Ivins v Griffith University

[2001] QCA 393

[2001] QCA 393

COURT OF APPEAL

THOMAS JA
WILLIAMS JA
DOUGLAS J

Appeal No 3278 of 2001

CHRISTINE JOY IVINS                 (Applicant) Appellant

and

GRIFFITH UNIVERSITY  Respondent

BRISBANE

..DATE 19/09/2001

JUDGMENT

THOMAS JA:  Justice Williams will deliver the first reasons.

WILLIAMS JA: The appellant was enrolled at the respondent university as a full-time student in the Bachelor of Nursing course in the year 2000. Between about February and July of that year various events occurred which resulted in the appellant filing an application for review, as it was called, seeking review by the Court pursuant to the provisions of the Judicial Review Act 1991 of certain alleged decisions made by the university. By the application as filed the appellant sought the following orders:

"(1)That I be re-instated as a student without prejudice or penalty to my former status or some measures be taken by the university to rectify the damage they have done;  (2)  the award of a credit grade in all first year subjects or an unconditional exemption from those subjects entitling me to continue the Bachelor of Nursing course NRS101 without prejudice or penalty."

A strict reading of the application would suggest that the appellant was seeking relief pursuant to Part V of the Act; in effect, relief of the type formerly granted by the issue of a writ of mandamus.  However, when the matter came before Justice Philippides she treated the application as one brought under either or both Part V of the Act or Part III dealing with statutory orders of review.

The appellant appeared on her own behalf before Justice Philippides and again before this Court. Particularly bearing in mind that the appellant has conducted this litigation in person the Court is prepared to consider the appeal under both Parts III and V of the Judicial Review Act.

The material originally filed in support of the application was extremely vague and Justice Atkinson made an order on
9 October 2000 for the appellant to give further and better particulars of the decisions which were to be reviewed by the Court and the grounds on which those decisions were said to be reviewable.  The appellant purported to give further particulars, but even at the appeal stage the material is still in a very confused state and it is difficult to distil from it particulars of the precise decisions sought to be reviewed.

Justice Philippides dealt with some nine decisions, or so-called decisions, in her Reasons for Judgment in which she concluded that the application should be dismissed.  It is from that decision that this appeal is brought.

It seems as though the first decision arose out of a letter which the appellant wrote to the university on 17 March 2000.  That letter appears at page 120 of the record book.  It is, in my view, difficult to discern from that letter the precise nature of the complaint being raised.  However, one could say in broad terms that it indicated some dissatisfaction by the appellant with a lecturer's conduct and, secondly, some dissatisfaction with the use of group assessment in two subjects, NRS1911, Introduction to Nursing Studies and NRS1912, The Science of Health.

Following on the receipt of that letter the university arranged for a meeting between Dr Don, who was the Deputy Head, Dr Stockhausen, another staff member and the appellant.  It was apparently decided at that meeting that no further action should be taken with respect to the complaint against the lecturer, who appears to have been then identified as a Ms Crowe.

The matter relating to the group assessment remained alive and it became the subject of a mediation which the appellant organised through the Department of Justice.  At that mediation Dr Don and Dr Stockhausen were present on behalf of the university and the appellant was also present.

The mediation, as such, appears not to have resolved the matters in dispute between the parties but on 14 July 2000 Dr Don wrote to Ms Ivins indicating that group assessments would not be re-marked as the nature of the assessment requires that the whole group would be required to request a re-mark for that to be undertaken.

In the circumstances, it seems to me that all matters raised in the letter of 17 March were the subject of a decision.  Firstly, a decision that no further action be taken on the unparticularised complaint against the lecturer and, secondly, that there be no re-mark of the group assessment.

The allegation made by the appellant is that the decision is reviewable because there was a failure by the university to make any decision.

Justice Philippides found that there was a decision made, being the decisions I have already referred to, and in my view, her conclusion in that regard was correct.

The appellant has then raised a number of matters subsidiary to that particular complaint.  For example, she asserts that the respondent improperly exercised power in inviting her to make the complaint, that the respondent improperly exercised a power by provoking her to make the complaint in order to use the complaint to justify an allegation that her behaviour was disruptive and an allegation of improper exercise of power by the respondent involving procedural defects, breach of natural justice and failure to make a decision on one of the respondent's staff complaining about the appellant's behaviour.

In my view, none of the decisions, if any, involved in those allegations was a decision made under an enactment and I cannot see that any decision involved in any of that alleged conduct could give rise to judicial review under either Part 3 or Part 5 of the Act.

There is then an allegation that in dealing with the complaint made in the letter of 17 March there was an improper delegation and it was also alleged that the delegation was to junior members of the university staff.

The university has a policy on student grievances and appeals, a copy of which in the course of the disputation between the parties was made available to the appellant.

It seems that the university acted at all times in accordance with that policy and that policy does permit of appropriate delegation of the initial decision-making process where a complaint or grievance has been raised with the university.

I am not satisfied on the material before the Court that there was any improper delegation involved in the making of any of the decisions.

The same observation can be made in relation to the allegation that the respondent failed to use the formal lodgment process for the complaint in a reasonable manner.  As I say, it appears that the university followed the grievance policy in dealing with the issues raised by the appellant.

Then in July the appellant was informed that she had failed the two subjects to which I have already referred.  She was dissatisfied with that and sought a review or a re-mark as it is often called.

By the letter of 27 July 2000, which appears at page 130 of the record, she lodged an appeal against her failure for both the subjects, NRS1911 and NRS1912.

The letter contains the following statements:

"Please find enclosed my original assessment and a set of clean printouts.  The appendices on the front of the clean printout were presented to Mr Don and L Stockhausen at our mediation conference.  Mr Don asked for these to be sent to the course convenor to be re-marked, which I did."

It should be observed that at no stage, either in that letter or otherwise, did the appellant ask to be present at the re-mark.  The re-mark was carried out in accordance with university policy and the fail grades were confirmed.  As I understand the material on which the appellant relies she raises two issues in relation to this aspect of the matter.

Firstly, she contends that she ought to have been present at the re-mark, and secondly, she contends that the respondent allegedly made it appear that she had failed the two subjects in order to punish her for the complaint she had originally made on 17 March 2000.  There is no evidence to support the allegation that the respondent failed her in order to punish her for making of the complaint.

So far as the question of her being present at the re-mark is concerned her case appears to be that she had a legal right to be present at the time.  That is not the law.  Clearly when it is purely a question of academic assessment or academic judgment the student has no right to be present on the marking of examination papers.  It may well be different if the evaluation of the student's progress or the question of exclusion of a student from the university involves questions other than mere academic judgment.  Those observations in my view are supported by the reasoning in The Queen v. Ashton University Senate ex parte Roffey (1969) 2 Queens Bench 538, The Queen v. Cambridge University unreported 2001 EWCA civil 534 and Clark v. The University of Lincolnshire and Humberside unreported 2000 EWCA civil 129.

Having considered the material which has been filed with the Court and the additional submissions which have been made in the course of oral argument today I can see no basis for concluding otherwise than that Justice Philippides was correct in dismissing the application.

In that regard I should say that in the course of oral argument a number of issues which appear to go outside the filed and written material were raised, but I cannot see that those matters support the granting of any relief.  For all of those reasons I am of the view that the appeal should be dismissed.

THOMAS JA:  I agree.  There were various unsubstantiated allegations made against the university during the appeal which are not supported by material presented to the Court below.  It is not the function of this Court to deal with allegations of that kind.  Justice Williams has dealt with the issues that arose on the appeal and I agree with the manner in which he has dealt with them.  I also agree with the reasons of Justice Philippides which were delivered in this matter and see no error in them.  I therefore agree that the appeal should be dismissed.

DOUGLAS J: I agree with both my brother Thomas and Williams. I want to say that this application is one which relies upon a failure by the appellant to accept that she did in fact fail two subjects in her course, one of which was a prerequisite to her continuing in that course. That, without more, is not sufficient to mount a successful application for relief under Parts 3 or 5 of the Judicial Review Act 1991.

THOMAS JA:  Is there any additional order sought?

...

THOMAS JA:  The order of the Court is appeal dismissed with costs to be assessed.

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