Christopher Edwards

   We confirm that the University is prepared to settle the above proceedings on the terms set out in this letter and on the basis that they be discontinued with no order as to costs and that the present interim injunction be discharged by consent, as soon as possible.

   To accept the University’s offer to settle on these terms you must sign and deliver to us by close of business today the enclosed Notice of Discontinuance and Short Minutes of Order, which by so doing you acknowledge may be filed in the Supreme Court tomorrow in order to dispose of the proceedings on that basis.

   We understand that you are giving further consideration to whether or not to accept the offer made by the Commonwealth Department of Health and Aging (sic) for the reinstatement of your Rural Medical Bonded Scholarship. It is a term of the University’s agreement to settle the proceedings on the above basis that you acknowledge that if you have not notified the University in writing (through us) by 4:00pm on 2 April 2004 that agreement has been reached with the Commonwealth Department of Health and Ageing for the reinstatement of your Rural Medical Bonded Scholarship (with a copy of that agreement), then it is open to the University to proceed to cancel your enrolment in the Graduate Medical Programme.

   Acceptance of the above offer, and your acknowledgement of the matters stated in this letter, must be by your endorsement below of this letter.

   Yours faithfully

   Malleson Stephen Jaques

   I accept the above offer and give the acknowledgement referred to above.

   Thomas Christopher Edwards

   Tom Edwards

7. Mr Edwards also executed a Notice of Discontinuance of the Supreme Court proceedings, and consent orders for leave to discontinue, for the discharge of the interim injunction, and for no orders as to costs.  I infer that these orders were then made by the Supreme Court at that time.

8. On 16 April 2004, the University’s solicitors were informed by the Department of Health that it “still has not received any communication indicating that Thomas Edwards has accepted or is willing to accept the offer of reinstatement in the Medical Rural Bonded Scholarship scheme”.

9. On 22 April 2004, the University’s solicitors wrote to Mr Edwards, stating: “We are instructed that the University of Sydney has now terminated your enrolment in its graduate medical program”.  In later correspondence, the solicitors rejected Mr Edwards’ arguments that the University lacked power to do this, and drew his attention to the Faculty Resolution 1(6)(c)(vi), which I have set out above.

10. On 5 May 2004, the Dean of the Faculty responded formally to the Department of Health’s letter of 3 March 2004, which had requested the cancellation of Mr Edwards’ enrolment.  The Dean confirmed that “Mr Edwards’ enrolment as a student in the University of Sydney was cancelled on 22 April 2004”.

11. It is unnecessary in this judgment to outline the subsequent correspondence between Mr Edwards and the University, the Commonwealth, or any other persons or agencies. 

12. I consider that the evidence presented by Mr Edwards of an exchange in 2007 with Mr Roche, a member of staff of the then Minister for Health, is irrelevant, and does not advance his case in any respect, particularly since I would prefer the evidence of Mr Roche about the contents of that exchange.  I conclude similarly about the correspondence with the Department of Health from Mr Clive Evatt in late 2004 and 2005 on behalf of Mr Edwards.

13. There is no evidence that the University or the Commonwealth ever departed from their positions taken in April 2004, which were maintained by them in the present proceedings, that Mr Edwards’ rights under his MRBS contract were terminated at his request, that his purported enrolment at the Medical School in 2004 had been cancelled by the University, and that he had no rights again to enrol in a medical course at the Medical School.

14. After a consideration of all of the above events, I have been unable to detect in Mr Edwards’ submissions any basis for finding that the respondents’ positions arrived at in 2004 were flawed in fact or law. Indeed, I found his submissions on this topic largely unintelligible.

15. In my opinion, the Commonwealth’s position was clearly correct under the terms of the scholarship contract and the other documents executed by him in 2001 and 2004. They had been signed by Mr Edwards with apparent full understanding and capacity, and also after taking his own legal advice. I can detect no reasonably arguable basis for finding any error of law reflected in the position taken by the Commonwealth in its dealings with Mr Edwards, whether as to the effect of the Funding Act or otherwise. I shall explain the flaw in his Constitutional submissions below. Mr Edwards has never formulated a coherent administrative law challenge to the Commonwealth’s position, and I am unable to detect one which could have been mounted by him.

16. Nor can I identify any legal or factual flaw in the University’s position that, by reason of his withdrawal from his MRBS scholarship, it had power to cancel his attempted enrolment in a standard place in 2004, and to exclude him from future enrolment in the Medical School.  It may have been bound in law to do this under its funding arrangements with the Commonwealth, but it is unnecessary for me to decide this.  At least, in my opinion, it had the legal authority to do so, and had legally permissible grounds for exercising that authority.  The cancellation was clearly consistent with the terms upon which Mr Edwards had been allowed to enrol at the commencement of his course in 2001.  It was also consistent with the resolution adopted by the Faculty of Medicine concerning the enrolment of MRBS students. It was also consistent with the terms of settlement of the Supreme Court litigation.  Indeed Mr Edwards may be estopped by the outcome of that litigation from disputing the University’s subsequent action, although it is unnecessary for me to decide this. 

17. I do not accept that the cancellation of his enrolment in April 2004 represented a breach of any legislation, including Commonwealth legislation or the University’s legislation and rules, nor of any contract with Mr Edwards relating to his admission to the Medical School.  I do not accept that the cancellation of his enrolment was motivated or influenced in any respect by any irrelevant, improper, or unreasonable consideration. On the evidence before me, I consider that at all stages Mr Edwards was treated with fair procedures, and I am not persuaded that any requirement of administrative law was not observed by the University in its dealings with Mr Edwards.

Mr Edwards’ Constitutional contentions

1. Mr Edwards served a lengthy and convoluted notice under s.78B of the Judiciary Act 1903 (Cth) which, as with his pleadings, affidavits and submissions, is a document not easily digested and understood. Doing the best I can, it might be considered to make contentions that:

   i)The MRBS Scheme in all its aspects was invalid or legally ineffective because it relied upon the insertion of s.19ABA of the Health Insurance Act 1973 (Cth). That amendment was an invalid exercise of legislative power under s.51(xxiiiA) of the Constitution because it offended the injunction against “any form of civil prescription” which controls the power to make laws with respect to “the provision of … medical and dental services”.

   ii)The Commonwealth and the University “made decisions” and “acted” in contravention of s.61 of the Constitution, which vests the executive power of the Commonwealth in the Queen, makes it exercisable by her representative, and extends executive powers to include “the execution and maintenance of this Constitution, and of the laws of the Commonwealth”.

   iii)The Commonwealth respondents “breached s.51(xxxi) of the Constitution”, because their actions amounted to an “acquisition of property” which was not on “just terms”.

   iv)The University legislation and Faculty rule which allowed the exclusion of Mr Edwards from further enrolment in the medical course were “inconsistent with a law of the Commonwealth” and therefore ineffective by reason of s.109 of the Constitution.

2. However, I do not accept any of these contentions, and can explain my reasons shortly.

3. In my opinion, Mr Edwards’ attack on s.19ABA of the Health Insurance Act fails upon an application of the reasoning of the High Court in Wong v Commonwealth (2009) 236 CLR 573. In that case, a challenge was made to a professional services review scheme, which allowed the imposition of sanctions on qualified medical practitioners by excluding them from providing medical services attracting Medicare benefits for their patients, and by requiring them to reimburse the Commonwealth for Medicare rebates paid to their patients. The plurality of the Court found no infringement of s.51(xxiiiA) of the Constitution. French CJ and Gummow J applied the construction which they explained at [60]:

   60.The legislative history and the genesis of s 51(xxiiiA) supports a construction of the phrase "(but not so as to authorize any form of civil conscription)" which treats "civil conscription" as involving some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services; the work or services may be for the Commonwealth itself or a statutory body which is created by the Parliament for purposes of the Commonwealth; it also may be for the benefit of third parties, if at the direction of the Commonwealth.

4. Their Honours at [68] held that there was no ‘practical compulsion’ applied by the provisions of the Health Insurance Act on medical practitioners to perform a medical service which might give rise to sanctions under the Medicare professional review scheme. They said: “these provisions condition the enjoyment of membership of the scheme established by the Act. They do not amount to practical compulsion to perform a professional service”.Hayne, Crennan and Kiefel JJ reasoned similarly at [192] and [209]-[210], as did Heydon J at [226].  Kirby J was in dissent.

5. In my opinion, this reasoning is equally applicable to a contention that the Parliament has no power to legislate to provide in the Medicare legislation a provision which excludes a medical practitioner from participation in Medicare, by reason of his or her breach of a scholarship contract with post-qualification employment conditions.  As with the general practitioners who were threatened with exclusion from Medicare as a sanction for professional misconduct in Wong (supra), in my opinion neither the general provisions of the Medicare Scheme, nor the exclusion provided under s.19ABA of the Health Insurance Act, carried any “practical compulsion to perform a professional service”. 

6. Moreover, looking at the MRBS Scheme broadly, there was no legal or ‘practical’ compulsion or coercion on Mr Edwards or any other applicant for a MRBS scholarship and student place, to enter the scholarship contract and thereby to become prospectively bound by s.19ABA and other conditions of the Medicare Scheme, if and when they sought to practise medicine in Australia. Students who elected to gain their medical qualifications by means of a MRBS scholarship were in no sense involuntarily ‘conscripted’ into providing medical services within or outside Medicare, after gaining their qualifications. They would become voluntary, not conscripted, rural doctors for the contracted period.

7. It is irrelevant whether Mr Edwards’ medical career suffered because he failed to achieve an offer of an un-bonded and unconditional entry to a medical school in 2001, since, as I have found above, this was the outcome of a selection process for standard entry places which was unaffected by the MRBS Scheme.

8. I therefore do not accept Mr Edwards’ submissions invoking the proviso to s.51(xxiiiA).

9. It is unnecessary for me to consider other possible difficulties facing his submissions. These include questions of his standing to challenge s.19ABA, in the circumstances where he never became a qualified medical practitioner subject to the Medicare legislation, including its sanction under that section. They also include the utility of the Constitutional point raised by Mr Edwards, since it is difficult to see how a finding of Constitutional invalidity of the MRBS Scheme or of any of its components could benefit him in any practical way (cf. Lambert v Weichelt (1954) 28 ALJR 282 at 283, ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 at [141]). A finding of invalidity or unenforceability of his MRBS contract and the funding by the Commonwealth of his MRBS student place could not give him a right of enrolment in a ‘standard’ student place, nor an added prospect of his otherwise becoming qualified to participate in the Medicare Scheme, nor any other circumstance sounding in damages, injunction, or other remedy (as to damages, see Kruger v Commonwealth (1997) 190 CLR 1 at 46, 93, 125-126, and 146-147).

10. I have not been able to give any coherent content to Mr Edwards’ submissions concerning s.61 of the Constitution, nor to understand how his claims for relief would be assisted by a finding that there is no provision of the Constitution which enabled the Commonwealth to make contracts with medical students and to provide grants to universities to enable the provision of medical education to bonded students. This unsettled area of Constitutional law was very poorly, if at all, addressed by the parties’ submissions.

11. I am reluctant to say more than that the payments and contracts made when implementing the MRBS Scheme appear prima facie to be supported on High Court authorities which preceded and survived Williams v Commonwealth (2012) 288 ALR 410. I have above concluded that the funding arrangements with the universities for the MRBS Scheme grants were authorised by the Funding Act. I am not persuaded that the Commonwealth’s making and funding of the scholarship contracts were not sufficiently incidental to the legislation empowering grants under the Funding Act. I am also not persuaded that the scholarship contracts and stipends were not authorised by implication of s.19ABA and other provisions of the Health Insurance Act (see generally Williams (supra) per French CJ at [22], [34], and [83], Gummow and Bell JJ at [91] and [145], Hayne J at [193]-[194], [252], [285]-[286], Heydon J at [441], Crennan J at [532]-[534], and Kiefel J at [573] and [594]).

12. The short answer to Mr Edwards’ contentions based on s.51(xxxi) of the Constitution is that no element of the MRBS Scheme, including such parts of it as could affect Mr Edwards, involved a compulsory ‘acquisition of property’ under an exercise of Commonwealth statutory power (see Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 172-174, 177, 188, 200, Health Insurance Commission v Peverill (1994) 179 CLR 226 at 235, 245, 256, and Smith v ANL Ltd (2000) 204 CLR 493 at [128]). There was no compulsion on Mr Edwards to gain entry to the Medical School on the terms attaching to a MRBS scholarship, including his payment of HECS semester fees. Nor was he compelled to abandon his scholarship and lose his place at the Medical School in the circumstances which existed in 2004. Mr Edwards’ hopes of qualifying as a doctor after completing the medical course which he commenced in 2001 at the Medical School, came to an end as a result of his own voluntary election to withdraw from his MRBS student place. It is not necessary to examine whether any of these events involved a species of rights which could be described as ‘property’ capable of an ‘acquisition’.

13. Mr Edwards’ invocation of s.109 of the Constitution and principles of inconsistency between Commonwealth and State legislation is also misconceived. There was nothing inconsistent with Commonwealth legislation in the University retaining and exercising a power under its own legislation to cancel Mr Edwards’ enrolment in 2004 (cf. Dickson v The Queen (2010) 241 CLR 491 at [13]). In particular, no inconsistency can be found with the provisions of the Funding Act, whether in its Scheme providing funds for tertiary education generally, or in its use of that Act to support a special scholarship scheme such as the present. Rather, in my opinion, the provisions and scheme of the Funding Act, both in relation to grants to universities and the payment of students’ course fees under the HECS Scheme, left to the University its powers to apply a rule precluding the continuing enrolment of former MRBS scholarship students in Mr Edwards’ circumstances in 2004. In my opinion, the University’s action recognised and gave effect to a condition on the Commonwealth’s funding of Mr Edwards’ enrolment at the Medical School, and was not inconsistent with the terms of that funding, nor with the terms of any other funding of the University under the Funding Act, nor with any other source of Commonwealth law.

Conclusions on Mr Edwards’ claims

1. At the start of this judgment I explained why I have addressed the issues raised in Mr Edwards’ case in the course of tracing the history and documents which he has presented to the Court.  I need now only to summarise why I am not persuaded that he has made out any of the causes of action for damages pleaded in his Statement of Claim, nor any foundation for obtaining any of the heads of relief listed in his application to the Court.

2. For reasons which I have explained when considering each of the key documents concerning the MRBS Scheme and its implementation in relation to Mr Edwards’ enrolment at the Medical School, I am unpersuaded that he has identified any statement made in writing or orally on behalf of either the Commonwealth or the University conveying a material misrepresentation of fact, law or opinion, and whether by express statement or omission, and whether attended by negligence, recklessness, fraud, malice, or abuse of authority.  In my opinion, no ordinary or reasonable reader of the documents before me, including those for whom they were written or otherwise, could have misunderstood the warnings about the consequence of accepting his scholarship and student place under the MRBS Scheme, which Mr Edwards later attempted to circumvent.  As I have found, I am not persuaded that Mr Edwards was himself materially misled when he commenced his medical course or subsequently.  I have expressly rejected his only claim of a misleading oral statement, being one made by an unknown person at the Faculty office in early 2001.

3. Nor, to the extent that Mr Edwards ever relied upon anything he read about the MRBS Scheme or about his enrolment at the Medical School, has he established to my satisfaction any loss caused otherwise than as a result of his own false hopes and risk-taking, and in the face of very clear warnings as to the consequence of his accepting an MRBS scholarship and student place and later withdrawing from his scholarship before completing his course.  Nobody required or compelled or improperly induced Mr Edwards to apply for a MRBS scholarship and student place under the Scheme at the Medical School.  Nobody induced him, or wanted him, to terminate his scholarship and to jeopardise his student place and future career.  He was himself, in my opinion, the only person responsible in fact and law for any misfortune of which he now complains.

4. In my opinion, Mr Edwards’ contentions of other tortious conduct on the part of representatives of the Commonwealth or the University are without any foundation.  He has identified not a skerrick of evidence of negligent, reckless, malicious, unconscionable, or otherwise unlawful or improper exercise of authority or other action resulting in his inability to complete the medical course for which he enrolled in 2001.  He has not identified any statutory duty on the Commonwealth or the University, the breach of which could sound in a right of damages or other relief.

5. Mr Edwards’ claims in contract are lacking in any substance which I can discern.  His scholarship contract with the Commonwealth was, as I have found above, unaffected by any misrepresentation or other circumstance at the time of its making.  Mr Edwards benefited from two years’ stipend paid under the contract, and the Commonwealth took no point as to the effectiveness of his actions seeking to repudiate his scholarship without penalty in January 2004.  He can make no complaint arising from his failure in April 2004 to accept the Commonwealth’s offer to restore the scholarship and the funding to the Medical School for his student place under the Scheme.

6. Assuming that Mr Edwards’ relationship with the University should be analysed as one of contract, then he has failed to persuade me that any of its actions were in breach of his rights under a contract.  There is no evidence that the University did not perform the selection process anticipated by Mr Edwards in relation to his 2000 application for a ‘standard entry’ student place in 2001.  On my above findings, Mr Edwards failed to achieve such a place according to the selection criteria and processes set out in the ACER Guide.  Mr Edwards achieved an offer of an MRBS place under the concurrent selection procedures of which he was advised in October 2000, and he accepted that offer on the terms in which it was offered.  On my findings as to events between 2001 and 2004, he was dealt with by the Medical School in accordance with the procedures and requirements which he expressly accepted when he took up the MRBS place.  The adverse actions of which he complains were authorised under the University’s legislation and rules in force during the period of his enrolments.  If his enrolments were a matter of contract, then the rules of the Medical School, including their relevant amendments from time to time, formed part of the terms of the contract under which he hoped to be provided with a medical education.

7. I accept the submissions of both counsel for the respondents, that Mr Edwards has no right under the Privacy Act 1988 (Cth) which could provide any of the remedies he seeks, and that this Court has no jurisdiction to grant him any relief under the Privacy and Personal Information Protection Act 1998 (NSW). Moreover, I am generally unpersuaded that Mr Edwards has particularised and established any past or threatened unlawful exchange of private or confidential information between the Commonwealth and the University.

8. On my findings above, Mr Edwards has established no basis for relief by way of declaration, specific performance, Constitutional writ, or any other remedy in common law or equity.

9. It is unnecessary for me to examine the respondents’ various additional defences to liability, relating to the extent of their duties of care, the ambit of the Trade Practices Act 1974 (Cth) and of the Corporations Act 2001 (Cth), time limits under various statutes of limitation, and the causation and quantum of loss and its mitigation.

10. In my opinion, the appropriate order in the light of all of my findings and reasons set out above, is to dismiss the application.

11. It appears to me almost inevitable that costs should follow this event, and prima facie they appear to me appropriately quantified by reference to the scales and procedures for taxation in the Federal Court.  However, if they wish to submit otherwise, I shall permit the parties to exchange additional written submissions concerning the appropriate costs orders in the light of my above findings.  If I do so, I shall direct that any issues raised by these submissions will be decided without a further oral hearing, with a reasonable cap on the length of any submissions and additional material.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: 

Date:  7 September 2012.