Makowski v Legal Profession Admission Board

[2019] NSWSC 921

Supreme Court

New South Wales

Medium Neutral Citation:	Makowski v Legal Profession Admission Board [2019] NSWSC 921
Hearing dates:	17 July 2019
Decision date:	18 July 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Dismiss the plaintiff’s notice of motion filed on 8 July 2019.  (2) Order the plaintiff to pay the first defendant’s costs of the notice of motion.
Catchwords:	ADMINISTRATIVE LAW – application for interim relief – no utility in grant of interim relief where plaintiff has not availed himself of right of review on merits – court has no jurisdiction to relax progression rule
Legislation Cited:	Legal Profession Uniform Admission Rules 2015 (NSW), rr 29, 30 Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW), ss 20, 20A, 21A NSW Admission Board Rules 2015, rr 11, 12, 13, 27J, 53, 59, 60 Supreme Court Act 1970 (NSW), s 69
Category:	Procedural and other rulings
Parties:	Daniel Makowski (Plaintiff) Legal Profession Admission Board (ABN 50581255931) (First Defendant) Acting Executive Officer of the LPAB (Second Defendant)
Representation:	Counsel: Plaintiff-in-person H Atkin (First Defendant)   Solicitors: Crown Solicitor’s Office (Defendants)
File Number(s):	2019/203641

Judgment

Introduction

1. By notice of motion filed on 8 July 2019, Daniel Makowski (the plaintiff) seeks an interim order that he be permitted to access “Canvas”, a web platform which gives students at the University of Sydney access to study material relating to subjects in which the student is enrolled. The plaintiff submitted that he requires interim relief to protect the utility of the substantive challenge made in his summons to decisions of the Legal Profession Admission Board (the defendant, or the LPAB).

2. All references to legislation in these reasons are, unless otherwise stated, references to the Legal Profession Uniform Law Application Act 2014 (NSW) (the Act).

The legislative framework

3. The LPAB is a statutory corporation established by s 19. It has the functions conferred on it by the Act and the Legal Profession Uniform Law (NSW) (the Uniform Law): s 20. The LPAB may delegate any of its functions under the Act or the Uniform Law to any of its committees or to an officer of the LPAB: s 20A.

4. Rule 30 of the Legal Profession Uniform Admission Rules 2015 (NSW) (Uniform Admission Rules) empowers the LPAB to establish and determine the terms of reference of any committee or sub-committee. Rule 29 of the Uniform Admission Rules allows the LPAB to review, vary or set aside any decision of any of its committee or delegates “in the circumstances and in the manner determined by [the LPAB].”

5. Pursuant to s 21A the LPAB may make rules, relevantly, with respect to “any administrative matters relating to [its] functions” and “the examination and assessment in academic subjects of candidates for registration and students-at-law”. The LPAB made the NSW Admission Board Rules 2015 (the Board Rules), which are those presently applicable.

6. The Board Rules relevantly provide:

“11    The Board may adjourn consideration of an application or matter before it under these Rules pending the provision of such further material or evidence as it considers necessary or appropriate.

12    The Board may inform itself of any matter which it considers relevant to an application before it in any manner it thinks appropriate, but the Board shall not determine an application adversely to an applicant on material not supplied by the applicant without first giving notice of the material to the applicant.

13    (1) Subject to the provisions of the Act, the Board, the Legal Qualifications Committee or the Examinations Committee may, in circumstances which it regards as sufficiently special and upon such conditions as it thinks fit, relax any of these Rules.

(2) An application for relaxation of the Rules shall be made through the Executive Officer not less than 14 days before the meeting at which the application is to be considered.

(3) Without derogating from the generality of sub-rule (1), the Board may relax any of the rules relating to the registration as a student-at-law.

(4) An application for relaxation of any of the rules relating to students-at-law may be made together with a corresponding application for registration.

. . .

27J

. . .

(3) The Examinations Committee may delegate to its Chairperson, a member, several members, the Executive Officer or any combination of the foregoing the making of a decision on any particular matter or class of matters, provided always that a person aggrieved by a decision of a delegate on any matter may apply for a reconsideration of the matter by the Examinations Committee.

. . .

53    The Board’s examinations are:

(a) the following subjects:

Legal Institutions

Contracts

Torts

Criminal Law and Procedure

Real Property

Australian Constitutional Law

Equity

Commercial Transactions

Administrative Law

Law of Associations

Evidence

Taxation and Revenue Law

Succession

Conveyancing Practice and Procedure

Legal Ethics

Jurisprudence

. . .

59    (1) A student-at-law who has not passed the examinations in or been credited with or exempted from at least 11 subjects must sit for the examination in the order in which they appear in rule 53 . . .

. . .

(4) The Examinations Committee may, in circumstances which it regards as sufficiently special and upon such conditions as it thinks fit, relax this rule.

60    (1) A person desirous of proceeding to any examination or examinations under these Rules (in this and succeeding rules referred to as the candidate) shall make application to the Board for enrolment in accordance with the procedures and within the times set out in the Course Information Handbook for the session in which he or she intends to proceed.

(2) The candidate shall enrol for the examination or examinations and at the same time for the corresponding course or courses of instruction conducted by the Law Extension Committee.”

7. The requirement to pass examinations for subjects in the order provided for in rr 53 and 59 above is known as the “progression rule”.

8. The times set out in the Course Information Handbook for the Calendar Winter 2019 Session (being the current session) are as follows:

“LPAB Enrolment Period      Monday 15 April- Friday 26 April 2019

. . .

Week 1 Lectures commence      6-10 May 2019

. . .

Examination period   Thursday 29 August – Thursday 5 September 2019

Other Important Dates

Final Day for Application for Relaxation   Friday 26 April 2019

Of Progression and Exclusion Rules

Final Day for late enrolment and    Friday 3 May 2019 (late fees apply)

Late Applications for Relaxation of

Progression and Exclusion rules   

. . .”

9. The times set out in the Course Information Handbook for the Proposed Calendar Summer 2019-20 Session (being the next session) provide for an enrolment period from Monday 14 October- Friday 25 October 2019. These times are incorporated by reference into r 60(1) of the Board Rules.

10. The Law Extension Committee of the University of Sydney provides tuition to the LPAB’s students-at-law. Canvas is the Online Management System used by the Law Extension Committee. It is an online platform used by students to obtain access to course materials and also to submit assignments. Before a student may obtain access to course materials for a subject the student must, generally speaking, be enrolled to sit an examination in the subject and must be registered with the Law Extension Committee for that subject. However, where a student’s enrolment is still pending or has been delayed for some reason, the Law Extension Committee may, as a courtesy, allow the student to have access to Canvas for the relevant subject pending the enrolment.

The facts

11. Before addressing the plaintiff’s application for interim relief, it is necessary to set out, in summary form, the background facts.

12. In August 2017, the plaintiff became a student-at-law. In October 2017 he enrolled in Legal Institutions and Criminal Law and Procedure, both of which he passed with merit. In April 2018, the plaintiff enrolled in Torts, which he passed with distinction, and Contracts, which he failed. In November 2018, he enrolled in Contracts, Real Property and Australian Constitutional Law, having obtained a relaxation of the requirement that he be permitted to sit examinations in no more than two subjects. He obtained a pass with distinction in Real Property but did not sit either Contracts or Australian Constitutional Law.

13. The final date for late enrolment and late applications for relaxation of the progression rule for the Winter 2019 Session was 3 May 2019. The plaintiff purported to enrol in Equity and Commercial Transactions although he had passed neither Contracts nor Australian Constitutional Law. As a consequence of his purported enrolment, he was provided with access to Canvas for those two subjects.

14. On 8 May 2019 the LPAB informed the plaintiff that his enrolment would not be processed but invited him to apply for a relaxation of the progression rule, provided that any such application was made within seven days. This amounted to a dispensation as the final day for such applications was 3 May 2019.

15. By letter dated 9 May 2019, the plaintiff denied that he was seeking to do subjects out of order. However, on 14 May 2019 he made an application to the LPAB to be permitted to enrol in Equity and Commercial Transactions, notwithstanding that he had not passed Contracts or Australian Constitutional Law (the First Application). By letter dated 16 May 2019 the Acting Executive Officer of the LPAB refused the application. On 21 May 2019 the plaintiff sought reasons for the decision and expressed an intention to appeal the decision. On 31 May 2019, the Acting Executive Officer provided reasons for her decision.

16. On 4 June 2019 the plaintiff lodged an appeal to the Examinations Committee from the decision of the Acting Executive Officer pursuant to r 27J(3) of the Board Rules

17. On 18 June 2019 the Examinations Committee refused the plaintiff’s application. By letter dated 19 June 2019 the plaintiff was informed of the decision and the reasons in the following terms:

“At its meeting on 18 June 2019 the Examinations Committee considered your appeal on the Acting Executive Officer's refusal of your student course application to attempt subjects out of order.

After due consideration of the material you provided, the Committee resolved to confirm the decision of the Acting Executive Officer and refuse your appeal.

The Exam Committee has given the following reasons for their decision:

1. Whether the issue is a reconsideration of a matter delegated under rule 27J or a fresh determination by the Committee under rule 59(4), the circumstances are not sufficiently special to relax the order of subjects set out in rule 53.

2.   Contracts and Constitutional Law provide a good basis from which to approach both Equity and Commercial Transactions, and the knowledge is fundamental to undertaking the rest of the subjects.

3.   Other than dissatisfaction with the way his assignments have been marked, the student has advanced no substantive reasons as to why he should be granted permission to study subjects out of order.

4.   Personal preference alone does not qualify as a reason.”

18. On 21 June 2019 the plaintiff asked the Acting Executive Officer whether an internal appeal against the decision of the Examinations Committee was available.

19. On 24 June 2019 the plaintiff made a further application to enrol in Equity and Commercial Transactions (the Second Application). In the statutory declaration in support of his application he said that he was suffering from a “disability in the form of a chronic mental illness”. He referred to the statistics for the last three years which indicated that 95.9% of applications for relaxation had been granted.

20. By letter dated 28 June 2019, which was sent on 1 July 2019 by email and post, the Acting Executive Officer informed the plaintiff that he could appeal the Examination Committee’s decision of 18 June 2019 and that any such appeal would be considered by the LPAB at its meeting on 6 August 2019 but that his Second Application would not be processed as “the Examinations Committee has made its decision”.

21. In the interim, on or about 26 June 2019, a representative of the LPAB informed the Law Extension Committee orally that the plaintiff’s application for relaxation of the progression rule had been refused. The effect of the refusal was that the plaintiff was not enrolled in any subject for the Winter 2019 Session. Ms Goldsmith, of the Law Extension Committee, wrote an email to the plaintiff in the following terms:

“The LPAB have informed us that you are not enrolled this semester. Therefore, we have removed your access to subjects in Canvas.”

22. On 1 July 2019 the plaintiff’s enrolment fees for Equity and Commercial Transactions were refunded.

Consideration

The relief sought in the summons

23. The summons seeks relief on the following grounds:

“ORDERS SOUGHT

1 An order in the nature of certiorari, quashing the decision of the Examinations Committee to not set aside the Acting Executive Officer's decision to refuse the plaintiff’s Student Course Application (14/05/19) under Rule 59(4) of the NSW Admission Board Rules 2015.

2 And, or alternatively, an order in the nature of certiorari, quashing the decision of the Acting Executive Officer to refuse a relaxation of progression Rule 59(1) by rejecting the plaintiff’s Student Course Application (24/06/19) under Rule 59(4).

3   An order of interim relief lifting the denial of access to 'Canvas' so that the plaintiff is able to continue studying for his '07 Equity' and '08 Commercial Transactions' examinations (which are scheduled for 30/08/19 and 04/09/19, respectively).

. . .

DETAILS OF DECISION

1   The decision maker (in 'matter 1') was the Examinations Committee of the LPAB.

2   The decision to be reviewed was the plaintiff’s appeal of the Acting Executive Officer's decision to refuse the plaintiff’s Student Course Application (14/05/19).

3   The plaintiff seeks relief from the whole of that decision.

4   The decision-maker (in 'matter 2') was the Acting Executive Officer of the LPAB.

5   The decision to be reviewed was a refusal of the plaintiff’s Student Course Application (24/06/19) after the higher requisite [sic] arising out of the reasons from the decision in 'matter 1' was allegedly met.

6   The plaintiff seeks relief from the whole of that decision.

GROUNDS

1   In relation to 'matter 1', the plaintiff seeks relief on the basis of a lack of procedural fairness amounting to a denial of natural justice by the decision-maker attributing errors of fact on which the decision was based, specifically where it is alleged that, i) the Plaintiff did not advance substantive reasons, and ii) that his reason was a mere personal preference.

2   In relation to 'matter 2’ the plaintiff seeks relief on the basis that

i.) the decision-maker did not have the authority or that the procedures that are required by law to have been observed in respect of the conduct had not been observed because the plaintiff i.) was not informed of the decision, ii.) the right to request reasons for the decision could not have been extended, and iii.) the right of appeal could not have been extended.”

The claim for interim relief

24. The only relief sought by the plaintiff on 17 July 2019 is that he be permitted to have access to Canvas pending the determination of the proceedings. He submitted that, unless he had such access, his “appeal” to this Court would be rendered nugatory because he would not be in a position to sit the examinations for Equity and Commercial Transactions.

25. One of the difficulties with this submission is that, even if the plaintiff were wholly successful in this Court and obtained relief setting aside the decision of the Examinations Committee in respect of the First Application, this would not give him access to Canvas since he would still not have a decision of the LPAB relaxing the progression rule in his favour with respect to Equity and Commercial Transactions. It would not be open to this Court to make an order relaxing the progression rule, that being a matter within the LPAB’s power and not within this Court’s powers under s 69 of the Supreme Court Act 1970 (NSW).

26. Secondly, had the plaintiff availed himself of his right to have the LPAB itself, rather than its delegates, determine his application for relaxation of the progression rule, he could have had such a decision by 6 August 2019, being the date of the LPAB’s next meeting. Further, there is nothing to indicate that, had the plaintiff applied to the LPAB for review of the Examination Committee’s decision, the Law Extension Committee would not have continued to treat his enrolment as pending and continued to allow the plaintiff to have access to Canvas. Indeed, in light of the evidence of Ms Daley relied on by the defendant, this is likely to have been the situation.

27. Another difficulty with the plaintiff’s submission is that he would appear to have had no entitlement to have his Second Application dealt with at all. It was lodged almost eight weeks out of time (the final day being 3 May 2019). Further, given that the plaintiff was entitled to a further level of merits review by the LPAB itself, which could take into account additional material he provided, including the material which accompanied the Second Application relating to his disability, there would appear to have been no entitlement in any event for him to have the Acting Executive Officer decide the Second Application on its merits.

28. There would also appear to be a further impediment to making the interim order as sought. Access to Canvas is in the hands of the Law Extension Committee. All that could be ordered is that the LPAB do all things reasonably necessary to restore the plaintiff’s access to Canvas. However, the only arguable reason for the plaintiff to have access to Canvas would be if he were to be permitted to sit the examinations for Equity and Commercial Transactions.

29. It would appear that the only avenue which would permit the plaintiff to obtain a relaxation of the progression rule for this term (or, indeed, the next) in respect of Equity and Commercial Transactions would be for the plaintiff to make an application to the LPAB itself under r 13(1) of the Board Rules. Whether this is regarded as an appeal from the decision of the Examination Committee refusing his First Application or a direct application, he has a right to have his application considered and determined by the Board itself. To date, the plaintiff has refused to take this course.

30. In oral submissions, the plaintiff also indicated that he challenged the “decision” by the Law Extension Committee to deprive him of access to Canvas. This decision would appear to me to be a purely administrative act and not one made under any enactment and therefore not subject to judicial review. The evidence of Ms Daley was to the effect that access to Canvas depended on a student being enrolled in a subject, although latitude was given, as referred to above, to students whose applications were still pending.

31. In these circumstances, I am not persuaded that there is any utility in granting the interim relief sought, even if an appropriate order could be framed to allow the plaintiff to obtain access to Canvas.

32. I note for completeness that the plaintiff has made extensive submissions about the grounds of his challenge to the decisions set out in the summons. For the purposes of his application for interim relief, it is neither necessary nor appropriate to address these substantive submissions since the relief has been refused on the assumption, which I am prepared to make, but which has not been made out, that he otherwise has an arguable claim for relief.

Orders

33. For the reasons given above, I make the following orders:

1. Dismiss the plaintiff’s notice of motion filed on 8 July 2019.

2. Order the plaintiff to pay the first defendant’s costs of the notice of motion.

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Decision last updated: 19 July 2019