Kathleen Harding v University of New South Wales

[2001] NSWSC 301

CITATION:	Kathleen Harding v University of New South Wales [2001] NSWSC 301
FILE NUMBER(S):	SC 20148/95
HEARING DATE(S):	19-20/3/01
JUDGMENT DATE:	12 April 2001
PARTIES :	Kathleen Harding University of New South Wales
JUDGMENT OF:	Sully J

COUNSEL :	Plaintiff - in person Mr. S. W. Gibb SC - Defendant
SOLICITORS:	Plaintiff - in person Bartier Perry Purcell - Defendant
CASES CITED:	Brimson v Rockla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 944G-945A Bayley-Jones v University of Newcastle (1990) 22 NSWLR 424 X (Minors) v The Bedfordshire County Council (1995) 2 AC 633 at 731 D-G Northern Territory v Mengel (1995) 185 CLR 307 at 345 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Commonwealth of Australia v Verwayen (1990) 170 CLR 394
DECISION:	that the principal proceedings commenced by the statement of claim in the further amended form filed on 8 February 1999 be dismissed generally; that the plaintiff pay the defendant's costs of the principal proceedings and of the notice of motion filed by the defendant on 23 August 1999 and the costs reserved by Greg James J on 23 November 1998.

SUPREME COURT OF
NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

Thursday 12 April 2001

20148/95 - KATHLEEN HARDING v UNIVERSITY OF NEW SOUTH WALES

JUDGMENT

1   HIS HONOUR: There are current in the Court principal proceedings in which Mrs Kathleen Harding, as plaintiff, sues the University of New South Wales as defendant. The proceedings concern events that happened initially as long ago as 1988. The proceedings were commenced by the filing on 1 March 1995 of a statement of claim. An amended statement of claim was filed on 26 June 1997. A further amended statement of claim was filed on 8 February 1999. The issue for present decision is whether the proceedings, as originated by that further amended statement of claim, should be either stayed permanently or dismissed generally. Should it be decided that no such orders should be made, then it will be necessary to consider whether particular parts of the further amended statement of claim should be struck out and whether the plaintiff should be ordered to give, and if so upon what terms, security for the costs of the defendant.

2 The power to stay or to dismiss generally is conferred by Pt 13 r 5 of the Supreme Court Rules, which provides relevantly:

"(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally, or in relation to any claim for relief in the proceedings:
(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court;
the Court may order that the proceedings be stayed or dismissed generally, or in relation to any claim for relief in the proceedings
(2) the Court may receive evidence on the hearing of an application for an order under subrule (1)."

3   The principles by which the Court is to be guided in the application in a particular case of this rule are well settled. They are summarised as follows by Cross J in Brimson v Rockla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 944G-945A:

"Where the Court is asked to reject the plaintiff's case either under its statutory rules or its inherent jurisdiction, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial and applications to deprive him of that right will succeed only in the clearest of cases. True, the Court will not look merely at the suggested weakness of the plaintiff's case but - though to a less extent - at the suggested strength of the defendant's case and, true, forensic argument and subsequent judicial reflection are not necessarily inconsistent with a firm conclusion that the cause of action should not be allowed to proceed. But fatal defects in the plaintiff's case must be very clear before the Court will intervene in this fashion."

4   Before turning to the detail of the further amended statement of claim, it is necessary to take note of the course of pleading that gave rise to the further amended statement of claim.

5   The defendant moved to strike out the 1995 statement of claim. In a judgment delivered on 3 June 1997, Master Greenwood ordered that the whole of the statement of claim be dismissed, but gave the plaintiff 28 days in which to replead. The Master made these orders notwithstanding findings "that the plaintiff's pleading takes her nowhere" and that "it seems that the flaws in the plaintiff's case are such that repleading will not enable her to overcome them".

6   The 1997 amended statement of claim to which I have earlier referred was pleaded in response to the opportunity left open by the Master's orders. It too was met by the defendant with a notice to strike it out. That motion was dealt with by Gregg James J, who dealt simultaneously with an appeal by the plaintiff against the Master's order striking out her original pleading. The view of his Honour as to the merits of the two matters before him, was expressed thus:

"On listening to the argument and reviewing the amended statement of claim, I share the Master's reluctance, not because for one minute I think that the plaintiff has established any particular cause of action, not for one minute because I think there might be some novel cause of action which might apply on the material as it presently stands, but because I think that there might be some possibility of some proper cause of action, perhaps in negligence, negligent advice or something of that order, at least to enable argument to proceed over whether such cause of action might properly arise, if the plaintiff has the assistance of competent legal advice and representation."

7   His Honour made, accordingly, orders striking out the amended statement of claim, dismissing the appeal against the Master's orders and granting the plaintiff leave to replead by, at the latest, 4pm, 8 February 1999. The further amended statement of claim, being the pleading with which the present judgment is concerned, was thereupon filed.

8   The first 19 paragraphs and paragraph 22 of the further amended statement of claim plead the essential facts that are asserted by the plaintiff in support of her claim for relief. It is, I think, better to set them out in full, rather than to attempt a paraphrase:

"1. The defendant is a statutory body constituted under the laws of New South Wales and liable to be sued under its said statutory name and style
2. At all material times during the year 1998 the plaintiff was an enroled student with the defendant in the Faculty of Medicine.
3. During 1998 the plaintiff suffered ill health as a result of a thyroid hormone replacement programme following total thyroidectomy in 1987 and on two occasions namely 7 June 1998 and 9 November 1988 sought special consideration from the university under its rules in respect of supplementary examination which could result in an upgrade of marks from mid-term and end of year examinations, the waiving of show cause and appeal procedures or potential adjustment of marks in the event of failure in the end of year examinations and other possible benefits.
4. The defendant failed to consider these applications but a Mr Gordon Rees an officer of the Faculty advised the plaintiff to sit the end of year examinations and the plaintiff failed to pass all subjects.
5. By letter dated 20 December 1988 the defendant required the plaintiff to show cause why she should not be allowed to enrol in 1989.
6. The plaintiff duly made application to the defendant for special permission to re-enrol but this was refused by letter dated 24 February 1989.
7. The said letter of 24 February 1989 informed the plaintiff that her application had been reviewed by the Admissions and Progression Sub-committee of the Academic Board (The Sub-committee) under Rule 7(1) of the Defendant's Rules and that the decision of the Sub-committee was that the plaintiff be excluded from the Faculty for 1989 and 1990 but that the plaintiff could appeal from this decision to the Appeals Committee of the Council (the Appeals Committee).
8. The plaintiff duly appealed to the Appeals Committee and was informed by letter dated 15 March 1989 that her appeal had been rejected but gave no reasons for the decision.
9. The said Appeals Committee was required under Rule 7(2) to be constituted by three nominated members.
10. At the time of the said meeting the Deputy Registrar Judith Tonkin informed the two members present namely Professors Gilbert and Anderson that the absent nominated member Deputy Vice-Chancellor Dr Milner Davis had telephoned that morning saying she would be absent due to her daughter's illness and said that the plaintiff's medical evidence should be taken into consideration and the plaintiff's application should be given favourable consideration.
11. Professors Gilbert and Anderson referred to the plaintiff's file which included a letter from the Dean of the Faculty Professor Glover dated 15 June 1988 and rejected the plaintiff's appeal.
12. The said letter dated 15 June 1988 from Professor Glover written to Professor Ronane and placed before the Appeal Committee meeting had referred to the plaintiff's re-enrolment in the Medical Faculty in 1988 (after having been disallowed in 1987) and purported to give an expert opinion that the plaintiff's ill health and medical condition had not contributed to her previous record and went on to make critical comment in respect of the plaintiff's age, opportunity to serve the community and ability to pay back the high cost of her medical education.
13. The purported expert opinion of Professor Glover which was before the two Appeal Committee members was in opposition to Dr Davis's opinion but neither Dr Davis nor the plaintiff were given the opportunity to provide further medical opinion or advice in respect of the plaintiff's illness.
14. In March 1989 the plaintiff took action through various avenues of redress available within the defendant including the Equal Opportunity Unit (EOU) and EOU officer Ms Brady formed the opinion that the issue should be taken up by the Director of Affirmative Action.
15. During the remainder of 1989 and during 1990 the plaintiff continued to pursue various avenues available through the defendant alleging discrimination and unfairness and appealed personally to the said Professor Ronane the Deputy Vice Chancellor.
16. The Dean of the Faculty the said Professor Glover continued to oppose any reconsideration of the plaintiff's application and gave purported expert medical opinion to Professor Ronane (by letter dated 11 September 1989) following which Professor Ronane made a decision that the plaintiff's requests be given no further consideration.
17. The plaintiff was neither informed of this further expert opinion or given an opportunity of rebuttal.
18. During these periods of active campaigning by the plaintiff to set aside the decision of the Appeals Committee of 13 March 1989 the defendant continued to fail to give reasons for the Appeal Committee decision and failed to notify the plaintiff of the defects in the Appeal Committee meeting and decision-making process as set out in paragraphs 9, 10, 11, 12 and 13.
19. The plaintiff commenced litigation against the defendant in the Administrative Law Division of the Supreme Court which failed and then appealed to the Court of Appeal which on 17 December 1993 held that the Appeal Committee had been unconstitutional and its decision was void and of no effect but declined to order declarative or injunctive relief due to futility as a result of the delay.
…..
22. In 1997 the plaintiff made a further application for admission and application for special consideration for entry to the Faculty of Medicine but her applications were again dealt with unconstitutionally and a decision was made to give her applications no further consideration.
Particulars of Unconstitutionality of Meeting
(1) Failure to supply Committee members with full context of plaintiff's application for admission and application for special consideration.
(2) Taking into account criteria applicable to enrolment as at 1997 and failing to apply criteria applicable at the relevant time namely 1989/90."

9   Upon the basis of these factual assertions the plaintiff pleads the following causes of action:

1. Breach of contract;
2. Negligence;
3. Breach of statutory duty;
4. Misfeasance in public office;
5. Equitable estoppel.

The plaintiff's pleading provides particulars of these various causes of action. As to the causes of action numbered above 1 to 4 inclusive, the particulars given are:
"Particulars of Misfeasance and Negligence and Breach of Contrac t
(1) Failure to provide an Appeals Committee constituted in accordance with Rule 7(2) of the Defendant's Rules.
(2) Failure to perform its obligations to the plaintiff under Rule 7.
(3) Acting ultra vires through unconstitutional Appeals Committee. (The defendant is estopped from denying the invalidity of the decision of the Appeal Committee):
See decision of Court of Appeal No. 40651/91 on 17 December 1993 being Kathleen Harding v University of New South Wales .
(4) Failure to accord the plaintiff natural justice and procedural fairness in the hearing of her appeals and other applications for consideration.
(5) Failure to act bona fide in the appeals process and other processes.
(6) Taking into consideration irrelevant material being the purported expert opinion of Professor Glover without an opportunity of a response by the plaintiff.
(7) Taking into account irrelevant and prejudicial material in respect of the plaintiff's age, length of service to the community and cost to the community for her medical education.
(8) Failure to give the plaintiff the opportunity of answering expert opinion of Professor Glover knowing that the decision of the Appeals Committee involved a foreseeable risk of harm to the plaintiff and was calculated to cause harm to the plaintiff if the ultra vires decision of the Appeal Committee was put into effect.
(9) Failing to exercise power through the Appeal Committee in an independent manner.
(10) Acting under the indirect dictation of Professor Glover.
(11) The defendant acted wrongfully in relying on the invalid and ultra vires decision of the Appeals Committee and wrongfully excluding the plaintiff from the faculty of medicine."

10   As to the cause of action based upon an alleged equitable estoppel, the particulars given are:

"Particulars of Equitable Estoppel
(1) The defendant failed to give reasons why the plaintiff's appeals and other applications were rejected.
(2) The defendant failed to notify the plaintiff of the absence of Dr Davis from the meeting and her favourable response to the plaintiff's application.
(3) The defendant stood by and acquiesced in the plaintiff's assumption that the Appeal Committee had been constitutional and the decision valid.
(4) The defendant failed to act conscionably in failing to advise the plaintiff of the matters in (1) (2) and (3) during the plaintiff's continuing attempts in 1989/90 to have the Appeal Committee decision reconsidered.
(5) During the period 1989/90 the defendant acted unconscionably in failing to give proper disclosure to the plaintiff and the plaintiff lost the opportunity of enrolling during 1989/90 and thereafter was required to face more stringent requirements by application after 1990 through the University and Colleges Admissions Centre."

11   The relief claimed by the plaintiff upon each of the five pleaded causes of action is an award of compensatory damages and interest thereon.

12   At the hearing of the defendant's motion, the Court received evidence both oral and by way of affidavit and other documents. The plaintiff, who represented herself, required for cross-examination, and cross-examined at length, Miss Tonkin, Professor Anderson and Professor Gilbert, three of the persons who are named at various points in the statement of claim.

13   It is appropriate to turn next to a consideration of each in turn of the five pleaded causes of action:

The Cause of Action in Contract: Further Amended Statement of Claim, Paragraph 20

14   By a letter dated 26 February 1999, the defendant's solicitors sought particulars of this cause of action. Particulars were furnished by a letter dated 30 April 1999 and written by solicitors then acting for the plaintiff. The respective requests and responses are:

"1. Is it alleged the contract was written, oral or implied?
A. Written and implied.
2. If written, what document or documents is it alleged constitute the contract? Please provide copies of these documents.
A. The plaintiff's enrolment form and the constitution and rules of the defendant (copies are within the defendant's knowledge).
3. If oral, between whom on behalf of the defendant and plaintiff is it alleged the contract was entered into? Where is it alleged the contract was entered into?
A. Not applicable.
4. If implied, on what basis is it alleged the implication arises?
A. That the defendant would carry out its obligations to the plaintiff in accordance with the constitution and rules.
5. Please particularise the alleged contractual provisions which it is asserted have been breached by the defendant.
A. The rules in respect of appeals including Rule 7."

15   It is not clear to me, as at present advised, what actually is meant by the description "the rules in respect of appeals, including Rule 7". At the material times the University had in place a number of rules dealing with various aspects of the administration of its affairs. Those rules included rules dealing with the exclusion, relevantly, of a student whose academic performance had been unsatisfactory; and dealing also with a subsequent application by that student for re-enrolment. Those re-enrolment rules contained a rule numbered 7 and reading:

"7. (1) Students who are excluded by the Admissions and Re-enrolment Committee from a course and/or subject under the provisions of the Rules will have their applications to re-enrol reconsidered automatically by the Admissions and Progressions Sub-committee of the Academic Board.
(2) Students whose exclusion is upheld by the Admissions and Progressions Sub-committee may appeal to an Appeal Committee constituted by Council for this purpose with the following membership:
A Pro-vice-chancellor nominated by the Vice-chancellor who shall be Chairman.
The President of the Academic Board, or if its president is unable to serve, a member of the Academic Board nominated by the President of the Academic Board, or when the President of the Academic Board is unable to make a nomination, nominated by the vice President.
One of the category of members of the Council elected by the graduate of the university, nominated by the Vice-chancellor.
The decision of the committee shall be final.
(3) The notification to students of a decision which has been upheld by the Admissions and Progressions Sub-committee of the Academic Board to exclude from them re-enrolling in a course and/or subject shall indicate that they may appeal against that decision to the Appeal Committee. The appeal must be lodged with the Academic Registrar within 14 days of the date of notification of exclusion and in special circumstances a late appeal may be accepted at the discretion of the Chairman of the Appeal Committee. In lodging such an appeal with the Academic Registrar students should provide a complete statement of all grounds on which the appeal is based.

(4) The Appeal Committee shall determine appeals after consideration of each appellant's academic record, application for special permission to re-enrol and stated grounds of appeal. In particular circumstances, the Appeal Committee may require students to appear in person."

16   I proceed upon the footing that it is this particular rule to which the plaintiff's then solicitors were intending to refer.

17   The plaintiff's cause of action, as thus pleaded and particularised, gives rise to the following questions:

1. Was there a contract at all on foot between the plaintiff and the defendant?

2. If there was, then did the contract contain some term, or terms, to the effect that the defendant, if it came to deal with the plaintiff upon the basis of its rules respecting the Appeals Committee, would so deal with her:

(a) through an Appeals Committee which was lawfully constituted; and
(b) upon the basis of proceedings in the Appeals Committee that were proceedings conducted by committee members in good faith and with procedural fairness?


3. If either or both of 2(a) and (b) be answered in the affirmative, then did the defendant conduct itself in breach of such contractual terms?

4. If so, is any such breach causally connected to any loss suffered by the plaintiff?

18   In my opinion, the questions numbered 1 and 2 should be answered in the affirmative: cf. the reasoning of Allen J in Bayley-Jones v The University of Newcastle (1990) 22 NSWLR 424.

19   The question numbered 3, also, should be answered in the affirmative; but it is important to be precise about the nature of the breach.

20   Plainly enough, the decision of the Court of Appeal which has been mentioned previously, establishes a breach of the Appeals Committee of its obligation to sit, to hear, and to determine the plaintiff's appeal as a Committee of three.

21   The decision establishes, as plainly, that the consequence of those breaches of obligation was that the purported decisions of the two members of the Committee who in fact sat together to hear and determine the appeal, was in law no true decision at all.

22   The plaintiff submits, however, that the proceedings of the Appeals Committee were not only defective by reason of the absence of one Committee member, but that they were proceedings conducted with procedural unfairness, and with bias against her, and that such unfairness and bias were additional breaches of the contract that she has pleaded and particularised.

23   At the hearing before this Court, the defendant read affidavits from all three of the members of the Appeals Committee: that is to say, an affidavit sworn on 8 October 1999, by Dr J M Davis; an affidavit affirmed on 5 October 1999 by Professor D Anderson; and an affidavit sworn on 22 June 2000 by Professor A D Gilbert.

24   Dr Davis was not cross-examined on her affidavit. I accept the evidence that she gives by that affidavit. Dr Davis details as follows the material that was forwarded to her prior to the relevant sitting of the Appeals Committee:

"a) Ms Harding's academic record,

b) Previous submissions/medical certificates of Ms Harding to other review committees at the defendant. To the best of my recollection in this case these documents were the following:

i .Ms Harding's request for special consideration dated 7 June 1988 annexing report of Dr T S Reeve dated 21 August 1987, reports of Sugarmans Pathology dated 4 March 1988 and 25 April 1988, report of Dr B A Fahey dated 6 June 1988 and statement of Ms Harding dated 6 June 1988.

ii .Ms Harding's request for special consideration dated 9 November 1988 enclosing medical report of Dr B A Fahey dated 4 November 1988 and certificat Dr J A Stiel dated 21 June 1988.

iii Ms Harding's application for special permissio to re-enrol in 1989 dated 20 January 1989, which included a statement of the plaintiff and a medical certificate of Dr Leon Harris dated 19 January 1989.

iv Ms Harding's submission dated 1 March 1989.

V The document 'Recommendation of Subject or Course Authority on Application for Special Permission to Re-enrol in 1989 when Student has infringed Re-enrolment Rules.'"

25   Dr Davis said says that there was available to the Committee, in addition to the foregoing material, the defendant's student file maintained in relation to the plaintiff.

26   Dr Davis explains the personal problems which prevented her attendance at the Committee meeting; and she explains how she so advised Miss Tonkin, the Deputy Registrar, informing Miss Tonkin of her opinion that, in the case of the appellant:

"While there is no evidence that she has any special proven capacity in science subjects I think the medical evidence should be taken into account. I think the application should be given favourable consideration."

27   Dr Davis says that she asked the Deputy Registrar to convey this opinion to the other two Committee members, and I am well satisfied that the Deputy Registrar did so at the meeting on 14 March 1989.

28   Dr Davis' affidavit concludes with the following two paragraphs:

"11. At the time, I did not understand it to be necessary for all three members of th Appeal Committee to meet together in person in order for there to be a valid decision of the Appeal Committee. In doing what I did, I did not knowingly participate in the making of an invalid and void decision, nor did I intend to cause the Plaintiff harm. It was not until the decision of the Court of Appeal, in proceedings between the parties decided in 1993, was reported to me in September 1999, that I became aware that the decision of the Appeal Committee had been invalid and void, because our decision had not been made in the presence of all members.
12. When considering Ms Harding's Appeal I performed my duties honestly and based my decision on the information available to me. To the best of my recollection that material did not include any correspondence from Professor Glover, then Dean of the Faculty of Medicine at UNSW to Professor Ronayne."

(Note: Professor Ronayne is misnamed in the further amended Statement of Claim as "Professor Ronane").

29   Professor Anderson was in 1989 the President of the Academic Board of the defendant. He deposes in his affidavit to having had, prior to the Committee meeting, the same materials as Dr Davis. Professor Anderson confirms that the Deputy Registrar did in fact tell the meeting of Dr Davis' opinion concerning the plaintiff's appeal. He explains that he and Professor Gilbert then discussed the appeal and resolved to confirm the decision of the Admissions and Progressions Sub-Committee.

30   Paragraphs 10 and 11 of Professor Anderson's affidavit are identical to paragraphs 11 and 12 in Dr Davis' affidavit.

31   As previously noted, Professor Anderson was required by the plaintiff to attend for cross-examination, and he was cross-examined extensively.

32   The cross-examination commenced with an attempt by the plaintiff to establish that Professor Anderson's appeal papers had come to him in an incorrectly ordered sequence, with the consequence that he had misconceived the temporal relevance and significance of various of the materials included in the appeal papers. Of these suggestions, Professor Anderson said:

"A. I confess in answer to your question I do not recall the precise order in which I received the papers for consideration of your particular case. What I am very clear about is that we had a recommendation from the faculty sub-committee in front of us that we had the history of your academic transcript in front of us and we had a range of medical and your own supporting statements in front of us and taking that into totality we made a considered judgment about your particular case but the particular order of these pages I don't think would have been significant in coming to that conclusion."

33   I accept this evidence. I observe that the suggestions put in cross-examination were neither pleaded nor particularised in the further amended Statement of Claim.

34   The cross-examination then turned to the absence of Dr Davis and to suggested prejudice and unfairness deriving from her absence. The position finally reached on this topic appears in the following exchange:

"Q. Do you agree, Professor Anderson, that by Dr Milner Davis not being present in person I could have suffered some detriment or some less favourable treatment than if she had been present? It's a possibility?
A. I don't accept that possibility, given the extended discussion that Professor Gilbert and I shared with the clear input from Dr Milner Davis that I've indicated already, I believe we did give the case very favourable consideration as we would in any case where medical circumstances might impinge on the academic achievement of a particular student."

35   The cross-examination next probed the actual process of Professor Anderson's reasoning in his consideration of the plaintiff's appeal. Professor Anderson said:

"A. I believe our primary consideration was whether we felt as an Appeal Committee that had you the academic ability based on past achievements to be taken back into the medical course the following year, taking into account the medical problems that you had faced. We understood very well that there were problems in re-establishing you endocrinological levels following that thyroidectomy.

I guess I have to say I was influenced by the statement that Dr Harris made that part of the problem was lack of concentration and your tiredness that followed post-operatively but the word he used in his letter was constitutional. He did not associate your tiredness and your lack of concentration with the post-operative procedures and the question of balance of your Thiroxin that had to be established. The suggestion in that letter did not correlate those two circumstances directly.

I think so far as the academic record was concerned, we noted particularly how well you'd done in your general basic science subjects that you needed as an underpinning for the medical degree and I think putting those circumstances and thoughts together our conclusion was that it was only fair to all those other people who wanted to come to the medical course in the following year that you subjected yourself to competitive entry in that following year. We thought that was the fairest thing, having given your case the most favourable consideration we thought we could give it."

36   There were other and subsequent answers directed to this topic, but they not depart from the substance of the quoted answer. I accept this evidence.

37   There was further cross-examination, but I do not see any present need to canvass its detail. I would say, however, that I thought Professor Anderson to be a very impressive witness and that I accept the entirety of his evidence.

38   Professor Gilbert was in 1989 the Pro Vice-Chancellor of the defendant. He was the Chairman of the Appeals Committee. He swore an affidavit on 27 February 1990 in connection with proceedings that the plaintiff had taken against the defendant in the Administrative Law Division of this Court. In that affidavit, he deposes, on information and belief to having had, prior to the meeting of 14 March 1989, the same documentation as Professor Anderson and Dr Davis.

39   Professor Gilbert's affidavit of 22 June 2000, sworn in connection with the present proceedings, deposes to his having no present recollection of the plaintiff's appeal, but to his having no reason to doubt in June 2000 what he said in February 1990. The concluding paragraph of the June 2000 affidavit states:

"5. I would not have been aware at the time of determining the Appeal that it was necessary for all three members of the Appeal Committee to meet in person. I would not have knowingly participated in the Appeal Committee making an invalid and void decision in relation to the Appeal. I would have considered Ms Harding's Appeal honestly and without any intent to cause her harm."

40   Proessor Gilbert is now the Vice-Chancellor of the University of Melbourne, whence he was brought at the requirement of the plaintiff for cross-examination by her.

41   Professor Gilbert was cross-examined at some length, but the utility of his answers was limited by reason of his unchallenged evidence that he had, now, no precise recall of any of the relevant details of the proceedings of the Appeals Committee and of his own particular thoughts and actions during those proceedings. Professor Gilbert's cross-examination did elicit however the following evidence:

"Q. What general factors did you take into account, what general factors governed the decision making process in 1989?
OBJECTION.
HIS HONOUR: Do you mean the decision making process of the session of the appeal committee which dealt with your application?
PLAINTIFF: I do your Honour.
HIS HONOUR: Q. Are you able to tell us professor?
A. I would not be able to talk about what happened in 1989, I would be able to talk about general principles I would have consistently applied all my life in such circumstances.
PLAINTIFF: Q. Would you tell us what the principles are please?
A. Could you rephrase the question for me?
Q. In acting in a capacity of being a committee member in any committee on which you sit what principles do you commonly apply to your deliberations?
A. I think you would look for three things. You would look for manifest error in the decision that was being appealed and you would then look at, make two judgments, one about the likelihood in light of all of evidence of the student making the appeal being able successfully to continue an academic career if the appeal was overturned and you would look at the obverse likelihood of other students being denied places in the relevant course because the appeal was upheld and the student occupied a place that might have been taken by someone else. So you would make a judgment in the interest of the student making the appeal and other students who would be affected by the outcome of the judgment.
Q. Do you in making--
HIS HONOUR: Did you.
PLAINTIFF: Except that he has no recollection that he understands what his general attitude is and has been throughout his life.
HIS HONOUR: So he can tell us what he did by reference to what he knows he has consistently done all his academic life
PLAINTIFF: Q. Did you at the appeal committee meeting in 1989 take into account my age?
A. I don't recollect the precise things we took into account.
Q. Would you by your current standards and the standards you have adhered to all your life think it important to take into account a student's age?
A. I think it is very unlikely that would be a factor.
Q. Would you have taken into account my possible retirement age?
A. I believe it is very unlikely we would have done that.
Q. Would you have taken into account my ability to repay the government for the higher cost of my education?
A. No."

42   I accept this particular evidence, as, indeed I accept the whole of Professor Gilbert's evidence.

43   The foregoing canvass of the evidence at the hearing leaves me completely satisfied that the plaintiff cannot establish that the members of the Appeals Committee conducted themselves in connection with the plaintiff's appeal in a fashion indicative of pre-judgment or of any other impropriety save only the impropriety of not sitting together as a fully constituted Committee of three. I am completely satisfied that such impropriety in procedure was not in any way a knowing impropriety.

44   I am satisfied, therefore, that the only cause of action available to the plaintiff and based upon breach of a contract existing between her and the defendant, is a cause of action based upon one, and only one, breach of contract, namely, the unwitting breach of the contractual term requiring the three Appeals Committee members to deal, as a fully constituted Committee of three members all then present together, with the plaintiff's appeal.

45   There remains, then, the question whether that sole breach of contract is causally related to any damage that the plaintiff can establish. In my opinion it is not.

46   First, the further amended statement of claim does not plead and particularise with what I would regard as appropriate precision a suggested chain of causation linking the refusal of her appeal by an improperly constituted Committee with the damage that she now alleges.

47   Secondly, it seems to me that the only way in which the plaintiff could establish such a causative link on the given facts and findings would be by pleading, and by then proving on the probabilities, that had the Appeals Committee sat in a properly constituted form, her appeal would have succeeded; or, to put the point another way, that had the only breach of contract upon which she can rely not occurred, her alleged damage would not have occurred, because more probably than not her appeal would then have been allowed. The relevant principles are discussed conveniently in Carter and Holland; Contract Law in Australia 3rd Ed. at [2120]; and Treitel: The Law of Contracts 10th Ed. at pp 901, 908.

48   Thirdly, it seems to me that once the evidence available now from the three Committee members is accepted, then the overwhelming probability is that had all three members sat together, the best result for the plaintiff would have been the refusal of her appeal by a majority of members.

49   Fourthly, there is not a scintilla of evidence to suggest that the plaintiff, if now permitted to continue with this cause of action in contract, can redress in her favour that overwhelming probability.

50   In my opinion it follows that this cause of action in contract has no hope of success, and that it would be quite wrong to leave it on foot. I therefore dismiss it.

The Cause of Action in Negligence: Further Amended Statement of Claim, Paragraph 20.

51   The defendant's solicitors sought, in the correspondence to which I have earlier referred, particulars of the breach of statutory duty alleged in the further amended pleading. In that context, the following particulars were provided in connection with the cause of action pleaded in negligence:

"3. The standard of care is commensurate with the defendant's control of the appeal process, its knowledge of the irregularities of the constitution of the Appeals Committee and the irregularities of the meeting of the unconstitutional Appeals Committee and the likelihood of irreparable damage to the plaintiff's educational and professional prospects due to her ignorance of the breaches of duty by the defendant's officer including the misrepresentations and the misfeasance in public office of Professor Glover.

4. (a) Rules generally and in particular rule 7.

(b) Failure to accord the plaintiff the proper appeal process including invalid constitution of the Appeals Committee, consideration of medical opinion from Professor Glover and consideration of irrelevant matters introduced by Professor Glover (without the opportunity of the plaintiff responding), denial of natural justice or procedural fairness by submission to the will or dictation of Professor Glover."

52   If the plaintiff is to succeed on this cause of action, she must plead, and prove on the probabilities:

1 . That the University owed her as one of its students a duty to take by its relevant officers reasonable care to ensure:

(a) that the Appeals Committee sat in a properly constituted forum in order to hear her appeal;

(b) that the Committee heard her appeal fairly and upon the basis of relevant material.

2. That the University by its relevant officers breached that duty of care.

3. That such breach(es) was or were causative of the damage alleged by the plaintiff.

53   I am prepared to assume, for present purposes, the existence of such a duty of care.

54   In that event, there was clearly a failure in fact of the Committee members to ensure that they sat in a properly constituted form. The relevant question, however, is not whether the Committee members erred in law in the manner in which they proceeded. The relevant question is whether they failed to take reasonable care to ensure that they sat in a properly constituted form.

55   In my opinion the evidence now available could not reasonably support a finding that all or any one of the three members failed to take reasonable care in the matter of their formal constitution for the purpose of hearing the plaintiff's appeal. It is not contended that all or any of the three acted in bad faith, or that they were careless about the relevant proprieties. The evidence now available is to the contrary. All three kept in careful communication. All three took an active part in the consideration of the appeal. The evidence does not suggest that any of the three had any particular reason, for example because of relevant previous experience, to be on guard about the particular point. None had any legal experience or expertise; and a Master of this Court and one of its Judges, each of whom had both of those qualities, saw no error in what had been done.

56   Whether there was any other negligent breach of duty depends upon the precise cast of the plaintiff's case as pleaded and particularised. Leaving aside what is alleged about Professor Glover, I am of the opinion that the evidence now available could not reasonably support a finding of a failure on the part of the committee members to take reasonable care to deal with the appeal fairly and by reference only to relevant matters. I cannot add usefully to what I have earlier written upon that aspect of the appeal.

57   So far as concerns Professor Glover, who was at all material times the Dean of the Faculty of Medicine, it is not clear from the pleading or the particulars whether the plaintiff's case is:

(a) that the Appeals Committee negligently took account of the relevant opinions expressed by Professor Glover; or
(b) that other officers of the University negligently took account of such opinions; or
(c) both of (a) and (b).

58   Insofar as the plaintiff's case is as noted at (a) above, there is no evidence, and so far as I can see there is no reasonable prospect of there being any evidence, available to the plaintiff that any member of the Appeals Committee adverted to opinions expressed by Professor Glover; or took actual account of any such opinions; and there is not a scintilla of evidence to support a proper finding that the members of the Appeals Committee, or any of them, simply accepted dictation by Professor Glover as to the way in which the plaintiff's appeal should be decided.

59   Insofar as the plaintiff's case is as noted at (b) above, the only relevant opinions of Professor Glover that I have been able to find are opinions expressed in correspondence between Professor Glover and Professor Ronayne. The correspondence, or copies of it, can be found in the Faculty of Medicine file relating to the plaintiff. That file is exhibit "JW1" to an affidavit sworn on 5 December 1996 by Mr Jeffrey Warnock, the executive officer of the Faculty. The affidavit was read by the plaintiff in support of her case.

60   It is important to understand that this correspondence did not take place in the context of the appeal with which this judgment is concerned, but with an earlier incident.

61   The plaintiff's academic results in 1986 were so bad that she was invited to show cause why she should be permitted to enrol at all in the 1987 year. She was initially excluded, but appealed successfully and was permitted to re-enrol in 1988, with leave of absence granted for 1987. This result represented, it should be emphasised, a major concession to the plaintiff, since it entailed granting a second appeal after the initial refusal by another appellate body of the plaintiff's application for leave to re-enrol.

62   It was this course of events that triggered a letter from Professor Glover to Professor Ronayne. The letter was sharply critical of the actions taken by the second appellate body which Professor Ronayne had in fact chaired; it questioned very pointedly the merits of the plaintiff's application and her general academic and professional prospects; and it protested strongly against the fact that the plaintiff's readmission had entailed the exclusion of "four highly qualified applicants".

63   Professor Ronayne replied, and the reply drew from Professor Glover a brief, but civil, response suggesting improved procedures in future applications from anybody for readmission. The only comment particular to the plaintiff's case was: "While I am most unhappy with the outcome, I do not wish to pursue this particular case."

64   I am wholly unable to see that there is any evidence of actionable civil negligence on the part of any University officer and deriving from the foregoing correspondence.

65   In the result, I am of the opinion what the plaintiff has not properly pleaded, and has in any event no reasonable prospect of establishing on the probabilities, any negligent breach of duty on the part of the defendant by its servants and agents.

66   I am of the further opinion that the plaintiff has no reasonable prospect of establishing on the probabilities the requisite causation. I need not add to what I have previously written on that topic.

As to the Cause of Action Based Upon Alleged Breach of Statutory Duty: Further Amended Statement of Claim, Paragraph 20

67   The plaintiff's particulars define the sources of the alleged duty as being "the constitution and rules made under delegated legislation."

68   The alleged breaches of the alleged duty are particularised as being:

"Failure by the defendant's officers, including Professors Gilbert, Anderson and Glover, to carry out the rules in respect of the plaintiff's appeal, including Rule 7. This breach sounds in breach of statutory duty and the Tort of Negligence."

69   If, as I imagine to be the fact, this rather obtuse language is intended to focus on the proceedings of the Appeals Committee on 14 March 1989, then the only failure to comply with the relevant rules was the failure of the committee to sit in a properly constituted form. I need not repeat or add to my previous findings in that regard. Professor Glover had nothing whatsoever to do with that failure of proper procedure.

70   Two questions thereupon arise. The first is whether the failure to comply with the relevant rule gives rise to a right of action in the plaintiff to bring a private action for damages. The relevant principles are discussed conveniently in the speech of Lord Browne Wilkinson in X (Minors) v the Bedfordshire County Council (1995) 2 AC 633 at 731 D-G.

71   I incline to the view that the correct application of these principles to the facts of the present case entail, to say the least, that the plaintiff is not without reasonable prospects of establishing her legal entitlement to sue.

72   If, however, that be the case, the plaintiff meets yet again the problem earlier herein discussed about causation. I am of the opinion that the available evidence cannot support a finding of relevant causation; and that the plaintiff has no prospects of obtaining other evidence capable of making good that deficiency.

73   It follows that, in my opinion, this claim of the plaintiff ought to be dismissed.

The Cause of Action Based Upon Alleged Misfeasance in Public Office: Further Amended Statement of Claim, Paragraph 20

74   The relevant request for particulars, and the particulars supplied, in the correspondence to which I have earlier herein referred are respectively:

"1. Particularise who is it alleged acted with misfeasance.
A. The university officers, including Professors Gilbert, Anderson and Glover who failed to carry out the various duties and breaches of which are pleaded in paragraphs 20 and 21.
2. Particularise, in relation to each person, the alleged acts of misfeasance.
A. (a) the acts of misfeasance by Professor Glover consisted of dealing unconscionably with the plaintiff's appeal process by misrepresenting to the Appeals Committee the nature of the plaintiff's illness, introducing irrelevant considerations and effectively dictating to the Appeals Committee members, ie Professors Gilbert and Anderson and later to Professor Ronayne.
(b) Professors Gilbert and Anderson failed to give reasons for the rejection of the plaintiff's appeal or to inform the plaintiff of the absence of a quorum at the Appeals Committee meeting and the opinion of the absent member favourable to the plaintiff and the fact that representations in respect of the plaintiff's medical condition from Professor Glover were considered or that irrelevant matters such as the plaintiff's age, her opportunity to serve her community and her ability to repay the high cost of her education had been taken into account by the committee with no opportunity for the plaintiff to respond.
(c) as a result of the plaintiff's non-awareness of these actions by Professors Glover, Gilbert and Anderson the plaintiff was induced to believe the misconception that her appeal had been considered in good faith and in accordance with the Defendant's Rules and was valid and the plaintiff was thus denied the opportunity of taking urgent legal proceedings to discover the reality of the defendant's handling of her appeal by means of subpoena and discovery process.
(d) the plaintiff was thus misled and by the time she became aware of these irregularities the effectiveness of any remedies had become futile."
I will assume, although strictly speaking I am not sure that the assumption is correct, that Professors Gilbert, Anderson and Glover were holders in the relevant legal sense of public offices. They were, of course, holders of offices in a public institution, but that is not necessarily the same thing."

75   Be that as it may, however, the plaintiff cannot succeed without proving on the probabilities: "Either (that) there is an intention to cause harm or (that) the officer concerned knowingly (acted) in excess of his or her power."

Northern Territory v Mengel (1995) 185 CLR 307 at 345 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ.

76   In my opinion there is no evidence shown to be available to the plaintiff and capable of establishing on the part of any of the three named persons, the essential matters to which the High Court refers.

77   This is itself sufficient cause to dismiss this part of the plaintiff's proceedings.

The Cause of Action Based Upon an Alleged Equitable Estoppel: Further Amended Statement of Claim, Paragraph 21

78   I will assume, although the cause of action as pleaded and particularised is wholly uninformative on the point, that the claim is intended to be based upon the emerging doctrine of equitable estoppel, as discussed in Spence: Protecting Reliance, that discussion concerning the development of the law in the wake of the decisions of the High Court of Australia in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 and Commonwealth of Australia v Verwayen (1990) 170 CLR 394.

79   Upon the basis of that assumption, and looking at the substance of the particulars given in the pleading, I am of the opinion:

1. That the matters particularised as (1) and (2) are irrelevant;
2. That the matters particularised as (3), (4) as applied to (3), and (5) are relevant, but cannot be proved by any evidence shown by the plaintiff to be available to her. This is so, in my view, because the propositions (3), (4) and (5) all assume that the defendant knew by its relevant officers that the Appeals Committee had been invalidly constituted and acted unconscionably in that knowledge by not communicating the knowledge to the plaintiff. The fact is, however, that no relevant officer of the defendant is shown to have had that knowledge, prior to the delivery on 5 February 1999 of the judgment of the Court of Appeal.

80   The foregoing considerations are sufficient, in my opinion, to demonstrate the plaintiff has no prospects of success on this head of her overall claim, sufficient to warrant leaving the particular claim on foot and it should be dismissed.

The Cause of Action Pleaded in Paragraph 22 of the Further Amended Statement of Claim.

81   The following particulars were sought and supplied:

A. See particulars under paragraph 22 Statement of Claim.

2.When, and by whom, is it alleged the defendant made a decision to give the plaintiff's 'applications no further consideration?'
A. The University officer who wrote the words 'no further consideration on the application for special consideration lodged in 1988 by the plaintiff.'"

82   The plaintiff's 1997 application is dealt with at length by an affidavit sworn on 24 January 2000 by Professor Bruce Dowton, who was at all material times Dean of the Faculty of Medicine at the University. Professor Dowton was not cross-examined; and there is no reason not to accept his evidence. I do accept it.

83   Professor Dowton explains that the plaintiff's application was considered by the Admissions and Re-enrolment Committee and the Faculty, at a meeting on 10 February 1998. The Committee was chaired by Professor Dowton himself, and comprised in addition five members of whom three were professional officers of the University. The Committee unanimously refused the application. The Committee reconvened on 19 February 1998 in order to correct an administrative error of no present significance and again unanimously refused the application.

84   The materials upon the basis which the Committee refused the application were:

1. The plaintiff's application dated 7 November 1997. The application is supported by a number of pages of submissions as to the merits of the application as perceived by the plaintiff. The material is, generally speaking, peremptory, strident and minatory. It demands among other things consideration of a letter from the plaintiff to the Registrar, being a letter dated 30 September 1997.

2. The letter of 30 September 1997 was in fact placed before the Committee, together with all the documentation that had been attachments to the letter. The attachments set out in detail the plaintiff's complaints about her previous treatment by the defendant; and her exposition of the course, and of the alleged effects, of her relevant medical condition as perceived by her.

3. The Registrar's reply, too, was provided to the Committee. This letter is a simple explanation of the relevant university enrolment procedures and timetables.

4. The plaintiff's academic record.

5. A letter written on 24 January 1998 by the plaintiff to Professor Dowton. The letter attaches a copy of a letter written on the same day by the plaintiff to the Vice-Chancellor. The letter attaches, as well, a deal of material comprising medical certificates and opinions upon which the plaintiff has relied consistently over the many years of her ongoing confrontation with the University.

The letter attaches, finally, copies of two letters written by Professor Glover to Professor Ronayne. The plaintiff, in her own letters to Professor Dowton and the Vice-Chancellor attacks vehemently the things said by Professor Glover in his letter.

6. One of Professor Glover's letters is dated 15 June 1998. I have said earlier in this judgment all that I need to say about this letter.

The other of Professor Glover's letters was written on 11 September 1989.

Professor Glover's advice had been asked concerning the plaintiff's continuing demand for re-admission. It appears that Professor Glover's attention was drawn, in this connection, to the contents of a brief opinion dated 12 August 1989 from Dr T S Reeve, an Emeritus Professor of Surgery.

Professor Glover's letter is lengthy and carefully argued. It is uncompromising in its rejections of the plaintiff's claims as to her relevant medical history; as to her academic history; and as to any demonstrable connections between the two histories. He expresses his own conclusions to be that the plaintiff has no just cause for complaint and that "the University should reject her request for further consideration."

7. A letter of advice written by the defendant's solicitors to the relevant in-house solicitor in the legal office of the University. The important points to draw from his letter are:

(a) the proposition, clearly and precisely explained, that the plaintiff's application must be considered, not by comparison with current admission standards, but by comparison with the group of students with whom this plaintiff was originally admitted.

(b) the proposition, clearly and precisely explained, that the Committee must approach the application "with an open mind and without pre-judgment".
(c) the need for a clear and precise application of the relevant rules and Council resolutions of the defendant.

85   Professor Dowton deposes that the Committee acted in accordance with that advice. I accept that evidence.

86   The relevant Committee minutes are in evidence without objection and are unchallenged. In my opinion they support this evidence from Professor Dowton.

87   The plaintiff's original application form contains a box captioned: "Office Use Only." In it someone has written, "referred to Med - no further consideration." Professor Dowton deposes, and I accept, that he cannot say when or by whom the words were written. In my opinion the reasonable inference from the form of the application as a whole is that the words were written as a shorthand office notation after the Committee had resolved unanimously to refuse the application.

88   In my opinion there is no evidence shown to be available to the plaintiff and to be capable, if accepted, of establishing on the probabilities any of the alleged improprieties connected with the consideration of the plaintiff's 1997 application. In my opinion the available evidence is all to the contrary, and establishes clearly that the Committee gave full, fair and proper consideration to the application before deciding unanimously to refuse it.

89   I conclude, therefore, that this part of the claim made in the principal proceedings cannot be sustained; has no reasonable prospect of success; and ought therefore to be dismissed.

The Allegations Made Against Mr Gordon Rees: Further Amended Statement of Claim, Paragraph 4.

90   At the hearing the plaintiff read an affidavit sworn by Mr Rees on 6 October 1999. The defendant read in its case the same affidavit. I accept the evidence given by Mr Rees. It is sufficient to say that in my opinion no fair reading of the things said by Mr Rees to the plaintiff can support the blunt assertion made in paragraph 4.

The Allegations Made in the Further Amended Statement of Claim as to Applications Made on 7 June 1988 and 9 November 1988.

91   The simplest way of dealing with the relevant facts is, I think, to reproduce as follows page 74 of the Faculty file:

"Ms Harding was admitted to the Medicine course in 1983 on the basis of an aggregate of 413 at the 1982 H.S.C. She discontinued all Medicine subjects on 3 May 1983 but elected to continue with General Studies subjects and subsequently added additional ones to her second session program.
As a first year student Ms Harding was required to re-apply for admission in 1984 and, as the cut-off had risen, she was unsuccessful. She appealed to the Faculty and the decision was confirmed. She then appealed to the Registrar with support from Student Counselling; the decision was reversed and Ms Harding was re-admitted in 1984. In June or July 1984, Ms Harding discontinued studies.
Ms Harding lodged an application for admission in 1985 and requested approval to defer for one or two years. The request was not approved.

In 1986 Ms Harding was successfully admitted to Year 1 of the course and, following four failures, was required to show cause why she should be permitted to re-enrol. She submitted an application which was rejected. An initial recommendation of exclusion had been made by the Faculty and confirmed by the Faculty Admissions and Re-enrolment Committee and then the Re-enrolment Committee. An appeal was submitted and the Appeal Committee confirmed the decision that she be excluded for 1987 and 1988.
A second appeal was lodged requesting leave of absence for 1987 and re-admission in 1988. Although unusual for a second appeal to be submitted, the Appeal Committee reconsidered the case and approved the request. This action was the subject of subsequent correspondence between the Dean of the Faculty and Professor Ronayne.
In 1988 Ms Harding re-enrolled in Year 1 of the course and was again required to show cause after several failures. She submitted an application which was rejected resulting in her exclusion for 1989 and 1990. The exclusion was recommended by the Faculty, confirmed by the Faculty Admissions and Re-enrolment Committee and then the Admission and Progression Sub-committee. Ms Harding was advised that she would be required to compete with the current intake for a place in the course in 1991. Ms Harding submitted an appeal and the Appeal Committee unanimously confirmed the decision."

92   If the foregoing history be accepted as correct, and I do so accept it, then in my opinion the bald allegation that the defendant did not consider proper applications for special considerations are unsustainable.

Conclusions and Orders.

93 It will be apparent from what I have written that in my opinion there are, to paraphrase Cross J, fatal defects which are very clear in each of the causes of action as now pleaded by the plaintiff. It seems to me that the principal proceedings fall clearly within SCR Pt 13 R 5. They disclose unreasonable cause(s) of action notwithstanding very liberal opportunities having been given to the plaintiff to plead properly some such reasonable cause(s) of action. They have taxed the limited resources of the Court and of the University since 1995. It is time to bring them to an end.

94   The Court Orders.

1. That the principal proceedings commenced by the statement of claim in the further amended form filed on 8 February 1999 be dismissed generally.

2. That the plaintiff pay the defendant's costs of the principal proceedings and of the notice of motion filed by the defendant on 23 August 1999 and the costs reserved by Greg James J on 23 November 1998.

3. That the exhibits remain in Court for a period of 28 days. Thereafter they may be handed out to the parties entitled respectively to them unless there has been earlier filed an appeal from any part of this judgment, in which event the exhibits shall remain in Court pending further order.

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Last Modified: 04/23/2001