Lee v La Trobe University
[2024] VSC 472
•12 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 01311
BETWEEN:
| WILLIAM LEE | Plaintiff |
| v | |
| LA TROBE UNIVERSITY | Defendant |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 June 2024 |
DATE OF JUDGMENT: | 12 August 2024 |
CASE MAY BE CITED AS: | Lee v La Trobe University |
MEDIUM NEUTRAL CITATION: | [2024] VSC 472 |
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JUDICIAL REVIEW – Judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to set aside La Trobe University’s sanction decision against the plaintiff - Extension of time within which to commence proceeding – No special circumstances made out – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the Defendant | Mr L Howard of counsel | Lander & Rogers |
TABLE OF CONTENTS
Introduction................................................................................................................................... 1
Material relied upon by the parties............................................................................................ 2
Relevant principles....................................................................................................................... 2
Factors relevant to establishing special circumstances............................................................ 6
The period of delay............................................................................................................. 6
The reason for the delay..................................................................................................... 6
Whether Mr Lee has an arguable case.............................................................................. 8
Justice to both parties, including prejudice................................................................... 11
The public interest in finality of litigation..................................................................... 12
Conclusion on whether Mr Lee has established special circumstances justifying an extension of time...................................................................................................................................... 12
Application for summary judgment........................................................................................ 12
Conclusion.................................................................................................................................... 13
HIS HONOUR:
Introduction
Mr Lee is a student undertaking a Masters of Teaching (Secondary) at La Trobe University. As part of one subject in his course Mr Lee undertook a teaching placement for which, on 23 November 2023, he was assessed as ‘does not meet expectation’. Successful completion of the placement was a ‘hurdle requirement’ of the subject. As a result of his placement assessment Mr Lee received an Ungraded Fail for the subject. Mr Lee called this the ‘sanction decision’.
On 6 December 2023 Mr Lee made a complaint to the University’s Student Conduct and Investigations Team seeking to appeal the assessment decision. On 20 December 2023 the Team informed Mr Lee that the assessment decision would be upheld.
On 17 January 2024 Mr Lee sought a review of the assessment decision from the University Ombudsman. On 13 February 2024 the University Ombudsman informed Mr Lee that the University had followed the correct procedures in coming to the assessment decision.
On 14 March 2024, some 112 days after the University gave Mr Lee notice of his assessment, Mr Lee commenced a proceeding seeking judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules). Mr Lee’s application seeks that the University’s sanction decision (and prior and subsequent decisions) be set aside. Under r 56.02 a proceeding under Order 56 must be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose and that time limit cannot be extended by the Court except in special circumstances.
These reasons relate to the summons filed by La Trobe University seeking orders that:
(a) an extension of time for Mr Lee to commence his proceeding be refused and the proceeding dismissed;
(b) further or in the alternative, that La Trobe University be granted summary judgment under s 62 of the Civil Procedure Act 2010 (Vic) (CPA); and
(c) Mr Lee pay La Trobe University’s costs of the proceeding.
Mr Lee opposed the summons. His primary argument was that he does not require an extension of time.
For the reasons that follow I do not accept Mr Lee’s argument that he does not require an extension of time. I have decided not to grant Mr Lee an extension of time to commence this proceeding because I am not satisfied that there are special circumstances that would justify an extension being granted.
Material relied upon by the parties
In support of its summons, La Trobe University relied upon:
(a) the affidavit of Professor Joanna Barbousas affirmed 27 May 2024; and
(b) written submissions filed 27 May 2024.
In opposition to the summons, Mr Lee relied upon:
(a) his originating motion filed 14 March 2024;
(b) Mr Lee’s affidavits sworn 18 March 2024 and 10 June 2024 respectively; and
(c) written submissions filed 7 June 2024.
Relevant principles
Rule 56.02 provides:
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
In IJW (a pseudonym) v Swinburne University of Technology[1](IJW), I considered the principles from the authorities relevant to the requirement for special circumstances:
[1][2023] VSC 75, [12]-[13].
The requirement for special circumstances and the principles to be applied on an application under Order 56 were explained by Derham AsJ in Lazarevic v Victoria Police (Lazarevic):
The expression “special circumstances” is by its very nature incapable of precise or exhaustive definition. Whether circumstances are special depends upon the context in which they occur. This does not mean that the circumstances must be unique; but they must have a particular quality of unusualness that permits them to be described as special: Per Toohey J in Re Beadle and Director-General of Social Security , See also Mann v Medical Practitioners Board of Victoria; Lednar v Magistrates’ Court, Carra v Hamilton .
In Mann v Medical Practitioners Board of Victoria at first instance, Osborn J expressed the view that it was not appropriate to seek to define the meaning of the phrase “special circumstances”. The phrase is deliberately flexible and designed to encompass cases that might not easily be anticipated by more prescriptive words. His decision was upheld on appeal and no error of principle in his reasoning was discerned.
The requirement that the plaintiff show “special circumstances” requires that he make out circumstances that are not “general in character”, but something exceeding “that which is usual or common”.
It is clear from the wording of the sub-rule (and the authorities) that the special circumstances are not confined to the failure to commence the proceeding within the prescribed period of 60 days. The terms of the rule may be contrasted with other provisions requiring particular reasons for an extension of time. For example, s 109(5) of the Magistrates’ Court Act 1989 provides for an extension of time to appeal, but only if the failure to institute the appeal within the period referred to in sub-section (2)(a) was due to exceptional circumstances. The sub-section was considered by McDonald J in Schwerin v Equal Opportunity Board and his Honour held that it was necessary for an appellant to establish that a failure to institute an appeal within time was due to exceptional circumstances and it was not sufficient to establish exceptional circumstances generally with respect to the appeal.
The language of the requirement in r 56.02(3) is significantly different. It is general language precluding the court extending time “except in special circumstances”. This expression has been said to be “discouraging rather than encouraging” because of its negative expression.
The authorities establish that:
(a)The rule requires the Court to be objectively satisfied that special circumstances exist;
(b)The existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c)The factors relevant to the exercise of the discretion under Rule 56.03(2) (sic) include, but are not limited to:
(v) the period of the delay;
(vi) the reason for the delay;
(vii) whether the plaintiff has an arguable case;
(ix)the justice to both parties, including the prejudice to the parties; and
(v) the public interest in the finality of litigation.
It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being “special circumstances”, for if that were so there would be little practical point to the time limit contained in the Rule. On the other hand, where it is clear that a plaintiff’s grounds are not arguable, or he has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.
[citations omitted].
In Naik v Monash University (Naik), Richards J said of the interrelation between delay, prejudice and the public interest in finality in litigation:
Statutory limitation periods are imposed for good reasons, including the effect of delay on the quality of justice, the oppression involved in litigation of matters long past, the need for certainty and finality and the speedy resolution of disputes. A limitation period involves a judgment about the point where the interests of justice are best served by an end to disputation.
The time limit for judicial review of administrative action is ‘a compromise between the desirability of correcting error or other injustice and the need for finality’. The need for finality:
…reflects the public interest in a manageable system by which disputes, once raised, may be put to rest, and the private interest in avoiding unfair vexation. Finality is closely related to accessibility. Without it, the system would collapse under its own weight.
[citations omitted].
Section 62 of the CPA permits a defendant to apply to the Court for summary judgment in the proceeding on the ground that the plaintiff’s claim has no real prospect of success.
Section 63 of the CPA empowers the Court, subject to s 64, to give summary judgment if satisfied that a claim has no real prospect of success.
Section 64 of the CPA provides that the Court may order a civil proceeding to proceed to trial if the Court is satisfied that, despite there being no real prospect of success, the proceeding should not be dismissed because:
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
An application for summary judgment under s 62 of the CPA must be made in accordance with Part 3 of Order 22 of the Rules. Under r 22.19 in responding to a summary judgment application, a plaintiff may show cause against the application by affidavit or otherwise to the satisfaction of the Court. In short, the plaintiff should point to some material, legal or factual, that satisfies the Court that the plaintiff’s claim has a real prospect of success.
The principles relevant to an application for summary judgment were set out by the majority of the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 40 [35]:
(a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the “hopeless” or “bound to fail test” essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the “hopeless” or “bound to fail” test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success; and
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by an amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
[citations omitted].
Factors relevant to establishing special circumstances
The period of delay
Mr Lee’s proceeding was commenced 112 days after the University notified him of his assessment. The time limit for commencing the proceeding was 60 days from after the date when grounds for the grant of the relief or remedy claimed first arose. This means that Mr Lee’s proceeding was commenced 52 days after the time limit had expired. A delay of that magnitude is significant and tells against the grant of an extension of time.
The reason for the delay
Mr Lee submitted that he does not require an extension of time to commence his proceeding. He said his proceeding was commenced within time because he seeks certiorari in relation to:
(a) the decision to assess him as ‘does not meet expectation’;
(b) the University’s sanction decision;
(c) the decision of the University’s Student Conduct and Investigations Team in response to Mr Lee’s complaint; and
(d) the decision of the University Ombudsman in response to Mr Lee’s review application.
Mr Lee reasoned that he had commenced the internal University complaint and review applications within time and that his proceeding was commenced within 30 days of receiving the outcome of the University Ombudsman’s review. Further, Mr Lee submitted that the Court regards all sequential university decisions as a unity and so the time limit starts from the last University decision. In this regard, Mr Lee relied on the decision in IJW.
I do not accept that IJW is authority for the principle that the Court regards sequential university review decisions as a unity. IJW involved an application for judicial review by a student of a decision to disallow the student’s appeal of the university’s earlier decision to exclude the student from his course. IJW required an extension of time. One argument put forward by IJW to explain his delay in commencing his proceeding was that he had worked through the university’s review and appeals process and was then told by the university that the next step was to complain to the Ombudsman, who when dismissing his complaint, referred IJW to the Office of the Victorian Inspectorate. The thrust of IJW’s submission was that he had followed the complaint process, which was ongoing, and had always undertaken the next step in the process within time. The Court did not accept this argument.[2] Rather, the Court accepted that IJW had provided a reasonable explanation for the delay covered by a period before he had received key documents from the university and for the period covered by the COVID-19 restrictions in place in Victoria.[3]
[2]IJW (n 1), [38].
[3]Ibid, [43].
Accordingly, I find that Mr Lee requires an extension of time to commence his proceeding.
Mr Lee submitted that when he received the sanction decision he was advised by the University to make a complaint to the University’s Student Conduct and Investigations Team. Mr Lee received the decision in relation to his complaint which stated that the next step available to him was a review application to the University Ombudsman.
I do not accept that this is a reasonable explanation for the delay. As is apparent from Mr Lee’s proposed grounds of review, which are discussed below, the focus of Mr Lee’s judicial review application is squarely the decision notified to him on 23 November 2023 to assess his placement performance as ‘does not meet expectation.’ None of Mr Lee’s proposed grounds relate to the sanction decision, the complaint or the University Ombudsman’s review decision. The fact that Mr Lee chose to pursue the University’s internal review processes does not, in my view, provide a reasonable explanation for not commencing his application for judicial review within 60 days of the 23 November 2023 decision.
Whether Mr Lee has an arguable case
La Trobe University submitted that Mr Lee’s proceeding had no prospect of success because academic judgment is not justiciable in this Court. Mr Lee’s grade was the product of an evaluative judgment by those with appropriate academic skills and training. Whether Mr Lee satisfactorily met the competency standards of its courses was a matter for the University to determine and it would be inappropriate for the Court to supervise it.[4]
[4]Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, cited with approval in Griffith University v Tang (2005) 221 CLR 99, 121 [58].
Mr Lee submitted that his application does not seek a review of ‘academic judgment’ but rather was based on the University’s breach of procedural fairness and natural justice principles.
Mr Lee’s originating motion seeks:
Certiorari order to set aside the defendant’s sanction decision (and prior “does not meet expectation” decision and subsequent complaint and review decision) because of failure to observe the requirements of procedural fairness, procedural irregularity, no evidence or no proof, etc.
The origination motion sets out three grounds:
(a) the relevant University policy or regulations were not taken into consideration during the decision making or the correct procedures were not observed;
(b) the decision failed to take into account relevant considerations; and
(c) the decision relied on the false claim that the University provided additional support to Mr Lee and the teachers supervising his placement.
In relation to the University policy ground Mr Lee’s originating motion says the University’s Assessment of Professional Experience policy states that if a placement student is not meeting expectations in two or more criteria, the supervising teacher should request additional support from the University to help the student address their difficulties during the remainder of their placement. Mr Lee’s ground says this did not occur because, while the school contacted the University, the relevant University staff did not respond. Secondly, Mr Lee’s policy ground said the midpoint of his placement, at which he was informed of his performance issues, occurred at a time that did not allow him to demonstrate progress before the end of his placement because of school exams, a public holiday and his supervising teacher’s illness. Thirdly, Mr Lee’s policy ground says that he was given less than 50% of the teaching load and supervision days prescribed in the EDU5017 Consolidating Placement Expectations policy, and his prescribed discussion of student achievement and learning occurred too late in his placement.
In relation to Mr Lee’s ground alleging a failure to take into account relevant considerations, Mr Lee’s originating motion states the placement was not fit for purpose because:
(a) his supervising teachers were only provided with the University’s requirements of the placement half way through his placement;
(b) the University’s Consolidating Placement Expectations policy was not adhered to;
(c) the placement occurred during the school exam period, limiting Mr Lee’s opportunity to demonstrate progress;
(d) the supervising teaching placement coordinator at the school acknowledged to Mr Lee that he had not been given enough teaching time;
(e) while Mr Lee requested a delayed start to his placement (which the University and school agreed to) and he was not informed of the school’s exam schedule.
In relation to the false claim ground, Mr Lee’s originating motion said that the University’s Practice Advisor admitted that he did not respond to the supervising teachers’ request for support because he was busy with other work. Mr Lee’s attempts to contact the University’s placement team went similarly unanswered.
Mr Lee’s proposed grounds of appeal make clear that he seeks judicial review into the decision to assess his placement performance as ‘does not meet expectation’. I accept the submission made by counsel for the University that Mr Lee’s grade was the product of an evaluative judgment by those with appropriate academic skills and training and so a matter solely for the University to determine and inappropriate for the Court to supervise. The authorities make clear that issues of academic judgment are not justiciable by the courts.[5]
[5]See for example, Griffith University v Tang (n 4), 121 [58]; Alskeini v Queensland University of Technology [2020] QCA 285, [14] (per Sofronoff P with Fraser and McMurdo JJA agreeing).
To the extent that it can be said that Mr Lee is not seeking judicial review of an academic assessment but rather the University’s failure to follow policy, his proceeding faces two problems. The first is that almost all of the matters raised in Mr Lee’s grounds go to the circumstances of the placement itself. The second is that there is no evidence that the University policies identified by Mr Lee required the University to consider the matters Mr Lee has identified as relevant.
In Naik,[6] Richards J noted:
However, a failure by a decision-maker to follow a relevant policy or procedure is not necessarily a ground for a remedy on judicial review. A policy or procedure document is generally ‘soft law’ that is not to be applied with ‘statutory nicety’. Often, the only remedies available for breach of soft law are themselves ‘soft’, such as a complaint to an Ombudsman. There are limited circumstances in which non-compliance with a policy or procedure might amount to jurisdictional error that could be corrected by certiorari. Those circumstances include where the non-compliance involves a want of procedural fairness that results in practical injustice, where it demonstrates a failure to have regard to a relevant consideration or legal unreasonableness. A mere failure to follow a non-statutory assessment policy or procedure would not, without a good deal more, amount to jurisdictional error that invalidates a decision.
[citations removed].
[6]Naik v Monash University [2018] VSC 605, [51].
Mr Lee has not explained why a failure by the University to follow its Assessment of Professional Experience and Consolidating Placement Expectations policies, assuming the Court accepts the University has not followed those policies, might amount to a jurisdictional error that could be corrected by certiorari. Mr Lee has not explained how the lack of further support from the University when, half way through his placement, he was informed he was not meeting his supervising teachers’ expectations, amounts to a lack of procedural fairness as that term is understood in the context of judicial review. The same is true of the other complaints Mr Lee makes about the circumstances of his placement. Mr Lee has not explained how the policies required Mr Lee to be informed of the school’s examination timetable.
Mr Lee has not pointed to any requirement within the University policies he has identified for the University to consider the matters said by Mr Lee to be relevant considerations under his second ground of appeal.
For the above reasons I find that Mr Lee has not demonstrated an arguable case.
Justice to both parties, including prejudice
If Mr Lee is not granted an extension of time to commence this proceeding, he will lose the opportunity to seek to set aside the sanction decision.
The University did not submit that it’s defence of the proceeding would be prejudiced by the delay.
In assessing the justice between the parties and the prejudice to Mr Lee it is relevant to consider whether Mr Lee has demonstrated an arguable case. I have found above that he has not. In these circumstances justice as between the parties favours an extension of time not being granted.
The public interest in finality of litigation
The authorities recognise that statutory time limits are imposed because where there is delay the whole quality of justice deteriorates, an action brought long after the events that are its subject is likely to be oppressive to the responding party, and the need for certainty and finality.[7] A limitation period in legislation is not an arbitrary cut off point unrelated to the demands of justice but rather the legislature’s judgment that the welfare of society is best served by causes of action being commenced within the limitation period.[8]
[7]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551-3.
[8]Ibid, 553.
These principles tell against Mr Lee being granted an extension of time to commence his proceeding.
Conclusion on whether Mr Lee has established special circumstances justifying an extension of time
I am not satisfied that there are special circumstances justifying an extension of time for Mr Lee to commence this proceeding.
The delay of 52 days is considerable. I do not accept Mr Lee’s explanation that he does not require an extension of time because each step he undertook in pursuit of the University’s internal complaint and review process is to be considered as one whole process. As the Court has stated previously, judicial review is not to be regarded as a convenient Plan B once other avenues of redress have been explored.
An absence of prejudice to a defendant in responding to a proceeding is not enough to justify extending time because of the well established public interest in finality of decisions. In addition, Mr Lee has not demonstrated that he has an arguable case.
Application for summary judgment
As I have decided that Mr Lee should not be granted an extension of time to commence this proceeding, the proceeding must be dismissed. Accordingly, there is no need to determine the University’s application for summary judgment. My findings that Mr Lee has not demonstrated an arguable case for the relief he seeks mean that his proceeding has no real prospect of success.
Conclusion
I have determined that Mr Lee should not be granted an extension of time because he has not demonstrated special circumstances within the meaning of r 56.02(3). I will make orders dismissing the proceeding.
My preliminary view is that Mr Lee should pay the University’s costs on a standard basis. I request that the parties confer on the question of costs. If the parties are unable to reach agreement on the question of costs within seven days of the date of these reasons, the proceeding will be relisted for oral submissions on costs.
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