Hove v University of Western Australia - [2024] WASCA 37

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HOVE -v- UNIVERSITY OF WESTERN AUSTRALIA [2024] WASCA 37
CORAM:   BUSS P
MITCHELL JA
VANDONGEN JA

HEARD:   5 FEBRUARY 2024
DELIVERED          :   17 APRIL 2024
FILE NO/S:   CACV 15 of 2023
BETWEEN:   DZIKAMAI DZINASHENGONI SERGEYVICH HOVE
Appellant
AND
UNIVERSITY OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACV 16 of 2023
BETWEEN: DZIKAMAI DZINASHENGONI SERGEYVICH HOVE
Appellant
AND
CHIEF EXECUTIVE, NORTH METROPOLITAN HEALTH SERVICE
First Respondent
UNIVERSITY OF WESTERN AUSTRALIA
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ALLANSON J
Citation: HOVE -v- UNIVERSITY OF WESTERN AUSTRALIA [2023] WASC 12
File Number            :   CIV 2128 of 2021, CIV 2404 of 2021

Catchwords:

Administrative law - Judicial review - Decision by University to exclude student from enrolment in clinical units required to complete a course for a Doctor of Dental Medicine degree made after receiving advice from a health service that it would not consider permitting the student to participate in future clinical rotations due to concern about his clinical ability and resultant patient safety - Whether the University's decision was in accordance with statutory requirements - Whether the health service officer's advice is susceptible to judicial review

Legislation:

Health Services Act 2016 (WA), s 26(2)(d), s 27(1), s 32, s 36(2), s 36(3)(a), s 36(3)(b)
University of Western Australia Act 1911 (WA), s 29(1), s 31
University of Western Australia Statute (WA), s 78

Result:

Appeal in CACV 15 of 2023 allowed
Appeal in CACV 16 of 2023 dismissed

Category: B

Representation:

CACV 15 of 2023

Counsel:

Appellant	:	D J Campbell KC & P G Jeffery
Respondent	:	B J Tomasi

Solicitors:

Appellant	:	Blossom Lawyers
Respondent	:	Clyde & Co (Perth Office)

CACV 16 of 2023

Counsel:

Appellant	:	D J Campbell KC & P G Jeffery
First Respondent	:	A J Sefton SC & J M Carroll
Second Respondent	:	B J Tomasi

Solicitors:

Appellant	:	Blossom Lawyers
First Respondent	:	State Solicitor's Office
Second Respondent	:	Clyde & Co (Perth Office)

Case(s) referred to in decision(s):

Craig v The State of South Australia (1995) 184 CLR 163
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99
Kioa v West (1985) 159 CLR 550
Murdoch University v Bloom [1980] WAR 193
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Re Metropolitan Health Services Board; Ex parte Reed [2003] WASCA 123

JUDGMENT OF THE COURT:

Summary

The appellant was enrolled in a course for a Doctor of Dental Medicine (DMD) degree at the University of Western Australia (University). In the second semester of 2019, he failed the last two units which he was required to pass in order to complete the course. Those units involved the appellant participating in a clinical placement program at the Dental Health Service (DHS) operated by the North Metropolitan Health Service (Health Service).
Initially, as a consequence of the appellant's failure to make satisfactory progress in the course, the University assigned the appellant a progress status of 'excluded'. That progress status prevented the appellant from re-enrolling in the units required to complete the course for the DMD degree. However, in 2020, the appeals committee of the Academic Board of the University upheld an appeal by the appellant. The appeals committee determined that the appellant should be permitted to re-enrol in the units.
The COVID-19 outbreak prevented the appellant, who is an international student, from returning to Australia to complete the course for the DMD degree in 2020. When he attempted to re-enrol in 2021, the dean of the University's Dental School wrote to a DHS officer asking whether the Health Service would allow the appellant to participate in future clinical rotations. On 7 July 2021, the officer advised that DHS would not consider permitting the appellant to participate in future clinical rotations because, at the time he ceased attending a clinical rotation in 2019, DHS was concerned with the appellant's clinical ability and resultant patient safety.
On 31 August 2021, the chair of the Academic Board of the University wrote to the appellant advising, in effect, that as a result of the advice from DHS the appellant would not be permitted to enrol in the units required to complete the course for a DMD degree.
The appellant applied to the General Division of the Supreme Court for judicial review of what was said to be a decision of the Health Service of 7 July 2021 and the University's decision of 31 August 2021. The primary judge dismissed the appellant's judicial review applications. The appellant now appeals against the orders dismissing his judicial review applications.
In our view, declaratory relief ought to have been granted to the appellant in respect of the University's decision of 31 August 2021. That decision was taken contrary to s 78(1) of the University of Western Australia Statute (UWA Statute), made under s 31 of the University of Western Australia Act 1911 (WA) (UWA Act). Section 78(1) of the UWA Statute provides that the admission and enrolment of students must be conducted in accordance with 'the University Legislation', which is defined to include rules and policies. There was nothing in the University Legislation which provided for the appellant to be excluded from enrolling in the units on the basis of the advice received from the Health Service. The appeal against the dismissal of the appellant's judicial review application relating to the University's decision should be allowed.
In our view, the primary judge correctly dismissed the application for judicial review of the advice given by the Health Service on 7 July 2021 on the basis that the advice constituted an answer to a hypothetical question which was not susceptible to judicial review. The appeal against dismissal of the appellant's judicial review application relating to the Health Service's advice should be dismissed.

Factual background

The evidence as to events leading to the appellant's exclusion from the University is sparse but establishes the following uncontroversial facts.
In 2015, the appellant commenced studying a four-year course for a DMD degree at the University as an international student. He passed the course requirements for the first three years of the course from 2015 to 2017.
The fourth year of the course comprised of four clinical units, Integrated Dental Practice 1 - 4. In 2018, the appellant failed the two first-semester units, Integrated Dental Practice 1 and 2. He repeated these units in semester one of 2019 and passed with marks of 58% and 74% respectively. In 2019, the appellant failed the two second‑semester units, Integrated Dental Practice 3 and 4. Integrated Dental Practice 3 and 4 were the last two units the appellant was required to pass to complete the course for the DMD degree.
Under the course rules for the DMD degree at that time, to make satisfactory progress in a calendar year a student had to pass all units that the student was required to undertake in that year.[1] The course rules also provided for the Faculty, on the recommendation of the Board of Examiners, to assign a progress status of 'excluded' to a student who failed to make satisfactory progress in the same year of the course for a second time, unless it determined there were exceptional circumstances. An 'excluded' status was assigned to the appellant on the basis that he had failed to pass all fourth-year units two years in a row.
[1] The course rules at that time are not in evidence before the court but are reproduced in the letter from the Academic Secretary of the University noted at [12]. There does not appear to be any contest that the appellant failed to make satisfactory progress in the course for the DMD degree for two consecutive years.
The appellant appealed to the appeals committee of the Academic Board against the assignment of an 'excluded' status to him. The appeals committee considered that the appellant should not be denied the opportunity to attempt Integrated Dental Practice 3 and 4 again. The appeals committee allowed the appeal on compassionate grounds and overturned the exclusion of the appellant. On 4 March 2020, the academic secretary of the University wrote to the appellant advising him of the appeals committee's decision and advising him that he was permitted to enrol in Integrated Dental Practice 3 and 4.
The COVID-19 outbreak prevented the appellant from returning to Australia to complete the course for the DMD degree in 2020. The appellant was given approved leave from the course for the DMD degree from 27 July 2020 to 22 May 2021. After his leave expired, the appellant communicated with the University through his lawyers to organise for his return to the course for the DMD degree.
On 7 July 2021, Professor Hien Ngo, the dean of the UWA Dental School, wrote to Dr Martin Glick in relation to the appellant's re‑enrolment in 2021. Dr Glick was employed by the Health Service as manager, central clinical and support services of DHS. The substantive part of Professor Ngo's letter read:[2]
Following your email communication on 23rd October 2019, in relation the abovementioned student's DHS rotation, please advise if DHS would allow [the appellant] to participate in future rotations.
Dr Glick's email of 23 October 2019 is not in evidence, and there is no evidence that the appellant is aware of its contents. That email was sent towards the end of the 2019 academic year, when the appellant failed Integrated Dental Practice 3 and 4.
[2] Green AB (consolidated) 90.
Professor Ngo's letter was emailed to Dr Glick at 10.39 am on 7 July 2021. At 1.13 pm on 7 July 2021, Dr Glick responded by email in the following terms:[3]
DHS would not consider permitting [the appellant] to participate in future clinical rotations at DHS facilities as at the time he ceased attending the Bunbury General Dental Clinic DHS was concerned with his clinical ability and resultant patient safety.
Let me know if you need any further information regarding [the appellant].
[3] Green AB (consolidated) 91.
On 31 August 2021, Professor Ray da Silva Rosa, the chair of the Academic Board, wrote to the appellant. After referring to the appeals committee's 2020 decision, Professor da Silva Rosa said:[4]
[4] Green AB (consolidated) 65 - 66.
The Dental School has advised that the decision of the Appeals Committee cannot be actioned and have provided me with relevant information. The basis of their [advice] relates to the accreditation and registration of DMD students and the foundation of demonstrated clinical skills.
The DMD structure has been revised and you would have to undertake three Semester 2 units for equivalence with the two 2019 failed units as below:
a)DENT5446 Comprehensive Clinical Care (external clinical placements)
b)DENT5447 Comprehensive Clinical Care 7 (OHCWA and speciality clinical placements)
c)DENT5448 Comprehensive Clinical Care 8 (OHCWA and speciality clinical placements)
As part of the accreditation of the DMD, students must undertake clinical placements both at OHCWA and Dental Health Services (DHS). DHS is part of Western Australia's Department of Health providing publicly funded dentistry. DHS provides essential quasi‑professional placements noting the following:
a)Graduates are able to commence clinical practice, including setting up their own practice, after graduation and do not have any internship (or similar) and as such have to be deemed competent on course completion.
b)OHCWA provides a clinical placement across all areas of practice but in an open plan setting with high visibility and supervision and while critical in clinical teaching, does not constitute a quasi-professional placement.
c)There are no other options that would meet course requirements such as placement in a private practice. DHS is the only provider used for this purpose, and this is a key element in accreditation.
On 7 July 2021 Dr Martin Glick, Manager Central Clinical and Support Services, DHS was asked by the current Head of School … If 'DHS would allow [the appellant] to participate in future rotations.' The following response was received on the same day:
'DHS would not consider permitting [the appellant] to participate in future clinical rotations at DHS facilities as at the time he ceased attending the Bunbury General Dental Clinic DHS was concerned with his clinical ability and resultant patient safety.'
In light of the clinical placements required in the units and the response from DHS, a repeat of the final year's failed units is not possible. As these are specific academic and clinical aspects of the DMD approved by Academic Board, the position of the Dental School is accepted and affirmed.
I understand that you will be disappointed with this decision. You may wish to consider other options available including: enrolment at a different university at which you may be able to seek relevant and appropriate course credits; or [alternative] courses at this University building on your strengths in coursework and possibly research.
In closing I must note that there is no further avenue of review or appeal within the University but you are welcome to raise any concerns with an external agency such as the Ombudsman Western Australia.
The appellant received this letter, without warning, on 1 September 2021. He was not aware of the matters mentioned in communication between Professor Ngo and Dr Glick prior to receiving the letter.
On 3 October 2021, the appellant logged into his University account and noticed that his progress status had been changed to 'excluded'.
At the time of the communications in July - September 2021, a Student Clinical Placement Agreement (SCPA) had not been entered into between the University and the Health Service. As discussed below, entry into an SCPA in the form of a template was required by a policy framework issued by the Director General of the Department of Health. An SCPA in the substantive terms of the template was subsequently entered into between the University and the Health Service in November 2021. At the hearing of the appeal, counsel informed the court that the material parts of this agreement were still in force.[5]
[5] Appeal ts 62.

Procedural history

On 26 October 2021, the appellant applied to the General Division of the Supreme Court in CIV 2128 of 2021 for judicial review against the University (UWA proceedings). The UWA proceedings sought review of, relevantly, the decision to exclude the appellant from the DMD degree or alternatively to refuse or prevent his enrolment in the units necessary for him to complete the degree. The UWA proceedings identified seven grounds on which judicial review was sought, the first of which was that the decision:[6]
was in breach of clause 4.2(4)(c) of the [University's] University Policy on Academic Progress, which permits the [University] to exclude the [appellant] if the [appellant] does not make satisfactory progress as defined under clause 4.1 of the University Policy on Academic Progress, notwithstanding that clause 4.1, which was not applicable in the [appellant's] circumstances as he had been permitted to re-enrol in the units necessary to complete his course at the [University] by decision of the [University's] Appeals Committee dated 4 March 2020.
The grounds also included allegations of a breach of procedural fairness and inadequate reasons for the decision.
[6] Blue AB (CACV 15 of 2023) 33.
In the UWA proceedings, the appellant sought:
1.A declaration that the University's decision was in denial of procedural fairness and in error of law and therefore void and the decision of the appeals committee dated 4 March 2020 remained in force.
2.Mandamus requiring the University to reinstate the appellant in the DMD degree, or alternatively requiring the University to reconsider the decision.
On 22 December 2021, the appellant applied to the General Division of the Supreme Court in CIV 2404 of 2021 for judicial review against the Health Service (Health Service proceedings). The Health Service proceedings sought review of a decision not to consider permitting the appellant to participate in future clinical rotations at DHS facilities due to concerns regarding the appellant's clinical ability and resultant patient safety. In essence the grounds on which judicial review was sought in the Health Service proceedings were a failure to accord procedural fairness and inadequate reasons.
In the Health Service proceedings, the appellant sought:
1.A declaration that the decision was in denial of procedural fairness and in error of law and therefore void.
2.Mandamus requiring the Health Service to permit the appellant to attend future clinical rotations at DHS facilities, or alternatively requiring the Health Service to make the decision afresh.
The UWA proceedings and the Health Service proceedings were heard together by the primary judge on 20 January 2023. The evidence was documentary and there was no cross-examination on the affidavits.
On 31 January 2023, the primary judge dismissed the applications for judicial review in the UWA proceedings and the Health Service proceedings.
In essence, the main basis on which the primary judge dismissed the judicial review applications was that:
1.The University made no decision about the critical issue - whether the appellant would be able to undertake clinical placements. There was no breach of procedural fairness, or at least no material breach, where the University neither could nor did make any decision about the appellant's clinical ability or whether he should be permitted to attend clinical placements. That decision lay in the absolute discretion of the Health Service. Unless the Health Service were to change its position, any relief the court could give against the University would be of no effect.[7]
2.Dr Glick did not purport to decide an application made by the appellant or by the University for clinical placement at DHS facilities. For there to be a decision about clinical placement, two conditions would have to be met:
(a)the appellant would have to be enrolled as a student in the course for the DMD degree and be put forward by the Dental School as a fourth-year student for clinical placement; and
(b)the University and Health Service would have to enter into an SCPA.
While neither of those conditions was met, Dr Glick's email had a practical effect on the decision made by the University but was not, itself, the exercise of any power under the Health Services Act 2016 (WA). At the time of the commencement of the primary proceedings, the Health Service had made no decision having legal effect that could be susceptible to judicial review.[8]
[7] Primary decision [89] - [97].
[8] Primary decision [114].
The primary judge also held that, even assuming Dr Glick's statement did constitute a decision about the placement of students, that decision would be made in the exercise of a private contractual power rather than the exercise of a public power susceptible to judicial review.[9] The primary judge also held that neither the University nor the Health Service breached any duty to give reasons for their decision.[10]
[9] Primary decision [115] - [118].
[10] Primary decision [100] - [105], [123].
The appellant now appeals against the dismissal of his judicial review applications.
In CACV 15 of 2023 (UWA appeal), the grounds of appeal are that:[11]
[11] White AB (CACV 15 of 2023) 4.
1. The learned Judge erred in law and in fact by finding that the contractual arrangement between the University and the Health Service gave the Health Service a discretion to refuse the Appellant placement in a clinical subject (Reasons [88], [93], [94]).
2. The learned Judge erred in law and in fact in finding that the actions of the University did not amount to a decision which was capable of being reviewed (Reasons [89], [94]).
3. The learned Judge erred in law and in fact in finding that any order the court could make would be futile as it could not be implemented (Reasons [96]-[97]).
4. The learned Judge erred in law and in fact in finding that the matters conveyed by way of a letter dated 31 August 2021 from the University were not matters to which the 'University Policy on Academic Progress' and the 'University Policy on: Review and Appeal of Academic Decisions Relating to Students in Coursework Courses' apply (Reasons [84]).
5. In the alternative to Ground 1, the learned Judge erred in law and in fact in finding that:
(a) the Student Placement Agreement Policy was in force and gave the Health Services a discretion not to accept the placement of students in a clinical unit;
(b) there was any arrangement in place between the University and the Health Service concerning the clinical placement of the Appellant at the relevant time (Reasons [87] [88]).

In CACV 16 of 2023 (Health Service appeal), the grounds of appeal are that:[12]
1. The learned Judge erred in law and in fact in finding that the contractual arrangement between the University and the Health Service gave the Health Service an absolute discretion to refuse the Appellant in a clinical subject (Reasons [88], [93], [94]).
2. The learned Judge erred in law and in fact in finding that there was no basis for declaratory or injunctive relief in the circumstance of this matter (Reasons [122]
3. The learned Judge erred in law and in fact in finding that the Health Service had not made a decision or exercised any power under the Health Services Act2016 (WA) (Reasons [114]‑[117]).
4. The learned Judge erred in failing to find that the Health Service had breached its obligation to afford procedural fairness to the Appellant (Reasons [121]-[122]).
[12] White AB (CACV 16 of 2023) 5.

Statutory context

A proper understanding of the relevant provisions having legislative effect is central to the resolution of this appeal. The most relevant provisions are referred to below.

University legislation, statutes and policies

The University is established by s 3 of the UWA Act, and under s 4 of that Act, consists of a Senate, Convocation, staff and students. Section 5 of the UWA Act provides that the Senate shall be the governing authority of the University.
Section 7 of the UWA Act provides for the Governor to be the Visitor of the University, with all of the functions that Visitors usually have. There is no suggestion by any party in the present case that the subject matter of this litigation falls within the exclusive jurisdiction of the Visitor.[13] This may be accepted on the basis that, by reason of the involvement of the Health Service, the dispute in the present case does not concern a matter which is purely internal to the University.
[13] See appeal ts 45. As to the jurisdiction of a Visitor, see Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 [40] and Murdoch University v Bloom [1980] WAR 193.
Under s 29(1) of the UWA Act, the Senate may relevantly cause to be provided to students courses of study appropriate to a university and grant degrees in any branch of knowledge appropriate to a university. Under s 29(2) of the UWA Act, s 29(1) is relevantly subject to any provision of the Statutes relating to the grant or conferral of a degree.
Section 31 of the UWA Act empowers the Senate to make Statutes with respect to matters which include, under s 31(1)(a), the management, good government, and discipline of the University and, under s 31(1)(i), the granting of degrees.
Section 78(1) of the UWA Statute, made under s 31 of the UWA Act, provides that the admission and enrolment of students must be conducted in accordance with the University Legislation. 'University Legislation' is defined in s 6 of the UWA Statute relevantly to include the UWA Act, Statutes made under s 31 of the UWA Act, and 'rules and policies'. 'Student' is relevantly defined in s 6 of the UWA Statute to mean a person enrolled in the University as a student.
Section 78(2) of the UWA Statute provides that a person will not be enrolled in any program for any Award (which includes a degree) unless the person has complied with the enrolment requirements set out in the University's handbook, policies and procedures. Section 78(3) provides that, on enrolment, a student is bound by the University Legislation.
Counsel for the University provided this court with extracts of student rules contained in the University's Handbook 2024 (Student Rules). There was no dispute that these reflected the rules in 2021.
Under cl 5 of the Student Rules, before first enrolling in a course, a person must have applied for, and been granted, admission to the University. Clause 6 provides for limited, presently immaterial, grounds on which the Registrar may refuse to confirm an offer of admission or reject a person's enrolment. Under cl 7(1), a person who has been granted permission to enrol in a course at the University is responsible for enrolling. Later provisions of cl 7 deal with the manner of enrolling.
Clause 9 of the Student Rules applies to a student who is permitted by the rules that apply to their course to add a unit to their enrolment in a teaching period. The clause provides that a student may add the unit to their enrolment no later than the relevant 'addition date', or after the relevant addition date in certain circumstances.
Under cl 46 of the Student Rules, a student who, as part of their course, undertakes a period of study or practical work in another institution or organisation must comply with the regulations, rules and other requirements of that institution or organisation as they apply to that period of study or practical work.
Under cl 4.2 of the University Policy on Academic Progress, made by the Academic Board on 21 July 2021, a progress status is assigned by the relevant school or board to each student once every standard teaching period or equivalent. A student who does not make satisfactory progress may be assigned a status which includes 'Excluded - not permitted to re-enrol in the course'. The rules for a course must specify the progress status that is assigned to students who do not make satisfactory progress and the circumstances under which each status is assigned. Under cl 4.2(8) and (9) of the policy:[14]
(8) The University recognises that mitigating circumstances can lead to capable students making unsatisfactory progress. A student who believes that illness or other significant circumstances have had or will have an adverse effect on their academic performance in, or preparation of, work for assessment may apply to the relevant school or board for special consideration in accordance with the University Policy on Special Consideration.
(9) Students who have been assigned a progress status of 'Suspended' or 'Excluded' may, in accordance with the University Policy on: Review and Appeal of Academic Decisions Relating to Students provide details of mitigating circumstances relating to their academic performance and of any measures that have been or are being taken to address these so that there is a reasonable likelihood that the student would make satisfactory progress if permitted to re-enrol.
[14] Green AB (consolidated) 69.
The University Policy on: Review and Appeal of Academic Decisions Relating to Students dated 12 October 2021 (Appeals Policy) provides for reviews of and appeals against 'academic decisions', defined to mean:[15]
a decision made with respect to a student in relation to aspects of teaching and learning, research or administration of the student's course, normally under the University's statutes, regulations, rules or policy.
Clause 1.2 of the Appeals Policy provides that an academic decision may include decisions relating to progress status.
[15] Green AB (consolidated) 80.
In broad terms, the Appeals Policy provides for a review of a decision relating to progress status by the relevant board.[16] A student who is dissatisfied with the review may appeal to the appeals committee of the Academic Board, the decision of which is final within the University, under cl 3 of the Appeals Policy.

Health Services Act

[16] See cl 1.4, 1.5, 2.1 and 2.4.1 of the Appeals Policy, Green AB (consolidated) 81 - 84.

The Health Service is established by order made under s 32 of the Health Services Act as a health service provider for, inter alia, the provision on a statewide basis of public oral health services.[17] Under s 34(1) of that Act, a health service provider's main function is to provide:
(a)health services stated in the service agreements for the health service provider; and
(b)teaching, training and research that supports the provision of health services as agreed with the Department CEO; and
(c)any other services agreed with the Department CEO.
[17] See clauses 7(e) and 8(1)(c) of the Health Services (Health Service Providers) Order 2016 (WA).
Under s 36(2) of the Health Services Act, subject to s 37 and s 38 of that Act and any relevant policy framework, a health service provider has all the powers it needs to perform its functions. Section 36(3)(a) and (b) of that Act provides that, subject to s 37 and s 38 of that Act and any relevant policy framework, a health service provider may, for the purposes of performing any of its functions:
(a)acquire, hold, manage, improve, develop or dispose of and otherwise deal in property;
(b)enter into a contract or other arrangement, including a contract or arrangement for the provision of services to the health service provider[.]
Under s 26(2)(d) of the Health Services Act, the Director General of the Department of Health (as 'Department CEO') may issue policy frameworks to ensure consistent approaches to matters including the performance and exercise of functions by health service providers. Section 27(1) of the Health Services Act provides that a policy framework is binding on each health service provider to which it applies or relates.
Under s 28(1)(a) of the Health Services Act, the Department CEO may issue a direction requiring compliance in relation to a matter set out in a policy framework.

The SCPA Policy

Pursuant to s 26(2)(d) of the Health Services Act, the Director General of the Department of Health made the Student Clinical Placement Agreement Policy (SCPA Policy). The SCPA Policy provides that it is applicable to all health service providers. The version of the SCPA Policy in evidence was published on, and is effective from, 18 February 2021.[18]
[18] Green AB (consolidated) 93 - 120.
Part 3 of the SCPA Policy relevantly requires health service providers to ensure that an SCPA is in place with the relevant education provider prior to booking or accepting student clinical placements, and that the SCPA template is used in new SCPAs or expired SCPAs requiring renewal. The SCPA Policy states:
The SCPA template (including Schedules) details:
• The arrangements under which the Education Provider staff and students may have access to the premises and facilities controlled by the Health Service Provider
• The training and supervisory services that the Health Service Providers will provide to students and the fees that the Education Provider will pay for the provision of those services
• Health Service Providers are to complete all new SCPAs or expired SCPAs requiring renewal in accordance with the SCPA template.
There is flexibility for Health Service Providers to include site or profession specific requirements within the Schedules of the SCPA template. If deemed necessary, the SCPA template may be modified by Health Service Providers, through the Schedules, providing it maintains the scope and intent of the clauses within the template.
Clause 3 of the SCPA template provides for staff and students of the education provider to have access to the Premises (defined to mean the land and buildings used by the health service provider) and to use the facilities and resources located within the Premises. This provision is relevantly qualified by cl 3.1 in the following terms:
[T]he Parties agree that nothing in the Agreement obliges the [health service provider] to accept the placement of one or more Students and, if such placements are accepted, the number at any given time will be at the absolute discretion of the [health service provider].
The term 'Student' is defined in cl 1.1 to mean:
[T]he student enrolled in the Education Program and who is also included within the CP Program and placed at the Premises.
The term 'CP Program' is defined in cl 1.1 to mean:
[T]he clinical placement program conducted by the Education Provider whereby Students are permitted to have access to the Premises and Facilities for the purposes of their supervised practical course work relating to the Education Program.
Clause 4.1 of the SCPA template provides that, subject to presently immaterial matters:
[T]he Education Provider and the [health service provider] shall endeavour to agree on the numbers of Students taking part in the CP Program for each Discipline and the times at which, Students may attend the Premises for the purpose of the CP Program. For the purposes of this clause:
(a) the [health service provider] will give final determination on the number of Students and the times the Students may attend the Premises for the purpose of the CP Program;
(b) subject to the conditions stated in Schedule 2 for each Discipline, the Nominated Officers for the Parties will agree to a timeframe for the provision of information on Student numbers and the times at which Students may attend the Premises for the purpose of the CP Program;
(c) the Education Provider agrees to notify the [health service provider's] Nominated Officers for each Discipline of any variation, cancellation or deferral of the agreed Student numbers and times within a timeframe defined between both Parties.
Clauses 5 and 6 of the SCPA template provide for the obligations of the education provider and the health service provider in relation to the CP program.
Clause 7 provides for the termination of access of students or education provider staff to the Premises, in the following terms:
7.1. The protection of the [health service provider's] patients is the paramount consideration when allowing Students and [education provider] Staff to access the Premises.
7.2. The [health service provider] may, in its absolute discretion, defer, suspend, vary or cancel the CP Program and/or withdraw or exclude individual Students or [education provider] Staff from the Premises for the purpose of protecting the [health service provider's] patients. The [health service provider's] decision is final and may be implemented immediately. Any such exclusion shall be reported by the [health service provider's] Nominated Officer to the Education Provider's Nominated Officer as soon as reasonably practical.
7.3. In the event of an emergency the [health service provider] may determine in its absolute discretion to terminate the CP Program as it pertains to a particular Student or to refuse to admit Students or EP Staff to a part of or all of the Premises.
7.4. If the [health service provider] makes a determination in accordance with clause 7.3, the [health service provider's] Nominated Officer will notify the Education Provider's Nominated Officer as soon as reasonably practical after the [health service provider's] determination.
7.5. The Education Provider shall ensure that [the education provider's staff] and Students abide by the [health service provider's] decisions regarding access to the Premises.
In our view, the withdrawal or exclusion of a particular student from the Premises for the purpose of protecting the patients of a health service provider is governed by cl 7, rather than cl 3 and cl 4, of the SCPA template. Clauses 3 and 4 preserve the health service provider's absolute discretion to determine the number of students who may be included in a CP Program and the times at which they may attend the Premises. Clauses 3 and 4 are not concerned with the exclusion of individual students once the number of students who may be included in a CP Program has been determined. Clause 7 operates once that number has been determined and relevantly provides for individual students to be withdrawn or excluded from the Premises for the purpose of protecting the health service provider's patients.
Clause 22 of the SCPA template provides for the agreement to commence from the date it is last signed by either the health service provider or the education provider. Subject to amendment or earlier termination, the agreement continues in force for five years from the date of execution.

Disposition of the UWA appeal

The primary judge identified the critical issue as being whether the appellant would be able to undertake clinical placement and said that the University made no decision about that issue.[19] However, the decision which was made by the University, purportedly through the Academic Board, was a decision that the appellant was not allowed to enrol in the second‑semester units required to complete his DMD degree. Considered as a whole, that is the substantive effect of Professor da Silva Rosa's letter of 31 August 2021, set out at [16] above. That is the way the decision was characterised in the application for judicial review in the UWA proceedings.
[19] Primary decision [89].
Section 78 of the UWA Statute required the appellant's enrolment to be conducted in accordance with the University Legislation, including rules and policies made by the University. The appellant had been granted admission to the University and permission to enrol in the course for the DMD degree under those rules and policies. The rules and policies discussed above provided for a student to be excluded from enrolling in units of the course by being assigned a status of 'excluded' after failing to make satisfactory progress. However, the rules and policies also provided for a student who had failed to make satisfactory progress to be permitted to re-enrol in certain circumstances. The rules and policies also provide for a student to appeal against a decision relating to their progress status to the appeals committee of the Academic Board, the decision of which is final within the University. The appellant exercised this right and was given permission to re-enrol in the units required to complete his degree. The appeals committee having made that final decision, the University Legislation provided for no other basis on which the appellant could be excluded from re‑enrolling in those units.
The appellant's ability to successfully complete those units depends upon him being able to complete the CP program at the Health Service's Premises. However, upon the decision of the appeals committee permitting the appellant to enrol in the units required to complete his degree, there is nothing in the University Legislation that provides for the appellant to then be excluded by a decision of the Academic Board from enrolment in the units on the basis of advice received from the Health Service as to his participation in a CP program, or otherwise.
Further, as discussed below, Dr Glick's email response to Professor Ngo's letter of 7 July 2021 did not constitute a decision to exclude the appellant from the Premises. That was a matter which might arise for decision if the University and the Health Service entered into an SCPA and the appellant was enrolled in units of which clinical placement at the Health Service was a component. It would certainly have been appropriate for the University to have informed the appellant of the Health Service's indicated attitude at the time he sought to enrol in the units. It would also have been appropriate for the University to inform the appellant that his ability to complete the requirements of the units would depend on him convincing the Health Service not to exclude him from the Premises. However, there was nothing in the University Legislation which provided for the appellant to be excluded from enrolment in the units on the basis of the Health Service's indicated attitude, so as to deprive the appellant of the opportunity to attempt to convince the Health Service not to exclude him.
The exclusion of the appellant from enrolment in the second semester units required to complete the course for the DMD degree, based on the attitude indicated by the Health Service, was not conducted in accordance with the University Legislation as required by s 78 of the UWA Statute. That constitutes a material error of law in making the decision to exclude the appellant from enrolment in those units, which in the case of a non-curial body such as the University is jurisdictional in nature.[20] In our view, that error falls within the scope of ground 1 of the appellant's application for judicial review in the UWA proceedings (reproduced at [19] above). The primary judge erred in not upholding that ground of judicial review.
[20] Craig v The State of South Australia (1995) 184 CLR 163, 179.

Ground 2 of the UWA appeal, which contends that the primary judge erred in finding that the actions of the University did not amount to a decision which was capable of being reviewed, is established. The primary judge erred by focussing on a decision about whether the appellant should be permitted to attend or undertake further clinical placements.[21] While the University did not make that decision, it did decide that the appellant was not allowed to enrol in the second semester units required to complete his DMD degree. That decision, which the University did make on 31 August 2021, is susceptible to judicial review and was infected by jurisdictional error of law.
[21] Primary decision [89], [94].
The success of ground 2 of the UWA appeal means that it is unnecessary to determine the other grounds of that appeal.
If the appeal is allowed, the appellant seeks a declaration that the University's decision is void and of no effect, and an order of mandamus.
In our view, it is not appropriate for this court to make a coercive order requiring the University to permit the appellant to enrol in the second semester units required to complete his DMD degree. Over two years have passed since the impugned decision was made, and it has been over four years since the appellant last took part in the course of the DMD degree. That delay has the potential to raise issues as to the enrolment which might be permitted in the second semester of 2024. There is also no evidence as to the current course structure. In oral submissions, senior counsel for the appellant did not press for mandamus and indicated that declaratory relief would be sufficient.[22]
[22] Appeal ts 41.
A declaration that the decision is void and of no effect appears to us to lack utility, given that the decision related to permitting the appellant to enrol in units in the second semester of 2021. Any legal effect of the decision is long since spent. A more appropriate form of declaratory relief would appear to us to be a declaration that the decision by letter dated 31 August 2021, that the appellant would not be allowed to enrol in the second semester units required to complete the course for a DMD degree, was taken otherwise than in accordance with the University Legislation and so was taken contrary to the requirements of s 78(1) of the UWA Statute. However, we would hear from the parties as to the appropriate form of declaratory relief after publication of these reasons.

Disposition of the Health Service appeal

In our view, the primary judge was correct to conclude that the Health Service proceedings should be dismissed for the reason noted at [25.2] above. That is, the Health Service did not, by Dr Glick's email of 7 July 2021, make any decision which is susceptible to judicial review. Professor Ngo's letter of the same date posed a question which was necessarily hypothetical at the time it was asked and answered. At that time there was no SCPA between the University and the Health Service. The appellant was not enrolled as a student in any unit for which clinical placement at the Health Service was proposed. The occasion for the Health Service to decide whether to exclude the appellant from the Premises could only arise once those events had occurred. Dr Glick's email of 7 July 2021 points to the Health Service's then current attitude as to how the Health Service might make that decision if those events came to pass. However, his answer to that hypothetical question did not involve the exercise of any public power which might be conditioned by a requirement to accord procedural fairness to the appellant.
Ground 3 of the Health Service appeal, which challenges the above conclusion, is not established. The failure of that ground is fatal to the success of the appeal, as the primary judge's conclusion which ground 3 seeks to impugn was a sufficient basis for dismissing the application for judicial review made in the Health Service proceedings. The other grounds, even if established, would not justify allowing the appeal. It is therefore unnecessary to resolve those grounds.
The other grounds also raise more difficult questions concerning procedural fairness and the power of the Health Service to exclude an enrolled student from the Premises for the purpose of protecting its patients, as contemplated by cl 7 of the current SCPA.
It is reasonably arguable that such an exclusion of the appellant, once he was enrolled in a unit with a clinical placement component, would involve the exercise of the Health Service's statutory functions under s 34(1)(a) and (b) of the Health Services Act. The exclusion of the appellant from the Premises may also be seen as an exercise of the statutory powers conferred by s 36(2) and s 36(3)(a) of that Act. Those powers are conferred subject to the SCPA Policy and are regulated by the requirement to enter into an SCPA substantially in the form of the SCPA template. However, they remain public statutory powers. The breadth and character of the statutory powers may be seen to generally count against their valid exercise being conditioned by a requirement to accord procedural fairness.[23] However, it might be contended that, where the general power is exercised by reference to an evaluation of circumstances pertaining to a particular individual in a way that adversely affects that individual's interests, then there is an implicit requirement to exercise the power in a manner which is procedurally fair.[24] In that way, the exclusion of a particular enrolled student from the Premises for the purpose of protecting the Health Service's patients might arguably attract an obligation to accord procedural fairness before making a decision which would adversely affect the student's interests by preventing them from successfully completing the course of study in which they are enrolled.
[23] Common law principles of statutory construction will ordinarily imply a condition that a power conferred by statute upon the executive branch of government be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636[97]. Whether such a condition is to be implied can be affected by whether the statutory power is apt to affect the interests of a person individually rather than simply as a member of the public or a class of the public: see for example Kioa v West (1985) 159 CLR 550, 584 - 585 (Mason J), 619 - 621 (Brennan J), 632 (Deane J).
[24] A somewhat similar argument was upheld in a similar statutory context in Re Metropolitan Health Services Board; Ex parte Reed [2003] WASCA 123 at [62] - [70], in relation to the revocation of clinical privileges of a University professor at a public hospital.
However, it seems to us to be desirable for such an argument, which has some novelty and raises some difficult issues, to be determined in a case where its resolution is critical to the outcome of the appeal. It therefore seems to us undesirable to attempt to resolve the question in this case where the appeal must be dismissed in any event.
Further, not resolving the question will not necessarily be to the parties' practical detriment. If the appellant is permitted to enrol in units with a clinical placement component to which the current SCPA applies then, irrespective of whether it is strictly obliged to do so, the Health Service could:
1.inform the appellant of the basis of any continuing concern about his clinical ability and resultant patient safety; and
2.provide the appellant with a reasonable opportunity to address that concern,
before deciding whether to exclude him from its Premises under cl 7 of the current SCPA.
In that event, the Health Service might sensibly take the view that considerations of both prudence and fairness favour it giving the appellant an opportunity to address concerns about his clinical ability and resultant patient safety before deciding whether to exclude him from its Premises for the purposes of protecting its patients. If the Health Service took such an approach the question of whether it was obliged to do so would not arise for determination.
For the above reasons, in our view the Health Service appeal should be dismissed.

Orders

For the above reasons, subject to hearing from the parties as to the precise form of the declaration, we would make the following orders:

CACV 15 of 2023 (UWA appeal)

1.The appeal is allowed.
2.Order 1 of the orders made in CIV 2128 of 2021 on 31 January 2023 is set aside and there is substituted an order declaring that:
The respondent's decision by letter dated 31 August 2021, that the applicant would not be allowed to enrol in the second semester units required to complete the course for a Doctor of Dental Medicine degree, was taken otherwise than in accordance with the University Legislation, within the meaning of s 6 and s 78 of the University of Western Australia Statute made under s 31 of the University of Western Australia Act 1911 (WA), and so was taken contrary to the requirements of s 78(1) of the University of Western Australia Statute.

CACV 16 of 2023 (Health Service appeal)

1.The appeal is dismissed.

We would hear from the parties as to the costs of the appeals and the UWA proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
17 APRIL 2024