Naik v Monash University
[2019] VSCA 72
•4 April 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0144
| CHINMAY NAIK | Applicant |
| v | |
| MONASH UNIVERSITY | Respondent |
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| JUDGES: | PRIEST AP, BEACH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 March 2019 |
| DATE OF JUDGMENT: | 4 April 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 72 |
| JUDGMENT APPEALED FROM: | Naik v Monash University [2018] VSC 605 (Richards J) |
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ADMINISTRATIVE LAW — Judicial review — Assessment decision of University — Application for extension of time to commence proceedings for judicial review — Whether failure to consider a ground for remedy — Whether failure to consider medical condition or lack of legal representation as reasons for delay — Whether failure to apply or consider the principles of legal unreasonableness, failure to take a relevant consideration into account or procedural fairness resulting in practical injustice — Whether failure to consider non-compliance with anti-discrimination legislation — No arguable case — Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | In person | |
| Respondent | Ms E Latif | Clayton Utz |
PRIEST AP
BEACH JA
NIALL JA:
Introduction
The applicant is a student at Monash University (‘the University’), where he is enrolled in, and has nearly completed, a Masters of Journalism. In June 2017, he was awarded a ‘fail’ grade for an assessment task, with the consequence that he failed a non-compulsory subject.
In June 2018, the applicant filed an originating motion for judicial review in the Supreme Court, seeking an order in the nature of mandamus granting exemption from the result of the assessment task, and declaring an overall pass grade for the relevant subject and, accordingly, completion of the Masters of Journalism degree.[1] The applicant also sought any other order that the Court deemed appropriate to do justice between the parties.
[1]Naik v Monash University [2018] VSC 605 [2] (‘Reasons’).
Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 required that the originating motion be filed within 60 days of the decision sought to be reviewed.[2] Here, the application was filed more than 10 months out of time. The time limit can only be extended where there are special circumstances.[3] The judge found that there were no special circumstances that would permit an extension: there was no adequate explanation for the delay; the applicant did not have an arguable case for relief; and justice would not be served by an extension because the applicant had refused an offer to have his assignment re-marked and there is a public interest in finality.[4]
[2]Supreme Court (General Civil Procedure) Rules 2015 r 56.02 (‘Rules’).
[3]Ibid r 56.02(3).
[4]Reasons [64]–[65].
The applicant applied for leave to appeal to this Court on four proposed grounds, contending that the judge failed to consider matters which her Honour was bound to consider and that her Honour made errors of law.
For the reasons that follow, we would refuse the application for leave to appeal.
Factual background
The judge set out the factual background in some detail. The following is drawn from that account.
The applicant is enrolled in the course A6008 Masters of Journalism at the University. He is an overseas student and is a temporary resident of Australia on a student visa.
In Semester 1 of 2017, the applicant was enrolled in a video journalism subject in which one of the assessment tasks was a video current affairs story. This assessment task was to be submitted by 4 June 2017. The applicant did not complete the task by the due date and on 6 June 2017 sought an extension of time. On 22 June 2017, he was advised that he had been granted an extension of time to the next day, 23 June 2017, and that no further extension would be possible. Accordingly, the applicant submitted the task on 23 June 2017.
The applicant stated that he has an ongoing disability, being a generalised anxiety disorder, that affects his academic performance from time to time. He contended that his anxiety disorder impeded the completion of the assessment task in June 2017. Further, on the applicant’s account, the University gave the extension of time grudgingly and after a complicated process in which the relevant University staff were slow to acknowledge the adjustment sought by the applicant for his disability. By the end of the process, however, the applicant was better placed to negotiate flexible deadlines for further assessment tasks, as he had been registered with the University’s Disability Support Services. Although he was granted the extension of time to complete the assessment task, the applicant ‘found the process unsympathetic and stressful, and … remains upset by it’.[5]
[5]Ibid [9].
The applicant’s video assignment was initially given a mark of 3.6 out 30, or 12%, and this mark was communicated to the applicant on 26 June 2017. Later that day, the applicant was advised that his assignment had been double marked and given a higher mark. The final mark for the assignment was 6.3 out of 30, or 21%.
The result of this was that the applicant’s overall mark for the video journalism subject was 44% and a fail was recorded for the subject on his academic transcript. The applicant had otherwise passed every subject attempted and needed only one more subject to complete the degree. He had fulfilled the core course requirements and, accordingly, it was not necessary for him to pass the video journalism subject.
Other avenues of review undertaken by the applicant
Prior to filing an originating motion for judicial review in the Supreme Court on 29 June 2018, the applicant had disputed, or sought review of, the fail mark recorded for the video journalism subject in the following ways:
(a) He submitted an administrative grievance at the faculty level in September 2017, which was dismissed in early October 2017.
(b) On 17 October 2017, he appealed the outcome of his grievance to the University’s Student Ombudsman and his appeal was dismissed the following day.
(c) On 25 October 2017, he complained to the Victorian Ombudsman. His complaint was dismissed on 9 March 2018 and a review of that outcome by a senior officer in the Ombudsman’s office was dismissed on 12 April 2018.
(d) He made complaints under anti-discrimination legislation about the process, including what he alleged was a failure to make reasonable adjustments for his disability. These complaints were as follows:
(i) In March 2018, he commenced an application under the Equal Opportunity Act2010 (‘EO Act’) which was pending before the Victorian Civil and Administrative Tribunal (‘VCAT’). VCAT has stayed the proceeding until the determination of the applications that are the subject of this decision.
(ii) He withdrew a complaint to the Australian Human Rights Commission under the Disability Discrimination Act 1992 (Cth), and elected to pursue his complaint in the Victorian jurisdiction.
Extension of time refused in the Supreme Court
When the applicant commenced the proceeding in the Supreme Court, he also applied by summons for an extension of time in which to commence the proceeding, which was opposed by the respondent.[6] Further, the respondent filed a summons seeking summary judgment under s 63 of the Civil Procedure Act 2010.[7]
[6]Ibid [3].
[7]Ibid [4].
The judge found that the applicant’s application was outside of the relevant time limit[8] and then turned to consider the factors that ‘typically bear’ on whether there are special circumstances that warrant an extension of time.[9] These factors include the period of the delay; the reasons for the delay; whether the plaintiff has an arguable case; justice to both parties including any prejudice occasioned by the delay; and the public interest in the finality of litigation.[10] Her Honour noted that none of the above factors are necessarily determinative and that all relevant factors need to be considered.[11] We set out below the judge’s consideration of each of these factors.
Period and reasons for delay
[8]The judge rejected a submission that it was within time. That aspect of the judge’s reasons is not challenged.
[9]Reasons [27]–[28].
[10]Ibid [28], citing Lazarevic v Victoria Police [2014] VSC 497 [35]; Richards v Magistrates’ Court of Victoria (No 2) [2018] VSC 226 [12].
[11]Reasons [28], citing Kocak v Wingfoot Pty Ltd [2011] VSC 285 [36].
The judge found that the period of delay was considerable, given that the 60 day time limit expired on 25 August 2017 and the applicant commenced his proceeding on 29 June 2018 (over 10 months out of time).[12]
[12]Reasons [29].
After stepping through the various avenues of complaint and investigation that the applicant had pursued, set out above at [12], the judge stated that ‘[n]one of this really explains why [the applicant] did not start th[e] proceeding until 29 June 2018.’[13] Her Honour found that, while the applicant had ventilated his grievances in many forums, he did not do so sequentially.[14] The judge was not satisfied that the various avenues pursued explained the full extent of the delay, noting that ‘[i]t was completely clear by April [2018] that [the applicant’s] dispute with the [respondent] would not be resolved by agreement.’[15]
[13]Ibid [35].
[14]Ibid.
[15]Ibid [36].
Whilst the judge acknowledged that the applicant’s anxiety condition affected his concentration and his ability to manage time, her Honour found that the medical evidence did not support the applicant’s contention that he ‘could not gather the strength to lodge a judicial review application’.[16] In particular, a letter relied upon by the applicant from his general practitioner did not suggest that his anxiety had affected his ability to pursue his grievance or that it explained the 10 month delay in commencing the proceeding.[17] Indeed, the judge found, to the contrary, that there was ample evidence that the applicant had been able to pursue his grievance with vigour and persistence.[18]
[16]Ibid [37]–[38].
[17]Ibid [38].
[18]Ibid [39].
The judge noted that that the applicant had not been legally represented in the proceeding or in any other forum.[19] Her Honour stated, however, that it was apparent that the applicant understood in November 2017 that he could challenge the respondent’s decision legally and made a reasonable choice at that time not to seek judicial review. He pursued his grievance in other forums, but by mid-April 2018 it was clear that he would not obtain a remedy satisfactory to him in those forums. Ultimately, the judge concluded that the reason for the delay was simply that the applicant had changed his mind about whether to seek judicial review and then took some further weeks to act on that decision.[20]
Arguable case
[19]Ibid [40].
[20]Ibid [42].
The judge accepted that the Supreme Court did not have the jurisdiction to override the judgment of university staff that the applicant had not completed the academic requirements set by the University for completion of both the subject and the degree and, in effect, to alter those requirements.[21] Her Honour stated that the ‘Court’s judicial review jurisdiction is strictly supervisory and is confined to the lawfulness of a decision under review’.[22] The matters of marking an assignment or otherwise determining questions of academic merit are areas for academic judgment where the Court will not intrude.[23] For that reason the judge held that the applicant could not obtain the relief that he sought.
[21]Ibid [43]–[44].
[22]Ibid [44], citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6 (Brennan J).
[23]Reasons [44], citing Griffith University v Tang (2005) 221 CLR 99, 156–7 [165] (Kirby J).
As the applicant also sought ‘any other order deemed appropriate by the [C]ourt to do justice between the parties’, the judge considered whether there was an arguable case for relief on any of the grounds of review identified in the applicant’s originating motion.[24]
[24]Reasons [45].
Her Honour found that there was no arguable case in relation to the first ground, as the breaches of the Disability Standards for Education 2005 (Cth) and Charter of Human Rights and Responsibilities Act 2006 that the applicant alleged did not concern the respondent’s ultimate decision to grant an extension or the assessment of the video. Those complaints were not matters that a court can remedy on judicial review.[25]
[25]Ibid [46].
The applicant also submitted that the decision to grant an extension of time was beyond the power of the staff in the Faculty of Arts special consideration team, who made the decision. He submitted that this power was conferred exclusively on the Dean of the Faculty. The judge found that this argument did not advance the applicant’s cause at all and, in any event, was not a ground for setting aside the assessment of the video assignment.[26]
[26]Ibid [47].
As his third ground for relief, the applicant argued that the second marking of the video assignment did not comply with the University’s Assessment in Coursework Units Policy and the Faculty of Arts Assessment Review and Marking Procedures Policy (‘Policies’).[27]
[27]Ibid [48].
Although the judge accepted that there was an arguable case that the respondent did not follow its relevant policies in double marking the applicant’s video assignment, she held that such a failure is not necessarily a ground for remedy on judicial review.[28] Her Honour stated that there are limited circumstances in which non-compliance with a policy or procedure might amount to jurisdictional error that could be corrected by certiorari and that the present case did not fall into that category.[29] The judge stated that, even if this conclusion is incorrect, the most the Court could do would be to set aside the assessment and order the respondent to re-mark the assignment according to law — a step that the respondent offered to undertake in March 2018 and which the applicant did not accept.[30]
Justice to both parties
[28]Ibid [50]–[51].
[29]Ibid [51], citing Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[30]Reasons [53].
The judge stated that if time was not extended, the applicant would not be able to proceed with his claim for judicial review remedies and would need to complete another subject in order to obtain his degree. Her Honour noted that the end of the judicial review proceeding would not affect his enrolment as a student at the University nor would it have an impact on his migration status.[31]
[31]Ibid [54].
The judge was not persuaded that the respondent would suffer any significant prejudice if time was extended, beyond having to defend the proceeding.[32] In particular, her Honour did not accept that extending time to review an arguably unlawful decision would undermine the integrity of the respondent’s assessment system.[33]
[32]Ibid [56].
[33]Ibid.
Turning to the issues that bore upon justice between the parties, the judge stated that, even if she was wrong in her conclusion that the applicant did not have an arguable case for any remedy, the only remedies he could obtain would be, first, a declaration or, second, an order in the nature of certiorari setting aside the assessment of the video assignment and requiring the respondent to re-mark it.[34]
[34]Ibid [57].
Her Honour was of the view that justice between the parties would not be served by granting an extension of time, even if the applicant had had an arguable case for a declaration that some aspect of the assessment was unlawful.[35] In her Honour’s words, the remedy ‘would have no practical utility’.[36]
[35]Ibid [59].
[36]Ibid [58].
Further, the judge was of the view that justice between the parties would not be served by extending time to enable the applicant to seek an order setting aside the assessment video assignment and requiring the respondent to re-mark it.[37] As noted above, the respondent had in fact offered to re-mark the assignment in March 2018.
Public interest in finality
[37]Ibid [59].
The judge emphasised that 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’.[38]
[38]Ibid [60], citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552–3 (McHugh J).
Ultimately, the judge was not satisfied that there were any circumstances that would justify an extension of time and the proceeding was dismissed.
Proposed grounds of appeal
It is convenient to set the grounds out in full.[39] They are:
1.Monash University’s breach of its academic board regulation 22 that has a statutory value, which was argued by plaintiff and acknowledged by Justice Richards; was overlooked as one of the possible grounds for remedy by her.
2.Plaintiff’s medical condition and lack of proper legal counsel/representation was overlooked consideration for the delays in securing appropriate remedy; instead inferrment was made as to state the plaintiff had incurred the delays deliberately as part of ‘change of mind’.
3.The circumstances (legal unreasonableness, failure to take a relevant consideration into account and denial of procedural fairness resulting in practical injustice) in which non-compliance with a policy or procedure could be corrected by a judicial remedy were not found as applicable circumstances by Justice Richards in this case.
4.Justice Richards stated that breaches of the Equal Opportunity Act or non-compliance with the disability standards are not grounds to set aside the University’s decision; but then mentioned the Supreme Court has jurisdiction over the lawfulness of the assessment decisions. In which case, if parts of the assessment decision were found then the decision is eligible for review to determine suitable remedy.
[39]Grammar, syntax and spelling as in original.
The applicant thus advanced four proposed grounds of appeal. Grounds 1 and 2 contended that the judge failed to consider matters that her Honour was bound to consider, being, whether there had been a breach of the Monash University (Academic Board) Regulations (‘Academic Board Regulations’) (ground 1); and the applicant’s anxiety condition and lack of legal representation (ground 2).
Grounds 3 and 4 contended that the judge made errors of law by failing to consider the relevant legal principles, including legal unreasonableness, failure to take a relevant consideration into account and denial of procedural fairness, as being applicable (ground 3) and in stating that breaches of the EO Act or non-compliance with the disability standards are not grounds to set aside the respondent’s decision (ground 4).
The respondent submitted that the grounds were not made out and emphasised that:
(e) the judge’s decision to refuse an extension of time is an interlocutory matter, the tests of appealing interlocutory decisions are stringent and the applicant has no real prospects of success;[40] and
(f) the applicant’s substantive appeal lacks utility. In support of this submission, the respondent contended that, even if the applicant were to obtain leave to appeal and succeed in the appeal, the greatest form of relief available is a form of relief he has already rejected. Namely, the Court could set aside the grade awarded to the video assignment and order that the respondent re-mark it in accordance with law. However, the applicant had already rejected an offer by the respondent in March 2018 to do this. Further, the respondent referred to statements made by the applicant in an open letter to VCAT dated 22 November 2018, in which, in the respondent’s submission, the applicant indicated that he had no real interest in the current proceeding and had filed documents in this Court only to avoid the risk of losing his appeal rights.
[40]The respondent’s submissions cite Supreme Court Act 1986 s 14C; Lysaght Building Solutions v Blanalko Pty Ltd (2013) 42 VR 27; Kennedy v Shire of Campaspe [2015] VSCA 47.
Analysis
Jurisdiction
Although the respondent accepted before the judge, at least for the purposes of its summary judgment application, that the Supreme Court had jurisdiction to judicially review the decision of the University to assess a student at a particular mark, that conclusion is not self-evident. Likewise, the amenability of a record of student assessment to a writ of certiorari is by no means clear.
However, given what follows, it is not necessary to determine these questions.
Ground 1 — Alleged breach of the Academic Board Regulations
The Academic Board Regulations are made by the Monash University Academic Board under the Monash University Statute. The Monash University Statute is a university statute made by the Council of the University pursuant to s 28 of the Monash University Act2009.
Regulation 22 of the Academic Board Regulations relevantly provides that, in specified circumstances, a student who has failed to complete a deferred final assessment task in a unit of study may apply to the associate dean of the relevant teaching faculty for an extension of time.
By the first ground, the applicant complained that the judge failed to take into account a breach of reg 22 as a basis for him to obtain a remedy in the proceeding.
It will be recalled that the applicant applied for, and was given, an extension of time to submit his assessment task until 23 June 2017. He submitted his video assignment on that day and it was assessed as a fail. It appears that he was told that no further extension would be given and his complaint appears to be that this was inconsistent with the power in reg 22 of the Academic Board Regulations.
The complaint about reg 22 should be rejected for two reasons.
First, as the judge correctly identified, the Court does not have the jurisdiction to award the relief sought by the applicant: to mark an assessment or determine questions of academic merit.[41] The Court’s judicial review jurisdiction is defined in terms of the extent of power and the legality of its exercise.[42] Accordingly, the judge correctly stated that the Court’s judicial review jurisdiction is ‘strictly supervisory and is confined the lawfulness of a decision under review’.[43] Adding another ground does not help the applicant overcome the inability to obtain the relief he sought.
[41]Reasons [43]–[44]; Griffith v Tang (2005) 221 CLR 99, 156–7 [165] (Kirby J), citing Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752, 756.
[42]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J).
[43]Reasons [44], citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-6 (Brennan J).
Secondly, the fact that the existing extension of time may have been beyond power because it was not made by the dean of the relevant faculty or that there was a further power to extend the time to submit the assignment does not assist the applicant in circumstances where he submitted the task and it was marked. As the judge correctly noted, to set aside the extension of time and to direct the University to reconsider the application for extension according to law would place the applicant in a worse position, particularly given, as he informed us, he has removed the video assignment from the assessment platform and it can no longer be assessed.
On this basis, we would not grant leave to appeal on ground 1.
Ground 2 — Medical condition and lack of legal representation
Ground 2 alleged a failure to take into account the applicant’s medical condition and lack of legal representation.
It is clear that the judge did in fact take into account the applicant’s medical condition and lack of legal representation when considering the reasons for the applicant’s delay in seeking judicial review.[44] In light of this, we are not satisfied that the judge overlooked these factors. The judge’s consideration of the applicant’s reasons for delay in commencing his proceeding was fair and detailed. The attribution of weight to the applicant’s medical condition and lack of legal representation in assessing the reasonableness of the delay was a matter for the judge. Her Honour plainly had regard to those matters.
[44]Reasons [8], [37]–[42].
The ground is not arguable. Leave must therefore be refused on ground 2.
Ground 3 — Alleged failure to comply with university policies
Under ground 3, the applicant alleged that the judge failed to properly consider whether the respondent’s compliance, or lack thereof, with the university policies was unlawful. He submitted that her Honour failed to apply or consider legal unreasonableness; failure to take a relevant consideration into account; and denial of procedural fairness resulting in practical injustice, as principles bearing upon the lawfulness of that decision.
The judge accepted that it was arguable that the University did not follow its applicable policies in double marking the applicant’s video assignment. The judge noted that a failure of an administrative decision-maker to follow a relevant policy does not necessarily constitute a ground for judicial review. It is apparent that the judge referred to the circumstances in which non-compliance with a policy might amount to jurisdictional error, and correctly concluded that those circumstances did not apply in the present case. Further, her Honour noted that, generally, a policy document is not to be applied with ‘statutory nicety’ and that a failure to comply with a non-statutory assessment policy ‘would not, without a good deal more, amount to jurisdictional error that invalidates a decision’.[45]
[45]Ibid [51], citing Minister of State for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, 208 (French and Drummond JJ).
In addition to the matters considered by the judge, the applicant sought to add legal unreasonableness, failure to take a relevant consideration to account and denial of procedural fairness. In our view, merely reciting those rubrics of legal error does not advance the applicant’s case.
Nothing is to be gained by analysing whether or not there had been a departure from the policy on re-marking because, even if a failure to comply with the policies had amounted to jurisdictional error, the only remedy that the judge could have awarded was to set aside the assessment of the video assignment and order the University to re-mark it according to law, which is a resolution that the applicant has already rejected and cannot now occur.[46] We would not grant leave to appeal on ground 3.
Ground 4 — Discrimination and unlawfulness
[46]Reasons [53].
The applicant submitted that the judge erred in stating that breaches of the EO Act, Disability Standards for Education 2005 (Cth) and Charter of Human Rights and Responsibilities Act 2006 are not grounds to set aside the decision. In support of his submission, the applicant stated that the judge had gone on to mention that the Supreme Court has jurisdiction over the lawfulness of the assessment decisions.
The judge noted that the applicant’s complaint regarding the above legislation related to the way in which the University managed his application for an extension, and not to the ultimate decision.[47] Accordingly, her Honour was correct to find that these complaints were not matters that would avail the applicant in obtaining the relief he seeks in the judicial review proceeding.
[47]Ibid [46].
Further, judicial review of an administrative decision will usually, though not invariably, be denied where the applicant has an adequate alternative remedy.[48] Breaches of anti-discrimination laws, both of the State and of the Commonwealth, are amenable to remedies within those statutory regimes. Given the applicant has pursued such remedies, there is no injustice in refusing an extension of time in which the same issues would be raised.
[48]Garde-Wilson v Legal Services Board (2008) 19 VR 398.
Disposition
None of the proposed grounds are arguable. We would add the following.
Proposed grounds 1, 3 and 4 concern whether or not the applicant had an arguable case for review. An application for extension of time is not the occasion for a detailed consideration of the merits of a proceeding. A proceeding that is hopeless and doomed to fail would rarely, if ever, attract an extension of time. The power to extend time is not to be exercised in the pursuit of a futile proceeding. On the other hand, if proposed grounds are arguable, this may weigh in favour of an extension. However, the mere existence of an arguable case does not constitute special circumstances and of itself would not enliven the power to extend time.
Even allowing some latitude in favour of the applicant, and accepting that his grounds of review were arguable, the judge was not satisfied that justice between the parties would be served by extending time in this case.[49] No error has been shown in respect of that conclusion, and the correctness of it was only further demonstrated by the applicant’s submission to this Court that the video assignment that he complained had been unfairly marked has been with removed by him from the assessment platform and is no longer capable of being re-marked.
[49]Reasons [65].
Finally, we note that the applicant had filed an application for a stay of his application for leave to appeal in order to allow another proceeding issued by him in VCAT, apparently alleging unlawful discrimination by the University, to be determined first. The applicant filed short written submissions in support of the stay, which we have read.
The applicant did not press his application for a stay. For completeness, we note that we have read the applicant’s written submissions in support of the stay. There was no basis for a stay to be granted.
The application for leave to appeal was listed for hearing before a bench of three judges, all of the submissions, including the oral submissions, were put to the Court, and it would be inconsistent with the efficient administration of the Court to have delayed the finalisation of the matter in this Court. Further, there was no prejudice to the applicant in proceeding to determine his application for leave to appeal.
The decision to refuse an extension of time was plainly correct. The application for leave to appeal must be refused.
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