Naik v Monash University
[2018] VSC 605
•12 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 02530
| CHINMAY NAIK | Plaintiff |
| v | |
| MONASH UNIVERSITY | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2018 |
DATE OF JUDGMENT: | 12 October 2018 |
CASE MAY BE CITED AS: | Naik v Monash University |
MEDIUM NEUTRAL CITATION: | [2018] VSC 605 |
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ADMINISTRATIVE LAW – Judicial review – Assessment decision of University – Application for extension of time to commence proceedings for judicial review – Whether ‘special circumstances’ – Whether Court can review questions of academic judgment – Whether alleged failure to follow relevant policy is jurisdictional error – No arguable case – Public interest in finality of decisions – Extension of time refused - Supreme Court (General Civil Procedure) Rules 2015, r 56.02 (1) and (3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms E Latif | Clayton Utz |
HER HONOUR:
Chinmay Naik is a student at Monash University, where he is enrolled in a Masters of Journalism. He has nearly completed his degree. However, on 26 June 2017 Mr Naik was awarded a fail grade for the subject APG5135 Video Journalism, having been awarded a mark of 21% for an assessment task involving a video current affairs story.
By an originating motion for judicial review filed on 29 June 2018 Mr Naik seeks an order in the nature of mandamus granting exemption from the result of that assessment task, and declaring an overall pass grade in APG5135 Video Journalism and completion of the Masters of Journalism course. He also seeks any other order that the Court deems appropriate to do justice between the parties.
There is a 60-day time limit for commencing a proceeding for judicial review, and the Court may extend time only in special circumstances.[1] So, when he commenced this proceeding on 29 June 2018, Mr Naik also applied by summons for an extension of time in which to commence the proceeding. The University opposes this application.
[1]Supreme Court (General Civil Procedure) Rules 2015 (Rules), r 56.02(1), (3).
For its part, the University filed a summons on 7 August 2018 seeking summary judgment under s 63 of the Civil Procedure Act 2010 (Vic). The University first foreshadowed that application at a directions hearing before me on 17 July 2018. On that day I made directions for the hearing of Mr Naik’s application for an extension of time, and for the University’s summary judgment application, and listed both applications for hearing on 17 September 2018.
For the reasons that follow I have decided not to grant an extension of time. This means that the proceeding must be dismissed, and it is therefore not necessary to determine the summary judgment application.
Factual background
Mr Naik has been a student of Monash University since July 2016. He is enrolled in the course A6008 Masters of Journalism. As an overseas student he is a temporary resident of Australia on a student visa.
In Semester 1 of 2017 Mr Naik was enrolled in the subject APG5135 Video Journalism. One of the assessment tasks for this subject was a video current affairs story, which was to be submitted by 4 June 2017.
Mr Naik’s case is that he has an ongoing disability, in the form of a generalised anxiety disorder, for which he has been prescribed medication since January 2017. From time to time his anxiety disorder affects his academic performance, and it impeded the completion of this assessment task in June 2017. He did not complete the task by the due date and on 6 June 2017 he sought an extension of time.
Ultimately the University granted Mr Naik an extension within which to submit his video current affairs story, to 23 June 2017. However, on Mr Naik’s account, this extension was given grudgingly and only after a rather complicated process in which relevant University staff were slow to acknowledge that Mr Naik was seeking a reasonable adjustment for his disability. By the end of that process, Mr Naik was registered with the University’s Disability Support Services and was much better placed to negotiate flexible deadlines for future assessment tasks. He had also been given the extra time that he asked for to complete his current affairs video. It is clear, however, that Mr Naik found the process unsympathetic and stressful, and that he remains upset by it.
While negotiating for an extension, Mr Naik struggled to complete the video assignment. On 22 June 2017 he was advised that he had been granted an extension to 23 June 2017, the next day, and that no further extension would be possible for the assessment task. Mr Naik submitted his video on 23 June 2017.
Mr Naik’s lecturer assessed the video assignment and initially gave it a mark of 3.6 out of 30, or 12%. This mark was communicated to Mr Naik on 26 June 2017 by email. Later that day, the lecturer emailed Mr Naik again to advise that the current affairs story had been double marked and given a higher mark, ‘so I am giving you the higher grade’. The final mark for the assignment was 6.3 out of 30, or 21%. This meant that Mr Naik’s overall mark for APG5135 Video Journalism was only 44%, and a fail is recorded for the subject on his academic transcript.
Otherwise, Mr Naik has passed every subject he has attempted, with a number of Credits and one Distinction. He remains enrolled as a student in the Masters of Journalism course and needs only one more subject to complete the degree. It is not necessary for him to pass APG5135 Video Journalism, as he has otherwise fulfilled the core requirements for the course.
At present Mr Naik is taking a break from his studies. His enrolment as a student of the University is confirmed until 30 June 2019.
Mr Naik is dissatisfied with the fail mark recorded for APG5135 Video Journalism and has disputed it in various ways:
(a) In September 2017 he submitted an administrative grievance at the faculty level, 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. The appeal was dismissed the following day.
(c) Mr Naik then complained to the Victorian Ombudsman, on 25 October 2017. That complaint was dismissed on 9 March 2018. A review of that outcome by a senior officer in the Ombudsman’s office was dismissed on 12 April 2018.
He has also made complaints under anti-discrimination legislation about the entire process, including what he alleges was a failure to make reasonable adjustments for his disability. An application under the Equal Opportunity Act 2010 (Vic) (EO Act), commenced on 27 March 2018, is pending before the Victorian Civil and Administrative Tribunal (VCAT), where a compulsory conference was held on 22 May 2018.[2] Mr Naik withdrew an earlier complaint to the Australian Human Rights Commission under the Disability Discrimination Act 1992 (Cth), and has apparently elected to pursue his complaint in the Victorian jurisdiction.[3]
[2]In a letter to the Court dated 3 October 2018, the solicitors for the University advised that on 25 September 2018, VCAT stayed the proceeding before it until determination of the applications that are the subject of this decision.
[3]Section 13(4) of the Disability Discrimination Act 1992 (Cth) (DDA) requires a person who can initiate a proceeding under either the DDA or a State discrimination law to choose between the two jurisdictions. The effect of s 13(4) of the DDA is that a person who has initiated a proceeding under a State discrimination law – here, the Victorian EO Act – may not also make a complaint or bring a proceeding about the same matter under the DDA.
Mr Naik commenced his judicial review proceeding in this Court on 29 June 2018.
Evidence and submissions
Mr Naik relied on six affidavits that he has made in this proceeding:
(a) an affidavit affirmed on 28 June 2018 in support of his application for judicial review, with exhibits CN-1 to CN-43;
(b) a second affidavit affirmed on 28 June 2018 in support of his application for an extension of time, with exhibits CN-44 and CN-45;
(c) a third affidavit affirmed on 29 June 2018, with exhibits CN-46 to CN-48;
(d) an affidavit of service dated 3 July 2018, with exhibit CN-49;
(e) a fifth affidavit affirmed on 13 July 2018, with exhibits CN-50 and CN-51; and
(f) a sixth affidavit affirmed on 28 August 2018, with exhibits CN-51A to CN-54.
The University relied on two affidavits in support of its summary judgment application and in opposition to the application to extend time:
(a) an affidavit of Neville Donald Hiscox sworn on 6 August 2018, with exhibits NDH-1 to NDH-7 (Hiscox affidavit); and
(b) an affidavit of Kym Andrew Fraser sworn on 7 August 2018, with exhibits KAF-1 to KAF-8 (Fraser affidavit).
Mr Naik objected to the Hiscox affidavit as irrelevant. The University sought to rely on it on the question of prejudice that might be suffered by Mr Naik if an extension of time were refused. On that basis I received the Hiscox affidavit.
Mr Naik also sought an order under r 22.21 of the Rules, requiring Mr Fraser to attend the hearing on 17 September 2018 for cross-examination. I declined that application on 14 September 2018, for reasons given on transcript that day. I did, however, rule paragraphs 13, 14 and 15 of the Fraser affidavit inadmissible, on the basis that they were in the nature of submission rather than evidence.
I was assisted by written submissions filed by both parties in advance of the hearing, as follows:
(a) the University’s submissions in support of its application for summary judgment and opposing the extension of time, dated 7 August 2018;
(b) Mr Naik’s submissions opposing the application for summary judgment, dated 28 August 2018;
(c) Mr Naik’s submissions supporting his application for an extension of time, dated 31 August 2018;
(d) the University’s submissions in reply dated 11 September 2018.
I also heard oral submissions at the hearing on 17 September 2018, at which Mr Naik appeared in person and the University was represented by Ms Latif of counsel.
Application for extension of time
Order 56 of the Rules deals with proceedings for judicial review. 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.
The phrase ‘special circumstances’ in r 56.02(3) is ‘deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words’.[4] Whether special circumstances exist is essentially a question of characterisation of the particular case; a question that is to be determined objectively, by reference to the whole of the circumstances of a particular case.[5] The relevant circumstances are not limited to those connected with the reasons for the delay, and include the merits of the grounds for review.[6]
[4]Mann v Medical Practitioners Board [2002] VSC 256, [18] (Mann), approved on appeal in Mann v Medical Practitioners Board (2004) 21 VAR 429.
[5]Mann, [19].
[6]Mann, [19]. See also Kocak v Wingfoot Pty Ltd [2011] VSC 285, [35]–[36] (Kocak).
Is an extension of time required?
Mr Naik submits that he does not need an extension of time, because he commenced this proceeding within 60 days of the compulsory conference at VCAT on 22 May 2018. By analogy with Fertility Control Clinic v Melbourne City Council,[7] he argues that it was only when his application to VCAT did not resolve at the compulsory conference that the grounds arose for the grant of the relief he claims in this proceeding.
[7](2015) 47 VR 368, [7]–[11].
In response, the University says that the Fertility Control Clinic decision is not relevant here. In that case, McDonald J found that the application for judicial review was not brought out of time because it was brought in respect of a fresh claim of nuisance. In this case, Mr Naik seeks a remedy in relation to a single decision that was made on 26 June 2017.
I agree with the University that the relevant date here is 26 June 2017, the date on which Mr Naik received a fail mark for his video current affairs story. Mr Naik commenced this proceeding long after the expiry of the 60-day time limit in r 56.02(1) and so he needs an extension of time. While this proceeding and the VCAT proceeding relate to the same events, there is no other connection between the two proceedings. This proceeding does not involve judicial review of the outcome of the compulsory conference at VCAT on 22 May 2018, which was in any event held in private.[8]
[8]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 83(4).
Should an extension of time be granted?
The factors that typically bear on whether there are special circumstances that warrant extending time 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.[9] No one circumstance is necessarily determinative; all relevant factors (positive and negative) need to be considered.[10]
Period and reasons for delay
[9]Lazarevic v Victoria Police [2014] VSC 497, [35]; Richards v Magistrates’ Court of Victoria(No 2) [2018] VSC 226, [12].
[10]Kocak, [36].
The period of the delay is considerable. The 60-day time limit expired on 25 August 2017. Mr Naik commenced this proceeding on 29 June 2018, just over 10 months out of time.
As to the reason for the delay, Mr Naik submits that it is explained by the fact that he first pursued a range of other remedies and it was not until late May 2018 that he realised that he could not resolve his grievance by any other means. He denies keeping the Supreme Court proceeding as his ‘Plan B’, and says that he has respected the Court’s workload by first pursuing other remedies. He says that it is the failure of other authorities to deal with his grievance that left him with no option but to seek relief in this Court.
The University submits that the reason for the delay is simply that Mr Naik elected to pursue other remedies first. An application for judicial review is not to be treated as a convenient ‘Plan B’ once other avenues for redress have been explored. The fact that Mr Naik chose between various avenues for relief is not, the University submits, a ‘special circumstance’ and he is bound by the choices he made.
It is certainly the case that Mr Naik spent some months after June 2017 exhausting all avenues of complaint within the University, within the Faculty of Arts and then with the University Student Ombudsman. During November 2017 various University staff advised Mr Naik that the double marking of his video current affairs story had been verified, that his mark would not change and that no further action would be taken. His internal remedies were exhausted by the end of November 2017.
Mr Naik then took his grievance to the Victorian Ombudsman, who on 28 November 2017 declined to investigate. Mr Naik pressed his grievance with the Victorian Ombudsman and on 16 March 2018 an investigation officer advised that the Ombudsman’s office was unable to assist him further. The investigation officer’s emails to Mr Naik set out each of his grounds of complaint, the University’s response, and gave reasons why the Ombudsman’s office would not investigate further. Although she declined to investigate the grievance, on 9 March 2018 she conveyed an offer from the University to undertake a second review of the video assignment, and invited Mr Naik to resubmit the original video to be verified and reviewed. Mr Naik did not accept the University’s offer. Instead he sought review of the investigation officer’s assessment, which was confirmed by a senior investigation officer on 12 April 2018.
In addition, from early December 2017 Mr Naik has pursued remedies under Victorian and federal discrimination legislation. As mentioned, he has commenced a proceeding at VCAT under the EO Act, which was the subject of a compulsory conference on 22 May 2018. There is a very substantial overlap between the grounds of review set out in Mr Naik’s originating motion and his particulars of claim filed in the VCAT proceeding. This overlap may explain why VCAT has stayed the proceeding pending this decision. Before commencing the VCAT proceeding, Mr Naik sought dispute resolution at the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), where a conciliation was held on 20 March 2018. He also made a complaint to the Australian Human Rights Commission under the Disability Discrimination Act 1992 (Cth), which was closed at his request on 26 February 2018.
None of this really explains why Mr Naik did not start this proceeding until 29 June 2018. While he has ventilated his grievance in many forums, he has not done so sequentially. In particular, he pursued remedies under anti-discrimination legislation at the same time that he was pressing his grievance with the Victorian Ombudsman, and his application to VCAT was still pending when he commenced this proceeding.
Nor does it explain the full extent of the delay. His dispute did not resolve at a conciliation held by VEOHRC in March 2018, and by mid-April 2018 the Ombudsman had confirmed that she would not investigate his grievance. It was completely clear by April that Mr Naik’s dispute with the University would not be resolved by agreement.
I have not overlooked the fact that Mr Naik has been diagnosed with an anxiety condition that affects his concentration and his ability to manage his time,[11] and which he claims meant that he ‘could not gather the strength to lodge a judicial review application’.[12]
[11]Hiscox affidavit, exhibit NDH-3 – Monash University Disability Support Services Recommendations for Reasonable Adjustments dated 9 January 2018.
[12]Mr Naik’s sixth affidavit, [1].
The limited medical evidence does not support this contention. Mr Naik relied on a letter from his general practitioner dated 28 May 2018, which supported Mr Naik taking an intermission from his studies in the second semester of 2018 on mental health grounds.[13] The letter noted an increase in Mr Naik’s anxiety symptoms ‘due to being in dispute with the University over an academic grievance issue’, and further noted that the issue was being dealt with by an appeal to an external body which he hoped would be resolved within the next six months. It recommended that Mr Naik take a break from his academic studies while dealing with the grievance. The doctor’s letter did not suggest that Mr Naik’s anxiety had affected his ability to pursue his grievance, or that it explained the 10-month delay in commencing this proceeding.
[13]Mr Naik’s second affidavit, exhibit CN-45.
To the contrary, there is ample evidence before the Court that Mr Naik has been able, since June 2017, to pursue his grievance with vigour and persistence.
I have also considered the fact that Mr Naik is not legally represented in this proceeding, and has not been represented in any other forum. Again, lack of representation has not inhibited Mr Naik from pursuing his grievance, and does not explain his delay in seeking judicial review.
Mr Naik did receive some advice in November 2017 from an advocate with the Monash Postgraduate Association. That advice was, in part, as follows:
I can understand that you are not happy with the decisions you have received this far. Monash University is a body politic created pursuant to a statute. It is a matter of law that the University is empowered to make decisions and … exercises a discretion as to how it runs its affairs. There is an entire body of law explaining why Courts have been reluctant to intervene with decisions made by higher education providers. However, you are quite correct decisions can be challenged legally.
It is apparent that Mr Naik understood in November 2017 that he could challenge the University’s decision legally, but that a court would probably be reluctant to intervene. He made a reasonable choice at that time not to seek judicial review, but to pursue his grievance in other forums. By mid-April 2018 it was clear that he would not obtain a remedy satisfactory to him in any of those forums. About 10 weeks later, he commenced this proceeding. I conclude that the reason for the delay here was simply that Mr Naik changed his mind about whether to seek judicial review, and then took some further weeks to act on that decision.
Arguable case
The primary remedy that Mr Naik seeks is an order in the nature of mandamus granting exemption from the result of that assessment task, and declaring an overall pass grade in APG5135 Video Journalism and completion of the Masters of Journalism course. The effect of that order would be to override the judgment of University staff that Mr Naik has not yet completed the academic requirements set by the University for completion of both the subject and the degree and, in effect, to alter those requirements.
The University submits that the Court does not have jurisdiction to make such an order, which involves an issue of academic judgment that is unsuitable for adjudication. I accept that submission. The Court’s judicial review jurisdiction is strictly supervisory and is confined to the lawfulness of a decision under review.[14] It does not extend to marking an assignment or otherwise determining questions of academic merit. These are matters solely for the University – areas for academic judgment where the Court will not intrude.[15]
[14]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6 (Brennan J).
[15]Griffith University v Tang (2005) 221 CLR 99, [165] (Kirby J), citing Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, 1992.
However, Mr Naik also seeks ‘any other order deemed appropriate by the court to do justice between the parties’. Alternative orders that the Court might make include an order in the nature of certiorari, setting aside the assessment of the video assignment, and an order requiring the University to re-assess the assignment according to law, as well as a declaration. The University accepted that the Court has jurisdiction to review the lawfulness of an assessment decision. It is therefore necessary to consider whether there is an arguable case for any relief on any of the grounds of review identified in Mr Naik’s originating motion.
The first ground on which Mr Naik seeks relief is that, in managing his special consideration application, the University denied him reasonable adjustments in a reasonable time, and imposed unreasonable and disruptive conditions on the adjustment made. He alleges that this was contrary to s 40 of the EO Act, the Disability Standards for Education 2005 (Cth) and s 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). These are not grounds to set aside the decision made by the University to give Mr Naik special consideration and to grant him the extension he had asked for, or the assessment of the video assignment he submitted. His complaints concern the way in which the University managed his application for an extension, rather than the ultimate decision to grant it or the assessment of his video. Those complaints, which Mr Naik also makes in his VCAT proceeding, are not matters that the Court can remedy on judicial review. There is no arguable case in relation to the first ground.
The second ground for relief is that the decision to grant an extension of time to Mr Naik, made by staff in the Faculty of Arts special consideration team, was beyond power because the power was conferred exclusively on the Dean of the Faculty. I do not understand why Mr Naik has raised this argument about the validity of the extension of time that he was granted. It does not advance his cause at all. In any event, it is not a ground for setting aside the assessment of the video assignment. The only relief the Court might conceivably grant would be to set aside the extension of time granted in June 2017, and to require the University to reconsider his application according to law. That would put Mr Naik in a worse position than he is currently in, and so I will not consider it further.
The third ground for relief concerns the double marking of the video assignment. Mr Naik argues that the second marking did not comply with the University’s Assessment in Coursework Units Policy and the Faculty of Arts Assessment Review and Marking Procedures Policy. The University Policy recommends double marking of all failed major items of assessment, where the second marker does not have access to the grades or comments of the first marker.[16] The Faculty Policy is more detailed:[17]
Where a remark is requested a member of academic staff with appropriate expertise will be appointed by the unit coordinator to assess the item in question. The second marker will be provided with a clean copy of the item of assessment and the criteria applicable to the assessment of the work. The second marker will not be informed of or provided with: the reason for the remark request; the original, corrected item of assessment; the original mark and grade awarded; the original marker’s comments on the item of assessment.
…
The second marker must note his/her name and signature on the assessment item together with brief comments to the student on the quality of the work.
[16]Fraser affidavit, exhibit KAF-2, p 75 - Monash University Assessment in Coursework Units: Grading and Marking Procedure, made under the Assessment in Coursework Units Policy, [21]. Both the policy and the procedure exhibited to the Fraser affidavit were effective from 17 July 2017, after the second marking of Mr Naik’s video. I have assumed that there was no relevant difference between the versions exhibited and the policy and procedure in place at the relevant time.
[17]Fraser affidavit, exhibit KAF-2, p 18 - Faculty of Arts Assessment Review and Marking Procedures Policy, B.3, B.5.
Mr Naik sought information from the University about the identity of the second marker and any documentation concerning their assessment of his video assignment. He has been advised that there is no such documentation, and the University has refused to tell him the name of the second marker. Mr Naik submits that this demonstrates that the relevant policies were not followed in his case. More particularly, he argues the Court can infer that there was no second marker and that his lecturer just marked the assignment again and decided to give him a higher mark.
I accept, for the purposes of the extension of time application, that there is an arguable case that the University did not follow its relevant policies in double marking Mr Naik’s video assignment. The lack of documentation and the mystery as to the identity of the second marker might, if not explained by other evidence, support the inference advanced by Mr Naik.
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’.[18] Often, the only remedies available for breach of soft law are themselves ‘soft’, such as a complaint to an Ombudsman.[19] There are limited circumstances in which non-compliance with a policy or procedure might amount to jurisdictional error that could be corrected by certiorari.[20] Those circumstances include where the non-compliance involves a want of procedural fairness that results in practical injustice,[21] where it demonstrates a failure to have regard to a relevant consideration[22] or legal unreasonableness.[23] 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.
[18]Minister of State for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 (Gray), 208 (French and Drummond JJ).
[19]Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017), 163.
[20]See the discussion in Greg Weeks, Soft Law and Public Authorities: Remedies and Reform, (Hart Publishing, 2016), Chapter 6 – Procedural Judicial Review Remedies.
[21]Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1 (Lam).
[22]Gray, 208 (French and Drummond JJ)
[23]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; cf SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90, [70]–[82].
Here, I do not consider that Mr Naik has an arguable case for an order in the nature of certiorari to correct the arguable non-compliance with the University’s policies and procedures for double marking a failed assessment task. In my view, none of the alleged failures to follow the policies are of such an order that they could invalidate the assessment of his video assignment. Nor do I consider that they could amount to unlawfulness that might be the subject of a declaration.[24]
[24]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [100].
Even if I am wrong in that conclusion, the most the Court could possibly do would be to set aside the assessment and order the University to remark the video assignment according to law. The University offered to do exactly this in March 2018, an offer that Mr Naik did not accept. I discuss the significance of that next, in considering the question of justice to both parties.
Justice to both parties, including prejudice
If time is not extended, Mr Naik will not be able to proceed with his claim for judicial review remedies in respect of his failed video assignment, and he will have to complete another subject in order to obtain his degree. Otherwise, the end of this proceeding will not affect his enrolment as a student of the University or his migration status.[25]
[25]Hiscox affidavit, [5]–[24].
The University claims that it will be significantly prejudiced if an extension of time is granted. In addition to having to defend the proceeding, it argues that an extension of time would undermine the certainty, reliability and finality of its student assessment system. Further, the University says that it is prejudiced by the delay because it no longer has access to Mr Naik’s video assignment as submitted, which he removed from the assessment platform in about December 2017.
I am not persuaded that the University will suffer any significant prejudice if time is extended, beyond having to defend the proceeding. It could meet Mr Naik’s arguments about the lawfulness of its decisions without recourse to the video assignment, since the Court would not be assessing the video for itself. I do not accept that extending time to review an arguably unlawful decision would undermine the integrity of the University’s assessment system. The integrity of that system depends on the lawfulness of assessments, as well as on certainty and finality.
Aside from questions of prejudice, there are aspects of the remedies sought by Mr Naik that bear upon the justice between the parties. As I have discussed, I do not consider that Mr Naik has an arguable case for any remedy. If I am wrong in that conclusion, however, the only remedies he could possibly obtain in this proceeding would be a declaration, or an order in the nature of certiorari setting aside the assessment of his video assignment and requiring the University to remark it.
A declaration would not alter Mr Naik’s fail mark for the video assignment or the subject APG5135 Video Journalism. He would still have to complete another subject to finish his degree. Even if Mr Naik had an arguable case for a declaration that some aspect of the assessment was unlawful, I do not consider that justice between the parties would be served by granting an extension of time to seek a remedy that would have no practical utility.
Similarly, I do not consider that justice between the parties would be served by extending time to enable Mr Naik to seek orders setting aside the assessment and requiring his video to be remarked, even if he did have an arguable case for that relief. The University offered to do this in March 2018, through the Ombudsman, and Mr Naik chose not to accept that offer.
Public interest in finality
In law, as in journalism, deadlines matter. 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.[26] A limitation period involves a judgment about the point where the interests of justice are best served by an end to disputation.
[26]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South), 552–3 (McHugh J).
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’.[27] The need for finality:[28]
… 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.
[27]Murray Gleeson, ‘Finality’, (Winter 2013) Bar News: Journal of the New South Wales Bar Association, 35.
[28]Ibid, 41.
It is for these reasons that the Court may only extend time to commence a judicial review proceeding in special circumstances. Whether special circumstances exist must be evaluated by reference to the rationales that underpin the time limit and the public interest in the finality of administrative decisions.[29]
[29]Brisbane South, 553 (McHugh J).
Conclusion on extension of time
Overall, I am not satisfied that there are special circumstances that would justify extending the time for Mr Naik to commence this proceeding.
In the judicial review context, a 10-month delay is considerable. The delay is not explained by Mr Naik’s anxiety condition, or the fact that he is not legally represented. Neither circumstance has prevented Mr Naik from pursuing his grievance assiduously, in a range of forums. [30] The reason for the delay is, as I have found, that Mr Naik changed his mind about whether to seek judicial review, and then took some further time to act on his decision.[31] I agree with the University that judicial review is not to be regarded as a convenient ‘Plan B’ once other avenues of redress have been explored.[32]
[30]See [37] to [40] above.
[31]See [30] to [42] above.
[32]Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211, [29].
While I do not consider that the delay in commencing the proceeding would prejudice the University’s ability to defend the proceeding,[33] an absence of prejudice is not enough to justify extending time given the public interest in finality of decisions. [34] Mr Naik does not, in my view, have an arguable case for the primary relief he seeks, or for any other judicial review remedy that could be ordered in this proceeding.[35] Even if he did have an arguable case for a declaration, or for orders that the fail mark be set aside and the video be remarked, I do not consider that justice between the parties would be served by extending time in this case.[36]
[33]See [55] to [56] above.
[34]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349.
[35]See [43] to [53] above.
[36]See [57] to [59] above.
I therefore refuse Mr Naik’s application for an extension of time.
Application for summary judgment
Since Mr Naik has not obtained an extension of time, the proceeding must be dismissed. There is therefore no need to determine the University’s application for summary judgment. I have, however had regard to the arguments put by the parties on the summary judgment application in considering whether there is an arguable case for relief, and have determined that there is not.[37]
[37]At [43] to [53] above.
Disposition
I will make orders dismissing the application for an extension of time, and dismissing the proceeding. I will hear the parties on the question of costs.
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