Ivins v Griffith University
[2001] QSC 86
•29 March 2001
SUPREME COURT OF QUEENSLAND
CITATION: Ivins v Griffith University [2001] QSC 086 PARTIES: CHRISTINE JOY IVINS
(applicant)
v
GRIFFITH UNIVERSITY
(respondent)FILE NO/S: S 8797/2000 DIVISION: Trial PROCEEDING: Application for review ORIGINATING COURT: Supreme Court
BrisbaneDELIVERED ON: 29 March 2001 DELIVERED AT: Brisbane HEARING DATE: 12 March 2001 JUDGE: Philippides J ORDER: Application dismissed. CATCHWORDS: APPLICATION FOR REVIEW – JUDICIAL REVIEW ACT
1991 – MEANING OF “DECISION” – IMPROPER EXERCISE OF POWER – PROCEDURAL DEFECTS – DENIAL OF NATURAL JUSTICEJudicial Review Act 1991, s 4, s 20, s 21, s 22, s 43, Part 5
R v Aston University Senate; Ex Parte Roffey [1969] 2 QB 538 at 554.
COUNSEL: T J Bradley for respondent SOLICITORS: C J Ivins self represented
Minter Ellison for respondent
PHILIPPIDES J:
The Grounds of the Application
This is an application for review under s 43 of the Judicial Review Act 1991 (“the Act”) seeking prerogative orders under Part 5 of the Act and an application under s 20, s 21, s 22 of the Act.
The application relates to two matters: firstly matters arising out of a written complaint made by the applicant on 17 March 2000, and secondly the decision to fail the applicant in two subjects.
Firstly, it is alleged that the University failed to make a decision about the applicant’s complaint of 17 March 2000 (“the complaint”). The complaint, marked exhibit D8 to the applicant’s affidavit sworn on 9 November 2000, states that “the staff did not do anything immediately when it would have been appropriate to either stay the “groupwork” assessment (and use individual assessment instead) until the problem had been addressed” or offer the students (including the applicant) the option of doing “an elective until the problem had been addressed”: see p 6 in the “Appendix” to the Application for Review, para 4. The applicant’s complaint primarily relates to the use of groupwork assessment.
The applicant has filed further particulars that raise a further six “issues”, which relate to the handling of the complaint of 17 March 2000. These issues are:
Issue 1: The matter of Ms Crowe inviting the applicant to make a complaint on 9 March 2000, (which is said to have been an improper exercise of power);
Issue 2: The matter of the applicant making a formal complaint on 17 March 2000 (which is also said to have been prompted by an improper exercise of power);
Issue 3: The matter of the Dean not utilising “a formal lodgement process” for the applicant’s complaint “in a reasonable manner” (which is said to be reviewable as inter alia a breach of natural justice, and be ultra vires);
Issue 4: The failure of the Dean to deal with the applicant’s complaint to the applicant’s satisfaction, (which is said to be reviewable as an improper exercise of power, for procedural defect and breach of natural justice);
Issue 5: The involvement of “inexperienced or other staff” in dealing with the applicant’s complaint, (which is said to be reviewable as an improper exercise of power due to improper delegation);
Issue 6: Ms Stockhausen making an informal complaint against the applicant on 24 March 2000.
Secondly, it is alleged that the University staff’s actions “make it appear that [the applicant] failed the subjects [NRS1911 and NRS1912]” and that the applicant was “punished” because she made the complaint: see “Appendix” to the Application for Review, Q5 and summary. The applicant in effect seeks a review of the decision to award a fail grade for those subjects.
The applicant’s further particulars raise a further issue, identified as Issue 7 in the further particulars, in respect of the decision to award the fail grade, i.e. the applicant not being “invited to participate” in the appeal against her failure in two subjects, NRS1911 and NRS1912 The Science of Health.
The Complaint of 17 March 2000
The complaint, which was directed to the “Dean or Acting” (which I take to be a reference to the Dean or Acting Dean of the Faculty of Nursing and Health), concerns the conduct of Ms Crowe, a lecturer in the subject NRS1911 Introduction to Nursing Services, in particular the interactions between Ms Crowe and the applicant in lectures and the assessment of the applicant’s Individual Essay (Assessment Item 1), and the use of groupwork assessment.
The complaint was passed to the Deputy Head of the School of Nursing, Dr Stockhausen, who called a meeting for 24 March 2000 to discuss the complaint with the applicant, to be attended by the Course Convenor, Dr Don and Associate Lecturer Ms Donovan.
On 24 March 2000, the applicant met with Dr Stockhausen, Dr Don and Ms Donovan to discuss the complaint. Dr Stockhausen, Dr Don and Ms Donovan did not accede to the complaint made by the applicant. No changes were made to subject NRS1911 or the assessment and no reprimand was issued to Ms Crowe.
On 25 March 2000, the applicant wrote to the Dean expressing her dissatisfaction with the outcome of the meeting: exhibit D10 affidavit of applicant.
On 27 March 2000, the applicant wrote to Dr Don that “misuse of groupwork has continued”, copying the letter to “Dean or Acting”: exhibit B6 of affidavit of applicant.
On 28 April 2000, the applicant wrote to the Dispute Resolution Centre (within the Justice Department) seeking assistance to mediate a dispute with the University about the inclusion of “groupwork” in assessable work”: see exhibit B7.
On 8 May 2000, Dr Stockhausen wrote to the applicant inviting her to meet to discuss the applicant’s recent correspondence with the University and her academic progress: see exhibit B9 applicant’s affidavit.
On 9 May 2000, the applicant wrote to the Dean and Dr Don about the complaint, advising that she had contacted the University “on a few occasions to resolve my original complaint, however have had no success here” and had referred the matter to the Disputes Resolution Centre: see exhibit B8, applicant’s affidavit.
On 19 May 2000, Dr Stockhausen wrote to the applicant asking whether the applicant wished to deal with the matter through the Dispute Resolution Centre or at the meeting proposed in the letter of 8 May: see exhibit B11. The applicant’s reply dated 23 May 2000 indicates a preference for the Dispute Resolution Centre: see exhibit B10, applicant’s affidavit.
On 22 June 2000, the Dispute Resolution Centre convened a mediation conference, which did not satisfactorily resolve the matter.
The Decision and Conduct concerning the Complaint
The applicant’s complaint appears to centre around the use of the groupwork assessment, the content of the course and other matters referred to in the further six issues raised in the further particulars. The applicant alleges that the University failed to make a decision in respect of the complaint and further that there was inter alia a breach of natural justice, improper exercise of power and procedural defects: see further particulars. Incidentally, I note that it is not disputed by the applicant, that the applicant passed the groupwork assessment and that the use of groupwork assessment was not the reason for the “fail” grades awarded.
The respondent submits that:
· Dr Stockhausen and Dr Don did make a “decision” concerning the applicant’s complaint at the meeting with the applicant on 24 March 2000. That “decision” was not to alter the assessment for the subjects NRS1911 and NRS1912 and not to reprimand Ms Crowe.
· Although the applicant sought to engage various officers of the University in correspondence on the matter, there was no deviation from that decision. The fact that the applicant repeated her request for a change to the assessment did not mean the University made another “decision” about that request. The University simply referred the applicant to the fact that the complaint had been dealt with on 24 March 2000.
· The applicant did not take the complaint further by lodging a formal grievance with the Group Pro Vice-Chancellor, in accordance wit the University Policy on Student Grievances and Appeals: exhibit LH3, para 2.2, first item.
In my opinion, in so far as there is an allegation that there was a failure to make a decision concerning the use of groupwork assessment, this is not borne out by the evidence, in particular the letter from Dr Don to the applicant dated 14 July 2000 (exhibit B17).
In my opinion, no ground for statutory review or the issue of prerogative orders in relation to the complaint of 17 March 2000 has been made out on the basis of a failure to make a decision.
As I mentioned, in the further particulars of the application, a further six issues are raised which relate to the complaint of 17 March 2000. I now turn to these matters.
Issue 1 of the Particulars: The applicant alleges that the invitation to make a complaint was an “improper exercise of power”. The applicant offers no particulars of these allegations, nor is there evidence to substantiate the allegations. It is clear that the invitation to the applicant to make a complaint is not a “decision” reviewable under an application for review, since it is not a decision made or required to be made under an enactment as specified by s 4 of the Act. Likewise, the invitation could not be said to be conduct engaged in for the purpose of a decision to which the Act applies.
Issue 2 of the Particulars: The applicant alleges that she was “provoked into making a formal complaint “and that was used to justify disruptive behaviour”. The applicant alleges this conduct was an “improper exercise of power”. There is no basis shown to support a claim for “improper exercise of power”. More fundamentally the alleged conduct is not conduct engaged in for the purposes of a decision within s 4 of the Act and there is no decision or conduct reviewable under the Act.
Issue 3 of the Particulars: The applicant alleges that the Dean’s failure to utilise “a formal lodgement process for [the applicant’s complaint] in a reasonable manner” involved procedural defects, a breach of natural justice and was in excess of jurisdiction. The University Policy provided that where there was dissatisfaction with academic matters, such as content or delivery of a course or subject, teaching qualities, supervision or the conduct of an academic staff member, for a student to write to the Head of the School of Nursing and, if the student was not satisfied with the Head’s decision, to “lodge a formal grievance with the Group Pro Vice-Chancellor, as relevant senior officer”. In this case, the complaint was dealt with by the Deputy Head. The applicant did not pursue the further avenue available under the Policy. I can see no procedural or other defect in the process employed in dealing with the complaint, nor was there any breach of natural justice.
Issue 4 of the Particulars: This is an allegation that the Dean passed the applicant’s complaint to “inexperienced staff” and “still didn’t deal with the complaint” so that there was a failure to make a decision. The applicant alleges this involved procedural defects, a breach of natural justice, the exercise of a power in bad faith and for an improper purpose. It would seem to be the applicant’s case that the Dean was under a legal obligation to deal with the applicant’s complaint and could not lawfully delegate it to other staff. However, the University’s Policy, as mentioned, provides for the initial grievance to be directed to the Head of the School of Nursing. The Deputy Head dealt with the complaint. Under the University’s Assessment Policy, the Dean may in “exceptional cases” vary the assessment program of a subject “on the advice of the subject convenor”: see Assessment Policy, para 2.5. As the complaint related to assessment, the Deputy Head involved the Course Convenor in the meeting with the applicant. I agree with the respondent’s submission that there is no basis for the allegation that these were “inexperienced staff” or that this was an unlawful delegation.
Issue 5 of the Particulars: This is a repetition of the allegations in issues 3 and 4 that the complaint was passed to “inexperienced or other staff”, so that there was an improper delegation of authority. I do not find that there was any improper delegation.
Issue 6 of the Particulars: This appears to involve a complaint by a staff member about the applicant’s conduct. The allegations are that the staff member’s complaint involved an improper exercise of power, procedural defects, a breach of natural justice and a failure to make a decision. I agree with the respondent’s submission that there is no intelligible basis for these allegations and no evidence to support them. Nor does this issue concern a “decision” to which the Act applies.
The “Fail” Grades for NRS1911 and NRS1912
The applicant was awarded “fail” grades for the subjects NRS1911 and NRS1912 as a result of the marks assessed for the items of assessment, initially submitted by the applicant between 6 March 2000 and 15 June 2000. Marks were awarded for each of the applicant’s items of assessment in the two subjects, shortly after each item was submitted for that purpose.
On 29 June 2000, the University received some of the applicant’s assessment items from the applicant and on 30 June 2000 the School of Nursing Administration Officer, Ms Earle, wrote to the applicant asking for clarification: exhibit B13.
On 30 June 2000, the School of Nursing Assessment Board met. It determined that the applicant was to receive a grade of “fail” for NRS1911. On 30 June 2000 Ms Earle, as the Secretary of the Assessment Board, wrote to the applicant advising her of this result, its consequences, enclosing a copy of the University’s Policy on Student Grievances and Appeals (exhibit LH3 to the affidavit of Lynette Ruth Holman) and advising the date by which an appeal must be lodged: exhibit B14.
On 4 July 2000, the applicant replied to Ms Earle indicating that she expected the resubmitted assessment items to be remarked: exhibit B12[1].
[1]This exhibit bears two different dates: 4 June 2000 and 4 July 2000. The later date appears to be the correct date, as it seems that the applicant enclosed copies of Ms Earle’s letters dated 30 June 2000.
On 12 July 2000, the University sent a Statement of Results to the applicant noting that she had received a grade of “fail” for both NRS1911 and NRS1912: exhibit B16.
On 14 July 2000, Dr Don wrote to the applicant advising that her individual assessment items were being remarked, but that group assessment items would not be remarked unless the “whole group” involved in the items requested a remark: exhibit B17.
That same day, Ms Earle, as the Secretary of the Assessment Board, wrote to the applicant advising that the School had reassessed and remarked the applicant’s individual assessment items, but that the applicant had not attained a passing result for NRS1911 or NRS1912. The letter enclosed another copy of the Student Appeals Policy and again advised of the timeline for appeal against the grade: exhibit B19.
On 18 July 2000 the applicant wrote to Dr Don asking Dr Don to “override” the failing marks for her individual assessment items “immediately”: exhibit B20.
On 19 July 2000 Ms Earle responded, stating that “all University procedures have been followed” in respect of the remarking of the individual assessment items in NRS1911 and NRS1912 and the applicant had “failed to achieve the academic standard required, having had equal access as other students to all necessary information”: exhibit B21.
On 27 July 2000 the applicant lodged an appeal against the award of a “fail” grade in NRS1911 and NRS1912: exhibit LH2.
In accordance with the University’s Policy, the University Appeals Committee sought a report from the Dean of the Faculty of Nursing and Health and met on 29 August 2000 to consider the applicant’s appeal. The Committee dismissed the appeal and the Secretary wrote to the applicant outlining the Committee’s decision: exhibit LH6. (The Secretary’s letter noted that, while the applicant had passed the Group SIS Analysis assignment in NRS1911, she had failed to pass the individual assessment items.).
The Decision about the “Fail” Grades
The respondent submitted that the decision to award the applicant a “fail” grade for each of NRS1911 and NRS1912 involved a series of “decisions”:
(a) Firstly, the person marking each of the applicant’s items of assessment in the two subjects awarded marks, shortly after it was submitted for that purpose. These “decisions” were made between 15 March and 22 June 2000.
(b) Secondly, on 30 June 2000 the Assessment Board for the School of Nursing decided to award a “fail” grade for NRS1911.
(c) Thirdly, on 14 July 2000 the applicant’s individual assessment items were remarked, having been resubmitted following discussion at the mediation conference.[2]
[2]On or before 14 July 2000, Dr Don decided that the groupwork assessment items would not be remarked, without a request from the whole “group” for a remark: exhibit B17.
(d) Fourthly, on 19 July 2000, the University refused the applicant’s demand (of 18 July 2000, exhibit B20) for the “fail” grades to be “overridden” and “corrected”.
(e) Finally, on 29 August 2000, the University Appeals Committee dismissed the applicant’s appeal against the “fail” grades, which had been lodged on 27 July 2000: exhibit B22.
The applicant has failed to satisfy me that there is any basis for the granting of a prerogrative order in relation to the decision to fail her.
Further, the applicant in Issue 7 of the Particulars complains that she “was not invited to participate” in her appeal to the University Appeals Committee. What is clear is that the applicant was advised of her right to appeal against the “fail” grades and did appeal: affidavit of Lynette Holman, paras 3 and 4, exhibits LH1 and LH2. The applicant was permitted to put material to the University Appeals Committee. It appears that the applicant’s complaint here is that she was not afforded an opportunity to be present and to be heard orally.
In my opinion the rules of natural justice were adequately met by the procedure set out in the University’s policy and did not require that in addition to the written submissions of the applicant, the applicant should have been afforded an opportunity to be present and to have been heard orally: see R v Aston University Senate: Ex parte Roffey [1969] 2 QB 538 at 554.
Conclusion
In summary, no basis for judicial review is established.
I order that the application be dismissed. I shall hear the parties as to costs.
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