Sarikaya v Swinburne University of Technology
[2018] VSC 17
•1 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03799
| DAVID SARIKAYA | Plaintiff |
| v | |
| SWINBURNE UNIVERSITY OF TECHNOLOGY | Defendant |
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JUDGE: | DERHAM AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November 2017 (further affidavits 22 December 2017) |
DATE OF RULING: | 1 February 2018 |
CASE MAY BE CITED AS: | Sarikaya v Swinburne University of Technology |
MEDIUM NEUTRAL CITATION: | [2018] VSC 17 |
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JUDICIAL REVIEW – Supreme Court (General Civil Procedure) Rules 2015, Order 56 – Application in the nature of certiorari and mandamus – Extension of time within which to commence proceeding – Special circumstances required – No special circumstances disclosed – No arguable case for judicial review – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J King | LGS Legal |
| For the Defendant | Ms J Coventry | DLA Piper Australia |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
The application for judicial review................................................................................................. 2
Applicable Law................................................................................................................................... 5
Extension of time........................................................................................................................... 5
Judicial review............................................................................................................................... 7
Relevant Facts..................................................................................................................................... 8
When was the Decision made........................................................................................................ 23
Special Circumstances..................................................................................................................... 26
Conclusion......................................................................................................................................... 31
HIS HONOUR:
Introduction
This judgment concerns an application by the plaintiff for an extension of time to bring judicial review proceedings pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).[1]
[1]By order of a Judicial Registrar made on 11 October 2017 the application for an extension of time was set down for hearing separately from the hearing of the substantive application which, if the extension is granted, is fixed for hearing on 20 July 2018. This is a regrettable bifurcation of the proceeding as the application for an extension of the time involves a consideration of the merit of the application.
The plaintiff, David Sarikaya, applies by way of originating motion for judicial review of the decision of Swinburne University of Technology (‘Swinburne’ or ‘the University’) not to confer a Certificate of Completion of an Australian Psychological Society (‘APS’) accredited psychology major based on a combination of results from Monash University, RMIT University and Swinburne constituting a three year accredited sequence of subjects in psychology (‘the Decision’).[2] The plaintiff seeks to have the Decision quashed and to compel Swinburne to issue such a Certificate of Completion (‘Certificate of Completion’).
[2]Originating Motion filed on 21 September 2017.
The application is made pursuant to Order 56 of the Rules. By r 56.02 (1) of the Rules a proceeding under Order 56 must be commenced within 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose. The plaintiff’s application is out of time by between 143 days and 3,237 days, depending on when the Decision is found to have been made, and makes an application for an extension of time.
Rule 56.02(2) of the Rules provides that 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.
The Court has power under r 3.02(1) of the Rules to extend (or abridge) any time fixed by the Rules. Pursuant to r 56.02(3) the Court must not extend the 60 day period fixed by paragraph (1) except in ‘special circumstances’.
For the reasons set forth below I have reached the firm conclusion that the time for the plaintiff to commence the proceeding should not be extended and that, accordingly, the proceeding should be dismissed.
The application for judicial review
The originating motion claims the following relief:
(a) Leave to apply for a grant of relief and remedy out of time, and to be heard instanter;
(b) A declaration that the plaintiff met the requirements of an APS accredited psychology major, based on a combination of results from Monash University, RMIT University (‘RMIT’) and Swinburne, constituting a three year accredited sequence of subjects in psychology;
(c) A writ of certiorari quashing the decision of Swinburne not to issue the Certificate of Completion;
(d) A writ of mandamus compelling Swinburne to fulfil its public duty to confer a Certificate of Completion of an APS accredited psychology major constituted by successful completion of subjects AY 312 the Psychology of Personality, AY319 Psychological Measurement, AY320 Psych Foundations of Counselling and AYSM378 Design and Measurement 3A;[3]
(e) The defendant to pay the plaintiff’s costs of this proceeding.
[3]It seems the description of the last subject is more properly ‘SM378 Design and Measurement 3A’.
The grounds relied upon in the originating motion are:
(a) The plaintiff enrolled at Swinburne to complete the Third-Year Psychology Program for subjects AY312 the Psychology of Personality, AY319 Psychological Measurement, AY320 Psych Foundations of Counselling and AYSM378 Design and Measurement 3A.
(b) The plaintiff attended all lectures, tutorials, practical lab sessions, and completed all the required practical reports.
(c) The plaintiff sat all necessary exams and obtained a Distinction in subject AY312 – ‘The Psychology of Personality’ and was granted exemptions from all remaining third year psychology subjects.
(d) In the premises, Swinburne is under a public duty to confer a Certificate of Completion on the plaintiff following his qualification for the Certificate as a result of his successful completion of the requisite subjects;
(e) Swinburne has acknowledged the successful completion by the plaintiff of his studies in psychology to satisfy the APS requirements for an accredited sequence of subjects by its letter of 2 May 1997 to David Sarikaya;
(f) In breach of its duty, Swinburne has wrongly resiled from its intention to confer on the plaintiff and has thereafter failed, omitted and or refused to confer the Certificate of Completion of an APS accredited psychology major upon the plaintiff.
I note four matters relating to this relief at the outset. First, that in relation to the declaration sought, the plaintiff initially advanced no evidence to show what were the requirements of the ‘Australian Psychological Society accredited psychology major’. As result, at the conclusion of the hearing on 28 November 2017, orders were made allowing the plaintiff to file and serve a further affidavit as to the accreditation requirements of the APS in 1996, with corresponding leave to Swinburne to file and serve an affidavit in response. In consequence, the plaintiff filed an affidavit sworn on 8 December 2017, the University filed affidavits sworn on 20 and 21 December 2017, and the plaintiff filed a responsive affidavit sworn on 22 December 2017.
Second, the source and content of the public duty alleged as an essential ground for the order quashing the decision of Swinburne not to issue the Certificate of Completion was not identified by the plaintiff. The defendant, on the other hand, identified by reference to the 1996 Swinburne Higher Education Handbook the award courses approved by the APS as three-year sequences of study in 1996.
Third, at the hearing, neither party took me to the provisions of the Swinburne University of Technology Act 1992 (‘the Act’), the Act applicable at the relevant time that the plaintiff undertook his studies.[4] Subsequently, the plaintiff contended that the University had the power to confer the Certificate of Completion pursuant to ss 6 and 26 of that Act. Section 6 sets out the objects of the University and these include the conferring of prescribed degrees and the granting of prescribed diplomas, certificates and other awards.[5] The word ‘prescribed’ was defined in s 3 of the Act to mean prescribed by the Act or the Statues or regulations of the University.
[4]Since repealed and replaced with the Swinburne University of Technology Act 2010.
[5]Section 6(g) (emphasis added).
Section 26 provides, so far as relevant:
Awards of the University
(1)Subject to the Statutes and regulations, the Council may, after appropriate assessment, confer any degree or grant any diploma, certificate or other award.
(2) The Statutes may provide –
(a)for the admission without examination to any degree, diploma, certificate or other award of any person who has graduated at any other University, at Swinburne Institute, at Prahran College or at a prescribed institution; and
(b)for the admission honoris causa to any degree, diploma, certificate of (sic) other award of any person whether or not the person has graduated at a University.
(3)The persons on whom degrees are conferred, or diplomas, certificates or other awards granted, under sub-section (2) are entitled to the same rights and privileges as those to which persons who have graduated after appropriate assessment in the University are entitled.
(4)All degrees conferred, and diplomas granted, by the University must be evidenced by a certificate given under the common seal of the University.
(5)… (not relevant)
The ‘Statutes’ is defined in s 3 to mean Statutes of the University made by the Council under the Act. ‘Regulations’ is defined to mean regulations under Statutes. No Statutes or regulations of the University were sought to be relied upon by either party. I note that by s 4 the University is a body politic and corporate with perpetual succession, a common seal and is capable in law of suing and being sued.
Fourth, the plaintiff does not identify in the grounds, or elsewhere, any jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, or error of law on the face of the record, so as to provide a basis for an order in the nature of the writ of certiorari quashing the Decision.
Applicable Law
Extension of time[6]
[6]The summary is taken from my decision in Garrett v Legal Services Commissioner [2015] VSC 465, [20]–[24].
There is a considerable range of authorities on what needs to be shown in order to establish special circumstances under r 56.02(3) of the Rules.[7] The expression ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition.[8] Whether circumstances are special depends upon the context in which they occur. This does not mean that the circumstances must be unique; but they must have a particular quality of unusualness that permits them to be described as special.[9]
[7]See e.g. Denysenko v Dessau (1996) 2 VR 221 (Beach J); Prencipe v Nisselle[1999] VSC 137; Kay v Legal Profession Tribunal [2000] VSC 460 (Beach J); Lednar v Magistrates’ Court [2000] VSC 549 [122]–[150] (Gillard J) (‘Lednar’); Carra v Hamilton (2001) 3 VR 114 (‘Carra’); Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 (‘Mann’); Somerville Retail Services Pty Ltd v Vi [2008] VSC 196 [42]–[44]; Goodman v Victorian Civil and Administrative Tribunal and Ors [2011] VSC 35 [28] and [29].
[8]Re Beadle and Director‑General of Social Security (1984) 6 ALD 1, 3. An appeal from that decision was dismissed by the Full Court of the Federal Court of Australia (1985) 7 ALD 670 (Bowen CJ, Fisher and Lockhart JJ); see also Goodman v Victorian Civil and Administrative Tribunal & Ors [2011] VSC 35 [28].
[9]Re Beadle and Director‑General of Social Security (1984) 6 ALD 1, 3, per Toohey J; see also Mann [2004] VSCA 148; Lednar [2000] VSC 549 [122]-[150]; Carra (2001) 3 VR 114 [24].
In Mann v Medical Practitioners Board of Victoria, Osborne J at first instance[10] expressed the view that it was not appropriate to seek to define the meaning of the phrase ‘special circumstances’. The phrase is deliberately flexible and designed to encompass cases that might not easily be anticipated by more prescriptive words. His decision was upheld on appeal and no error of principle in his reasoning was discerned.[11]
[10][2002] VSC 256 [18].
[11]Mann [2004] VSCA 148 [72] (Hansen AJA).
The requirement that the plaintiff show ‘special circumstances’ requires that he make out circumstances that are not ‘general in character’,[12] but something exceeding ‘that which is usual or common’.[13]
[12]Mann [2004] VSCA 148 [68] (Hansen AJA) (Chernov JA [5] and Nettle JA [8] agreed with Hansen AJA).
[13]Mann [2004] VSCA 148 [70] (Hansen AJA).
The authorities establish that r 56.02(3) of the Rules requires the Court to be objectively satisfied that special circumstances exist.[14] The existence of special circumstances is to be determined by reference to all the circumstances of the case.[15] The factors relevant to the exercise of the discretion under the Rule include, but are not limited to, the period of the delay, the reason for the delay, whether the plaintiff has an arguable case,[16] the justice to both parties (which includes the prejudice to the parties) and the public interest in the finality of litigation.[17]
[14]Mann v Medical Practitioners Board of Victoria [2002] VSC 256 [18], approved in Mann [2004] VSCA 148.
[15]Mann v Medical Practitioners Board of Victoria [2002] VSC 256 [19], approved in Mann [2004] VSCA 148.
[16]A manifest excess of jurisdiction might in some cases amount to special circumstances: Mann v Medical Practitioners Board of Victoria [2002] VSC 256 [19], approved in Mann [2004] VSCA 148. Since the introduction of the Civil Procedure Act 2010, Part 4.4, it seems to me that this question should be cast in terms of whether the plaintiff has a real prospect of success.
[17]Mann [2004] VSCA 148 [57], [58] and [72] (Hansen AJA); Lednar [2000] VSC 549 [137], [142] and [143] (Gillard J); Young v The County Court [2005] VSC 311 [17] (Osborn J); Goodman v Victorian Civil and Administrative Tribunal & Ors [2011] VSC 35 [29].
It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being ‘special circumstances’, for if that were so there would be little practical point to the time limit contained in the Rule.[18] On the other hand, where it is clear that a plaintiff’s grounds are not arguable, or have no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.
[18]Mann v Medical Practitioners Board of Victoria [2002] VSC 256 [19], approved in Mann [2004] VSCA 148.
Whether there is an arguable basis for orders quashing the Decision and orders in the nature of a writ of mandamus requiring the University to give the Certificate of Completion, and thus whether the plaintiff has real prospects of success, is in this case, and in most others, a matter central to the exercise of the discretion to extend the time for making the application. As I have said, if there is no arguable case there is no point to the grant of an extension of time. Thus the legal basis for the relief sought is relevant and, in this case, critical to be clearly understood.
Judicial review
The jurisdiction of the Supreme Court on a judicial review application pursuant to Order 56 of the Rules is limited to supervising inferior courts, tribunals and some other administrative decision makers, and does not entitle this Court to canvass matters that it would on an appeal. Judicial review is not concerned with the merits of the decision under review, that is, it is not concerned with whether the decision was fair or correct.[19] Order 56 replaces the procedure for the Court’s jurisdiction to grant remedies in the nature of the old prerogative writs (certiorari, mandamus, prohibition or quo warranto) with a procedure for the jurisdiction to be exercised only by way of judgment or order. The changes are procedural.[20] The jurisdiction is supervisory. It is concerned with the decision making process and not with the decision itself. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court, tribunal or decision maker, or a substitution of the order or decision which the Supreme Court thinks should have been made.[21]
[19]Craig v South Australia (1995) 184 CLR 163, 175–6; see also, by way of example, Stojanoski v Northern Meat & Poultry Supplies Pty Ltd & Anor [2001] VSC 229 [30]-[33] (Gillard J); Velissaris v The Magistrates’ Court of Victoria & Anor [2013] VSC 23 [12] (Macaulay J).
[20]Randall v Wheeler (unreported, Victorian Supreme Court, No 4550/91, 27 March 1991, (Fullagar J) BC9100737; O’Dea v Magistrates’ Court of Victoria (unreported, Victorian Supreme Court, No 6198/98, 20 July 1998, (Gillard J) BC9804998; Lednar [2000] VSC 549; Stewart v Building Practitioners Board [2001] VSC 349.
[21]Craig v South Australia (1995) 184 CLR 163, 175–6; see also Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141 [60]; Velissaris v The Magistrates’ Court of Victoria & Anor, [2013] VSC 23.
An order in the nature of certiorari merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and error of law on the face of the record. If the decision is set aside, the Court leaves it to the inferior court, tribunal or decision maker to hear or determine the matter again, and in a proper case may command it to do so.[22]
[22]Craig v South Australia (1995) 184 CLR 163, 175–6; Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141 [60].
Where an order in the nature of certiorari is sought on the ground of jurisdictional error, breach of procedural fairness or fraud (including bad faith), the Court can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it.[23] In contrast, where relief is sought on the ground of error of law on the face of the record, the Court is restricted to ‘the record’ of the inferior court, tribunal or decision maker and an order in the nature of the writ of certiorari will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.[24]
[23]Craig v South Australia (1995) 184 CLR 163, 175–6.
[24]Craig v South Australia (1995) 184 CLR 163, 175–6; Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141 [60].
A writ of mandamus issued to secure the performance of some duty of a public character which the prosecutor has a legal right to have performed and the performance of which could not be enforced by any other adequate legal remedy.[25] A writ might issue whenever there was a specific legal right to require the performance of a statutory duty, and no specific legal remedy was provided for enforcing that right.[26]
[25]R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 242; Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) (1938) 60 CLR 741, 749.
[26]Royal Insurance Co Ltd v Mylius (1926) 38 CLR 477,497; [1927] VLR 1,13; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 398-9.
Relevant Facts
The plaintiff originally relied on three affidavits,[27] and subsequently added a further two, as already mentioned.[28] The evidence he gives is lengthy because of the period of time since the plaintiff attended Swinburne, in 1996. Swinburne originally relied on the affidavit of its General Counsel, Mr Thomas Joseph Rowan,[29] and subsequently added another affidavit by him and one by the University’s solicitor.[30]
[27]Affidavits sworn on 15 September (‘plaintiff’s first affidavit’), 20 October (‘plaintiff’s second affidavit’) and 16 November 2017 (‘plaintiff’s third affidavit’).
[28]Affidavits of plaintiff sworn 8 and 22 December 2017.
[29]Affidavit sworn 13 November 2017 (‘Rowan affidavit’).
[30]Affidavit of Rowan sworn 21 December 2017 and affidavit of Jane Catherine Coventry affirmed 20 December 2017.
The first thing to note is that in 1986 the plaintiff’s name recorded on his academic transcript provided by Monash University was ‘Ali Sarikaya’. In his RMIT transcript issued in 1990 he is called ‘Ali Davut Sarikaya’. In the Swinburne materials he is called ‘David A Sarikaya’. Later material to which I refer shows he practised under the professional name of Dr David Kaye.[31] The sequence of events derived from the plaintiff’s and the defendant’s affidavits is set out in the following paragraphs.
[31]In his affidavit of 8 December 2017, the plaintiff explains that ‘Kaye’ is an anglicised version of his mother’s maiden name and that he registered the business name ‘David Kaye’ in Victoria in 1997 and 2009.
In February 1996 the plaintiff says he applied to Swinburne to complete an APS and Australian Psychology Accreditation Council (‘APAC’) accredited psychology major towards a Bachelor of Arts degree.[32] The plaintiff provided relevant documentation to the Technology Admissions Officer at Swinburne, including a transcript of his Bachelor of Arts degree conferred by Monash University in 1986 and a transcript of studies he completed towards a Graduate Diploma of Counselling Psychology at RMIT which showed the successful completion of 17 out of 18 required units.[33] The plaintiff did not complete his RMIT Graduate Diploma and it was not conferred.
[32]Plaintiff’s first affidavit [3]. Plaintiff’s second affidavit [4]. It later emerged that APAC took over the functions of the APS in about 2008.
[33]Plaintiff’s first affidavit [4] and exhibit DS-1.
Upon provision of the abovementioned documentation, the plaintiff says he was advised by the Admissions Officer at Swinburne that the studies passed at Monash University and RMIT entitled him to credits for all first year stage one and second year stage two psychology subjects. The plaintiff was directed to enrol to complete what he was led to believe was the third year psychology program towards a Bachelor of Arts with a major in psychology at Swinburne.[34]
[34]Plaintiff’s first affidavit [5].
The plaintiff enrolled to undertake the third year psychology program for subjects described as AY312 (the Psychology of Personality), AY319 (Psychological Measurement), AY320 (Psych Foundations of Counselling) and AYSM378 (Design and Measurement 3A).[35]
[35]Plaintiff’s first affidavit [6].
In early July 1996, the plaintiff submitted to Ms Karen Tucker, External Studies Coordinator, Business, Humanities and Social Science Division at Swinburne, that he believed he was entitled to exemptions from the remaining third year subjects as the content was similar to the subjects he had completed at RMIT. She advised him to submit a formal request to the Board of the Division, which he did. He applied for academic exemptions from three subjects taught during the third year course because the content was similar to the subjects he had already undertaken at RMIT.[36]
[36]Plaintiff’s first affidavit [9]. The subjects were AY319 Psychological Measurement, AY320 Psych Foundations of Counselling and AYSM378 Design and Measurement 3A.
By letter dated 25 July 1996, Toni Kilsby, Divisional Manager, Student and Course Administration, wrote to the plaintiff advising that the Business, Humanities and Social Science Divisional Board had granted the plaintiff two exemptions towards his Bachelor of Arts. The letter then listed the three subjects in respect of which application for an exemption was made (‘the Kilsby letter’).[37]
[37]Plaintiff’s first affidavit [10] and exhibit DS-5.
By letter dated 30 July 1996 from Ms Tucker addressed ‘to whom it may concern’ it was certified that the plaintiff had completed all third year units required for a psychology major at Swinburne (‘the Tucker letter’).[38]
[38]Plaintiff’s first affidavit [11] and exhibit DS-6.
By letter dated 2 May 1997 to the plaintiff from the Head of Swinburne Psychology, Associate Professor Ann Knowles (‘the Knowles letter’), the plaintiff was congratulated ‘on completing your three year sequence of subjects in psychology.’ The letter went on ‘[a]s an acknowledgement of your successful studies with Swinburne Psychology we would like to present you with a certificate confirming that you have satisfied the Australian Psychological Society requirements for an accredited sequence of subjects’. The plaintiff was invited to attend an ‘informal gathering’ with the ‘Swinburne Psychology staff to receive your certificate.’ Alternatively, the certificate could be mailed to him. The plaintiff was not able to attend in person and never received the certificate at a later date despite requesting one.[39]
[39]Plaintiff’s first affidavit [12]-[13] and exhibit DS-7.
Some 10 years later, on 13 July 2007, the plaintiff submitted a request to the Swinburne Graduation Coordinator to obtain what he describes in his first affidavit as a certificate towards the Bachelor of Arts with a major in psychology.[40] The form used is, by the look of it, a standard form.[41] It does not indicate what he is entitled to receive. It states the title of course as ‘Bachelor of Arts’ and the major studies as ‘Psychology’. Apart from stating that he was not attending the ceremony and requesting the ‘certificate’ be mailed to him, it is not possible to tell from the form what he might have been entitled to receive.
[40]Plaintiff’s first affidavit [14].
[41]Exhibit DS-8 to the plaintiff’s first affidavit.
On 27 August 2007 the Graduation Coordinator, Awards, Ceremonies and Examinations Section of Swinburne, wrote to the plaintiff a standard form letter which commenced ‘[t]hank you for submitting your Award/Graduation Application form to us. The status of your application to graduate can be viewed at [Swinburne url]’. The letter went on to state that the award title was ‘Bachelor of Arts’, that the ‘University Council will approve your award, formally, on 5 March 2008 and your testamur would be posted two weeks later.’ No certificate of the kind requested, or a testamur, was received by the plaintiff.[42] Swinburne is unable to explain why and in what circumstances the letter of 27 August 2007 was sent.[43]
[42]Plaintiff’s first affidavit [15].
[43]Rowan affidavit [22].
However, on about 11 September 2008, Swinburne determined that the plaintiff was not eligible to graduate because he ‘has not met all the requirements for the Bachelor of Arts, eg, an arts major, completion of 300 credit points’.[44] The form on which this is recorded, although dated 11 September 2008, relates to the award ceremony held on 5 March 2008 and thus is likely to be a response to the application referred to in the University’s letter of 27 August 2007. There is no indication it was sent to the plaintiff.
[44]Rowan affidavit [23] and exhibit TJR-3.
On 11 December 2009, the plaintiff again wrote to Swinburne requesting the Certificate of Completion of an accredited psychology major.[45] The plaintiff received a reply from a Mr Euan Drumm, Executive Officer, Swinburne Student Operations, dated 16 December 2009 stating that he had not met the requirements of any accredited psychology award available from Swinburne, noting that the letter from Associate Professor Knowles dated 2 May 1997 merely attests to the fact that the plaintiff was deemed to have met the requirements of an accredited undergraduate psychology major which would allow him to apply for a psychology fourth year program (‘the Drumm letter’).[46]
[45]Plaintiff’s first affidavit [16]. Swinburne cannot locate a copy of this letter and the plaintiff produces no copy of it. It is referred to in the response.
[46]Plaintiff’s first affidavit [17] and exhibit DS-9.
Despite failing to receive any documentation or certification, on 4 March 2011 the plaintiff made an application for general registration as a psychologist with the Australian Health Practitioner Regulation Authority (‘AHPRA’).[47] It is not clear what material was relied upon by the plaintiff in making this application as his affidavit exhibits only an acknowledgement of receipt.
[47]Plaintiff’s first affidavit [18] and exhibit DS-10.
The plaintiff telephoned Mr Drumm in April 2011 to again request a Certificate of Completion of an accredited psychology major to forward to AHPRA. By letter dated 28 April 2011 Mr Drumm responded reiterating the earlier position set out in the Drumm letter (of 16 December 2009).[48]
[48]Plaintiff’s first affidavit [19] and exhibit DS-11.
The solicitor then acting for the plaintiff, Bruce Hocking of DC Legal, wrote to the Academic Registrar of Swinburne on 6 May 2011 seeking a results certificate, as referred to in the Knowles letter to be sent directly to AHPRA. The results certificate given certified that the plaintiff was enrolled in the program leading to the ‘Non Credit Division of Business, Humanities & Social Science’ and obtained a distinction in unit AY312 and an exemption in units AY319, AY320 and SM378.[49]
[49]Plaintiff’s first affidavit [20] and exhibit DS-12.
In May 2011 the plaintiff contacted Mr Tony Reed, Director Student Operations and University Registrar of Swinburne, enclosing a copy of Mr Hocking’s letter of 6 May 2011. By letter dated 15 June 2011 to Mr Hocking, Mr Reed responded that the certificate referred to in the Knowles letter was not an official University award or testamur as provided for under Swinburne’s Statutes and regulations. An initial search had not found the letter and further searches would be made of the archives which were stored off site (‘the Reed letter’).[50] On 14 July 2011, Mr Hocking wrote to AHPRA asking that it consider the certified letters and transcripts from Swinburne towards the plaintiff’s application for registration as a psychologist, and enclosed the Reed letter.[51]
[50]Exhibit DS-13 to the plaintiff’s first affidavit.
[51]Plaintiff’s first affidavit [21] and exhibit DS-13.
Mr Hocking wrote to Swinburne on 3 December 2012 seeking the results of the further searches for documentation Swinburne was to carry out.[52] Kornel Koffsovitz, Solicitor, Legal and Governance at Swinburne, replied and reiterated the position set out in the Drumm letter and the Reed letter. It was noted, among other things, that the search had been concluded and no additional records were identified and that there were no discrepancies as identified by Mr Hocking.[53]
[52]Plaintiff’s first affidavit [22] and exhibit DS-14.
[53]Plaintiff’s first affidavit [23] and exhibit DS-15.
In July 2014, the plaintiff initiated debt recovery proceedings against a former client.[54] The client complained to the NSW Health Care Complaints Commission (‘HCCC’). The HCCC contacted Swinburne to confirm representations the plaintiff had made that he had completed a psychology major towards a Bachelor of Arts at Swinburne.[55] To defend himself, the plaintiff emailed Swinburne on 5 September 2016 requesting certification that an APAC accredited 3 year undergraduate psychology major from Swinburne is a level 7 psychology qualification. He attached the Knowles letter, the Tucker letter, the Kilsby letter and his academic transcripts.[56]
[54]Plaintiff’s first affidavit [24].
[55]Plaintiff’s first affidavit [25].
[56]Plaintiff’s first affidavit [26].
In response the plaintiff received a letter dated 7 September 2016 that must have seemed incongruous, at least. It was a ‘to whom it may concern’ letter signed by Dr Ben Bullock, Undergraduate Course Director, Psychology, in which it was said, in substance, that the Bachelor of Arts (Psychology) degree completed by David Sarikaya in 1997 is an accredited AQF level 7 Bachelor degree (‘the Bullock letter’).[57] The explanation for the letter is likely to reside in the nature and mode of the request made by the plaintiff. It was made to a Swinburne ‘on line support centre’. It ‘required’ a statement certifying that an APAC accredited three year undergraduate psychology major from Swinburne is a level 7 psychology qualification.[58]
[57]Plaintiff’s first affidavit [26] and exhibit DS-16. ‘AQF’ refers to Australian Qualification Framework.
[58]Exhibit DS-16 to the plaintiff’s first affidavit.
In about June 2015, the HCCC commenced an investigation into the plaintiff on referral from the AHPRA.[59] Part of the investigation required the HCCC to confirm the plaintiff’s qualifications. As such, Swinburne was contacted to verify such qualifications. The University originally issued the Bullock letter, however this letter, and statement, was later retracted as it was made and sent in error.[60]
[59]Rowan affidavit [29].
[60]Plaintiff’s first affidavit [27] and exhibit DS-17.
On 6 October 2016, the HCCC found that the plaintiff’s claim that he held a three year sequence of subjects in psychology from Swinburne was not supported by evidence, rather that the plaintiff held a Bachelor of Arts in sociology and politics, qualifications which are not in psychology or counselling, as such not amounting to a minimum AFQ [scil. AQF] level 5 qualification in counselling.[61]
[61]Rowan affidavit [31] and Exhibit TJR-4. AQF refers to Australian Qualifications Framework administered by the Australian Government Department of Education and Training in consultation with the states and territories.
The plaintiff sought to stay the HCCC decision before the New South Wales Civil and Administrative Tribunal (‘NCAT’). In November 2016, the NCAT refused to stay the HCCC decision.[62] The plaintiff sought to review the decision of the HCCC. In October 2017, NCAT upheld the substance of the HCCC decision.[63]
[62]Rowan affidavit [32] and Exhibit TJR-5.
[63]Kaye v Health Care Complaints Commission [2017] NSWCATOD 157.
A member of Counsel engaged by the plaintiff, Jonathan Cohen of the New South Wales Bar, contacted Swinburne on 16 December 2016 seeking to clarify various issues with regards to the plaintiff’s qualifications and whether certain courses were completed. The plaintiff also sought to understand how it was possible for him to be enrolled in a third year level subject if it had not been deemed that he had completed mandatory first and second year (stage one and stage two) subjects.[64]
[64]Plaintiff’s first affidavit [28] and exhibit DS-18.
Emma Lincoln, Director Governance and Integrity at Swinburne, replied on 21 December 2016. In that letter a series of questions were answered which explained the course available in 1996 to meet the AQF level 7 qualification. It was explained that what the plaintiff had done in 1996 comprised the third year units required for a psychology major, nothing more. The letter also explained that the Bullock letter was provided on the basis of the documentation that the plaintiff had provided and that when Mr Bullock was apprised of the extent of the plaintiff’s studies with the University he advised the HCCC that he wished to retract the letter. The letter also refers to the Knowles letter and explains that Professor Knowles does not recall writing the letter, the University does not have a record of it and it is incorrect in its statement that the plaintiff completed a three year sequence of subjects in psychology.[65]
[65]Exhibit DS-19 to the plaintiff’s first affidavit.
Mr Jonathan Cohen wrote again to Swinburne on 23 December 2016.[66] He pointed out inconsistencies and contradictions in the letter of 21 December 2016 and between that letter and the earlier Drumm letters of 16 December 2009 and 28 April 2011. Essentially the inconsistencies were that the Drumm letter referred to the plaintiff having met the requirements for an accredited undergraduate psychology major based on the combination of results from RMIT and Swinburne,[67] whereas the 21 December 2016 letter from Emma Lincoln acknowledged no credit for the RMIT units completed (let alone the Monash psychology subject) and thus did not accept that the plaintiff had done stages one and two of the major. Cohen’s letter argued that it was inconceivable that Swinburne would allow a student to enrol and be allowed three exemptions for three third year psychology subjects without the student being assessed as having fulfilled the stage one and stage two requirements, the first 2 years of the psychology major.
[66]Exhibit DS-20 to the plaintiff’s first affidavit.
[67]This slightly misstates the text of the letters, which refer to the Knowles letter attesting to the fact that the plaintiff was deemed to have met the requirements of an APS accredited undergraduate psychology major based on the combination of results from RMIT and Swinburne.
By letter dated 12 January 2017 Emma Lincoln responded to Mr Cohen’s letter of 23 December 2016. She explained that at the time the plaintiff enrolled in the single unit with the University, students would normally have been expected to complete stage one and two units before being permitted to enrol in stage three units, but this did not occur in the plaintiff’s case. In relation to the letters from Mr Drumm, she explained that they relied on the Knowles letter which was incorrect. She stated that the plaintiff was enrolled in a single unit of study and not a course.[68]
[68]Exhibit DS-21 to the plaintiff’s first affidavit.
By letter dated 20 January 2017 Mr Cohen wrote again to Emma Lincoln setting out his understanding, from her letter of 12 January 2017, that the Tucker letter, the Kilsby letter, the Knowles letter, the Drumm letters and the Bullock letter were all wrong in various respects. He also raised a number of questions.[69] There was no response to this letter apart from Swinburne inviting him to make a formal complaint, which the plaintiff then did on 9 February 2017.[70] Before the complaint was dealt with, on 24 February 2017 the plaintiff threatened legal action.
[69]Exhibit DS-22 to the plaintiff’s first affidavit.
[70]Exhibit DS-23 to the plaintiff’s first affidavit.
On 1 March 2017, Swinburne advised the plaintiff that the complaint was not going to be taken further as the matter concerned issues that arose approximately 20 years ago and that had already been addressed by the University in a variety of ways in the intervening years.[71] On 28 March 2017 the plaintiff lodged a complaint with the Victorian Ombudsman (‘the Ombudsman’).[72] A part of that complaint was that the HCCC had unduly influenced Swinburne to retract the letter affirming completion of the psychology major. On 19 May 2017 the Ombudsman advised the plaintiff that, after reviewing the information provided by the plaintiff and Swinburne, that:[73]
[71]Ibid.
[72]Exhibit DS-24 to the plaintiff’s first affidavit.
[73]Exhibit DS-25 to the plaintiff’s first affidavit.
(a) in relation to the information presented to the HCCC, he was unable to find any administrative error requiring his involvement;
(b) he does not consider the University has acted in a way that is unlawful, unreasonable or wrong under the Ombudsman Act 1973 (Vic);
(c) the Ombudsman does not usually intervene in a matter when the person making the complaint has been aware of it for longer than 12 months.
The plaintiff then engaged Counsel in Victoria, Mr Colin King, who wrote to Swinburne on 7 July 2017 setting out the substance of the argument he makes on behalf of the plaintiff before me. Legal proceedings were threatened unless within 14 days Swinburne conferred on the plaintiff the certificate promised by the Knowles letter.[74]
[74]Exhibit DS-26 to the plaintiff’s first affidavit.
By letter dated 13 July 2017 from an independent lawyer engaged by Swinburne, the University sought further time to review the material and to respond. Mr King initially responded, in effect, that no further time would be allowed.[75] On about 20 July 2017, Mr King advised the plaintiff was prepared to wait a further week.[76]
[75]Exhibit DS-27 to the plaintiff’s first affidavit.
[76]Exhibit DS-28 to the plaintiff’s first affidavit.
On 29 August 2015 the plaintiff was involved in a motor vehicle accident that caused him injury, namely three prolapsed discs. He has been on analgesic and anti-inflammatory medication since then. On 3 August 2017 the plaintiff underwent day surgery (for a bilateral hernia) at the Mater Hospital in Sydney. He deposes that the health condition leading to the surgery was a significant factor causing delays in attending to various matters, including this application. He does not say that his motor accident injuries have caused delays, although his Counsel submit the accident ‘caused him substantial medical difficulties further delaying the filing of his claim’.[77]
[77]Plaintiff’s written submissions filed pursuant to the order of Clayton JR made on 11 October 2017 (undated).
In the Rowan affidavit, Swinburne’s affidavit in response to the application for an extension of time, Mr Rowan, deposes that in February 1996 the plaintiff enrolled in a ‘Non Credit Division of Business, Humanities and Social Sciences’ at the University. Through this type of enrolment, he deposes, students could undertake single units of study on a fee paying basis without enrolling in an accredited award course. He gives evidence that in 1996 a number of the University’s award courses were approved by the APS as meeting the minimum academic requirements for members of that body as set out in the University’s 1996 Higher Education Handbook (‘1996 Handbook’). He exhibits an excerpt from that 1996 Handbook which, in part, provides:[78]
Many people take up a career related to psychology after completion of a three-year program, but some choose to undertake further study in order to work specifically as psychologists. To be regarded as a professionally trained psychologist in Australia, it is becoming increasingly necessary to be eligible for membership of the Australian Psychological Society (APsS). The minimum academic requirement for associate membership of the APsS is completion of an accredited four-year program of psychological study. The Swinburne Bachelor of Arts and Bachelor of Applied Science Psychology majors have APsS approval as three-year sequences of study. To become eligible for associate membership of the APsS, graduates must then complete an approved fourth-year course. (A list of approved courses is available from the APsS). The Swinburne Graduate Diploma in Applied Psychology is an accredited fourth-year course and the honours year in psychology has provisional APsS accreditation.
[78]Exhibit TJR-1 to the Rowan affidavit.
Mr Rowan deposes that the subjects comprising a three-year sequence in psychology in 1996 were AY100 Psychology 100, AY101 Psychology 101 (Stage 1), AY202 Cognition and Human Performance, AY203 Developmental Psychology, AY204 Social Psychology and SM278 Design and Measurement 2A (Stage 2) and AY312 Psychology of Personality, AY319 Psychological Measurement, AY320 Psychological Foundations of Counselling and SM378 Design and Measurement 3A (Stage 3). Mr Rowan states that the only subjects completed or deemed to have been completed at Swinburne by the plaintiff were the stage three subjects. AY312 Psychology of Personality was completed by the plaintiff and he was given an exemption for AY319, AY320 and SM378.
Thus, the plaintiff did not complete any of the stage one or stage two subjects. He did not apply for, and was not granted, an exemption in relation to completion of stages one and two. He attended Swinburne for a single semester and completed one subject on campus. He applied for and received exemption for the three other stage three subjects. The plaintiff’s academic transcript from Swinburne shows exactly what the plaintiff completed at Swinburne.[79]
[79]Exhibit DS-4 to the plaintiff’s first affidavit.
Mr Rowan also deposes that:
(a) the 1996 Handbook states that, in respect of a credit transfer for prior learning at other institutions:
Students must normally undertake at least the final two academic semesters (equivalent to one academic year) of study at the University before taking out their awards.[80]
(b) the plaintiff was never enrolled in a Bachelor of Arts (Psychology) nor a Bachelor of Applied Science (Psychology) and he did not complete the three-year sequence of study plus an additional fourth year course to be eligible to graduate from Swinburne from an APS approved course.
[80]Exhibit TJR-2 to the Rowan affidavit.
Mr Rowan also says that he is informed by Dr Ben Bullock, Swinburne’s current psychology undergraduate course coordinator, and believes, that the plaintiff may have been eligible, had he applied, for one further exemption in respect of subject AY100 Psychology 100 on the basis of his prior learning at Monash University. He notes, however, that it is likely to be difficult given the passage of time between the plaintiff’s studies at different institutions and subsequent course, policy and procedural changes to make a determination in relation to any such exemption. He goes on that even if the University had granted that exemption the plaintiff would still not have completed the three-year sequence of subjects approved by the APS as an undergraduate major.
In relation to the Knowles letter, Mr Rowan says that the statement made in it was incorrect. Swinburne cannot confer the ‘certificate’ sought by the plaintiff. The plaintiff’s transcript of results for his studies at Swinburne are the official statement of his attainment at the University, and those results do not amount to any degree, diploma, certificate or other award conferred or granted by the University. The plaintiff did not comply with Swinburne’s policy of undertaking the final two academic semesters (equivalent to one academic year) of study at the University before being eligible for any award as referred to in the 1996 Handbook. On these bases the plaintiff’s claim is said to be unmeritorious.
The Rowan affidavit also deposes that the University will be prejudiced should an extension of time be granted to the plaintiff because:
(a) the relevant staff that determined issues of eligibility, exemptions and entitlement are no longer working at the University. This will cause significant prejudice to the University in respect of evidence that may not be able to be obtained in respect of exemptions that may or may not have been granted in respect to the plaintiff’s prior learning;
(b) course, subjects, policies and procedures, including those in relation to eligibility, exemptions, academic progress and graduations, as well as requirements for approval and/or accreditation by professional bodies, will have changed over the decades since the plaintiff undertook his studies at Monash University, RMIT and Swinburne. This will cause prejudice to Swinburne in respect of the integrity of its determinations requested 21 years after the relevant time;
(c) due to the passage of time, Swinburne may be unable to locate complete records in respect of correspondence relating to the plaintiff’s enrolment and studies at the University in 1996. The University may not, therefore, be able to obtain relevant evidence;
(d) the University began maintaining electronic records of policies and procedures in about 1997. It may not hold original electronic records of policies and procedures in place in earlier years. This may also limit the relevant evidence that may be adduced by the University.
In the plaintiff’s affidavit sworn 8 December 2017, he exhibits correspondence between his solicitor, LGS Legal, and the APS. The plaintiff’s solicitors asked two questions of the APS. First, what were the accreditation requirements of the APS in 1996. Second, given the completion of studies by the plaintiff and the granting of a Swinburne University Certificate for completing an APS Accredited Undergraduate Psychology Major, would that entitle the holder of that Certificate to any level of APS membership?
The APS responded by letter dated 7 December 2017 and, in relation to the first question said:
(a) in 1996 the APS was the accrediting body for Australian tertiary courses in psychology. In 2008 APAC took over the accreditation functions for the psychology profession;
(b) in 1996 under the Directorate of Training and Standards, the APS’s Program Development and Accreditation Advisory Group oversaw the process to accredit university degrees in psychology. That process required academics to conduct site visits of universities across Australia to assess the quality and standards of the courses being offered, as well as staffing ratios for each course;
(c) courses were accredited at either the third year level, fourth year level or fifth and sixth year levels. Graduates of an APS accredited three year course would have been eligible for the grade of ‘Affiliate’ with the APS. Graduates of an APS accredited four year course would have been eligible for the grade of ‘Associate Member’ of the APS. Graduates of an APS accredited fifth and sixth year course would have been eligible for the grade of ‘Member’ with the APS;
(d) to demonstrate completion of an APS accredited course, applicants need to provide certified transcripts from the relevant tertiary institution(s) that showed the course and that all necessary units had been completed. As a part of its evaluation process, the practice of the APS in 1996 was not to accept letters or certificates on university letterheads as evidence of course completion as they are not recognised as official university records, and there is potential for the veracity of such letters or certificates to be compromised. This practice has remained unchanged;
(e) in this regard, it was noted, that the repercussions of accepting university letters or certificates as evidence of course completion are referred to in the decision of Kaye v Healthcare Complaints Commission heard in the New South Wales Civil and Administrative Tribunal on 22 November 2016, with particular reference to paragraphs [23] to [27].
In relation to the second question, the APS responded that the plaintiff had submitted an application to be admitted to membership grade of ‘Affiliate’ with the APS. The application had been deferred due to his not having provided documentation to show proof of completion of the relevant qualification necessary to satisfy the criteria required for admission to the grade of ‘Affiliate’ as set out in the APS Constitution. The letter went on:
In passing, this deferral had also appeared to be supported by paragraph 27 of the above NSWCAT decision in which a Swinburne University staff member provided evidence that stated:
Mr Kay did not complete a Bachelor of Arts (Psychology) at Swinburne University. Completing all third year subjects in a Bachelor of Arts does not itself constitute the completion of a three year sequence of subjects. Mr Kay has not completed the three year sequence of subjects in Psychology. As per his Swinburne transcript he did not complete Psychology 100, Psychology 101, Cognition and Human Performance, Development Psychology, Social Psychology, or Design and Measurement 2A. These subjects would need to be completed before he could be deemed to hold a three year sequence of subjects in Psychology.
On the basis of the documentation which Mr Sarikaya has submitted to the APS in support of his application for the grade of Affiliate to date, and given our above comments about university letters and certificates being unacceptable verification of qualifications, your client would not be eligible for any grade of membership of the APS at this juncture.
The affidavit of the solicitor for the University affirmed on 20 December 2017 (the affidavit of Jane Catherine Coventry) refers to enquiries made of APAC in relation to the accreditation requirements of the APS for psychology courses in 1996. The affidavit exhibits the Directorate of Training and Standards Accreditation Guidelines August 1995 (‘Guidelines’) and an APAC spreadsheet containing a list of accredited university psychology courses (‘Accreditation Spreadsheet’).[81]
[81]Exhibit JCC-1 to the affidavit of Jane Catherine Coventry affirmed 20 December 2017.
The Guidelines applied to psychology courses offered by Swinburne in 1996. Mr Rowan deposes that his understanding is that the APS produced Guidelines as a manual to assist institutions, including Swinburne, to develop psychology courses that complied with the APS accreditation requirements. The Guidelines outlined that three year undergraduate programs of study should lead to one of the following degrees, that is, Bachelor of Psychology, Bachelor of Science, Bachelor of Social Science, Bachelor of Behavioural Science or another generic degree. He also deposes that in relation to students claiming transfer credits for studies or prior learning undertaken at other institutions, the Guidelines outline that the student transferring must cover all core areas of the discipline in the completion of their degree and that the APS does not accredit individual student programs.
In relation to the Accreditation Spreadsheet exhibited to the Coventry affidavit, Mr Rowan deposes that it confirms that the courses offered by Swinburne as three year sequences of study that were accredited by the APS as at semester 1, 1996 were the Bachelor of Arts and the Bachelor of Applied Science.
When was the Decision made
The plaintiff submits that the University’s final and operative decision not to confer the Certificate of Completion was made on 1 March 2017 when Swinburne informed the plaintiff and his Counsel Mr Cohen that the plaintiff’s complaint was not going to be taken further:
As the matter concerns issues that arose approximately 20 years ago and that had already been addressed by the University in a variety of ways in the intervening years.[82]
[82]See the email dated 1 March 2017 from Helen Smit to David Kay and Jonathan Cohen in Exhibit DS-23 to the plaintiff’s first affidavit.
That is over six months before the originating motion was filed on 21 September 2017.
The defendant submits that the decision, and the grounds for the grant of relief, accrued on any of the following dates upon which a judicially reviewable decision or determination was made:
(a) 11 September 2008, when the University determined that the plaintiff was not eligible to graduate from any course offered by the defendant.[83] That is 3237 days out of time;
(b) 16 December 2009, when the University determined and advised the plaintiff that he had not met the requirements of an accredited psychology award (the Drumm letter).[84] If that is the case the delay is 2776 days;
(c) 14 December 2012, when the University reiterated its decision given in the Drumm letter in the letter written by Kornel Koffsovitz.[85] If that is the case the application is 1682 days out of time.
[83]Rowan affidavit 13 November 2017 [23] and [41(a)].
[84]Rowan affidavit 13 November 2017 [25] and [41(b)].
[85]Exhibit DS-15 to the plaintiff’s first affidavit.
Swinburne also submitted that even if the grounds for the grant of relief arose on 1 March 2017, that is still 143 days after the expiry of the 60 day period stipulated by r 56.02(1) of the Rules.
The provision of r 56.02(2), that the date when the grounds for the grant of the relief or remedy first arose are to be taken to be the date of the determination, has the effect in this case that if there are any grounds for the relief or remedy they first arose at the latest when the Drumm letter was written, namely on 16 December 2009. This is made tolerably clear by the terms of that letter which are:
Dear Mr Sarikaya
I refer to your letter of dated 11 December 2009 addressed to the Faculty of Life and Social Sciences in which you seek a certificate in regard to your studies at Swinburne University of Technology.
At the conclusion of your studies at Swinburne University of Technology you did not meet the requirements of any accredited psychology award available from Swinburne.
The letter from a SOC Prof Anne Knowles attests to the fact that you were deemed to have met the requirements of an APS Accredited undergraduate psychology major based on the combination of results from RMIT and Swinburne.
This means that you would have been eligible to apply for a psychology fourth year program.
The certificate referred to was an informal document and as it was not an official certificate or an award records or copies were not kept.
If, as the plaintiff contends, he is entitled to be awarded a Certificate of Completion then the grounds for the grant of an order quashing the decision of the University would appear to have arisen in December 2009. The fact that the decision was repeated in different terms and with slightly different reasons in subsequent letters received by the plaintiff from the University does not, it seems to me, detract from the proposition that this letter marks the first time when the plaintiff had grounds for the grant of the relief he claims in the originating motion, putting to one side for the present whether the grounds are sufficient to warrant the relief claimed.[86]
[86]It may be noted that the Bullock letter also does not detract from the Drumm letter constituting the Decision because the plaintiff acknowledges in the plaintiff’s first affidavit (at [26]) that the letter incorrectly attributes to him a Bachelor of Arts (Psychology) degree when he was seeking the Certificate of Completion.
I reject the defendant’s submission that the earlier date of 11 September 2008 is appropriate. That was the time that Swinburne determined the plaintiff was not eligible to graduate because he had not met all the requirements for a Bachelor of Arts degree. This is an exhibit to the Rowan affidavit (exhibit TJR-3) but is not referred to by the plaintiff as having been received by him and was a letter written in response to an application he made for the award of a Bachelor of Arts, which hardly seems relevant to the University giving the Certificate of Completion the plaintiff seeks.
Having found that the relevant date for r 56.02(1) is 16 December 2009 and that accordingly the plaintiff brought this action some seven and a half years out of time, I turn to the issue of whether ‘special circumstances’ exist to satisfy r 56.02(3) and invoke the Court’s discretion to extend the time fixed for commencing this proceeding.
Special Circumstances
Before delving into other circumstances of the case to ascertain whether special circumstances exist it is prudent to consider whether the plaintiff’s case is arguable or has a real prospect of success. For the following reasons I have concluded that it is not arguable and does not have real prospects of success.
In seeking a writ of certiorari the plaintiff has not identified any of the usual established grounds - jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Instead the plaintiff asserts he is eligible for a Certificate of Completion without identifying the specific authority of the University under its Statutes or regulations to grant such a Certificate or defining what the eligibility criteria are and how he has met them, save by reference to the Knowles letter and the argument that he would not have been permitted to undertake the third year program without having received credit for stages one and two of the three year sequence.
The plaintiff claims that Swinburne has a public duty to confer a Certificate of Completion on the plaintiff but has provided no evidence of the source or content of this claimed public duty and, aside from the Knowles letter, he has not provided any evidence of his eligibility for the claimed Certificate. Because the University Statutes and regulations pertaining to the degrees, diplomas, certificates and other awards of the University which maybe conferred or granted by Council were not adduced in evidence, the excerpt from the 1996 Handbook[87] provides the best evidence of the relevant degrees, diplomas, certificates and awards at that time and is likely to reflect the Statutes or regulations of the University. The Reed letter read in conjunction with the excerpt of the 1996 Handbook, the Accreditation Spreadsheet, and the Rowan affidavit support the conclusion that the Certificate of Completion that the plaintiff seeks is not an official award or testamur of the University and therefore it can be under no duty to provide one. Accordingly this Court cannot compel the University to do something it has no duty to do.
[87]Exhibit TJR-1 to the Rowan affidavit.
The correspondence from APAC dated 5 December 2017[88] confirms that the courses offered by Swinburne as three year sequences of study that were accredited by the APS as at semester 1, 1996 were the Bachelor of Arts and the Bachelor of Applied Science. The plaintiff admits that he did not enrol in a bachelor degree with the University[89] and this is confirmed by the results documents[90] which state that the plaintiff ‘was enrolled in the course leading to the Non Credit Division of Business, humanities and Social Science’. Apart from the Knowles letter, there is no evidence that in 1996 Swinburne offered any accredited three year sequences of study outside of the two bachelor degrees outlined and, as the plaintiff concedes he did not enrol in either of these degrees and has failed to satisfy the Court that he is otherwise eligible for the conferral of either of these bachelor’s degrees, then he is ineligible for any certification from Swinburne that he has completed an accredited three year sequence of study.
[88]Exhibit JCC-1 to the affidavit of Jane Catherine Coventry affirmed 20 December 2017.
[89]Plaintiff’s affidavit sworn 22 December 2017 [3].
[90]Exhibit DS-4 to the plaintiff’s first affidavit.
In the absence of a duty to provide a Certificate of Completion, and given the failure to identify a jurisdictional error or other grounds for judicial review, the plaintiff does not have an arguable case for the relief he seeks nor has he any real prospect of success. There is therefore at present no point in extending the time and on this ground alone there are no special circumstances that warrant an extension of time.
If there were an arguable case for the relief that the plaintiff seeks, there are other reasons why the circumstances of this case do not amount to special circumstances which warrant an extension of time within which to commence the proceeding. First, the plaintiff has been pursuing the Certificate of Completion since mid-2007. His attempts to get the Certificate of Completion between 2007 and 2014 were desultory at best. In particular, from the date of the Drumm letter on 16 December 2009, there was apparently no follow up by the plaintiff until April 2011, a period of 16 months. It was when the HCCC began its investigation of him that his efforts increased in intensity, so as to defend himself, as he said. On the basis that the Decision the subject of the application for judicial review was made on 16 December 2009, there is no explanation for that delay.
If I am wrong in concluding that the decision was made in December 2009, and the plaintiff is correct that it was made on 1 March 2017, the delay between that latter time and the commencement of the proceeding is significant. The fact that a part of that period was taken up with a complaint to the Ombudsman, made on 28 March 2017 and not responded to until 19 May 2017, and in further correspondence with the University, cannot be said to excuse, as distinct from explain, the plaintiff’s delay. The taking of those further steps before commencing this proceeding is the plaintiff’s responsibility; it was his decision and he, rather than the University, should bear the burden of the consequential delay.
The prejudice to Swinburne arising from the delay is the subject of evidence and is referred to above (at [63]). There is no identified countervailing prejudice suffered by the plaintiff, apart from the need to apply for an extension of the time, and this need is a consequence of his actions and inaction. This means, in my opinion, that the prejudice that will be suffered by the University outweighs any prejudice suffered by the plaintiff.
One of the issues in the proceedings in the HCCC was whether the plaintiff had misrepresented his qualifications. One such representation (amongst others that were said to be false or misrepresentations) was that he held a Bachelor of Arts, with a major in psychology, from Swinburne.[91] The decision of the HCCC, later upheld in the review proceedings before the NSW Civil and Administrative Tribunal, is very critical of his conduct. Relevantly, however, is the fact that in the review proceedings before NSWCAT, after referring to the Knowles letter (amongst other matters), it was noted that the plaintiff -[92]
…conceded … that he had not been awarded a BA from Swinburne but it was asserted that he ‘completed an accredited sequence in psychology equivalent to a degree in psychology’. In these proceedings he appeared to retract the concession that he not been awarded a BA from Swinburne and stated he had instructed his lawyers to take steps to “set the record straight”.
[91]Statement of Decision of HCCC [4.8] in exhibit TR-4 to the Rowan affidavit. Other claims were that he had a PhD from the American College of Metaphysical Theology, unrelated to any psychological training, a Bachelor of Arts with honours from Monash University, when he did not obtain an honours degree, and a Graduate Diploma in Counselling Psychology from RMIT, when he failed to finish that course of study.
[92]Kaye v Health Care Complaints Commission [2017] NSWCATOD 157 [87].
The Tribunal does not say when that the plaintiff made that statement, but the hearing was held on 27 February and 2 May 2017 (with final submissions on 18 October 2017). That indicates instructions to have been given to commence proceedings of some kind to ‘set the record straight’ at the latest shortly after 2 May 2017. I note that the plaintiff did not wait for the decision of the Tribunal (on 31 October 2017) before commencing this proceeding on 21 September 2017.
The plaintiff submits that he made every effort to resolve his dispute with the University without recourse to litigation. He refers to the fact that his lawyers corresponded at length with the University and the plaintiff engaged the University’s internal complaints process and when that failed, made a complaint to the Ombudsman. This is one characterisation of the plaintiff’s conduct. Another and more plausible characterisation is that the plaintiff’s attempts to obtain recognition from the University of his Certificate of Completion has generally been in response to external stimuli, including-
(a) that in 2009 the NSW Police investigated the conduct of the plaintiff and as part of that investigation found evidence that the plaintiff provided misleading information to various people and organisations about his qualifications and training;[93]
(b) that in 2011 the plaintiff made application for general registration as a Psychologist with AHPRA, which led to the plaintiff approaching Mr Drumm again and receiving the second Drumm letter,[94] and his solicitor, Bruce Hocking, writing on 6 May 2011 seeking the Certificate of Completion (referred to in the Knowles letter) be sent directly to AHPRA and later to Mr Hocking applying for the results certificate from the University;[95]
(c) that in 2016 the plaintiff sought to defend himself in the HCCC investigation and this led him to email Swinburne on 5 September 2016.[96] This in turn led to the letters from his NSW Counsel, Mr Cohen and the invitation to file a formal complaint.[97]
[93]Statement of Decision of HCCC [5.39] in exhibit TR-4 to the Rowan affidavit.
[94]Plaintiff’s first affidavit [18]-[19].
[95]Plaintiff’s first affidavit [20]-[21].
[96]Plaintiff’s first affidavit [26].
[97]Plaintiff’s first affidavit [28]-[33].
The plaintiff submits that his medical problems delayed the filing of the proceeding, but there are no details of how his medical conditions have contributed. It is left as a matter of assertion. His motor vehicle accident was in August 2015, well after the 2009 Decision and over 2 years before the proceeding was commenced. The bilateral hernia surgery on 3 August 2017 was a ‘day’ procedure and in itself does not convince as a reason for delay. The bare assertion that his medical condition or conditions delayed the filing of the proceeding is unconvincing and in my view provides an insufficient basis upon which to explain or excuse the delay, whether it be since 2009 or March 2017.
The University submits that there is a public interest in the finality of litigation whilst the plaintiff submits that there is a public interest in a university adhering to its published student results. These posited public interests are not at odds in this instance. The principles underlying the public interest in the finality of litigation are reflected in the terms of r 56.02(3): Osborn J noted that ‘[t]here is a purpose of finality underlying the provisions of r 56 which must be recognised’[98] and Balmford J observed that as r 56.02(3) is ‘expressed negatively rather than positively; it would appear that the extension of time to commence proceedings is to be discouraged rather than encouraged.’[99] The plaintiff has been agitating the issue of his entitlement to the Certificate of Completion for over a decade. There is a public interest in determining that the issue has been finally resolved between the parties and that determination also has the effect of upholding the University’s only authorised publication of student results, being the plaintiff’s academic transcript.
[98]Young v The County Court [2005] VSC 311 [17] (Osborn J).
[99]Carra (2001) 3 VR 114 [24] (Balmford J) citing Prencipe v Nisselle [1999] VSC 137.
Conclusion
In light of the reasons set out above, I have formed the view that the circumstances occasioning the delay in commencing this proceeding, whether the Decision the subject of review was made in 2009 (as I have determined) or in March 2017 (as the plaintiff submits) do not amount to special circumstances within r 56.02(3) of the Rules. In the exercise of the Court’s discretion I therefore refuse the plaintiff’s application to extend the time within which this proceeding be commenced.
The necessary consequence of the refusal to extend the time is that the plaintiff’s originating motion should be dismissed. My preliminary view is that the costs should follow the event, but I will hear any argument that bears upon that issue.
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