Harding v UNSW

[2002] NSWSC 113

CITATION:	Harding v UNSW [2002] NSWSC 113
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20878/01
HEARING DATE(S):	26/2/02
JUDGMENT DATE:	1 March 2002
PARTIES :	Kathleen Frances Harding The University of New South Wales
JUDGMENT OF:	Wood CJatCL at 1

COUNSEL :
SOLICITORS:	Plaintiff in Person W Murphy (Defendant)
CATCHWORDS:	Merits review - Administrative Decisions Tribunal - whether discrimination on the basis of medical disability occurred - whether there was error on the face of the record - failure to take into account relevant considerations, or irrelevant considerations taken into account - Wednesbury unreasonableness - Judicial notice - damages - lost opportunity.
CASES CITED:	Associated Provincial Picture House Limited v Wednesbury Corporation (1948) 1 KB 223 Glynn v Keele University (1971) 1 WLR 487 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Norrie v Auckland University Senate [1984] 1 NZLR 129 at 135 The Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1997) AC 1014
DECISION:	See paragraph 55

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Friday 1 March 2002

20878/01

KATHLEEN FRANCES HARDING v UNIVERSITY OF NEW SOUTH WALES

The plaintiff sought, by notice of motion, an order that she be enrolled in the Bachelor of Medicine program at the UNSW for the year 2002. The current proceedings followed upon a long history of litigation between the parties in the supreme Court and in the Administrative Appeals Tribunal, dating back to January 1989, concerning an appeal from a decision then made refusing her enrolment for that year, and purportedly excluding her for two years. On 6 Nov 2001, the plaintiff filed a further statement of claim for damages for an alleged lost opportunity to enrol in the Faculty of Medicine, as well as an order that she be enrolled for 2002. Adams J dismissed this application, however, in the course of proceedings, the University gave an undertaking that it would consider any application lodged by the plaintiff for the year 2002, both as an excluded student, and as a non-excluded student, which ever of those two bases were more favourable to her. On 30 Nov 2001, the plaintiff lodged a further application for enrolment into Medicine, along with an Application for Special Consideration for Applicants with Tertiary Studies (SCATS application). On 11 January 2002, the Admissions and Re-enrolment Committee gave consideration to the plaintiff’s application as an excluded student, as a non-excluded student and by reference to her SCATS application. She was refused enrolment on these bases. She now seeks orders that the decision of the Committee be declared invalid, and that the University be ordered to redetermine the application according to law.

Held: (dismissing the application): The plaintiff was unable to show that the University in any way breached accepted principles of administrative law.

Undertakings
The plaintiff submitted that the University failed to honour undertakings given in the proceedings before Adams J. Held: the Committee had complied with the undertakings.

Absence of Student File
The plaintiff claimed procedural irregularity, on the Committee’s part, for failure to consider the entirety of the relevant material. In circumstances where the 2002 Committee was obliged to consider the matter afresh, and upon the basis of the material placed before it, there was no occasion for it to refer to the student’s file. The plaintiff had complained, in the past, that this file contained material which displayed bias or improper pressure. Held: this was a matter operating in her favour, and the ground must fail.

Admission of “and/or” in University Resolution
It was submitted that the Committee may have been misled, as the words “and/or” were omitted from the copy of the University resolution which set out the criteria for excluded students, and was attached to the agenda papers. This submission was not made good, as it is clear that express regard was had to all of the criteria mentioned, and there is no reason to suppose that the committee were otherwise unaware of the terms of the resolution, or that the plaintiff was in any way disadvantaged.

Alleged Misrepresentation in the Administrative Decisions Tribunal Hearing
This ground was not made out, as the tape of the submissions made to the Administrative Decisions Tribunal was, at the plaintiff’s request, played to the committee, and she was able to address the Committee through her submissions in relation to those observations which she claims had been incorrect.

Excluded Student
The plaintiff contended that she should not have been considered as an excluded student, as the earlier Appeal Committee decision had been invalid. This ground is not made good, as the plaintiff was considered on all possible bases; had the basis for an excluded student proved the most favourable to her application, then she would have received the benefit of that determination.

Rural or Indigenous Entry
The plaintiff submitted that since lower admission standards apply for these applicants, she should similarly be assumed to have had a reasonable prospect of passing. Held: it does not follow from the fact that special consideration applies to indigenous and rural applicants at entry level, that any lesser academic standards to be adopted for the program.

Comparison with Current Intake
The plaintiff submitted that when dealing with her application as a non-excluded student, the committee erred in comparing her UAC rank with current admission standards. However, the relevant provision of the Resolution, requiring comparison with her initial entry group in 1983, applied to applications by excluded students, and was not relevant for considering her application as a non-excluded student.

Unreasonableness
So far as the plaintiff submitted that the decision of the Committee was unreasonable in accordance with the principle in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, that submission was not made good. On the contrary, in the light of the plaintiff’s prior academic record and the other material supplied to the Committee, its decision appears to be entirely reasonable.

Orders :
(1) Notice of motion dismissed.

JUDGMENT

1 HIS HONOUR: The plaintiff has brought further proceedings against the University of New South Wales, in relation to her attempts to be enrolled in the Faculty of Medicine. On this occasion, the proceedings principally concern her application for enrolment in the Bachelor of Science (Med)/ Bachelor of Medicine/Bachelor of Surgery program for the year 2002, although they also involve a claim for damages for lost opportunity, which turns upon earlier events.

2 The litigation between the parties has a lengthy history. The evidence, and earlier judgements of this Court to which I was referred, show that:

(a) The plaintiff left school in about 1957, and between 1958 and 1961, undertook a course in accountancy at St George TAFE;

(b) She completed her Higher School Certificate examinations in 1982, some 15 years after leaving school;

(c) She was first enrolled in the Faculty of Medicine in February 1983, but discontinued that course in May 1983;

(d) In 1984 she was refused re-admission to first year medicine. After a successful appeal she was readmitted, but again discontinued the course in June of that year;

(e) In 1986 she was readmitted to first year medicine but did not sit for the examinations at the end of the year;

(f) She applied for re-enrolment at the commencement of 1987, but that application was rejected by the University’s Admissions and Re-Enrolment Committee;

(g) In 1988 she was allowed to re-enrol, but at the end of the year she failed Biochemistry and Introductory Clinical Studies;

(h) In December 1988, the University asked her to show cause as to why she should be entitled to re-enrol for the year 1989;

(i) In January 1989, she lodged an application for special permission to re-enrol for the year. That application was rejected by the Admissions and Re-enrolment Committee, which excluded her for 2 years;

(j) From that decision she brought an appeal, under Rule 7 of the Restrictions on Students Re-enrolling Rules which involved, initially, an automatic reconsideration by the Admissions and Programs Sub-Committee of the Academic Board, and then review by an Appeal Committee which, in March 1989, confirmed the earlier decision to exclude her for two years, and ruled that thereafter she should have to compete for re-enrolment;

(k) In October 1991, McInerney J refused an application, which the plaintiff had brought to this Court, seeking prerogative relief in relation to this decision. An appeal was taken to the Court of Appeal which, on 17 December 1993, concluded that the Appeal Committee had been improperly constituted when it had heard the appeal and that, as a result, its decision had been invalid. However the Court declined to grant relief since there was no utility in doing so, that is, in making any order requiring the Appeal Committee to rehear an application for enrolment in 1989, or in making a declaration that the decisions affecting that year had been invalid. Meagher JA did, however, observe that a declaration that the Appeal Committee’s decision had been unreasonable “ could not be granted, as on the face of it the decision seems very reasonable indeed; ”

(l) In 1997, the plaintiff applied to be enrolled in the medical course for 1998, and on this occasion, additionally made an application for special consideration, arising out of her medical condition to which I will later refer. Allegations were made of undue interference by the former Dean of the Faculty, and of corruption of the University’s records arising out of its errors and the earlier invalid decision of the Appeal Committee;

(m) In January 1988, the University’s Admission Centre (UAC) wrote to her advising that the application had been unsuccessful. On 10 February and 19 February 1998, meetings of the Medical Faculty Admissions and Re-enrolment Committee were held, which initially determined and then confirmed, after consulting some additional material, to refuse the plaintiff’s application for re-admission to the course;

(n) The plaintiff then brought further proceedings in this Court, in which she asserted that the invalid decision of the Appeal Committee in 1986 had tainted the further decisions in 1998, and that those later decisions were affected by bias, and/or by a denial of natural justice, and by procedural irregularity. Those submissions or objections were found by Bruce J, on 27 February 1998, to be lacking in substance. No grounds for intervention were found to exist. The proceedings were accordingly dismissed;

(o) In 1999, the plaintiff filed a notice of motion in the Court of Appeal, seeking reconsideration of the original appeal to that Court. The notice of motion was dismissed;

(p) In 1999, the plaintiff applied through UAC for admission to the Faculty of Medicine in 2000;

(q) This application was rejected, and the plaintiff then enrolled in various science/mathematics subjects for that year. After the completion of one semester in these subjects, she discontinued the course;

(r) Later that year she made an application for enrolment in the Faculty of Medicine for the following year, 2001, but this was again refused;

(s) During that year, she brought an action in the Administrative Decisions Tribunal, Equal Opportunity Division, alleging discrimination in relation to the 1988 year, in so far as she asserted that the University had failed to accept her medical disability. That action was dismissed;

(t) In the meantime, while these other events were occurring, the plaintiff had, on 1 March 1995, filed a statement of claim, which was amended on 26 June 1997, and again on 8 February 1999, seeking damages and interest, based upon what were said to be unconstitutional and invalid decisions of the Appeal Committee in 1989, and of the Committee which had dealt with the application for re-entry for 1998. Her claims were framed in contract, negligence, breach of statutory duty, misfeasance in public office and equitable estoppel;

(u) These proceedings were dismissed by Sully J on 12 April 2001, following a motion filed by the defendant for summary dismissal;

(v) On 6 November 2001, the plaintiff filed a further statement of claim (proceedings number 20878 of 2001) claiming damages for alleged loss of opportunity to enrol in the Faculty of Medicine for each of the years 1999, 2000 and 2001, as well as an order that she be enrolled in the MB BSc BS course at the University for the year 2002. This document, although not in proper form, and in some respects rather incomprehensible, pleaded a number of alleged acts of wrongdoing, including the existence of a conspiracy to misrepresent matters relating to herself, interference with records and documents, the withholding of material documents, and other irregularities of a procedural kind. Relief was again sought via contract, statutory duty, negligence, misfeasance in public office and equitable estoppel;

(w) Filed at the same time was a notice of motion, seeking an order that the University enrol the plaintiff, in the course mentioned in the statement of claim, for the year 2002.

(x) That notice of motion came before Adams J, who dismissed it as premature, since the plaintiff had yet to file an application for enrolment for the year 2002. The University, however, gave an undertaking in the following terms:

“ that [it] will consider any application that Ms Harding might make for enrolment in the 2002 academic year on the basis that she was not an excluded student by virtue of the decision of the Admissions and Re-enrolment Committee in 1989 and that she was such an excluded student, whichever of those two bases favoured her enrolment. ”
To the practical significance of that undertaking I will return, since it is at the heart of the notice of motion which has now been brought on for hearing before me;


(y) On 30 November 2001, the plaintiff lodged an application for enrolment in the year 2002, as well as an Application for Special Consideration for Applicants with Tertiary Studies (SCATS);

(z) On 11 January 2002, the Admissions and Re-enrolment Committee of the Faculty of Medicine gave consideration to the plaintiff’s application by reference to each of the bases mentioned in the undertakings, that is, as an excluded student and as a non-excluded student, and also by reference to her SCATS application. It determined that the plaintiff should not be offered enrolment on any of these three bases; and

(aa) On 30 January 2002, the applicant filed a further notice of motion in similar terms to that which had earlier been dismissed by Adams J. It is that notice of motion which I must determine, seeking as it does, an order that the plaintiff be enrolled in the Faculty of Medicine for the academic year which is due to start in March 2002, and for such other orders as the Court may judge appropriate. As emerged in the course of argument, it was indicated to the plaintiff that the Court lacked power to undertake the kind of merits review which might result in a decision that she be enrolled in the Faculty. She then sought, at least, orders that the decision of the Committee be declared invalid, and that the University be ordered to redetermine the application according to law.

3 In order to determine the issues which arise on the motion it is necessary to refer, in a little more detail, to the material which was placed before the Committee in January 2002. It included a “Statement as to Studying Ability” prepared by the plaintiff, which asserted that:

(a) Her “ abysmal performance ” in 1986 had been caused by a thyroid problem, which forced her to cease attending the course;

(b) After a total thyroidectomy in 1987, she had returned to the University on a prescribed dosage of thyroxine, but had experienced further problems, caused by the continued use of the medication in circumstances where there had been a re-generation of thyroid tissue, such that she could not properly apply herself to her studies;

(c) In 1996, the regrowth of thyroid tissue was identified by a thyroid scan, with the consequence that the problems with the medication could then be addressed;

(d) The attitude of the then Dean, Professor Glover, who she asserted had “ opposed ” her re-admission in 1988, and “ had stymied ” a review in 1989, “ caused her problems ”;

(e) Having been “ catapulted ” into a science degree in 2000, in order to establish “ academic rehabilitation ”, having been burdened by a late start and by the absence of recent study in three of the subjects, having not met the minimum level of performance at distinction average needed to requalify for medicine, and having no other reason to do the course, she had discontinued her studies after the first semester;

(f) By reference to calculations which she made, taking into account her 2000 performance with suggested adjustments for the delayed start; her TER relating to the 1982 HSC examination with a claimed credit for disadvantage at HSC level, she suggested that she was shown to have a “ reasonable chance of success with medical studies ”; and

(g) She was entitled to the special consideration under the SCATS scheme referable to her medical circumstances, and the effect of her earlier thyroid condition on her academic record.

4 Another document supplied was a “Personal Statement” which, although somewhat disjointed, and not easy of comprehension, appears to contain assertions by the plaintiff that:

(a) She was able to handle Anatomy I, Biochemistry, Biology, and Chemistry:

(b) She no longer takes thyroid medication and her previous instability and problems in this regard have been resolved;

(c) She had previously been the subject of wrongful markdowns in some of the year 2000 subjects;

(d) There were various errors in some of the documents which had been provided, and in previous determinations; and that

(e) Counsel had misled the Administrative Decisions Tribunal at various points (which were identified in a tape recording that she provided of part of these proceedings), concerning medical aspects of her condition.

5 A third document, supplied by the plaintiff, was a “medical statement”, to which were attached various medical certificates and reports dating back to 1986, and which contained submissions in relation to her previous thyroid problems based upon these documents:

(a) The penultimate document in this bundle was a report form her treating physician, Dr Stiel, dated 3 December 2001, which reviewed her medical history in relation to her thyroid problems, and which provided some support for the view that the fluctuating level of thyroid hormone experienced between the time of the thyroidectomy in 1987, and the nuclear medical scan in 1996, could have been due to the presence of some residual thyroid tissue, as well as the taking of thyroxine medication in varying doses. It concluded “ certainly the fluctuating levels of thyroid hormone could have affected her studies during the 1988-1989 period ”;

(b) The final document in this bundle was a report dated 16 December 2001 from Dr Reeve, the surgeon who had performed the thyroidectomy, in which he noted her post operative difficulty in stabilising her thyroid replacement medication, and indicated that if she had been hypothyroid at the time of the 1988 examinations, then her “ performance would have been significantly diminished ” by that fact.

6 A fourth document, which was provided by the plaintiff in support of the SCATS application, was a “Final Summary” in which submissions were addressed referable to her medical situation, and to the problems associated with the 2000 science course, which had led her to discontinue it after the first semester. Additional submissions were advanced to the effect that she could pass first year medicine.

7 The agenda for the meeting of the Admissions and Re-enrolment Committee had attached to it, inter alia, the following documents:

(a) Appendix A: Selection Algorithm – Medicine Program , which relevantly was in the following terms:

“ 2. Students with a tertiary record (other than a record of enrolment in another medicine program) are selected on their overall rank derived 50% from the UAI (or equivalent) and 50% from their tertiary studies. Tertiary study must have been of at least 12 months full-time duration. The tertiary rank reflects the applicant’s academic performance in the tertiary program. If an applicant has been enrolled in more than 1 tertiary program, the highest generated rank is used in the overall rank. TAFE and other post-secondary qualifications and tertiary records of less than 1 year full-time in duration are ignored.
…
4. Students with a tertiary record who believe that they have suffered long-term educational disadvantage or who, for whatever reason, believe that their tertiary record is not a true reflection of their academic merit may lodge an application for Special Consideration (SCATS). SCATS applications are considered by the Admissions and Re-enrolment Committee. ”

(b) Appendix B – Re-admission After Exclusion: Council Resolution 80/31
This extract noted that:

“’ ..The responsibility of Admission and Re-enrolment Committees shall be to:
…
[c] Decide applications for re-admission to courses [now programs] of the University by students who have previously been excluded under the re-enrolment rules
The decisions of the Administration and Re-enrolment Committees shall be made in accordance with the following general guidelines…
Re-admission after exclusion
Decisions on re-admission after exclusion shall be based on:
(i) the extent to which the cause of initial failure has been resolved in the intervening period;
(ii) the extent to which, through performance in another course [now program] or in employment or in any way, the likelihood of having a reasonable chance of success if re-admitted has been demonstrated;
(iii) the likelihood of the length of time elapsed since exclusion (particularly in relation to changes in course content and emphasis) rendering success unlikely;
(iv) any other matter submitted in support of an application.
Applications for re-enrolment after infringement of re-enrolment rules and for re-admission after exclusion should not be considered on the basis of a comparison with current admission standards but in comparison with the group of students with whom the student was originally admitted.’
Processing:
1. Excluded students may apply for re-admission after the period of exclusion has expired. All applicants for re-admission after exclusion are instructed to lodge an application for Special Consideration and provide a statement setting out why they consider they will now succeed in the program of their choice [page 184 2002 UAC Guide].
2. All applications for re-admission are referred to the Medicine Admissions and Re-Enrolment Committee for decision.
3. Applications are considered in accordance with the guidelines under Council Resolution 80/31.
4. Applicants who apply during their 2nd year of exclusion to be re-admitted the following year to a program, and are unsuccessful, will have the right of appeal against the decision to the Re-enrolment Committee of the Academic Board.”

8 It was common ground that the words “and or” which should have appeared between sub paragraph (iii) and (iv) in this document had been omitted from it.

9 This resolution had been adopted by the Council for the University on 8 September 1980, and by the Professorial Board on 2 September 1980.

10 The minutes of the meeting of the Committee of 11 January 2002 (referred to as “notes” of the Committee) recorded those present as Professor Dowton (the Presiding Member), Ms Gatwood, Professor Henry, Dr Sutherland, Dr Tancred and Ms Tucker. The minutes record, at the outset:

“ POLICY ON SELECTION OF STUDENTS INTO UNSW MEDICINE
The Presiding Member referred to the document ‘Selection Algorithm – Medicine Program’. It was agreed that a reference to students entering via the ACCESS and Indigenous Entry Schemes be included. (The agreed modified policy is attached to these notes – Attachment A.)
Members were also referred to the document ‘Re-Admission after Exclusion’ (Attachment B). Ms Gatwood explained the previous and current procedures whereby students can be excluded. It was agreed that this document correctly states University procedures in respect of excluded students applying for re-admission.”

11 In relation to the plaintiff’s applications, the minutes recorded:

“ APPLICATIONS FROM FORMER UNSW MEDICINE STUDENTS
…
Kathleen Harding – The Presiding Member advised the meeting that Ms Harding’s application for re-admission would be considered twice at this meeting. It would be considered under this item as an excluded student and later under the Applications for Special Consideration category.
All members confirmed that they had received Ms Harding’s application. The Presiding Member referred the meeting to Ms Harding’s academic record. It was noted that Ms Harding enrolled in the Science program at UNSW in Session 1 of 2000. She obtained one credit and three passes. The meeting noted that she only completed one session and her weighted average mark (WAM) was 61.75 and as such did not demonstrate the academic rehabilitation required for re-admission to the Medicine program.
It was moved that Ms Harding not be offered a place in the Medicine program on the basis that she had failed to demonstrate academic rehabilitation of a standard to justify readmission to Medicine, and because the length of time that has elapsed since her exclusion at the end of 1988 has rendered success unlikely. The motion was carried unanimously. NOT RE-ADMIT
…
5. APPLICATIONS FOR SPECIAL CONSIDERATION
The Presiding Member gave an overview of the Special Consideration for Applicants with Tertiary Study (SCATS) Scheme and referred members to Attachment E – ‘Special Consideration Applicants – Entry in 2002’.
Kathleen Harding – The Presiding Member referred the members to the application for special consideration and advised that Ms Harding had also submitted a tape that she requested be played at the meeting. The Presiding Member played the tape to the meeting.
The Committee noted that it fully complies with anti-discrimination legislation and does not discriminate on the basis of age, gender or disability. It noted that using the algorithm 50% UAI and 50% tertiary record, Ms Harding’s HSC performance in 1982 and her Medicine results of 1983-1988 generated a rank of 81.35. It was noted that Ms Harding’s UAI on its own (97.70) was not sufficient to make her competitive for entry in 2002. Her overall rank of 81.35 was substantially below the rank required of ‘non-excluded’ students with tertiary records seeking admission to the program. [The lowest ranked applicant with a tertiary record who was offered a place had an overall rank of 98.57 – refer attachment C.] The Committee declined to vary or override this rank on the basis of her SCATS application. It was therefore moved that Ms Harding not be offered a place on the basis of her application for special consideration. The motion was carried unanimously. NO OFFER .”

12 Finally, since it was a matter which drew a submission from the plaintiff, it is necessary to note the final item in the minute:

“ 8. ANY OTHER BUSINESS
8.1 Presentation of information to this Committee
It was moved that all information presented to this Committee for consideration is to be in written form. The motion was agreed to unanimously.”

13 In her affidavit in support of the motion, the plaintiff asserts that the University had not complied with the undertaking given to Adams J, that she was still being denied the special consideration to which she was entitled, and that incorrect statements or misrepresentations had been made by the University to the Administrative Decisions Tribunal concerning whether or not she had attended Dr Stiels’ surgery in June 1988 and concerning other medical issues, along with a “deliberate distortion of factual evidence and certain admissions from which UNSW is unable to retreat”. Malpractice was alleged in relation to the way in which consideration had been given to her medical condition for 1988, and for every year up to and including the year 2002, which she claimed had impacted “on the just and proper appraisal of [her] applications for special consideration”.

14 The affidavit, to which no objection was taken, despite it not being in a form deposing as to facts, continued in relation to these matters:

“12. For the University to depart from its expressed views disclosed on the ADT tape would require serious admissions of malpractice which malpractice and its intent are obvious and indisputable.
13. It is thus becomes the province of the Court to make the order sought to return me to the course from which I was invalidly excluded and to acknowledge the medical evidence and its impact. The University cannot be relied on to consider the application nor correct its bad practices”

15 Reference was also made to the remarking of the Biology paper, and to the problems which the plaintiff asserted that she had faced when attempting the science subjects in the year 2000. The allegations made in that regard were in the following terms:

“ My performance in Science, in 2000, for one session, undertaken at short notice, with effectively loss of 3 weeks, with no recent subject experience since a range from 18 to 12 years and with late enrolment and, under protest, for the sole purpose of academic rehabilitation, attracted a ranking of 82 to which the University gives no substance and when adjusted for the 3 weeks late start without any allowance for the years away from appropriate related study the ranking adjusts close to 99% which demonstrates my ability and the medical faculty courses require experience only of chemistry and most students come to the other subjects with no prior experience so my experience and recent study and private study and proven competence in the past in two of those subjects despite medical disadvantage make success in first year almost guaranteed and having qualified initially for the study of medicine with no concessions there is no need to assume I would not have a reasonable chance of success with the course which is the only standard I am required to meet, not a high chance of success. The failure of the University to take my medical circumstances into account is gross error. Even for the year 1988 my ranking shows at 65 and the University compares me inappropriately with the current intake, which, taking all factors into account, puts me in a very strong position in relation to the current intake, which comparison is not allowed but the University consistently treats my applications inappropriately and the degree of its malpractice cannot be overcome.”

16 It may be assumed that as the University is a statutory corporation established by Act of Parliament, as a public institution, to promote the public purpose of higher education, its decisions, including those of relevant committees are subject to the scrutiny of the Courts: Norrie v Auckland University Senate [1984] 1 NZLR 129 at 135, and at 140. Further, it may be accepted that committees given the power to reject applications for admission or continued attendance at the University are to be considered as acting in a quasi-judicial capacity: Glynn v Keele University (1971) 1 WLR 487.

17 However, it remains true that this Court does not sit as a Court of factual review over decisions of such committees. Rather, it can only intervene in accordance with accepted administrative law principles, for example where the Committee has not been properly constituted, where it failed to follow proper procedure, where it acted in a way constituting a denial of natural justice, where it otherwise reached a decision which was contrary to law, or where its decision was such that no reasonable committee, acting with a due appreciation of its responsibility, could have arrived at it.

18 For the plaintiff to receive relief in this Court, which would necessarily be confined to a declaration that the decision in question was invalid, or an order requiring her application to be redetermined in accordance with law, she must bring herself within those recognised grounds for redress.

19 It is convenient to deal with some of the specific matters which appeared to be of particular concern to the plaintiff in relation to the way in which her application was considered. Although not in any particular order of significance, they relate to the following matters:

Undertakings

20 Contrary to the general submission which the plaintiff advanced, it is perfectly clear that the Committee complied with the undertakings and considered her application on both bases, that is, as an excluded student, and as a non excluded student. In that latter capacity it had to treat her as a student with a prior tertiary record, since she had been previously enrolled, although, in her favour, it also gave consideration to the situation in which she would have been without that record. Additionally, it gave consideration to her case by reference to the SCATS application. The plaintiff’s submission that the University failed to honour the undertakings given in the proceedings before Adams J is accordingly not made good.

Absence of Student File

21 In the course of the hearing before me, Ms Harding drew attention to the fact, conceded by the University, that the Committee did not have placed before it her student file. She queried whether this may have involved a procedural irregularity or a failure on the Committee’s part to consider the entirety of the relevant material.

22 Although no evidence was called in this regard, I am not persuaded that anything can be made by the plaintiff of this circumstance for several reasons:

(a) She did not ask for her file to be made available to the Committee, nor did she place it in evidence before me;

(b) In his reasons Adams J noted that an assurance had been given, on behalf of the University, that it would not regard adversely the decision which had led to the plaintiff’s exclusion in 1989, an assurance which was reinforced by the undertakings that were formally given and which were designed to ensure that the matter was to be reviewed afresh upon the most favourable of the available bases, and upon the basis of any material which the plaintiff wished to place before the University;

(c) In the past, the applicant had made complaints concerning correspondence or reports, which had been on her file, and which she suggested were either factually untrue or involved improper pressure or bias on the part of their authors; and

(d) The plaintiff was permitted to place, and did place, before the Committee a considerable body of material in order to deal with her medical situation, and with such complaints as she had in relation to her past treatment, or in relation to any errors which she believed had occurred.

23 In these circumstances, it seems to me that the fact that the Committee did not refer to the plaintiff’s student file was a matter operating entirely in her favour, in that it meant that the Committee could consider the matter afresh in the light of the UAC calculations, and the documents and submissions which were provided by the plaintiff, without any risk of being distracted or influenced by the “exclusion decision”, or by the reports and other documents which the plaintiff had attacked in the past as disclosing bias, misrepresentation, or improper pressure.

24 It follows that no legitimate cause for concern arises in this regard.

Schedule B – Admission of “ and/or ” in Resolution 80/31

25 It was submitted, in essence, that the Committee may have been misled in so far as these words were omitted from the Resolution attached to the agenda papers, with the consequence that it may have erroneously concluded that the four criteria identified were cumulative rather than disjunctive.

26 In my view, that submission was not made good because:

(a) There is no reason to suppose that the Committee were otherwise unaware of the terms of the Resolution;

(b) Item (iv) is clearly intended to permit additional matters that may be called in aid by an applicant to be taken into account; however, it can hardly be said to have been intended to permit enrolment by reference to considerations which were wholly extraneous to an applicant’s suitability for study in a particular faculty or course;

(c) In dealing with the application it is clear that express regard was had to all of the criteria mentioned; and

(d) No additional material was furnished to the Committee by the plaintiff beyond that relevant for the remaining criteria, which did call for consideration, by reference to the medical reports, whether there had been sufficient reason shown for her unsatisfactory prior academic performance, and whether any prior problem had now been overcome, such that she had a reasonable possibility of finishing the course.

27 In the absence of any suggestion that material which might have fallen within criterion (iv) exclusively, and which might have carried the day for the plaintiff, was provided but ignored, this point was not made good.

The Administrative Decisions Tribunal Tape

28 The tape for these proceedings appears to have had considerable importance for the plaintiff, so much so that she provided it to the Committee, asked for it to be considered, and made several submissions in relation to it.

29 I regret that I am unable to understand quite what point she sought to draw from it, since, if anything, it invited a refocus on the earlier “exclusion” decision, whereas the function of the Committee was to reconsider the application afresh, unhindered by that decision, by reference to the material placed before it, and upon whichever of the available bases for consideration was the most favourable for the plaintiff.

30 In any event, it appears to me that the plaintiff has missed the point of the submissions made to the Tribunal. When read in context, the University was not arguing that the plaintiff had seen neither of Dr Stiel or Professor Reeve during the 1998 year. Rather, its submissions were specifically directed to the material which the 1989 Appeal Committee had been given. It was put that there was no report included in the relevant papers showing any such consultations, with the result that the evidence provided to the Committee had been “unhelpful in detailing.. how the medical condition affected her ability to do the exam and to study [in 1988]”.

31 Properly, the University did draw attention to Professor Reeve’s report of 2 August 1989, which similarly to the report before the present Committee expressed an opinion as to the effect which the plaintiff’s medical condition may have had during 1988, upon the assumption that there were test results available to show that she had been “hypothyroid”.

32 It is clear that the Tribunal had the actual Exhibit (Exhibit 16) and had it read to them in correct terms. It also had some test results. It is clear that the Tribunal appreciated the difference between hyperthyroid and hypothyroid conditions, and their significance, including the occurrence of fluctuations between those conditions, where a patient was having a difficulty achieving stabilisation through the use of medication. There can be no possible question of it having been misled by the University, let alone deliberately misled, in these circumstances.

33 I am quite unable, in those circumstances, to see any merit in the point addressed by the plaintiff, particularly when the tape of the submission was, at her request, played to the Committee, and when she was able to address the Committee through her submissions in relation to it. In particular, I see no merit in the proposition that the University had been locked into a position from which it could not withdraw without admitting malpractice, let alone any reason for attributing such a malign motive to the 2002 Committee.

Minutes – Other Business

34 It appears that the plaintiff detected fault in that, at the end of the meeting, the Committee determined that information placed before the Committee should be in documentary form. This item was clearly directed to the future, and nothing associated with it gives rise to any possible assertion of procedural irregularity, in relation to the several applications which had earlier been decided by the Committee.

Excluded Student

35 At various times the plaintiff contended that she should not have been considered as an “excluded student” since the earlier Appeal Committee decision had been invalid and void. However this missed the point, since she was given the benefit of being considered under all possible bases. Had that for an excluded student proved the more favourable and led to her being eligible for re-enrolment, then she would have had the benefit of that determination, even though she would not have otherwise qualified.

36 This point is not made good.

Minutes of Meeting

37 The plaintiff complains that she had not been provided with any minutes of the meeting. The “notes” stood as official minutes, and there was no reason shown to question their sufficiency or authenticity.

Rural and Indigenous Entry

38 The plaintiff addressed a submission to the effect that since lower academic standards applied for these applicants, she should similarly be assumed to have had at least a reasonable prospect of passing her examinations. Logically it does not follow from the fact that special consideration applies to Rural and Indigenous applicants at entry level, that any lesser academic standard is to be adopted for the course, as a whole.

39 This point is not made good.

Comparison with Current Intake

40 A submission was advanced to the effect that when dealing with her application as a non excluded student, the Committee had acted inappropriately, so far as it compared her UAC ranking with current admission standards, rather than with the student group with whom she had originally been admitted.

41 This submission however, overlooks the fact that the provision to this effect, which is contained in Council Resolution 80/31, applied to applications by excluded students, and as such was not relevant for consideration of her application as a non excluded student.

42 As the minutes (para 5) show, the comparison with current standards was made in the context of the SCATS application, in the course of which the Committee noted that her UAI on its own (that is, treating her as a student with no tertiary record), and on the algorithm basis (treating her as a student with a tertiary record), each fell short of the current cut-off.

43 The Committee then decided not to vary or override her rank by reference to the material furnished in support of the SCATS application – a clear indication that it had considered that material, but could not find any justification for admitting her as a non excluded student.

Conclusion

44 Returning to the issues central to the question whether the plaintiff has made out a case for intervention, it is to be observed that no question has been raised as to the constitution or convening of the Committee; nor, in the circumstances earlier outlined, has fault been shown in relation to the procedure followed, or in relation to the plaintiff’s opportunity to be heard.

45 So far as bias is concerned, no evidence has been offered in support of such a proposition beyond a general allegation relating to the University as a whole which has not, in my view, been made good.

46 The record of the Committee’s determination reveals that the plaintiff’s material was received and considered. I see no error, on the face of the record, in relation to the determination made. Nor do I see any reason for any contention that any material consideration was ignored, or not given appropriate weight.

47 The evidence disclosed that the plaintiff did have to compete for a place in the faculty with the other students applying for the course. It is a matter of which judicial notice may be taken that competition for enrolment in the Faculty of Medicine is intense. This is reflected in the high admission standards. It is also a matter of which judicial notice can be taken that the study of medicine requires considerable dedication and academic ability. For these reasons the competition for places is based on academic merit. As Ms Gatwood explained in her affidavit:

“ To enable comparison of applicants with different qualifications a ranking system is used. For students with a tertiary record, their overall rank is derived 50% from the UAI (or equivalent), which is a reflection of their Higher School Certificate performance, and 50% from tertiary studies based on the applicant’s academic performance in those tertiary studies. If an applicant has been enrolled in more than one tertiary program, the highest generated rank is used in the overall rank. TAFE and other post-secondary qualifications and tertiary records of less than one year full-time in duration are not included in the rank. ”

48 For students without a tertiary record, their rank is derived from their UAI or equivalent, alone. In each case, this is subject to special consideration under the SCATS regime. Separate consideration applies to excluded students, as noted above.

49 It appears from the minutes, and from the documents placed before the Committee, that the plaintiff’s HSC UAI rank taken alone (97.70) fell short of the rank required (99.75) both for school leavers and for non school leavers (98.57). When taken in conjunction with the algorithm 50% UAI and 50% tertiary record (65.00) for students with a tertiary record, it fell to 81.35, again well short of the cut off point. The tertiary record was based on the previous medical studies since the plaintiff had not completed the minimum period of 12 months required before her science course in 2000 could be taken into account.

50 The rankings taken into account, it may be noted, were provided to the Committee by the University Admissions Centre (UAC), a body which was independent of it.

51 I see no room for any argument that the Committee approached its task on an inappropriate basis, or that it took into account any extraneous considerations, or overlooked any relevant considerations when dealing with the plaintiff’s application on either of the excluded or non excluded bases.

52 As Ms Gatwood also explained, the SCATS application required that consideration be given to whether the plaintiff had suffered any long term educational disadvantage or that her tertiary record was not a true reflection of her academic merit. That question was, on the face of the record, considered in the light of the material which the plaintiff placed before the Committee and her prior academic performance which had been interrupted and unimpressive. Again I see no basis for an argument that the Committee failed to give proper regard to the relevant considerations, or that it took into account any improper considerations when dealing with this aspect of the application.

53 So far as the plaintiff submitted that the decision of the Committee was unreasonable in the light of the principles discussed in Associated Provincial Picture House Limited v Wednesbury Corporation (1948) 1 KB 223, The Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1997) AC 1014, and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, I can see not merit in such a proposition.

54 On the contrary, in the light of the plaintiff’s prior academic record, and giving her full credit for her earlier medical difficulties, for their apparent resolution, and for her problems in the year 2000 in commencing Science studies late, I am not convinced that the Committee decision was one which could be seen to have been unreasonable, within the meaning of these decisions. On the contrary, it appears to me to have been an entirely reasonable decision.

55 In all of these circumstances I am not persuaded that the plaintiff is entitled to any form of relief sought in the notice of motion. It should be dismissed.

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Last Modified: 03/04/2002