Naik v Monash University - [2019] VSCA 72

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSCA 72
Decision Date: 4 April 2019

CaseChat Overview and Summary

The case of Naik v Monash University involved the applicant, a former student, seeking judicial review of a decision by the university regarding his assessment. The primary dispute centred on the university's decision and the applicant's request for an extension of time to commence judicial review proceedings. The applicant contended that the university failed to consider several factors, including his medical condition and lack of legal representation, which contributed to the delay in filing his application. Additionally, he argued that the university's decision-making process violated principles of legal unreasonableness, procedural fairness, and did not consider his non-compliance with anti-discrimination legislation.

The court was tasked with determining whether the university's decision contained errors that rendered it legally flawed. Specifically, the court had to assess whether the university failed to consider the applicant's medical condition or lack of legal representation as reasons for the delay, whether the university's decision-making process breached principles of legal unreasonableness or procedural fairness, and whether the university failed to consider the applicant's non-compliance with anti-discrimination legislation. The court also needed to decide if the failure to consider these factors resulted in practical injustice.

After thorough consideration, the court found that the applicant did not establish an arguable case for judicial review. The court held that the university's decision was not legally flawed as it had properly considered all relevant factors, including the applicant's medical condition and lack of legal representation, in the context of the principles of legal unreasonableness, procedural fairness, and anti-discrimination legislation. Consequently, the application for leave to appeal was refused, affirming the decision of the lower court.

Orders