Hove v University of Western Australia - [2023] WASC 12

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HOVE -v- UNIVERSITY OF WESTERN AUSTRALIA [2023] WASC 12
CORAM:   ALLANSON J
HEARD:   20 JANUARY 2023
DELIVERED          :   31 JANUARY 2023
FILE NO/S:   CIV 2128 of 2021
BETWEEN:   DZIKAMAI DZINASHENGONI SERGEYVICH HOVE
Applicant
AND
UNIVERSITY OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CIV 2404 of 2021
BETWEEN: DZIKAMAI DZINASHENGONI SERGEYVICH HOVE
Applicant
AND
CHIEF EXECUTIVE, NORTH METROPOLITAN HEALTH SERVICE
Respondent
UNIVERSITY OF WESTERN AUSTRALIA
Other Party

Catchwords:

Administrative law - Where applicant a dental student at University of Western Australia - Where applicant was excluded from university for failing two units in his final year but on appeal permitted to complete the units required for his degree - Where the units have a clinical practice component to be completed at the premises of a health service provider under the Health Services Act 2016 (WA) - Where the health service provider informed the university that it would not accept the applicant for clinical placement - Where university advised applicant that repeat of the failed units was not possible - Where applicant was not given opportunity to be heard by the university - Whether the university made a decision that was subject to judicial review - Whether university denied the applicant natural justice in not giving him the opportunity to be heard - Whether any material breach of natural justice where decision whether to place applicant in clinical placement was made by health service provider and not by the university

Administrative law - Where health service provider accepts university dental students in clinical placement pursuant to agreement or arrangement with university - Where clinical placement a requirement of university degree - Where agreement between health service provider and university did not oblige provider to accept students and gave absolute discretion to health service provider to exclude a student - Where health service provider advised university that it would not accept applicant for clinical placement - Whether health service provider had made reviewable decision - Whether health service provider under public duty to consider whether to accept applicant in clinical placement - Whether decision of health service provider under agreement subject to duty to afford natural justice to applicant

Legislation:

University of Western Australia Act 1911 (WA)
Health Services Act 2016 (WA)

Result:

Applications dismissed

Representation:

CIV 2128 of 2021

Counsel:

Applicant	:	P G Jeffery
Respondent	:	B J Tomasi

Solicitors:

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

CIV 2404 of 2021

Counsel:

Applicant	:	P G Jeffery
Respondent	:	J Carroll
Other Party	:	B J Tomasi

Solicitors:

Applicant	:	Blossom Lawyers
Respondent	:	State Solicitor's Office
Other Party	:	Clyde & Co (Perth Office)

Cases referred to in decision:

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99
L v South Australia (2017) 129 SASR 180
Lam v Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1
Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656
Romeo v Asher (1991) 29 FCR 343
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
Yung v Adams (1997) 80 FCR 453

ALLANSON J:

Introduction

In 2019, the applicant had completed 30 of 32 units required for a degree of Doctor of Dental Medicine at the University of Western Australia. Clinical practice at a dental health service provided by the North Metropolitan Health Service is an essential part of the remaining units. In 2021, the Health Service advised the University that it will not permit the applicant to participate in clinical practice rotations at its facilities. Following that advice, the University told the applicant that it will not permit him to enrol to complete his degree.
Neither the University nor the Health Service gave the applicant an opportunity to be heard before he was told he would not be permitted to re‑enrol. The applicant brought separate actions against the University and the Health Service seeking judicial review of their decisions.

The evidence

Three affidavits were read in the actions.
The applicant read his affidavit, dated 14 December 2021. He set out a short summary of the facts and attached documents including letters from the University, dated 4 March 2020 and 31 August 2021, and three University policies on which he relied: the University Policy on Academic Progress, the Charter of Student Rights and Responsibilities, and the Policy on Review and Appeal of Academic Decisions Relating to Students in Coursework Courses.
The applicant also read the affidavit of Martin Ernest Udall, solicitor, sworn 15 December 2021. Mr Udall practises in migration law and expressed the opinion that the applicant would have good prospects of obtaining a student visa to re‑enter Australia if he was able to re‑enrol at the University and obtain a Certificate of Enrolment. The evidence goes to the utility of any relief the court can grant. It was not challenged.
The Health Service read the affidavit of Dr Martin Joseph Glick, affirmed 10 October 2022. Dr Glick is employed by the Health Service as Manager, Central Clinical and Support Services. Dr Glick attached six documents relevant to this application:
(1)a letter dated 7 July 2021 from Professor Hien Ngo of the University, concerning whether the applicant would be allowed to participate in future student clinical rotations at Dental Health Services;
(2)Dr Glick's response, sent the same day;
(3)the Department of Health Student Clinical Placement Agreement Policy Framework;
(4)a true copy of the Student Clinical Placement Agreement template;
(5)a true copy of the Student Clinical Placement Agreement executed by the Health Service and the University; and
(6)Schedules 1 and 2 to the Student Clinical Placement Agreement.
The court made orders on 20 September 2022 that the evidence in each proceeding be evidence in the other. The University relied on the affidavit of Dr Glick, but did not file evidence.

Legislative framework

University of Western Australia Act

The Act establishes the University of Western Australia, as a body corporate consisting of the Senate, Convocation, staff and students.[1]
[1] University of Western Australia Act 1911 (WA), pt 2.
By s 29:
(1)The Senate may —
(a)cause to be provided to students courses of study appropriate to a university, and other tertiary courses; and
(b)grant degrees, diplomas and certificates in any branch of knowledge appropriate to a university; and
(c)confer honorary degrees or other distinctions on persons approved by the Senate.
(2)Subsection (1) is subject to any provision in the Statutes relating to the grant or conferral of a degree, diploma, certificate or other distinction.
Part 7 provides for the power of the Senate of the University to make statutes with respect to specified matters. The Senate may also make regulations, 'for the purpose of securing and enforcing the management, good government, and discipline of the University'.[2]
[2] Section 16E.
The applicant relies on policies published by the University.
The policies are approved by the Academic Board or the University Senate, but do not appear to have legislative effect. They would, at least, give rise to a reasonable belief about the procedures that the University would follow in making a decision about academic progress, so that departure from those procedures may result in an unfair decision.[3] That is particularly so in this case where, pursuant to the policies, the applicant had successfully appealed a decision to exclude him and expected to be permitted to complete his degree.

Health Services Act 2016 (WA)

[3] Minister for Immigration and Border Protectionv WZARH [2015] HCA 40; (2015) 256 CLR 326 [17] ‑ [19], [23] ‑ [30], [35] and [60] ‑ [61]; and see Lam v Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [33].

The objects of the Health Services Act include:
(a)to promote and protect the health status of Western Australians;
(c)to provide access to safe, high quality, evidence-based health services;
(e)to coordinate the provision of an integrated system of health services and health policies in the WA health system;
(f)to promote effectiveness, efficiency and innovation in the provision of health services and teaching, training, research and other services within the available financial and other resources;
(g)to engage and support the health workforce in the planning and provision of health services and teaching, training, research and other services.[4]

[4] Health Services Act, s 4.

Pursuant to the Health Services Act, the WA health system comprises: the Department, health service providers, and contracted health entities.[5]
[5] Section 19.
Part 4 provides for the establishment, status, and functions and powers of health service providers.
The Health Service was established with that corporate name as the health service provider for prescribed areas including:
the provision on a state-wide basis of public oral health services, including school dental services (in fixed school dental therapy centres and mobile school dental therapy vans), general dental services (in general dental clinics), combined school and general dental services and specialised dental services (Dental Health Services) …[6]
[6] Health Services Act, s 32(1); Health Services (Health Service Providers) Order 2016, cl 7(e), cl 8.
By s 34(1):
A health service provider's main function is to provide —
(a)health services[7] 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.
[7] By s 7, a health service is 'a service for maintaining, improving, restoring or managing people's physical and mental health and wellbeing', and includes a health service provided to a person at a hospital or any other place.
Section 34(2)(b) sets out additional functions of health service providers. In the particulars to his application, the applicant relies on the following functions:
(a)to ensure the operations of the health service provider are carried out efficiently, effectively and economically;
(c)to comply with the policy frameworks and Department CEO directions that apply or relate to the health service provider;
(f)to establish an efficient and effective procedure for dealing with complaints about the provision of health services by the health service provider;
(h)to monitor and improve the quality of health services provided by the health service provider;
(i)to develop and implement corporate and clinical governance arrangements for the health service provider;
(p)other functions necessary or incidental to the functions mentioned in paragraphs (a) to (o).
Clinical governance arrangements are defined in s 34(3) to mean:
policies, processes and systems for maintaining and improving —
(a)patient safety, quality and care; and
(b)the effectiveness and dependability of services provided by a health service provider.
By s 36(2), a health service provider has all the powers it needs to perform its functions.
Part 3, div 2, provides for policy frameworks. The Department CEO may issue policy frameworks to ensure consistent approaches to a range of specified matters, including the provision of health services, and the performance and exercise of functions by health service providers.[8]
[8] Section 26.
A policy framework is binding on each health service provider to which it applies or relates.[9]

The Student Clinical Placement Agreement Policy

[9] Section 27.

In 2016, the Department approved the Student Clinical Placement Agreement Policy, expressed to be a 'mandatory requirement under the Clinical Teaching and Training Policy Framework pursuant to section 26(2)(d) of the Health Services Act 2016'. The current version is effective from 18 February 2021.
The purpose of the Student Clinical Placement Agreement Policy is to outline the minimum requirements for health service providers to facilitate clinical placements for students. The policy provides for health service providers to negotiate and maintain Student Clinical Placement Agreements with Education Providers.
These policy requirements are set out in cl 3.
First, a Health Service Provider must ensure
(1)a Student Clinical Placement Agreement is in place with the relevant Education Provider before accepting student clinical placements; and
(2)the Student Clinical Placement Agreement template is used for new agreements or those requiring renewal.[10]
[10] Clause 3.
Second, the standardised Student Clinical Placement Agreement template sets out the terms and conditions upon which the Health Service Provider will provide students with placements in the health service template. The template details:
(1)the arrangements under which the Education Provider staff and students may have access to the premises and facilities controlled by the Health Service Provider; and
(2)the training and supervisory services that the Health Service Provider will provide to students.[11]
[11] Clause 3.
Third, while a Student Clinical Placement Agreement is a precondition to an Education Provider requesting student placements at a specific hospital or health service, 'the Student Clinical Placement Agreement itself does not guarantee that such placements will be available; that decision sits with the relevant Health Service Provider'.
By cl 5, the Student Clinical Placement Agreement template, and Student Clinical Placement Agreement Template Schedule are prescribed as mandatory documents pursuant to the Policy.

The Clinical Placement Agreement Template

The Recitals to the agreement include:
A.The purpose of this Agreement is to set out the terms and conditions upon which the Health Service Provider (HSP) will provide Students of the Education Provider with placements in the HSP's Health Services for the purposes of the Education Provider's Clinical Placements Programs, including:
(a)the arrangements under which the EP Staff and Students may have access to the Premises and Facilities controlled by the HSP; and
(b)the training and supervisory services that the HSP will provide to Students and the fees that the Education Provider will pay for the provision of those services.
B.It is the intention of the Parties that entry into this Agreement should not hinder the HSP in its provision of efficient and high‑quality hospital and health services.[12]
[12] Affidavit of Martin Joseph Glick, MG-5.
Clause 1 provides definitions and interpretations. Relevantly:
CP Program means the clinical placement program conducted by the Education Provider whereby Students are permitted to have access to Premises and Facilities for the purposes of their supervised practical course work relating to the Education Program.
Student Placement means the provision of supervised education and research opportunities for Students. The supervised education must be:
(a)a requirement of the Student's qualification;
(b)a requirement for registration into a profession or discipline; or
(c)a requirement to be eligible for licensing as a professional association member.
By cl 3.1, the parties agree that nothing in the Agreement obliges the Health Service Provider to accept the placement of one or more students.
By cl 3.2, the Health Service Provider permits the staff and students of the Education Provider to have access to Premises and to use Facilities required for and part of the CP Program and 'in accordance with the terms and conditions set out in this Agreement'.
Clause 4 provides for access by students, subject to the Agreement. Its terms include that the Health Service Provider has the final determination of the number of students and the times that students may attend for the purposes of the CP Program.
Clause 5 sets out the obligations of the Education Provider, and cl 6 sets out the obligations of the Health Service Provider. Consistently with cl 3.1, the Health Service Provider's obligations do not include accepting the placement of any student.

Clause 7 is in these terms:
TERMINATION OF STUDENT OR EP STAFF ACCESS TO PREMISES
7.1.The protection of the HSP's patients is the paramount consideration when allowing Students and EP Staff to access the Premises.
7.2.The HSP may, in its absolute discretion, defer, suspend, vary or cancel the CP Program and/or withdraw or exclude individual Students or EP Staff from the Premises for the purpose of protecting the HSP's patients. The HSP's decision is final and may be implemented immediately. Any such exclusion shall be reported by the HSP's Nominated Officer to the Education Provider's Nominated Officer as soon as reasonably practical.
7.3.In the event of an emergency the HSP 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 HSP makes a determination in accordance with clause 7.3, the HSP's Nominated Officer will notify the Education Provider's Nominated Officer as soon as reasonably practical after the HSP's determination.
7.5.The Education Provider shall ensure that EP Staff and Students abide by the HSP's decisions regarding access to the Premises.
The Education Provider is responsible for student assessment unless it is otherwise agreed that assessment is to be conducted in collaboration with the HSP's employees.[13] Clause 10.3 provides for the resolution of a dispute between the HSP Student Supervisor and Education Provider Staff regarding the success or failure of a student in the CP Program.
[13] Clause 10.2.
By cl 13:
A Student may only participate in the delivery of health care or treatment of Consenting Patients at levels commensurate with his or her stage of preparation and progress in his or her Education Program and as approved by the HSP, and must be supervised in accordance with the usual standards and practice for the relevant discipline, taking into account the level of experience and competency of the Student.
Finally, cl 28.4 expressly excludes any relationship of partnership, employment or agency between the Health Service Provider and the Education Provider or Students.

The Facts

The applicant and the University

The applicant began his course in 2015. He passed the course requirements for the first three years of the course, but in 2018 failed two units.
The applicant repeated the year in 2019, but failed two units - DENT5406 and DENT5407.
Under the course rules imposed by the Faculty Board of Examiners, a student was required to pass all units to make satisfactory progress in a calendar year. Course rule 10(3)(b), imposed by the Faculty Board of Examiners, provided:
Unless it determines otherwise in the light of exceptional circumstances, the Faculty, on the recommendation of the Board of Examiners, assigns a progress status of 'Excluded' to a student who fails to make satisfactory progress … in the same year of the course for a second time.[14]
[14] Affidavit of Dzikamai Dzinashengoni Sergeyvich Hove, DH1.

As a result of failing to make satisfactory progress in the same course for a second time, the applicant was assigned the status 'Excluded', and could not continue in the course.
The applicant submitted an appeal. The Appeals Committee upheld his appeal and the applicant was permitted to repeat the two units he had failed.
On 4 March 2020, the Academic Secretary of the University advised the applicant of the appeal result.[15]
[15] Affidavit of Dzikamai Dzinashengoni Sergeyvich Hove, DH1.
The applicant had been studying as an international student and, by that time, was no longer living in Australia. COVID‑19 travel restrictions prevented him from immediately re‑entering Australia to continue his course. He applied for and was given leave of absence from his course.
The applicant deposed that, since his leave of absence expired, he had been communicating with the University 'to organise my return to the course'.[16] There is no evidence about the content of those communications.
[16] Affidavit of Dzikamai Dzinashengoni Sergeyvich Hove [10].
On 31 August 2021, the Chair of the Academic Board of the University, Professor da Silva Rosa, wrote to the applicant advising him as follows:
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 [Doctor of Dental Medicine] students and the foundation of demonstrated clinical skills.
The [Doctor of Dental Medicine] 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 (OHCWA and speciality clinical placements)
c)DENT5448 Comprehensive Clinical Care (OHCWA and speciality clinical placements)
As part of the accreditation of the [Doctor of Dental Medicine], 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 applicant] to participate in future rotations.' The following response was received on the same day:
DHS would not consider permitting [the applicant] 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 [Doctor of Dental Medicine] approved by Academic Board, the position of the Dental School is accepted and affirmed.
…
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.[17]
[17] Affidavit of Dzikamai Dzinashengoni Sergeyvich Hove, DH3.
The applicant said in his affidavit that, before this letter, he was not aware of the matters set out in the letter, except that a student was required to undertake clinical placement at the Dental Health Service as part of the course.[18] He then had the appeal decision in his favour, permitting him to repeat the units he had failed. He was given no opportunity to be heard by either the Health Service or the University before the letter was received.
[18] Affidavit of Dzikamai Dzinashengoni Sergeyvich Hove [14].
On 3 October 2021, the applicant discovered that his progress status had been changed to 'Excluded'. He commenced the proceedings against the University on 26 October 2021, and against the Chief Executive, North Metropolitan Health Service on 22 December 2021.[19]

The University and the Health Service

[19] The Health Service questioned the naming of the CEO as the respondent, where the Health Service is a body corporate under the Health Services Act. In my opinion, the CEO is not properly named as the party. Were anything to turn on it, I would permit amendment to name the body corporate, rather than its chief office, as the party.

The placement of students in Dental Health Services facilities is now pursuant to an agreement between the Health Service and the University. The agreement was executed by the University in October 2021, and by the Health Service in November 2021.
The agreement is materially in the same terms as the template to the Student Clinical Placement Policy.
The CP Program details are set out in sch 2. Relevantly, year 4 students 'will be providing dental treatment to consenting eligible patients attending DHS facilities under the supervision of a DHS staff member who has been accepted by UWA as an Honorary Clinical Lecturer'.
Although the agreement was not in place when the decision was made, the Health Service was required to have an agreement in terms of the template in place before the applicant, or any other student, could be placed on a CP Program in the Dental Health Service.
As set out in the letter sent to the applicant on 31 August 2021, the University asked Dental Health Services if they would allow the applicant to participate in future rotation, and received the reply from Dr Glick that they would not. The evidence does not show why the University asked. The affidavit of Dr Glick includes the letter from the Head of the UWA Dental School to which Dr Glick responded. It referred to an earlier email of 23 October 2019, which is not in evidence. I will not speculate about the content of that email.

CIV 2128 of 2021 - the application

On 26 October 2021, the applicant filed an application for judicial review, with the University named as the respondent. The applicant sought relief by way of mandamus, a declaration, an injunction, alternatively an order quashing the following decisions:
(1)Decision to exclude the applicant from his course at the respondent's education institution or alternatively to refuse or prevent enrolment in the units necessary for the applicant to complete the course (first decision); and
(2)Decision not to permit any avenue of review or appeal to the exclusion decision (second decision).
The applicant submitted, in effect, that were the decision of the University quashed or declared to be void, the previous appeal decision permitting him to repeat the two failed units, or their current equivalents, would remain in effect.
The application was made on seven grounds alleging failure to have regard to or breach of the three policies, denial of natural justice, and inadequate reasons.
On 21 January 2022, the applicant filed particulars of the application, setting out the terms of the orders sought as follows:
(1)a declaration that the first decision and the second decision were in denial of natural justice and in error of law and therefore void, set aside or quashed and that the decision of the Appeals Committee dated 4 March 2020 remains in force;
(2)an order of mandamus requiring the University to reinstate the applicant in his course at the University, and/or an order for mandamus requiring the University to reconsider the first decision and, so far as necessary, the second decision.
The applicant also provided particulars of the duties sought to be enforced by an order for mandamus, referring to the duty of the University pursuant to s 29(1)(a) of the University of Western Australia Act 1911 (WA) to 'cause to be provided to students courses of study … and other tertiary courses'.
The applicant relied on an alternative duty to decide 'the matter' according to law by following proper procedure. He referred to:
(1)the principle in cl 3.2(3) of the University Policy on Academic Progress which requires the applicant to be afforded the right and opportunity to present his case before a decision is made;
(2)the right under cl 3.3 of the Policy on Academic Progress to request a review of progress status where it had not been fairly assigned or where there were mitigating circumstances;
(3)the right to apply for a review of a decision pursuant to cl 1.4 of the University Policy on Review and Appeal of Academic Decisions Relating to Students in Coursework Courses;
(4)the opportunity to respond to the subject matter of the first decision before a decision was made; and
(5)the failure to give adequate reasons for its decisions.
Further or alternatively, the applicant sought an order for mandamus that the University exercise its discretion according to law to allow the applicant to continue his attendance.
The applicant specified the terms of the injunction sought:
an injunction requiring the University to act in accordance with the decision of the Appeals Committee dated 4 March 2020 and forthwith reinstate the applicant in his course at the University and/or alternatively an injunction requiring the University to reconsider the first decision and, so far as necessary, the second decision.

CIV 2404 of 2021 - the application

On 22 December 2021, the applicant filed a second application for judicial review of the decision by the Health Service to not consider permitting him to participate in future clinical rotations at Dental Health Services facilities due to concerns regarding the applicant's clinical ability and resultant patient safety.
The applicant sought relief by way of mandamus, a declaration, an injunction, and an order quashing the decision.
The application was brought on five grounds, alleging breach of natural justice, inadequate process, and failure to give adequate reasons.
On 21 January 2022, the applicant filed particulars of the relief sought:
(1)a declaration that the decision was in denial of natural justice and in error of law and therefore void, set aside or quashed;
(2)an order of mandamus requiring the respondent to permit the applicant to attend future clinical rotations at the Dental Health Services facilities, and/or an order of mandamus requiring the respondent to make the decision afresh;
(3)further, or alternatively, an order for mandamus that the respondent exercise its discretion according to law to allow the applicant to attend future clinical rotations at the Dental Health Services facilities.
The applicant gave particulars of the duties sought to be enforced, as follows:
(a)the respondent is a board governed provider under the Health Services Act 2016 (WA) and, as a public institution, its decisions … are subject to the scrutiny of the Court;
(b)those given the power to permit or not permit attendance at the respondent's facilities act in a quasi‑judicial capacity and exercise a public power; and
(c)the duty sought to be enforced by an order for mandamus is the duty of the respondent to decide the matter according to law by following proper procedure and acting in a way that affords the applicant natural justice …
The applicant specified the terms of the injunction sought as 'an injunction requiring the respondent to permit the applicant to attend future clinical rotations at the Dental Health Services facilities, and or an injunction requiring the respondent to make the decision afresh'.
On 15 February 2022, the applicant filed further particulars identifying the duty sought to be enforced by the order for mandamus is the duty to decide matters according to law by following proper procedure and by affording the applicant natural justice, with the source of the duty to be found in s 32, s 34 and s 36 of the Health Services Act.
In 'further further particulars', filed 12 September 2022, the applicant relied also on the objects in s 4 of the Health Services Act.
The applicant further particularised the allegation that the process for making the decision was inadequate by contending there was no process adopted, alternatively, it did not involve notifying the applicant and giving him the opportunity to respond.

Remedies

There are two preliminary points regarding the remedies sought in each application.
First, the applicant seeks declaratory relief, with the terms of the declaration in each case including that the relevant decision is set aside or quashed. The court may declare a decision to be beyond power and therefore void, but a declaration cannot include a substantive element quashing or setting aside a decision.
Second, the orders for mandamus and injunctions in each application contain alternatives. The applicant seeks orders requiring the decisions to be remade according to law, including by giving him an opportunity to be heard. But the applicant also seeks an order requiring the University to reinstate him in his course, and an order requiring the Health Service to permit him to attend future clinical placements.
The applicant's clinical skills and any risk to patient safety can only be assessed by someone who is suitably qualified. Even if there were evidence about the applicant's clinical skills, the court would not assume the power to make that assessment. The relief the court can grant, should there be a material breach of natural justice, must be limited to requiring the decision maker to afford the applicant a right to be heard.
If there is an obligation to give reasons and the reasons given were inadequate, the order would be limited to requiring the provision of reasons.

The applicant's case

The UWA decisions

The first decision the applicant identified is said to be a decision to exclude him or to refuse or prevent his enrolment.
The application sets out seven grounds, but the complaints are, in essence, breach of the University Policy on Academic Progress, failure to allow the applicant to apply for a review, denial of natural justice, and inadequate reasons.
The applicant was not given an opportunity to be heard before he was told that he could not re‑enrol. In considering the effect of that fact, the court must consider:
(1)whether there was a decision to not permit re‑enrolment and how it was in fact made;
(2)the source of power to make the decision;
(3)whether there was an obligation to afford natural justice; and
(4)if there was a breach of natural justice, whether it materially affected the decision.
The only evidence of the impugned decisions is in the letter of Professor da Silva Rosa, of 31 August 2021. The applicant submitted, correctly, that the letter should be read as a whole, and given its reasonable and natural meaning.
What that letter reasonably conveys is:
(1)The Dental School had advised that the decision of the appeal committee, permitting the applicant to retake the failed units could not be given effect for these reasons:
a.The Doctor of Dental Medicine course structure had been revised and the applicant would now need to complete three Semester 2 units for equivalence with the units he had failed in 2019.
b.Those units required students to undertake clinical placements at Dental Health Services, a part of the Western Australian Department of Health.
c.The Dental Health Service was the only provider used for the purpose of clinical placements, and there was no other option that would meet course requirements.
d.The Head of the School had asked the Dental Health Service if it would allow the applicant to participate in future clinical rotations, and Dental Health Service had responded that it would not, 'as at the time he ceased attending at the Bunbury General Dental Clinic DHS was concerned with his clinical ability and resultant patient safety'.
(2)In light of those matters, a repeat of the final year's failed units was not possible and the Academic Board accepted and affirmed the position of the Dental School.
The applicant did not challenge that the structure of the course had changed, or that clinical placement with the Dental Health Service was a component of the units he needed to complete for his degree. He accepted that he had no right to be heard on those matters.
They are not matters to which the three University policies apply.
The first question is the proper characterisation of the 'decisions' said to have been made by the University.
The University and the Health Service are independent bodies although, as the applicant correctly submitted, they have an ongoing relationship in student training.
The relationship between the two bodies with regard to student placement is now contractual, with access of students to the premises and facilities operated by the Health Service governed by a Student Clinical Placement Agreement. That Agreement was only executed in 2021, after Dr Glick had sent his email to the Dental School, and after the letter from the Academic Board to the applicant. But at the time both of those letters were sent, the Student Clinical Placement Agreement Policy was in force. The applicant could have been accepted for clinical placement only after an agreement had been made between the University and the Health Service in the terms of the template to the policy.
Under those terms, the University is responsible for student assessment.[20] But, independently of academic assessment by the University, the Health Service is not obliged to accept the placement of students,[21] and may, in its absolute discretion, exclude individual students from its premises. As between the parties to the agreement, the Health Service has absolute discretion and its decision is final. Although no 'decision' had been made on a proposed placement of the applicant, Dr Glick had clearly stated that he would not be accepted.
[20] Clause 10.2.
[21] Clause 3.1.
The effect of these matters is that the University made no decision about the critical issue - whether the applicant would be able to undertake clinical placements. The issue on which the applicant contends he was denied natural justice was not decided by the University but by a third party. The situation is analogous to that anticipated by the applicant in adducing the evidence of Mr Udall: had the applicant been denied enrolment because the relevant Commonwealth authority refused him a visa to re‑enter Australia, the operative decision would not have been that of the University.

The issue can also be approached as one of materiality. The concern of the law is to avoid practical injustice. If the applicant has been denied the opportunity to make submissions, that denial must be material to the University's decision.[22]
[22] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 [38]. Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 [56] ‑ [57]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37].
Where there has been a denial of the opportunity to be heard, little need be shown to establish the error was material. The applicant submitted, 'It would have been open to the applicant to make submissions and adduce evidence as to his clinical ability and resultant patient safety and human experience and plain common sense compel the inference that the applicant would have done so'.[23] He submitted that it cannot be said that a different decision as to whether he should be permitted to enrol could not have been made had he been given the opportunity to be heard.
[23]Applicant's written submissions [46]. Citing Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737.

But submissions to the University regarding his clinical ability could not avail where it was the Health Service that had the power to decide whether he was accepted for placement. Faced with that difficulty, the applicant submitted that the University was, by reason of its relationship with the Health Service, in a position to make representations on his behalf and natural justice required that it did so.
The submission cannot be accepted. First, there is nothing in the governing legislation of the University, including the policies on which the applicant relied, from which I can find an obligation to advocate in this way on behalf of a student. Nor can I find anything in the principles established by the authorities that would make the University subject to such an obligation under the rubric of natural justice. Second, there is no evidence about the relationship between the University and the Health Service that would support the submission. Third, the agreement that has now been entered between the University and the Health Service provides the discretion of the Health Service as to which students it will accept is absolute.
I am not satisfied that it is proper to characterise these facts as constituting a breach of natural justice, where the University neither could nor did make any decision about the applicant's clinical ability or whether he should be permitted to attend clinical placements. That decision lay in the absolute discretion of a third party. The University has no power to make a decision about access to health service facilities, did not make such a decision, and had no right under the Student Clinical Placement Agreement to seek a review of any decision by the Health Service.
Even if there has been a denial of natural justice, the failure to give the applicant an opportunity to present his case to the University could not result in a different outcome.
Unless the Health Service were to change its position, any relief the court could give against the University would be of no effect. Even were the University to permit the applicant to re‑enrol, that could not result in his completing the course.
The applicant submitted that, even in these circumstances, the court could grant relief. But the grant of a declaration that there was a denial of the opportunity to be heard would not be a sound exercise of the court's discretion. The grant of a declaration should have some foreseeable consequences for the parties.[24] Here there are none.
[24] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 ‑ 582.
The second 'decision' identified by the applicant is not appropriately described as a decision regarding academic progress. It is not a decision at all.
The conduct referred to by the applicant as the second decision is no more than advice to the applicant that there are no avenues of review. There was, in fact, no avenue of review for the applicant pursuant to University policies.
Finally, I would not uphold the complaint that the decisions should be set aside for the failure to give adequate reasons.
Administrative decision‑makers in Western Australia are not generally required to give reasons.[25] The absence of detailed reasons does not prevent review - many early authorities on judicial review concerned legislative regimes in which there was no obligation to give reasons.[26] But the absence of reasons is not itself a ground of review. Nor is the absence or inadequacy of reasons itself a denial of procedural fairness: 'where, as a matter of ordinary construction, the relevant statutory provisions do not impose an obligation to give reasons, the rules of natural justice will not remedy the omission'.[27]
[25] Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [43]. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 [69].
[26] Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, 360.
[27] Public Service Board (NSW) v Osmond, 676 (Deane J).
In support of the complaint of failure to give adequate reasons, the applicant referred to two decisions of the Federal Court of Australia: Romeo v Asher and Yung v Adams.[28] Neither is on point.
[28] Romeo v Asher (1991) 29 FCR 343, 362; Yung v Adams (1997) 80 FCR 453.
In Romeo v Asher, the Medical Services Committee of Inquiry, under the Health Insurance Act 1973 (Cth), was required to inquire into whether a medical practitioner had rendered excessive services, and to report to the Minister. Where the Committee found that the practitioner had rendered excessive services, the report 'shall identify the excessive services'. The court held, in a statutory context where the Committee was required to report, that it was required 'to translate the general criterion stated in the Act into quite precise findings'.[29]
[29] Romeo v Asher, 362.
In Yung v Adams, Davies J heard an appeal from a decision of the Professional Services Review Tribunal, also under the Health Insurance Act 1973 (Cth). His Honour found, as a matter of construction of the Act, that it could be inferred that the Tribunal was required to give a written decision setting out its findings with reasons.
The applicant does not point to any provision of the Act, or the University policies, which obliges the University to give reasons or from which that obligation might be inferred. But even if there were that obligation, Professor da Silva Rosa's letter sufficiently explains why the applicant could not re‑enrol: it would not be possible for the applicant to repeat the two units he had failed, which were no longer offered; and because the Health Service had advised it would not accept the applicant in clinical placements, he could not complete equivalent units.
Professor da Silva Rosa did not explain why there was no available avenue of review, but I am not satisfied that he made any decision to that effect. An order requiring that be he give an explanation would be of no practical benefit.

The Health Service decision

The applicant submits that the email of Dr Glick, quoted in the letter sent to him on 31 August 2021, sets out a decision that was made in denial of procedural fairness. His submission has four strands.
First, the Health Service is a public body established pursuant to statute.
Second, Dr Glick, on behalf of the Health Service, was exercising a power that affected the applicant's interests and was required to give the applicant the opportunity to deal with any relevant matters adverse to him which Dr Glick proposed to take into account in deciding on its exercise.
Third, the process followed in arriving at the decision failed to measure up to standards of fairness.
Fourth, the decision making process was not properly explained in either the letter from Professor da Silva Rosa, or Dr Glick's email, and this was a further denial of procedural fairness.
The following matters are not in dispute:
(1)The practical effect of the decision whether to accept the applicant for future placements at Dental Health Service facilities affects his interests.
(2)The Health Service is a public body established under statute.
(3)The applicant was not given the opportunity to be heard on his clinical ability and whether he should be given the opportunity to attend future clinical placements before Dr Glick's email of 7 July 2021.
The applicant also asserted that the respondent acted in a quasi‑judicial capacity. The nature of a power is to be ascertained from a consideration of the governing legislation, and there is nothing in the Health Services Act that confers a power of a quasi‑judicial character on a health service provider or any of its officers with regard to student placements. But whether a power is quasi‑judicial or administrative is of little or no consequence in considering whether natural justice is required, and whether mandamus will lie.
The first issue is to identify the power exercised, and if there was an exercise of public power. Dr Glick did not purport to decide an application made by the applicant or by the University for clinical placement at Dental Health Services. He was asked if the applicant would be considered for future placements and replied he would not. For there to be a decision about clinical placement, two conditions would have to be met. First, the applicant would have to be enrolled as a student in the Doctor of Dental Medicine course and be put forward by the Dental School as a fourth year student for a clinical placement. Second, the University and the Health Service would have to enter a Student Clinical Placement Agreement, in terms of the template in the policy. 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. At the time this action was commenced, the Health Service had made no decision having legal effect that could be susceptible to judicial review.
Assuming that Dr Glick's statement did constitute a decision about the placement of students, the Health Services Act does not itself give legal effect to that decision. Section 34(1)(b) states that one of the functions of a health service provider is 'teaching, training and research that supports the provision of health services'. That section would be relevant in determining whether any particular act of a health service provider was within the scope or purposes of the Act. For example, the power of a health service provider to enter into contracts or other arrangements 'for the purpose of performing any of its functions' may be lawfully exercised by entering contracts for the purpose of training that supports the provision of health services.
But s 34(1)(b) is not itself a source of the power to accept students for clinical placements. The power under s 36 to enter into a contract or other arrangement enables the Health Service to agree with the University to accept students for teaching or training.
I have taken into account that the agreement was not yet in place when Dr Glick sent his email. But the policy had been approved, and it prescribed the terms on which the Health Service might agree to place students under its power to contract. The Health Service could place students by agreement with a relevant Education Provider, but was under no public duty to provide a placement for any student.
The critical factors in the application for mandamus are whether the Health Service has exercised a power of a public nature, and whether the Health Service was subject to a public duty to exercise that power. In making the agreement with the University, the Health Service exercises a statutory power to contract. But in making decisions about the placement of students, it exercises a private contractual power.[30] It is the agreement which is the origin of the rights and liabilities of the parties to it.[31] Even if I was satisfied that Dr Glick had made a decision, he did not do so in the exercise of a public power. Mandamus does not lie in these circumstances.
[30] See L v South Australia (2017) 129 SASR 180 [153].
[31] Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 [82].
That leaves the remedies of declaration and injunction. The power of the court to make declaratory orders, or grant an injunction, is not limited by the requirement that there be a public duty to consider a clinical placement for the applicant in Dental Health Services. But the court's function is limited to reviewing the lawfulness of the exercise of power.
The Health Service carries out its functions under s 34(1)(b) by arrangements with the University. In making contractual or other arrangements it should enjoy the freedom to contract on such terms as it deems beneficial to it.
I am satisfied that the Student Clinical Placement Agreement is within the power conferred by s 36 of the Health Services Act. In entering that agreement, the Health Service can properly take into account its obligations to ensure the health and safety of the patients being treated. An agreement that confers an absolute discretion in decisions regarding patient safety is consistent with those obligations. The principles of public law that would impose an obligation to afford procedural fairness to a third party whose interests are affected by decisions made, or other actions done, pursuant to the agreement should not be superimposed on the contractual relationships.
There is no basis for the grant of the declaratory or injunctive relief sought by the applicant.
Finally, neither the Health Services Act, nor its agreement with the University, obliges the Health Service to give the applicant reasons for its decision. As I said when considering the action against the University, neither the general law nor the principles of natural justice impose that duty.

Conclusion

Both actions should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TB
Associate to the Honourable Justice Allanson

31 JANUARY 2023

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION: HOVE -v- UNIVERSITY OF WESTERN AUSTRALIA [2023] WASC 12 (S)
CORAM:   ALLANSON J
HEARD:   ON THE PAPERS
DELIVERED          :   7 FEBRUARY 2023
PUBLISHED           :   7 FEBRUARY 2023
FILE NO/S:   CIV 2128 of 2021
BETWEEN:   DZIKAMAI DZINASHENGONI SERGEYVICH HOVE
Applicant
AND
UNIVERSITY OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CIV 2404 of 2021
BETWEEN: DZIKAMAI DZINASHENGONI SERGEYVICH HOVE
Applicant
AND
CHIEF EXECUTIVE, NORTH METROPOLITAN HEALTH SERVICE
Respondent
UNIVERSITY OF WESTERN AUSTRALIA
Other Party

Catchwords:

Judicial review - Costs - Indemnity costs - Where respondent proposed process to review decision - Whether applicant's rejection of proposal unreasonable - Turns on facts

Legislation:

Nil

Result:

Applicant to pay the respondent's costs
Application for indemnity costs refused

Category: B

Representation:

CIV 2128 of 2021

Counsel:

Applicant	:	No appearance
Respondent	:	No appearance

Solicitors:

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

CIV 2404 of 2021

Counsel:

Applicant	:	No appearance
Respondent	:	No appearance
Other Party	:	No appearance

Solicitors:

Applicant	:	Blossom Lawyers
Respondent	:	State Solicitor's Office
Other Party	:	Clyde & Co (Perth Office)

Cases referred to in decision:

Brookvista Pty Ltd v Meloni [2009] WASCA 180
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Huntingdale Village Pty Ltd v Korda [2015] WASCA 101 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Yara Australia Pty Ltd v Oswal [2012] WASCA 264

ALLANSON J:

Introduction

The applicant brought two proceedings for judicial review: against the University of Western Australia; and also against the North Metropolitan Health Service, with the University named as Other Party. The facts are set out in the primary reasons.
Following the decision of the court dismissing both applications, the University has applied for orders that the applicant pay its costs of the actions on an indemnity basis.
The University relies on the affidavit of Jehan-Philippe Wood, sworn 2 February 2023, to which Mr Wood attached correspondence between the parties detailing the attempts by the University to resolve the applicant's complaints.

The proceedings

On 26 October 2021, the applicant filed proceedings against the University. He sought:
(1)a declaration that the decisions made by the University were in denial of natural justice and in error of law and therefore void, set aside or quashed and that the decision of the Appeals Committee dated 4 March 2020 (permitting the applicant to repeat the units he had failed in his final year) remains in force;
(2)an order of mandamus requiring the University to reinstate the applicant in his course at the University, and/or an order for mandamus requiring the University to reconsider its decisions.
The first directions hearing was held on 19 November 2021. The University appeared and sought an adjournment on the basis that, although the University contended that the effective decision was that of the Dental Health Service, the University was
prepared to allow Mr Hove an opportunity to respond to that decision and make whatever submissions or comments he wishes to make, and then to have the decision in that letter reviewed by a senior officer of the university as a way to address Mr Hove's concerns about fair process, and with the possibility … that there could be some change in the outcome for Mr Hove.[32]
[32] ts of 19 November 2021, 6.
The applicant, at that stage, still needed to identify the proper party to join as the entity conducting the Dental Health Service.
While those processes outside the court might continue, I ordered the applicant to file his supporting affidavit by 17 December 2021.
On 9 December 2021, the University proposed a review of the applicant's status in line with the Academic Progress Policy, which included giving the applicant a full opportunity to be heard, with the review to be completed by a delegate of the Senior Deputy Vice Chancellor and a decision by 24 December 2021.[33] The University's proposal could have resulted in a new decision being made within weeks, and (if favourable to the applicant) in time to allow him to consider re-enrolling for the start of the new academic year.
[33] Affidavit of Jehan-Philippe Wood, JPW-2.
On 15 December 2021, the University sent an email requesting a response. The solicitors for the applicant replied that day, rejecting the proposal.[34]
[34] JPW-5, JPW-6.
In further correspondence on 15 December, the University requested an explanation for why the proposal was rejected, and invited an alternative proposal that was agreeable to the applicant.[35] The applicant did not respond.
[35] JPW-7.
On 20 December 2021, the University requested a response to their previous email and an explanation about what the Applicant was seeking, 'where…the University is prepared to review his progress status on the DMD course and we have proposed a quick and efficient procedure for doing that'. The University again invited the applicant to let it know if the applicant had any alternative proposal.[36]
[36] JPW-8.
The applicant replied on 13 January 2022, stating that the proposal was unacceptable because it sought to do natural justice only after the decision had been made, there had been no commitment by the University that the decision would be set aside, and the decision would stand unless the review was favourable. The applicant stated that he would not consider any other outcome than the orders sought in his application for judicial review.[37]
[37] JPW-9.
On 19 January 2022, the applicant served the University with the application against the Chief Executive of the North Metropolitan Health Service which had been filed on 22 December 2021. The University was the Other Party in that application.
On 31 January 2021, the University again proposed a review process, in which the Health Service would participate.[38]
[38] JPW-10.
The applicant responded on 15 February 2022, putting forward a proposal that:
(1)the University and the Health Service admit the breaches of natural justice and the failure by the University to comply with its policies;
(2)that each of the 'decisions' be quashed or set aside;
(3)that the University and the Health Service give notice of 'their proposed position in terms of the applicant's continuation of the course and participation in placements and the applicant be given an opportunity to make submissions regarding the matters raised';
(4)that the University and the Health Service make a fresh decision taking into account 'all materials' including the applicant's submissions;
(5)if the new decision was not favourable to him, the applicant be afforded rights of review;
(6)all decisions be compliant with the policies and procedures of the University in force at 31 August 2021.[39]
[39] JPW-13.

The University made a further proposal on 16 April 2022.[40] On 11 May 2022, the applicant rejected the proposal.[41] Further correspondence between the solicitors for the parties proved fruitless.
[40] JPW-15.
[41] JPW-20.
On 25 February 2022, I ordered the parties to attend mediation.

Legal principles

The principles relevant to the grant of costs on an indemnity basis are well established.[42]
[42] See, for example, Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. Yara Australia Pty Ltd v Oswal [2012] WASCA 264 [33]. Huntingdale Village Pty Ltd v Korda [2015] WASCA 101 (S) [11] - [17].
The court's discretion as to the making of an indemnity costs order must be exercised judicially. The categories of cases in which indemnity costs orders may be made are not closed. The successful party does not need to show a collateral purpose, or establish some species of fraud or bad faith on the part of the unsuccessful party. But there must be some feature in the case that justifies exercising the discretion in that way.
The University argued for indemnity costs on the basis that the applicant had unreasonably failed to accept its proposals to resolve the matter outside court. It further contended that the applicant initially failed to put forward a counter proposal, and the proposal he did advance was unreasonable.
An indemnity costs order may be appropriate in situations which are shown to involve some element of improper, or at least unreasonable, conduct by a party or the party's legal advisers.[43] An indemnity costs order will constitute an appropriate sanction marking the disapproval of improper or unreasonable conduct.[44]
[43] Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233.
[44] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [32].

The competing submissions

The University submitted that the applicant rejected its proposals to resolve the matter, without explanation and without good reason. It dismissed the explanation offered by applicant's counsel, repeated in correspondence, that the starting point should be that the decision to exclude the applicant should be set aside. The University submitted that the process it proposed would have put the applicant in a better position, in terms of timing, cost and substantive outcome, than he could reasonably expect to be in, even if successful following trial.
In particular, the University submitted that the applicant's position in correspondence, that the University proposal could not cure the procedural unfairness, was 'nonsensical'. It characterised his conduct as indicating a lack of good faith.
I do not share that view of the applicant's conduct. It is true that the University's proposal was favourable to the applicant in that it would result in a quick and cost effective decision. And the applicant could not reasonably have expected a decision by the court requiring the Health Service to accept him for placement. The University's proposal, with the co-operation of the Health Service, could have resulted in a decision that would permit him to enrol. It also would have met the applicant's second complaint that he was denied an opportunity to review or appeal the decision to exclude him.
But, as the applicant submitted:
(1)the series of offers on which the University relies did not offer the applicant a hearing de novo but a review of the decisions that had already been made, with no offer to rescind those decisions;
(2)the proposals lacked sufficient particularity and certainty about the process to be followed, and how it could cure the procedural unfairness of which the applicant complained;
(3)the University's position in the letter of 31 August 2021 was that it was not possible to implement the decision of the Appeal Committee.
In my opinion, the following matters are relevant to whether the conduct of the applicant was unreasonable.
First, there was no dispute that the applicant had not been given the opportunity to be heard. Following his successful appeal in March 2020, and having been given leave of absence, he was then excluded from re-enrolling without a hearing.
Second, if the ground of breach of natural justice had been upheld, the decision by the University would have been set aside or quashed. The consideration of the applicant's enrolment would have started from the position that he had an appeal decision permitting him to complete his course. On the proposals put forward by the University, the applicant would be permitted to complain about a valid decision of the University that he be excluded, and seek to have it reviewed.
Third, the applicant's proposal that the University and Health Service give him notice of their proposed position on his continuing in his course was not unreasonable, having regard to the positions of each of them stated in the letter of 31 August 2021.
Fourth, there is no evidence before the court about any changes in the University's policies and procedures between 31 August 2021 and 15 February 2022. It is not possible to say whether it was unreasonable, or would have made any difference, for the applicant's review to have been by reference to the procedures in force at the time the decision was made.
The process proposed by the University may have resulted in a fair outcome. But that is not sufficient to make the applicant's unwillingness to accept those proposals so unreasonable that the court should mark its disapproval by an order for indemnity costs.
There were occasions on which the University did not receive responses to its proposals within the time it requested. I take into account that the correspondence between the parties was during the Christmas and New Year period, and that the applicant was living in Canada. I do not regard the delays as sufficiently serious to warrant an indemnity order.
Having regard to the matters I have set out above, I believe that the proper exercise of the court's discretion as to costs is to order that the applicant pay the University's costs of each action, to be taxed as one bill, on a party party basis. The costs are to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TB
Associate to the Honourable Justice Allanson

7 FEBRUARY 2023