Hanna v University of New England & Ors [2006] NSWSC 122 | Case summary

JUDGMENT 1 His Honour: The plaintiff remains as a student at the first defendant (under the Higher Education Scheme). The named second defendant is not a legal entity. The third defendant is a senior lecturer in law at the first defendant. The fourth defendant is the head of its School of Law. 2 During the hearing, the plaintiff sought the relief that is claimed in an amended summons (filed in court on 6 March 2006). It contains 18 prayers for relief (including relief by way of declaration, writ of certiorari, injunction and damages). It presented as what might be described as "omnibus litigation" (there being an unwieldy bundle of claims). Whilst not intending to be exhaustive, I shall make general reference to certain of the claims. There are claims for judicial review (arising out of decisions made within the faculty). Declarations are sought, inter alia, as to alleged inconsistencies and the meaning of what are said to be University policies. There are claims in respect of alleged discrimination. There are claims in respect of alleged defamation. There are claims made pursuant to the Trade Practices Act 1974 (the TPA). There are unspecified claims for damages. 3 It would be an understatement to say that this process gives rise to a plethora of issues. Fortunately, these proceedings can be determined without addressing and resolving all of them. Largely, I will confine observations to matters that are determinative of the claims. 4 The plaintiff has conducted his case in person (he is not an inexperienced litigant). He has conducted a number of cases in this court. The first, third and fourth defendants are legally represented. 5 The hearing commenced on 6 March 2006. The evidence was concluded on 8 March 2006. The parties then made written submissions (this course was taken on the application of the plaintiff). The parties informed the court that they were content to have the claims determined on the written submissions only (in other words, they did not want the opportunity to orally address as well). 6 The plaintiff has provided a lengthy and detailed written submission (which was accompanied by a detailed list of Exhibits). It concludes with an enumeration of orders then sought by the plaintiff. The defendants have provided closing submissions (there had been written submissions which preceded the hearing). The plaintiff has replied with a further lengthy and detailed response to the defendants' closing submissions. It concludes with a request that the orders sought in the earlier submissions be made. 7 I have carefully read all of the submissions and all of the other material that was placed before the court. 8 It is necessary to observe that the orders now sought in the plaintiff's submissions do not correspond with the relief that was sought in the amended summons. It was not open to the plaintiff to make additional or different claims in his submissions. The relief available to him in these proceedings is restricted to that which is sought in his process (the amended summons). The other matters will have to be pursued elsewhere. 9 The plaintiff relied on his own affidavit, together with the exhibits thereto and other documents. He was briefly cross-examined and was given the opportunity to present further evidence by way of re-examination. 10 The plaintiff has told the court that he wanted the fourth defendant to give evidence. The fourth defendant had not sworn an affidavit in the proceedings. Despite having lengthy notice that the fourth defendant did not intend to appear in court and give evidence, the plaintiff failed to take any steps (such as by way of issue of subpoena) to compel his attendance in court. 11 The defendants have relied on three affidavits. One was sworn by the third defendant on 11 October 2005. One was sworn by Matthew John Page (an administrative assistant working at the second defendant) on 19 October 2005. One was sworn by Judith Ann McDonald (the faculty manager for the Faculty of Economics, Business and Law of the University of New England) on 11 October 2005. Each of these deponents was cross-examined at length by the plaintiff. 12 The material throws up competing versions of conversations. The plaintiff has sought to attack the credibility and reliability of the defendants' deponents. During his opening and the cross-examination of Mr Page, it appeared as though the plaintiff was attempting to demonstrate that all of the deponents were pressured by the first defendant to give false evidence. This approach appeared to be abandoned thereafter. 13 I have closely observed the demeanour of all witnesses during the giving of evidence. In assessing questions of credibility and reliability, I have had regard both to demeanour and evidence. 14 In my view, the attack that was launched by the plaintiff proved to be a failure. 15 I do not regard the plaintiff himself as a reliable witness. In the absence of independent corroboration, I do not accept his evidence. Where there is conflict, generally speaking, I prefer the competing evidence. 16 His lack of reliability was well-demonstrated by one aspect of his presentation. I shall briefly describe what happened. 17 The plaintiff retained a message left by Mr Page on the plaintiff's answering machine. The message had not been transcribed and there were no references to it in the material relied on by the plaintiff. 18 Perhaps, it was intended to ambush Mr Page. In giving evidence to prove the message, the plaintiff gave evidence as to his version of its contents. A playing of the message itself established that the plaintiff's version of its contents was both unreliable and false (although he undertook to provide a the court with a transcribed version of the message (see Tr p 30), this was not done). He could have been well advised not to introduce it into evidence. 19 It was not the only occasion during his conduct of his case that the plaintiff presented unreliable and false versions of evidence. Rather than present the evidence as it was, he exhibited a propensity to propound a false version of it which no doubt he saw as advancing his case. 20 Before proceeding further, I should digress to say that the claim advanced in defamation was stood over generally, costs being reserved. This was done because it could not be heard with the other prayers for relief. 21 It remains open to the plaintiff to pursue that matter in the future, should he choose to do so. However, it may be that he would be well advised not to pursue the claim. A view could be easily taken that none of the allegations relied on could be said to be defamatory. 22 During the hearing, it became clear that the proceedings should not have gone to trial in the absence of pleadings and summary relief should have been sought to weed out at least certain of the claims. Not only were there claims which the Rules of this court required to be pleaded, there was no definition of issues. Whatever was intended to be the causes of action (if any) that lay behind the numerous claims made by the plaintiff remained relatively obscure. The process of determining what fell within the realm of the relevant bordered on an impossibility. This was a situation of which plaintiff took advantage. As a consequence, an unnecessarily lengthy trial took place with too much time being devoted to irrelevant matter. 23 Be that as it may, the primary obstacles confronting the plaintiff became obvious. They were evidentiary deficiencies in respect of all claims (including a lack of evidence of loss). There were assertions that were incapable of being maintained. There was an absence of entitlement to relief (including jurisdictional problems). The plaintiff attempted to run his case as a general attack on the conduct of the defendants and other University staff during the period that he has been a student there. The aim seemed to be to pursue the prospect of unearthing error, mistake or inconsistency (whether or not they were the subject of his claims for relief) in the mistaken belief that they gave rise to a cause of action at law. 24 In his written submissions, the plaintiff conceded that his causes of action are not clear "due to non-legal representation". The conduct of the case by the plaintiff in person was the product of his own decision to do so. He has to accept the consequences of that decision (which saw the bringing and the maintaining of misconceived proceedings). 25 He also submits therein that the court may, inter alia, make amendments to his process to give him the relief that he now wants. Such a submission is erroneous. It is not the role of the court to amend pleadings or other process of a party. 26 The plaintiff has also made lengthy and detailed submissions that are directed to a justification of the proliferation of claims in the one process. What is submitted by him is founded on misconception (inter alia, of legal provisions) and does not address the real problems caused by the approach he has taken. 27 It is convenient to first look at the claims that are purportedly founded on the alleged discrimination and the TPA. 28 Leaving aside questions of jurisdiction, these discrimination claims are doomed to failure because of lack of evidence and there not being any basis for relief. There is no evidentiary support for any allegation of racial discrimination (the nature of it was never actually expounded) or any allegation of discrimination of other kind (be it bullying or otherwise). When pressed to identify other forms of alleged discrimination, the plaintiff was unable to do so. It seems to me that this is another of those cases where challenge is brought because a plaintiff was unhappy with decisions that were not made in his or her favour. 29 In his submissions, the plaintiff has referred to "systematic mistakes". It is somewhat unclear as to what is intended by that expression. In my view, the errors that were made can be categorised as what is generally understood to be a mistake (that is, each was a product of error and was not otherwise brought about). 30 There were administrative errors made. Largely, they were either rectified, or of no consequence. In any event, they did not give rise to any entitlement to relief in this court. The extensive contact had by the plaintiff with the defendants could significantly explain the error rate. The view may be taken that at times the plaintiff was given generous treatment (such as when it would appear that he was not entitled to the relief sought). The errors did not form part of a pattern or system. 31 There is no remedy in this court for discrimination at large. Any relief for unlawful discrimination is founded on statute. There is no civil wrong at common law. The jurisdictional problems are incurable. Save for those circumstances where there is an appeal on a question of law to the Court of Appeal to pursue the statutory cause of action, jurisdiction lies elsewhere with a specialised Board (see the Anti-Discrimination Act 1977). What is before this court is not such an appeal on a question of law. 32 In his submissions, the plaintiff seeks to take comfort from a recent decision of this court (Naidu v Group 4 Securitas Pty Ltd & Anor [2006] NSWSC 144). What he says in his submissions is illustrative of the misconception and misrepresentation that has abounded in his conduct of the proceedings. The ratio decidendi of the decision was not founded on discrimination. It was a case in which the court awarded damages for the breach of a term of the plaintiff's contract of employment. At para 18 of that judgment, Adams J said:- I have held that it was a term of the plaintiff's contract of employment with Group 4 that he would not be intimidated by physical or verbal abuse by persons with whom he was required to work nor was he to be subjected to personal or racial vilification. The effects of the intimidation and vilification were considerable distress, humiliation and accumulating stress, anxiety and unhappiness. 33 I should add that there may have been some disputation involving the late Dr Hemphill (who was sub-dean at the time) which may have been litigated elsewhere. Although it was raised in paragraph 11 of the amended summons, it was not pressed in these proceedings (indeed, there was a lack of relevant parties). 34 It should also be observed that during the lengthy cross-examination of the deponents, the plaintiff did not press the matter of racial discrimination or bullying. 35 The claims made pursuant to the TPA are also doomed to failure for a variety of reasons. The amended summons contains very general allegations concerning the first two defendants and some specific allegations against the third defendant. None of the allegations disclose a cause of action under the TPA. Such evidence as there was concerning those allegations did not substantiate any of them. The submissions that were made did not address the statutory requirements that must be satisfied before relief could be granted. It was clear that these could not be satisfied. Apart from these problems, there is the obstacle of the TPA having application in the circumstances of this case. 36 I shall mention some of the problems. The first defendant is the only corporation. As it is a university, there is issue as to whether it is governed by the TPA (in respect of this matter, s2B is of relevance). There are also evidentiary and other issues as to whether or not it could be said to be engaged in trade or commerce. For present purposes, these issues need not be pursued. 37 I shall now move to another area and address a bundle of matters thrown up by, inter alia, the amended summons. 38 The plaintiff's application to enter the Bachelor of Laws course (second semester) was approved on 3 June 2002. He was a part time student. He sought to enrol in four units of study. He was allowed to enrol in one unit only. It is described as LS 100 (Introduction to Legal Systems and Methods). This may have been the result of an error. The evidence before this court was that students are only allowed to enrol part time in the second semester and are normally allowed to do two subjects. 39 However, whilst enrolled with the first defendant, the plaintiff undertook units of study (Law Foundation, Criminal Law, Property Law, Administrative Law and Law of Associations) in the second semester 2002 at the University of Western Sydney. 40 During 2002 and otherwise, the plaintiff also undertook units of study at the University of Technology, Sydney, and the Faculty of Law at the University of Sydney. 41 The first defendant has its own legislation. It is entitled the University of New England Act 1993 (the Act). It established the University as a body corporate. The Faculty of Economics, Business & Law Rules (the Rules) came into existence pursuant to that statute. The Rules may have the status of delegated legislation. Chapter 2 Rule 2.9 of the Rules contains the relevant rules on advanced standing. Subsequent to the Rules coming into being, the first defendant brought into being a policy (the University AS Policy) which contains broad provisions on, inter alia, advanced standing. 42 A copy of the relevant provisions of the policy is an annexure to an affidavit sworn by the third defendant. The Rules may be found in Exhibit 2. 43 As has been earlier said, in pursuit of the numerous areas of challenge, the plaintiff laboured under the misconception that the uncovering of inconsistencies would advance his cause and give him some entitlement to relief in this court. It was erroneous to assume that inconsistencies of themselves would provide him with a legal remedy. 44 One area was that the Rules on advance standing were inconsistent with the University policy. In my view, this avenue of challenge is misconceived. Whilst I am not satisfied that there is inconsistency as alleged, the demonstration of any such inconsistency would not have assisted the plaintiff in this case. 45 It needs to be borne in mind that the Rules are made pursuant to the By-Laws and have the same force and effect as a By-Law (s29 of the Act). The University AS Policy has the status of a policy and the Rules would prevail in the event of any inconsistency. 46 Another area concerned decisions made on the special examination and special consideration/special extension of time. The plaintiff successfully made an application to sit a special examination between 29 October 2004 and 2 November 2004 in LS 320 (Ethics, Trust Accounting and Professional Conduct). This was a decision made by the fourth defendant. The application had been founded on the ground of illness. 47 On 18 March 2005, the fourth defendant refused another application in LS 320 (which was for special examination/extension of time in which to submit an assignment). In my view, these decisions are not inconsistent. 48 There were distinct decisions, each involving different circumstances. The inconsistency had in mind by the plaintiff seems to be that he was successful in one and unsuccessful in the other. The result in each decision depended on its own particular circumstances. A contention that these circumstances should throw up some entitlement to relief is founded on misconception. 49 For completeness, it may be added that the plaintiff attained a failure grade in LS 320 and unsuccessfully made a request for reconsiderations of that failure grade. 50 Yet another area concerned an alleged inconsistency between a decision on an application concerning Migration Law (which was in his favour) and one concerning Media Law (which was not in his favour). Again, the alleged inconsistency seemed to be founded on a contention that he should have been successful in both decisions. The same considerations apply to this misconception as to inconsistency. 51 As has been said, there is a challenge a number of decisions made by the second defendant through its employees. Presumably, the relief sought by the plaintiff is that of judicial review as is now provided by s69 of the Supreme Court Act 1970. It enables the granting of relief, inter alia, where there is error of law that appears on the face of the record. It also provides relief where there has been jurisdictional error. However, the latter does not seem to be an avenue of challenge in this case. The granting of relief is discretionary. 52 It could be perceived that the history of dealings between the parties did not fall within the category of the usual. There was an avalanche of applications, decisions, appeals and other communications. The communication between the parties went well beyond what could be expected to be the norm (and included threats of litigation). It might be thought that what took place imposed an onerous administrative burden. 53 The challenge to the decisions has to be seen in its context. As appears from what has been earlier said, it is also not a context in which all of the plaintiff's applications were unsuccessful. The evidence shows that in this avalanche of activity he had his successes. 54 Whilst the full extent of the relief sought by the plaintiff is somewhat unclear, it is neither necessary nor realistic to embark on a comprehensive narrative of events and deal specifically with each and every decision. I propose to expressly mention certain only of the things that happened. The express mention includes the advanced standing decisions which manifest themselves as being the subject of claims for relief. Other matters are mentioned, inter alia, so that the claims can be seen in context. 55 On 21 June 2002, the late Dr Hemphill made certain determinations. He determined that the plaintiff should be given advanced standing to the extent of six credit points in respect of LS 357 (Alternative Dispute Resolution). This determination was made subject to the proviso of successful completion of Dispute Resolution at the University of Technology, Sydney (UTS). No advanced standing was granted in respect of LS 100. The plaintiff was given the offer of a challenge examination in respect of LS 335 (Human Rights). It was an offer to which the plaintiff may not have been entitled. The offer was not taken up. 56 In March 2005, Mr Eburn came to consider the LS 357 proviso. He had regard to the plaintiff's academic transcript from UTS. Mr Eburn did not allow advanced standing. His decision was reversed on appeal and six credit points were allowed in respect of LS 357. 57 In December 2003, applications for special extension of time in respect of LS 311 (Criminology) and LS 372 (Enforcement of contract) were granted. Further applications were later granted. In February 2004, the plaintiff was given advanced standing in respect of LS 280 (a unit that was abolished in 2005 and replaced with LS 480 (Advanced Legal Research, Writing and Advocacy). In June 2004 he was granted special extension of time in LS 240 (Equity and Trusts). Applications were also made in other subjects. 58 The plaintiff later sought advanced standing in respect of various units, including LS 335 (Human Rights), LS 355 (Jurisprudence), LS 360 (Public International Law), LS 361 (Private International Law), LS 378 (Media Law) and LS480. In his applications, he relied on courses taken at other universities, as well as his membership of journalist and writers' associations and the fact that he had conducted his own defamation case. The decisions were made by the third defendant on 21 March 2005, 1 May 2005 and 30 May 2005. Each decision saw a rejection of the applications. 59 In April 2005, the plaintiff was advised that he had been granted advanced standing for six credit points for one unspecified unit at 300 level. 60 In addressing certain of the matters, the plaintiff looked to, inter alia, the University Policy on Advanced Standing and the Rules in relation thereto. 61 One of the provisions of the Rules was as follows:- 2.9.7. Advanced standing shall not be granted for units passed elsewhere after enrolment at the University of New England, if the candidate has not previously obtained the permission of the faculty to enrol in them. (Candidates are referred to the Faculty Policy on Permission to Enrol Elsewhere). 62 The Faculty Policy on Permission to Enrol Elsewhere (PTEE) contains the following provisions:- 1. Introduction Permission to enrol elsewhere (PTEE) or cross-institutional enrolment is accepted by the Faculty of Economics, Business and Law but is granted at the discretion of the Faculty and will, or will not, be approved under the circumstances outlined in sections 2 and 3, and in accordance with the administrative procedures outlined in section 4, of this policy. Applicants must make a strong case for PTEE as the Faculty expects its students to undertake their full degree with UNE. 2. Grounds for Approving PTEE The Faculty will provide permission to enrol elsewhere for: · students taking a Study Abroad program; · students requiring units to complete their program irrespective of graduation which, as a result of annual phasing, are unavailable that year; · students wishing to undertake units which are not offered by UNE and for which it can be demonstrated that the units would be advantageous to the student's program; · students who have made a special case outside these conditions which the relevant Course Coordinator has accepted. In all cases, only units that are deemed to be comparable to UNE units of the same level (as recommended by the appropriate Head of School) and which are approved by the Course Coordinator will be accepted. Only in the most exceptional circumstances will cross-institutional units be accepted as replacement for core units in Faculty awards. 3. Grounds for Not Approving PTEE The Faculty will not approve students undertaking cross-institutional enrolment except under exceptional circumstances at the discretion of the Course Coordinator (see section 2 above): · where an equivalent unit is available from UNE; · for reasons of inability to attend a compulsory residential school; · for reasons of "inconvenience" or preference not to travel to Armidale (these must be considerations made at the time of seeking admission - especially to external candidature); · in units that are not approved for the degree program; · where the limit upon units credited through the advanced standing process has already been reached; · for reasons of accelerated degree progression where an equivalent unit is available from UNE within the ensuing academic year (including the summer session); · to undertake a degree major or sequence of units in a discipline which is not available at UNE; · where the student's academic performance is deemed to be unsuitable for cross-institutional enrolment.

Hanna v University of New England & Ors

At a glance

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Judgment (13 paragraphs)

Parties

Cases Cited (2)

Cited By (1)