Harding v. University of New South Wales [2002] NSWCA 325

Harding v. University of New South Wales [2002] NSWCA 325 - NSWCA 2002 case summary — Zoe

[7]

Wednesday 25 September 2002 HARDING V. UNIVERSITY OF NEW SOUTH WALES Judgment 1 HEYDON JA: I agree with Young CJ in Eq, for the reasons he gives, that it is undesirable to decide whether or not the appellant has an appeal as of right, but desirable rather to grant leave to the extent necessary. 2 I agree with Hodgson JA for the reasons he gives that the ARC did not comply with the undertaking. 3 In my opinion the court should not hold that the undertaking was invalid. As Hodgson JA indicates, the University did not submit that it was. The question is a difficult one and it is particularly difficult for this Court to decide it without full argument. 4 In my opinion the court should not decide whether or not, assuming the appeal had been heard and decided at some sufficiently early time, the undertaking should have been enforced at that time. That too is a difficult question which was not argued. 5 I agree with Young CJ in Eq, for the reasons he gives, that even if the undertaking could have been enforced at an earlier time, there is no utility in granting any coercive relief or any declaration now. 6 It follows that though in my opinion the appellant has succeeded on one substantive complaint, she is not entitled to any relief. Had she succeeded before Wood CJ at CL on the point on which she has now succeeded, it may be assumed that the University, if it still had power to do so, would have taken that success into account and would have sought to honour the undertaking in relation to the appellant's application to be admitted in 2002. That supports the view that if Wood CJ at CL made a costs order, it should be set aside, and the appeal allowed to that extent. However, there is no material indicating that he did make a costs order. His reasons for judgment conclude by dismissing the Notice of Motion, and nothing is said about costs. The position is that the substantive success of the appellant rests on the opinion of Hodgson JA and myself. On the other hand, her failure to obtain any coercive or declaratory order from this Court rests on the opinion of Young CJ in Eq and myself. A just compromise reflecting both her substantive success and her failure to obtain any coercive or declaratory order is that there be no order as to the costs of the appeal. 7 I propose the following orders. 8 The court: 1. Extends the time for filing the Summons for Leave to Appeal to 13 May 2002. 2. To the extent necessary, grants leave to appeal. 3. Dismisses the appeal. 4. Makes no order as to the costs of the appeal. 9 HODGSON JA: On 6 November 2001, the appellant Kathleen Harding commenced proceedings in the Supreme Court by filing a Statement of Claim in which she claimed damages against the respondent University of New South Wales arising from her non-enrolment by the respondent in its Faculty of Medicine for each of the years 1999, 2000 and 2001, and also an order that she be enrolled in the respondent's MB BSc BS course for the year 2002. At the same time, she filed a Notice of Motion seeking the lastmentioned order. 10 The Notice of Motion was dealt with on 29 November 2001 by Adams J, who dismissed it as premature, because the appellant had yet to file an application for enrolment for the year 2002. 11 On 30 November 2001, the appellant lodged an application for enrolment in the year 2002, and also an Application for Special Consideration for Applicants with Tertiary Studies (SCATS). On 11 January 2002, the Admissions and Re-enrolment Committee (ARC) of the respondent's Faculty of Medicine determined that the appellant should not be offered enrolment. 12 On 30 January 2002, the appellant filed a further Notice of Motion in the proceedings to which I have referred seeking the same order as in the previous Notice of Motion. This was heard by Wood CJ at CL on 26 February 2002, and on 1 March 2002, he dismissed that Notice of Motion with costs. 13 On 13 March 2002, the appellant filed an application for leave to appeal from that decision of Wood CJ at CL. In the summary of the claimant's argument provided by the appellant, it was asserted that the matter was suitable for oral argument of the appeal to proceed concurrently with the leave application. An application for expedition was dismissed by Sheller JA on 11 March 2002. 14 The leave application was listed for hearing before Heydon JA and Young CJ in Eq on 23 August 2002, at which time the appellant said that she proposed to submit that she had an appeal as of right; and it was indicated by Mr. Gibb SC for the respondent that it would put on a Notice of Motion for an order that the appeal be dismissed as incompetent. The Court then re-constituted to include myself as well as the two original judges, and argument then proceeded on three questions. First, did the appellant have an appeal as of right? Second, if not, should leave be granted? Third, if yes to 1 or 2, should the appeal be allowed and if so, what order should be made?

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OUTLINE OF CIRCUMSTANCES 15 The appellant left school in about 1957, and completed her HSC examinations twenty-five years later in 1982, achieving a mark of 97.70. She was admitted to the respondent's Faculty of Medicine, and commenced study there in February 1983. However, she discontinued in May 1983. 16 In 1984, she was refused re-admission to first year medicine. However, after a successful appeal she was re-admitted; but she discontinued the course in June that year. 17 In 1986, she was re-admitted to first year medicine, but did not sit for examinations at the end of that year. According to the appellant, this was due to ill health associated with a thyroid problem (specifically, the effects of a very large goitre) in October 1986. 18 The appellant applied for re-enrolment at the commencement of 1987, but that application was rejected by the ARC. On 19 August 1987, the appellant underwent a thyroidectomy, performed by Professor Reeve. 19 In 1988, the appellant was allowed to re-enrol; but at the end of the year, she failed Biochemistry and Introductory Clinical Studies. In that year, she passed Anatomy I. According to the appellant, her performance in the end of year examinations was affected by a significant level of hypothyroidism, evidenced by a pathology report of a test taken on 18 October 1988 an confirmed by a letter from Professor Reeve dated 23 April 1993; and this in turn was due to problems in establishing the correct dosage of Thyroxine, which were not resolved until 1996, when it was established that the appellant had significant residual functioning thyroid tissue. 20 In December 1988, the respondent asked the appellant to show cause as to why she should be entitled to re-enrol for the year 1989; and in January 1989, she lodged an application for special permission to re-enrol for that year. This application was rejected by the ARC, which excluded her for two years. The appellant appealed from that decision; and in March 1989, the respondent's Appeal Committee purported to confirm the decision to exclude the appellant for two years, and ruled that thereafter she would have to compete for re-enrolment. 21 The appellant applied to the Supreme Court for prerogative relief in relation to that decision of the Appeal Committee. This application was refused by McInerney J in October 1991; but on appeal, the Court of Appeal on 17 December 1993 concluded that the Appeal Committee was improperly constituted when it heard the appellant's appeal and that its decision was therefore invalid. However, the Court of Appeal declined to grant relief because there was no utility in doing so, that is, no utility in making any order requiring the Appeal Committee to re-hear an application for enrolment in 1989 or in making a declaration that the decisions affecting that year were invalid. 22 On 1 March 1995, the appellant commenced proceedings in the Supreme Court against the respondent claiming damages in respect of the decisions of committees of the respondent in 1989. The respondent applied for summary dismissal of these proceedings, and this was ordered by Sully J on 12 April 2001. 23 In 1997, the appellant applied to be enrolled in the Medical Faculty for 1998. In January 1998, the respondent's Admission Centre wrote to her advising that her application had been unsuccessful; and this decision was confirmed at meetings of the ARC on 10 February 1998 and 19 February 1998. Proceedings brought in the Supreme Court by the appellant to challenge these decisions were dismissed by Bruce J on 27 February 1998. 24 In 1999, the appellant applied by Notice of Motion to the Court of Appeal for re-consideration of her previous appeal to that Court; and this application was dismissed. Also in that year, the appellant applied for admission to the Faculty of Medicine in 2000. This application was rejected, and the appellant enrolled in various science and mathematics subjects. She obtained a credit in Molecules Cells and Genes, and passes in Fundamentals of Chemistry 1A, Mathematics for Life Sciences MLS, and Psychology 1A; but then discontinued after the first semester. 25 Later in 2000, the appellant applied for enrolment in the Faculty of Medicine for 2001, but this was refused. During 2001, she brought an action in the Administrative Decisions Tribunal, Equal Opportunities Division, alleging discrimination in relation to the 1988 year; and that action was dismissed. 26 As recorded at the commencement of the judgment, these proceedings were commenced by Statement of Claim on 6 November 2001, and on the same day the appellant filed a Notice of Motion seeking an order that the respondent enrol her in the Faculty of Medicine for the year 2002; and on 29 November 2001, this Notice of Motion was dismissed by Adams J. The judgment of Adams J was as follows: 1 HIS HONOUR: Kathleen Frances Harding brings an application to this Court by notice of motion seeking orders that the University of New South Wales enrol her in the Faculty of Medicine, MB BSc BS course for the academic year 2002 and such other order or orders as is appropriate.

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RIGHT OF APPEAL 39 The question whether the appellant has an appeal as of right depends upon whether the order made by the primary judge is final or interlocutory: see Supreme Court Act s.101(2)(e). 40 One reason why it might be considered interlocutory is that the decision was to dismiss an application made by Notice of Motion. However, the question of whether an order is final or interlocutory is in my opinion one of substance, not of form. What was sought in the Notice of Motion was one of the final orders sought in the Statement of Claim. The Notice of Motion might conceivably have been dismissed on the ground that it was not an appropriate vehicle by which to seek final relief, or alternatively on the ground that final relief on one of a number of matters raised by the Statement of Claim should not be considered separately from the other matters (at least in the absence of an order for separate determination under Pt.31 of the Rules). Had the Notice of Motion been dismissed on either of those grounds, in my opinion that would have been an interlocutory decision. However, plainly the Notice of Motion was dismissed on the merits, and in my opinion the order in question should not be considered interlocutory merely because it was made in response to an application by Notice of Motion. 41 I note in passing that the application relied in part on facts arising after the commencement of the proceedings, giving rise to a possible Baldry v. Jackson question (Baldry v. Jackson [1976] 2 NSWLR 415). However, this problem was not raised by the respondent, it can be overcome, and it is not in my opinion appropriate to pursue it further. 42 It could also be submitted that the decision was interlocutory, not final, because it amounted to the refusal of a declaration or injunction. It seems clear that if a declaration is refused on purely discretionary grounds, that is not a final decision: Coles v. Wood [1981] 1 NSWLR 723. However, I think it is also clear that if the refusal of a declaration is on substantive grounds, that is a final decision: A. Hudson Pty. Limited v. Legal & General Life of Australia Ltd. (1985) 1 NSWLR 701. 43 The last basis on which this might be considered not to be a final decision is to the effect that it did not finally determine the rights of the parties, because it left all other aspects of the Statement of Claim still to be determined. It would seem that where a decision only determines part of an overall dispute, it is not considered final: for example, a judgment for a plaintiff on liability, with damages to be assessed, is regarded as interlocutory: Thomas v. Bunn [1991] 1 AC 362 at 370. In my opinion, in cases such as the present one it is a matter of degree whether a particular dispute which is decided is properly regarded as a separate and distinct dispute between the parties, or an integral part of an overall dispute: cf. Hudson at 718. 44 I think the appellant's claim for an order promoting her enrolment in 2002 should properly be regarded as a distinct claim from her claim for damages in relation to the respondent's conduct in earlier years, even though, were it not for the practical necessity to have the former claim determined quickly, it would have been desirable to have all matters heard together. Accordingly, I do not think the order appealed from should be regarded as interlocutory on the ground it is only part of an overall dispute. 45 For those reasons, in my opinion the order in question was a final order, and there is an appeal as of right in this case.

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There is sufficient evidence before the Court to allow its intervention and indeed the Court has a duty, in these circumstances to intervene to the claimant's benefit and ultimate benefit of being re-enrolled as a medical student. 47 In her oral submissions, she focussed on two matters in particular: firstly, the respondent's alleged non-compliance with the undertaking given before Adams J; and secondly, the ARC's failure to deal appropriately with the appellant's medical condition, this submission being supported by reference to the contents of the Administrative Decisions Tribunal tape indicating the respondent's misunderstanding of the evidence about her condition, the absence of her file from the ARC meeting, and the lack of regard paid by the ARC to her medical evidence. 48 In my opinion, there is substance in one of the appellant's complaints, relating to the effect of the undertaking given before Adams J. 49 I note first in relation to this matter that there is in my opinion factual error in the primary judge's reasons concerning the bases on which the ARC considered the appellant's application. As shown by par.[2(z)] of his judgment, and also par.[20], the primary judge proceeded on the footing that the ARC had considered the application on three bases. In my opinion, it is clear from the notes of the meeting that it considered the application only on two bases, firstly as an excluded student, and secondly as an applicant competing with other students applying to study medicine in 2002. That this is correct is supported by the affidavit of Jane Gatwood filed for the respondent, pars. 5 and 6 of which are as follows: 5 At the hearing of the plaintiff's interlocutory application referred to in paragraph 4 above the University through its legal adviser gave a "without admission" undertaking to the Court that the University would consider the plaintiff's application for re-admission to study medicine in 2002 on the basis that she was a non-excluded student and also on the basis she was an excluded student and would apply the more favourable result to the plaintiffs application.

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6 As a non-excluded student the plaintiff would have to compete for a place in the University's Faculty of Medicine with other students applying to study medicine in 2002. 50 I note that par.5 refers to the undertaking as an undertaking "to the Court". However, the undertaking was not so expressed, and, because of the very serious consequences attaching to failure to comply with undertakings to the Court, I would lean towards interpreting undertakings as not being undertakings to the Court unless they are so expressed. However, plainly it was a seriously given undertaking, and plainly it is expressed with some care in par.[10] of Adams J's judgment. On the other hand, it seems to me there is some ambiguity in the expression "on the basis that she was not an excluded student by virtue of the decision of the Admissions and Re-enrolment Committee in 1989", and that it is permissible to have regard to other parts of the judgment, in particular par.[7], in order to resolve that ambiguity. 51 In my opinion, a fair reading of the undertaking is that the respondent was undertaking that it would act in such a way that the appellant was not disadvantaged by the decision of the ARC in 1989, in respect of which the appellant had been denied her right of appeal because of the invalid constitution of the Appeal Committee, as determined by the earlier Court of Appeal decision. In my opinion, the only way in which the appellant would not be disadvantaged by the ARC's decision would be to treat her as applying for the year 2002, not as an excluded student, but as a student who had breached re-enrolment rules. To treat her as a new applicant, competing with the current intake of students, would plainly be to her disadvantage. 52 In my opinion, this is confirmed by the terms of rules 6, 7 and 8 of the Restriction of Students Re-enrolling rules, set out in the previous Court of Appeal judgment in Harding v. University of New South Wales NSWCA 17/12/93: Showing Cause 6. (1) Students wishing to show cause must apply for special permission to re-enrol. Application should be made on the form available from the Academic Registrar and must be lodged with the Academic Registrar by the dates published annually by the Academic Registrar. A late application may be accepted at the discretion of the University.

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Students excluded under (c) or (d) will be advised by the Academic Registrar of courses of action they may take to improve their chances of re-admission. Students excluded under (e) must meet the same standard as students entering the course for the first time. 53 Until such time as the ARC has considered and determined an application for special permission to re-enrol, the student is in the position of having to show cause why he or she should be re-enrolled, but not yet in the position of applying as an excluded student. The resolution 80/131 shows a clear difference between these two categories. In the first category, the focus is on the reasons for breach of the re-admission rules, that is, essentially the reasons for failure. The other category focuses on evidence of academic rehabilitation. 54 Had the ARC dealt with the appellant as a person seeking re-enrolment not as an excluded student but as a student who had breached re-enrolment rules, it would in my opinion have been required to reconsider de novo the reasons for those breaches in 1988, and possibly also 1986. It would no doubt also have considered evidence relating to medical and academic rehabilitation since that time, but it could not have avoided consideration of the reasons for the original failures. 55 As I have indicated, I think it is plain that the ARC did not consider the application on this basis. The question then is, does this give a ground for interfering with the ARC decision? 56 There is no suggestion that the undertaking given by the respondent before Adams J was in any way improper, in the sense of amounting to some improper fettering of the discretion of the ARC; and I see no reason why the undertaking should not be regarded as having been given, and properly given, on behalf of the respondent's committee which had the responsibility of dealing with the appellant's application. The question then is, if an administrative tribunal properly and solemnly undertakes to deal with an application in a particular way, and then does not do so, is this a ground for intervention? 57 In my opinion, it is in this case a ground for intervention, if only on the basis that there has been a denial of procedural fairness: at least, before not complying with its solemnly given undertaking, the respondent's committee should have given clear notice of its intention to do so, and an opportunity to the appellant to contend otherwise. There is no need in my opinion to decide whether there is a ground for intervention on any other basis, although I am inclined to think that such conduct also amounts to unreasonableness justifying intervention. 58 In my opinion, there is no substance in any of the appellant's other criticisms of the primary judge's decision.

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We submit the granting of a declaration is discretionary. Relevant factors include whether there would be any utility in granting an injunction. See Sutherland Shire Council v Leyendakkers (1970) 91 WN (NSW) 250, Johno Nominees Pty Ltd v Albury-Wadonga (NSW) Corporation (1997) 1 NSWLR 43. We submit that the decision of the Committee was reasonable and appropriate and there would be no utility in making a declaration that the decision of the Committee failed to take relevant material into account or was void. 61 In my opinion, it is appropriate to grant relief. The ARC has not properly considered the appellant's application for 2002, and should be ordered to do so. The fact that it is now probably too late for the appellant to be enrolled for 2002 should not disentitle her to relief: she applied for relief promptly and has pursued the proceedings promptly and diligently. 62 The ARC may consider her application on the proper basis, and still decide that it is not appropriate to offer the appellant enrolment at all. But if the ARC decides that consideration of her application on the proper basis would have made it appropriate to offer the appellant enrolment for 2002, but that it is now too late to do so, the ARC will then have to decide what it should do, in the light of the circumstances that the delay was due to its failure to comply with the undertaking given by the respondent in the proceedings before Adams J. 63 In my opinion, the following orders should be made: 1. Appeal allowed with costs. 2. Orders of Wood CJ at CL set aside. 3. Declaration that the respondent has not properly considered the appellant's application for enrolment for 2002. 4. Order that the respondent by its Admissions and Re-enrolment Committee properly consider the appellant's application for enrolment for 2002. 5. Respondent to pay appellant's costs of the Notice of Motion filed 30 January 2002. 64 YOUNG CJ in EQ: I have read in draft the reasons of Hodgson JA and whilst I respectfully agree with the majority of what his Honour has said, I regret to say that I differ from him in some key areas. 65 It is unnecessary in view of the way in which his Honour has so clearly set out the salient facts for me to repeat them. I will content myself with considering the areas of disagreement. These are: (1) Whether the applicant requires leave to appeal; (2) The undertaking given to Adams J; (3) The rights of the applicant; (4) What orders should be made. 66 Before embarking on these four matters, I should briefly note the nature of the present proceedings. 67 The applicant filed a statement of claim in the Common Law Division seeking damages because of her non-enrolment in the Faculty of Medicine for the years 1999, 2000 and 2001 and an order that she be enrolled in a medical course for 2002. At the same time she filed a notice of motion seeking the lastmentioned order. 68 On 29 November 2001, Adams J dismissed the notice of motion as premature with costs. However, he recorded the University's undertaking that it "will consider any application that Ms Harding might make for enrolment in the 2002 academic year on the basis that she was not an excluded student by virtue of the decision of the Admissions and Re-enrolment Committee in 1989, or that she was such an excluded student, whichever of those two bases favours her enrolment". 69 On 30 January 2002, after the University had informed the applicant that she had been unsuccessful in her application for enrolment, she filed a further notice of motion which was heard by Wood CJ at CL. The notice of motion was in similar terms to that which had earlier been dismissed by Adams J seeking an order that the applicant be enrolled in the Faculty of Medicine for the academic year due to start in March 2002. 70 Wood CJ at CL, indicated in his reasons for judgment, that during the course of argument on the notice of motion, "It was indicated to the plaintiff that the Court lacked power to undertake the kind of merits review which might result in a decision that she be enrolled in the Faculty. She then sought, at least, orders that the decision of the Committee be declared invalid, and that the University be ordered to redetermine the application according to law." No formal amendment to the notice of motion was made, but it would seem common ground that the question that his Honour had to decide was whether the decision of the University not to enrol the applicant was invalid, and whether the University should be ordered to redetermine the application according to law. 71 Wood CJ at CL held that there was no room for any argument that the University's committee approached its task on an inappropriate basis, and that in view of the applicant's past academic record, even giving her full credit for earlier medical difficulties, he was not convinced that the committee decision was one which could be seen to have been unreasonable. Accordingly, he dismissed the motion. 72 I will now deal with the four matters I mentioned earlier. 73 (1) On the application for leave to appeal, and on what was in effect the concurrent hearing of the appeal, the applicant appeared in person and counsel appeared for the University who had no real notice that he had to argue the point as to whether the decision of Wood CJ at CL was final or interlocutory. Even though counsel did his best in the limited time available, I could not be sure that he presented to the Court all the submissions that would need to be considered before a fully informed decision could be made. The applicant, as a litigant in person, was again unable to supply full argument with reference to legal authority. 74 In the circumstances I consider it would be unwise to make any determination as to whether we are here dealing with a final or interlocutory judgment. The better course is to decline to answer that question, but give the applicant leave to appeal. 75 (2) I am content to assume that the analysis of Hodgson JA is correct that (i) the undertaking was not an undertaking to the Court but an undertaking inter partes; and (ii) that on its true construction the undertaking required the University to treat the applicant as applying for the year 2002 not as an excluded student, but as a student who had breached re-enrolment rules. 76 That undertaking, being an undertaking inter partes, was a contract between the University and the applicant. It was probably given for consideration, the consideration being that the applicant waived her rights to a formal hearing of her notice of motion before Adams J. I will not make any definite decision on this point as it would appear possible that Adams J had already indicated that the notice of motion was premature before brokering the giving of the undertaking. 77 The defendant University is established under the University of New South Wales Act 1989. Its functions, within the limits of its resources, are to provide educational and research facilities and instruction and to confer degrees. 78 Before Wood CJ at CL the applicant said that the University is a statutory corporation established by Act of Parliament as a public institution to promote public purposes and is thereby the subject of public scrutiny in the courts. She cited Norrie v Auckland University Senate [1984] 1 NZLR 129, 135. The idea of a public institution is rather fuzzy, but it has cropped up in other cases involving universities, for instance in Ex parte Forster; Re University of Sydney (1963) 63 SR (NSW) 723. In that case at 729 the Full Court consisting of Sugerman, Else-Mitchell and Moffitt JJ said, of the University of Sydney: The Senate's functions of providing instruction, conferring degrees, and so on, may be regarded as public functions. They are to be performed without discrimination … . But, except in so far as express provision is made for duties to individuals, such duties as these functions import must be regarded as public duties imposed in the public interests, without discrimination on improper grounds between individuals but not so as otherwise to confer upon individuals specific legal rights.

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The learned Judges had also said earlier at 727-8 that they accepted that the University was a public university "that is one which was established by a public Act, is largely supported by public funds, is open to all scholastically qualified residents of the State, and is subject to some degree of public control." However, they also said, "The institution which is in question is not only a 'public' university; it is also, changing the emphasis, a public 'university'. It is essential to the proper performance by a university of its functions that it maintain and insist upon high standards of scholarship …". 79 In so far as the defendant is a university with duties to preserve scholarship, it is imperative that it has power to select the best students so long as it does not contravene its statute as to discrimination. Furthermore, the authorities tend to suggest that no resident of New South Wales has any statutory right to be admitted to a university. There once was an argument under the old s 31C of the University Colleges Act 1900 now repealed and not re-enacted that anyone who had a leaving certificate had a right to matriculate, but that is as far as the right has ever been held to exist; see eg R v University of Sydney; Ex parte Drummond (1942) 67 CLR 95. 80 Where a body has a statutory duty to make a decision in its discretion to carry out its public purpose, normally that body cannot fetter that discretion by entering into contracts to exercise the discretion in a particular way; see for example New South Wales Trotting Club Ltd v Glebe MC (1937) 37 SR (NSW) 288. 81 Indeed, it is usually unsafe to apply a combination of public law and private law principles to any piece of litigation. As Lord Hoffmann said in giving the decision of the House of Lords in R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] TLR 102 at paras 33-35, generally concepts of private law should not be extended into the public law. 82 I have great doubt whether it is competent for the University to give an undertaking such as the present which would bind it to admit somebody to a faculty of the University. I would also have great difficulty in considering that this Court had the power to direct the University to do that. 83 However, in the instant case, the undertaking went no further than to consider the application of the applicant on particular bases. This may also be bad for the same reason because it inhibits the University from carrying out its public function in securing the best scholars to be trained with public funds. 84 (3) Even if I was in error in what I have said under the previous head, it would not seem to me that such an undertaking or contract is enforceable by specific performance or even by an order for mandamus or the extended mandamus provided for in s 65 of the Supreme Court Act. The cases referred to in Forster's case show that the courts are extremely reluctant to interfere with the administration of universities in admitting students by making any peremptory orders. 85 It may be that under the by-laws of a university a student will have rights. That is not the question before the Court in the present case because she says that her rights stem from the undertaking. 86 There is also no argument put that the applicant has any particular rights because she is a member of the University. Her application is purely on the basis of the undertaking. 87 In my view she either has no rights under the undertaking because it does not lend itself to specific enforcement, or else her rights are limited to rights in damages. In either event the undertaking could not secure the applicant the order she seeks under the notice of motion that was before Wood CJ at CL. 88 (4) It follows that in my opinion, leave to appeal should be given and the appeal dismissed with costs. 89 However, even if I were of the view taken by Hodgson JA, my order would be the same though I would have been in favour of making no order as to costs on the appeal. 90 Hodgson JA says in his judgment that because the University misconstrued the fair meaning of its undertaking, an undertaking which was solemnly given, the University had not properly considered the applicant's 2002 application and should be ordered to do so. His Honour went on to say: The fact that it is now probably too late for the appellant to be enrolled for 2002 should not disentitle her to relief: she applied for relief promptly and has pursued the proceedings promptly and diligently. 91 Dealing with this last point first, it is true that the applicant applied to the Common Law Division promptly and before term started. Those proceedings were decided on 1 March, and on 4 March the applicant filed a notice of appeal. 92 The applicant filed a notice of motion for expedition which was dismissed by Sheller JA on 11 March 2002. 93 I do not know what happened after that, but whether it be the fault of the applicant or of the court or otherwise, it is now too late to make any meaningful order with respect to the academic year 2002 which is almost over. 94 The grant of a declaration is discretionary and the Court does not make declarations where there is no utility. The only utility of making a declaration would be to give the applicant some advantage for next year's intake. However, the University, a public body, has given an undertaking to the applicant which Hodgson JA has held it has not honoured. I have no cause to think that the University would not seek to honour its undertaking in the appropriate way should the applicant ask it to do so in a manner which might produce a meaningful result. 95 The Court would not, I would think, be inclined to make any executive order if a declaration were made and disregarded by the University. Accordingly, it does not seem to me that there is any need to make a declaration and the matter should be left to the University to "do the right thing" by reconsidering the applicant's application. 96 As I have said, there is a great reluctance to make executive orders against universities; see for example R v Aston University Senate; Ex parte Roffey [1969] 2 QB 538. Particularly does this apply in a case where a student has been excluded for as Blain J said in that case at 559: This Court should not be used for the creation of a real life counterpart to Chekhov's perpetual student …" 97 I do not consider there is any utility in making any declaration and I would not make one. Accordingly, in my view leave to appeal should be granted but the appeal should be dismissed. I would have dismissed the appeal with costs. However, now having read the reasons of Heydon JA I concur in the orders his Honour proposes. **********

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