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

COUNSEL : Claimant in person Mr. S.W. Gibb SC for opponent SOLICITORS : Bartier Perry, Sydney for opponent CATCHWORDS : ADMINISTRATIVE LAW - Review of decision of administrative tribunal - Undertaking by tribunal to deal with appliction in particular way - Whether valid - Whether remedy available if undertaking not complied with - Utility of declaration or order - PROCEDURE - Appeals - Whether appeal as of right - Decision to refuse order sought by Notice of Motion - Whether final or interlocutory. A. Hudson Pty. Ltd. v. Legal & General Life of Australia Ltd. (1985) 1 NSWLR 701 Baldry v. Jackson [1976] 2 NSLR 415 Coles v. Wood [1981] 1 NSWLR 723 Ex parte Forster; Re University of Sydney (1963) 63 SR(NSW) 723 Harding v. University of NSW NSWCCA 17/12/93 CASES CITED: New South Wales Trotting Club Ltd. v. Glebe MC (1937) 37 SR(NSW) 288 Norrie v. Auckland University Senate [1984] 1 NZLR 129 R v. Aston University Senate; Ex parte Roffey [1969] 1 QB 538 R v. East Sussex County Council; Ex parte Reportech (Pebsham) Ltd. [2002] RLR 102 R v. University of Sydney; Ex parte Drummond (1942) 67 CLR 95 Thomas v. Bunn [1991] 1 AC 362 DECISION : 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.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40147/02 CA 40388/02 CLD 20878/01

HEYDON JA HODGSON JA YOUNG CJ in Eq.

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?

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.

2 Ms Harding has informed me that she has not yet enrolled but that she expects when she enrolls (sic) that the University will reject her enrolment and that it will do so for reasons which would entitle her to legal redress.

3 It is clear from this brief description of the litigation that this notice of motion is premature. I do not see how this Court can order an enrolment before even an application for enrolment is made, let alone that it could do so before the University has determined the outcome of that application.

4 Litigation between the plaintiff and the university has agitated the Court for a number of years, almost without exception resulting in the failure of Ms Harding to make her case as it has been differently constructed. I mention this simply to show that, so far as I have been able to appreciate the matter, nothing in the previous litigation, even accepting the case made by Ms Harding in those actions, could permit the Court to make the order presently sought in the circumstances.

5 One matter, however, has resulted in a favourable finding from Ms Harding's point of view, namely, the decision by the Court of Appeal on 17 December 1993 that the Appeal Committee constituted for the purpose of considering her application for readmission to the Faculty of Medicine in 1989 following a rejection by the Admissions and Re-enrolment Committee, was not properly constituted.

6 The Court concluded that the decision of the Appeal Committee was void, although I observe that the decision was described by Meagher JA (with whom Sheller J (sic) agreed on this point) as "very reasonable indeed". The position therefore is that, for whatever reason, the decision of the Admissions and Re-enrolment Committee rejecting her application for special permission to re-enrol for the year 1989 was not completely considered in accordance with the rules of the University for which, as is clear, Ms Harding was not responsible.

7 Upon questioning in this Court Mr Murphy, who appears for the University, has conveyed the undertaking without any admissions of the University, that it will not have regard adversely to Ms Harding to the decision of the Admissions and Re-enrolment Committee to which I have referred for the purpose of considering any application for enrolment that Ms Harding might now make for the academic year 2002.

8 On the face of it, this undertaking is no more than reasonable and reflects in my opinion what would at all events have been a probable order if one to that effect had been sought. However, I have not considered the merits of any such application, none having been made, and I do no more than indicate a tentative view on the material as it appears to me at the moment.

9 The appropriate order is that the notice of motion is dismissed, the Court noting the undertaking to which I have referred.

10 The undertaking is this: that the University 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.

11 My view is this is a matter where the conventional costs order should be made and I accordingly give costs to the University.

The undertaking referred to in pars.[7] and [10] is of importance in this appeal.

APPELLANT'S APPLICATION FOR 2002 27 As noted earlier, on 30 November 2001, the appellant lodged an application for enrolment in the year 2002, as well as a SCATS application. The appellant provided further material to be placed before the ARC, including a "revised statement as to studying ability", a "personal statement", a "medical statement", and a "final summary". In short, these documents asserted that the appellant's failures in 1986 and 1988 were due to medical problems, which had finally been overcome in 1996; that previous considerations of her re-admission by the respondent had failed properly to deal with the medical evidence which she produced; that despite handicaps she had performed satisfactorily in the science subjects in 2000, albeit she had discontinued because she had not met the required level of performance at distinction average; and that she would be able to pass first year medicine. The documents were supported by various medical reports and other material.

CRITERIA FOR ADMISSIONS AND RE-ENROLMENT 28 It was common ground that the principles to be applied in relation to admissions and re-enrolment are those set out in a document apparently adopted by the respondent's Council of the respondent in resolution 80/131 (8/9/80) and the Professorial Board by resolution 80/128 (2/9/80). The relevant document is headed "Admissions and Re-enrolment Committee - undergraduate courses". The document is in the following terms: Where the Vice-Chancellor and Principal is of the opinion that the number of applicants for admission to any course is likely to be in excess of the capacity of the University to accept such a number, the Vice-Chancellor and Principal is delegated authority to determine the number of students who may be admitted to that course.

Appropriate admissions and re-enrolment committees have been established in general on a faculty basis, and their membership is: The Chairman of the Faculty (Chairman) The Dean of the Faculty The Registrar or his nominee and such other members of the faculty as the faculty may appoint.

The responsibility of admissions and re-enrolment committees shall be to: (a) select students for admission to undergraduate courses within the numbers determined by the Vice-Chancellor. (b) Decide applications for re-enrolment by students who infringe the re-enrolment rules of the University. (c) Decide applications for re-admission to courses of the University by students who have previously been excluded under the re-enrolment rules.

The Vice-Chancellor shall have authority to determine a date by which applications for enrolment, or re-enrolment, or re-admission after exclusion shall be lodged, and to determine the manner and form of such applications.

The decisions of the admissions and re-enrolment committees shall be made in accordance with the following general guidelines.

Admissions The basis of selection shall be academic merit, which shall be determined on an aggregate of marks gained at the Higher School Certificate Examination save that provision shall be made for admitting students who have qualified by other means deemed to be of equivalent or higher standard, and the committee may give consideration to any special circumstances relating to any applicant.

Infringement of Re-enrolment Rules Decisions on infringement of re-enrolment rules shall be based on: (a) the extent to which documented evidence of a medical or psychological nature can be shown to be relevant to a student's failure; (b) the extent to which medical or other factors (e.g. inadequate training or ability in an essential subject, chronic physical or mental illness, unresolved psychological and social problems) may still exist and be likely to prevent success if permitted to re-enrol; and/or (c) any other supporting matter.

In some cases the committee may decide to re-admit a student after an absence of only two sessions if it is of the opinion that the factors which led to failure are likely to be resolved within that period.

Re-admission After Exclusion Decisions on re-admission after exclusion shall be based on: (i) the extent to which the cause of initial failure has been resolved in the intervening period; (ii) the extent to which, through performance in another course or in employment or in any other way, the likelihood of having a reasonable chance of success if re-admitted has been demonstrated; (iii) the likelihood of the length of time elapsed since exclusion (particularly in relation to changes in course content and emphasis) rendering success unlikely; and/or (iv) any other matter submitted in support of an application.

APPLICATIONS FOR RE-ENROLMENT AFTER INFRINGEMENT OF ENROLMENT RULES AND FOR RE-ADMISSION AFTER EXCLUSION SHOULD NOT BE CONSIDERED ON THE BASIS OF COMPARISON WITH CURRENT ADMISSION STANDARDS BUT IN COMPARISON WITH THE GROUP OF STUDENTS WITH WHOM THE STUDENT WAS ORIGINALLY ADMITTED.

Offers of places and of re-admission after exclusion shall be made in writing to successful applicants by the Universities and Colleges Admissions Centre or by the Registrar, and shall remain open for acceptance in writing for seven days after date of posting offers, unless the Vice-Chancellor otherwise determines. Notification of results of applications following infringement of re-enrolment rules shall be made by the Registrar in writing to all students.

ARC 2002 DECISION 29 There was in evidence before Wood CJ at CL a document headed "Notes of Admissions and Re-Enrolment Committee - January 11, 2002". This document recorded those present as being Professor Dowton (Acting Presiding Member), Ms. Gatwood, Professor Henry, Dr. Sutherland, Dr. Tancred and Ms. Tucker. The notes record at the outset: 1.POLICY ON SELECTION OF STUDENTS INTO UNSW MEDICINE The Presiding Member referred to the document "Selection Algorithm - Medicine Program". It was agreed that a reference to students entering via the ACCESS and Indigenous Entry Schemes be included. (The agreed modified policy is attached to these notes - Attachment A.)

Members were also referred to the document "Re-Admission after Exclusion" (Attachment B). Ms Gatwood explained the previous and current procedures whereby students can be excluded. It was agreed that this document correctly states University procedures in respect of excluded students applying for re-admission. 30 Under the heading "Application from Former UNSW Medicine Students", the notes refer to the appellant in the following terms: Kathleen Harding - The Presiding Member advised the meeting that Ms Harding's application for re-admission would be considered twice at this meeting. It would be considered under this item as an excluded student and later under the Applications for Special Consideration category.

All members confirmed that they had received Ms Harding's application. The Presiding Member referred the meeting to Ms Harding's academic record. It was noted that Ms Harding enrolled in the Science program at UNSW in Session 1 of 2000. She obtained one credit and three passes. The meeting noted that she only completed one session and her weighted average mark (WAM) was 61.75 and as such did not demonstrate the academic rehabilitation required for re-admission to the Medicine program.

It was moved that Ms Harding not be offered a place in the Medicine program on the basis that she had failed to demonstrate academic rehabilitation of a standard to justify readmission to Medicine, and because the length of time that has elapsed since her exclusion at the end of 1988 has rendered success unlikely. The motion was carried unanimously. NOT RE-ADMIT. 31 Under the heading "Application for Special Consideration", the notes refer to the appellant as follows: Kathleen Harding - The Presiding Member referred the members to the application for special consideration and advised that Ms Harding had also submitted a tape that she requested be played at the meeting. The Presiding Member played the tape to the meeting.

The Committee noted that it fully complies with anti-discrimination legislation and does not discriminate on the basis of age, gender or disability. It noted that using the algorithm 50% UAI and 50% tertiary record, Ms Harding's HSC performance in 1982 and her Medicine results of 1983-1988 generated a rank of 81.35. It was noted that Ms Harding's UAI on its own (97.70) was not sufficient to make her competitive for entry in 2002. Her overall rank of 81.35 was substantially below the rank required of 'non-excluded' students with tertiary records seeking admission to the program. [The lowest ranked applicant with a tertiary record who was offered a place had an overall rank of 98.57 - refer attachment C.] The Committee declined to vary or override this rank on the basis of her SCATS application. It was therefore moved that Ms Harding not be offered a place on the basis of her application for special consideration. The motion was carried unanimously. NO OFFER. 32 The final item in the notes of the meeting itself, under the heading "Any Other Business" was as follows: Presentation of information to this Committee It was moved that all information presented to this Committee for consideration is to be in written form. The motion was agreed to unanimously. 33 The document attached to the notes as "Attachment B" extracted part of the resolution 80/131 set out above, but omitting the section which appears under the heading "Infringement of Re-enrolment Rules", and omitting the words "and/or" between paragraphs (iii) and (iv) in the material under the head "Re-admission After Exclusion".

DECISION OF PRIMARY JUDGE 34 In his recounting of the history of the matter, the primary judge stated in par.[2(z)] that on 11 January 2002, the ARC "gave consideration to the plaintiff's application by reference to each of the bases mentioned in the undertakings, that is, as an excluded student and as a non-excluded student, and also by reference to her SCATS application. It determined that the plaintiff should not be offered enrolment on any of these three bases". 35 The primary judge gave the following reasons for his decision to dismiss the appellant's application: 16 It may be assumed that as the University is a statutory corporation established by Act of Parliament, as a public institution, to promote the public purpose of higher education, its decisions, including those of relevant committees are subject to the scrutiny of the Courts: Norrie v Auckland University Senate [1984] 1 NZLR 129 at 135, and at 140. Further, it may be accepted that committees given the power to reject applications for admission or continued attendance at the University are to be considered as acting in a quasi-judicial capacity: Glynn v Keele University (1971) 1 WLR 487.

17 However, it remains true that this Court does not sit as a Court of factual review over decisions of such committees. Rather, it can only intervene in accordance with accepted administrative law principles, for example where the Committee has not been properly constituted, where it failed to follow proper procedure, where it acted in a way constituting a denial of natural justice, where it otherwise reached a decision which was contrary to law, or where its decision was such that no reasonable committee, acting with a due appreciation of its responsibility, could have arrived at it.

18 For the plaintiff to receive relief in this Court, which would necessarily be confined to a declaration that the decision in question was invalid, or an order requiring her application to be redetermined in accordance with law, she must bring herself within those recognised grounds for redress.

19 It is convenient to deal with some of the specific matters which appeared to be of particular concern to the plaintiff in relation to the way in which her application was considered. Although not in any particular order of significance, they relate to the following matters:

Undertakings 20 Contrary to the general submission which the plaintiff advanced, it is perfectly clear that the Committee complied with the undertakings and considered her application on both bases, that is, as an excluded student, and as a non excluded student. In that latter capacity it had to treat her as a student with a prior tertiary record, since she had been previously enrolled, although, in her favour, it also gave consideration to the situation in which she would have been without that record. Additionally, it gave consideration to her case by reference to the SCATS application. The plaintiff's submission that the University failed to honour the undertakings given in the proceedings before Adams J is accordingly not made good.

Absence of Student File 21 In the course of the hearing before me, Ms Harding drew attention to the fact, conceded by the University, that the Committee did not have placed before it her student file. She queried whether this may have involved a procedural irregularity or a failure on the Committee's part to consider the entirety of the relevant material.

22 Although no evidence was called in this regard, I am not persuaded that anything can be made by the plaintiff of this circumstance for several reasons: (a) She did not ask for her file to be made available to the Committee, nor did she place it in evidence before me; (b) In his reasons Adams J noted that an assurance had been given, on behalf of the University, that it would not regard adversely the decision which had led to the plaintiff's exclusion in 1989, an assurance which was reinforced by the undertakings that were formally given and which were designed to ensure that the matter was to be reviewed afresh upon the most favourable of the available bases, and upon the basis of any material which the plaintiff wished to place before the University; (c) In the past, the applicant had made complaints concerning correspondence or reports, which had been on her file, and which she suggested were either factually untrue or involved improper pressure or bias on the part of their authors; and (d) The plaintiff was permitted to place, and did place, before the Committee a considerable body of material in order to deal with her medical situation, and with such complaints as she had in relation to her past treatment, or in relation to any errors which she believed had occurred.

23 In these circumstances, it seems to me that the fact that the Committee did not refer to the plaintiff's student file was a matter operating entirely in her favour, in that it meant that the Committee could consider the matter afresh in the light of the UAC calculations, and the documents and submissions which were provided by the plaintiff, without any risk of being distracted or influenced by the " exclusion decision ", or by the reports and other documents which the plaintiff had attacked in the past as disclosing bias, misrepresentation, or improper pressure.

24 It follows that no legitimate cause for concern arises in this regard.

Schedule B - Admission of " and/or " in Resolution 80/31 25 It was submitted, in essence, that the Committee may have been misled in so far as these words were omitted from the Resolution attached to the agenda papers, with the consequence that it may have erroneously concluded that the four criteria identified were cumulative rather than disjunctive.

26 In my view, that submission was not made good because: (a) There is no reason to suppose that the Committee were otherwise unaware of the terms of the Resolution; (b) Item (iv) is clearly intended to permit additional matters that may be called in aid by an applicant to be taken into account; however, it can hardly be said to have been intended to permit enrolment by reference to considerations which were wholly extraneous to an applicant's suitability for study in a particular faculty or course; (c) In dealing with the application it is clear that express regard was had to all of the criteria mentioned; and (d) No additional material was furnished to the Committee by the plaintiff beyond that relevant for the remaining criteria, which did call for consideration, by reference to the medical reports, whether there had been sufficient reason shown for her unsatisfactory prior academic performance, and whether any prior problem had now been overcome, such that she had a reasonable possibility of finishing the course.

27 In the absence of any suggestion that material which might have fallen within criterion (iv) exclusively, and which might have carried the day for the plaintiff, was provided but ignored, this point was not made good.

The Administrative Decisions Tribunal Tape 28 The tape for these proceedings appears to have had considerable importance for the plaintiff, so much so that she provided it to the Committee, asked for it to be considered, and made several submissions in relation to it.

29 I regret that I am unable to understand quite what point she sought to draw from it, since, if anything, it invited a refocus on the earlier " exclusion " decision, whereas the function of the Committee was to reconsider the application afresh, unhindered by that decision, by reference to the material placed before it, and upon whichever of the available bases for consideration was the most favourable for the plaintiff.

30 In any event, it appears to me that the plaintiff has missed the point of the submissions made to the Tribunal. When read in context, the University was not arguing that the plaintiff had seen neither of Dr Stiel or Professor Reeve during the 1998 year. Rather, its submissions were specifically directed to the material which the 1989 Appeal Committee had been given. It was put that there was no report included in the relevant papers showing any such consultations, with the result that the evidence provided to the Committee had been " unhelpful in detailing.. how the medical condition affected her ability to do the exam and to study [in 1988] ".

31 Properly, the University did draw attention to Professor Reeve's report of 2 August 1989, which similarly to the report before the present Committee expressed an opinion as to the effect which the plaintiff's medical condition may have had during 1988, upon the assumption that there were test results available to show that she had been " hypothyroid" .

32 It is clear that the Tribunal had the actual Exhibit (Exhibit 16) and had it read to them in correct terms. It also had some test results. It is clear that the Tribunal appreciated the difference between hyperthyroid and hypothyroid conditions, and their significance, including the occurrence of fluctuations between those conditions, where a patient was having a difficulty achieving stabilisation through the use of medication. There can be no possible question of it having been misled by the University, let alone deliberately misled, in these circumstances.

33 I am quite unable, in those circumstances, to see any merit in the point addressed by the plaintiff, particularly when the tape of the submission was, at her request, played to the Committee, and when she was able to address the Committee through her submissions in relation to it. In particular, I see no merit in the proposition that the University had been locked into a position from which it could not withdraw without admitting malpractice, let alone any reason for attributing such a malign motive to the 2002 Committee.

Minutes - Other Business 34 It appears that the plaintiff detected fault in that, at the end of the meeting, the Committee determined that information placed before the Committee should be in documentary form. This item was clearly directed to the future, and nothing associated with it gives rise to any possible assertion of procedural irregularity, in relation to the several applications which had earlier been decided by the Committee.

Excluded Student 35 At various times the plaintiff contended that she should not have been considered as an " excluded student " since the earlier Appeal Committee decision had been invalid and void. However this missed the point, since she was given the benefit of being considered under all possible bases. Had that for an excluded student proved the more favourable and led to her being eligible for re-enrolment, then she would have had the benefit of that determination, even though she would not have otherwise qualified.

Minutes of Meeting 37 The plaintiff complains that she had not been provided with any minutes of the meeting. The " notes " stood as official minutes, and there was no reason shown to question their sufficiency or authenticity.

Rural and Indigenous Entry 38 The plaintiff addressed a submission to the effect that since lower academic standards applied for these applicants, she should similarly be assumed to have had at least a reasonable prospect of passing her examinations. Logically it does not follow from the fact that special consideration applies to Rural and Indigenous applicants at entry level, that any lesser academic standard is to be adopted for the course, as a whole.

Comparison with Current Intake 40 A submission was advanced to the effect that when dealing with her application as a non excluded student, the Committee had acted inappropriately, so far as it compared her UAC ranking with current admission standards, rather than with the student group with whom she had originally been admitted.

41 This submission however, overlooks the fact that the provision to this effect, which is contained in Council Resolution 80/31, applied to applications by excluded students, and as such was not relevant for consideration of her application as a non excluded student.

42 As the minutes (para 5) show, the comparison with current standards was made in the context of the SCATS application, in the course of which the Committee noted that her UAI on its own (that is, treating her as a student with no tertiary record), and on the algorithm basis (treating her as a student with a tertiary record), each fell short of the current cut-off.

43 The Committee then decided not to vary or override her rank by reference to the material furnished in support of the SCATS application - a clear indication that it had considered that material, but could not find any justification for admitting her as a non excluded student.

Conclusion 44 Returning to the issues central to the question whether the plaintiff has made out a case for intervention, it is to be observed that no question has been raised as to the constitution or convening of the Committee; nor, in the circumstances earlier outlined, has fault been shown in relation to the procedure followed, or in relation to the plaintiff's opportunity to be heard.

45 So far as bias is concerned, no evidence has been offered in support of such a proposition beyond a general allegation relating to the University as a whole which has not, in my view, been made good.

46 The record of the Committee's determination reveals that the plaintiff's material was received and considered. I see no error, on the face of the record, in relation to the determination made. Nor do I see any reason for any contention that any material consideration was ignored, or not given appropriate weight.

47 The evidence disclosed that the plaintiff did have to compete for a place in the faculty with the other students applying for the course. It is a matter of which judicial notice may be taken that competition for enrolment in the Faculty of Medicine is intense. This is reflected in the high admission standards. It is also a matter of which judicial notice can be taken that the study of medicine requires considerable dedication and academic ability. For these reasons the competition for places is based on academic merit. As Ms Gatwood explained in her affidavit: "To enable comparison of applicants with different qualifications a ranking system is used. For students with a tertiary record, their overall rank is derived 50% from the UAI (or equivalent), which is a reflection of their Higher School Certificate performance, and 50% from tertiary studies based on the applicant's academic performance in those tertiary studies. If an applicant has been enrolled in more than one tertiary program, the highest generated rank is used in the overall rank. TAFE and other post-secondary qualifications and tertiary records of less than one year full-time in duration are not included in the rank."

48 For students without a tertiary record, their rank is derived from their UAI or equivalent, alone. In each case, this is subject to special consideration under the SCATS regime. Separate consideration applies to excluded students, as noted above.

49 It appears from the minutes, and from the documents placed before the Committee, that the plaintiff's HSC UAI rank taken alone (97.70) fell short of the rank required (99.75) both for school leavers and for non school leavers (98.57). When taken in conjunction with the algorithm 50% UAI and 50% tertiary record (65.00) for students with a tertiary record, it fell to 81.35, again well short of the cut off point. The tertiary record was based on the previous medical studies since the plaintiff had not completed the minimum period of 12 months required before her science course in 2000 could be taken into account.

50 The rankings taken into account, it may be noted, were provided to the Committee by the University Admissions Centre (UAC), a body which was independent of it.

51 I see no room for any argument that the Committee approached its task on an inappropriate basis, or that it took into account any extraneous considerations, or overlooked any relevant considerations when dealing with the plaintiff's application on either of the excluded or non excluded bases.

52 As Ms Gatwood also explained, the SCATS application required that consideration be given to whether the plaintiff had suffered any long term educational disadvantage or that her tertiary record was not a true reflection of her academic merit. That question was, on the face of the record, considered in the light of the material which the plaintiff placed before the Committee and her prior academic performance which had been interrupted and unimpressive. Again I see no basis for an argument that the Committee failed to give proper regard to the relevant considerations, or that it took into account any improper considerations when dealing with this aspect of the application.

53 So far as the plaintiff submitted that the decision of the Committee was unreasonable in the light of the principles discussed in Associated Provincial Picture House Limited v Wednesbury Corporation (1948) 1 KB 223, The Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1997) AC 1014, and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, I can see not merit in such a proposition.

54 On the contrary, in the light of the plaintiff's prior academic record, and giving her full credit for her earlier medical difficulties, for their apparent resolution, and for her problems in the year 2000 in commencing Science studies late, I am not convinced that the Committee decision was one which could be seen to have been unreasonable, within the meaning of these decisions. On the contrary, it appears to me to have been an entirely reasonable decision.

55 In all of these circumstances I am not persuaded that the plaintiff is entitled to any form of relief sought in the notice of motion. It should be dismissed.

GROUNDS OF APPEAL 36 The appellant's Notice of Appeal contains the following grounds: 1. His Honour Mr. Justice Wood has erred in law by acting on incorrect principles, given weight to extraneous principles given no weight or insufficient weight to relevant considerations.

He has erred as to the correct facts and error is inferred from an unjust decision and decisions on a matter of providence and on a matter that determines the rights of the parties.

4. One of the parties may suffer an injustice if the decision is allowed to stand 37 The Notice of Appeal seeks orders that the primary judge's decision be set aside, and that the orders sought by the appellant's Notice of Motion be made; that is, essentially, that the appellant be enrolled in the respondent's Faculty of Medicine for the academic year 2002. The Notice of Appeal also seeks an order for costs. 38 I will first consider whether or not the appellant has an appeal as of right, and if not, whether or not leave to appeal should be granted. I will then consider the merits of the appeal.

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.

MERITS OF APPEAL 46 The appellant's outline of submissions made the following substantive submissions in support of her appeal: 1. The Claimant is entitled to full student rights in making a new application for re-admission to the Medical Program as determined by Act of Parliament, the University's by-laws and rules, by contractual obligations, by equitable estoppel, by the rules of natural Justice and of Justice generally, Negligence and Misfeasance in Public Office.

2. The Claimant is entitled to the benefit of the undertaking made with Adams J. in the processing of that application.

The University has erred in its duty of care and other duties in the processing of the Claimant's application for re-admission to the medical faculty as a student in the year 2002.

Neither the Court nor the University has the power to depart from University rules without changing its rules by due process, in accordance with the Act of Parliament and under its by-laws, and by fully disclosing and acting in accordance with its charter.

The University has erred in various ways in the processing of the claimant's application and in failing to comply with its own undertaking before Adams J. and the Faculty assessment and re-enrolment committee has exceeded its charter in ruling that submission by way of tape is not permissible and certainly has no power to rule on the actions of future committees.

The University has acted unconscionably in failing to keep correctly recorded minutes and at the same time providing notes to minutes which, by definition, cannot exist.

Without those minutes the committee meeting cannot be deemed to have been held and is essentially invalid and void and any decision deemed to have been taken in the circumstances and not in keeping with its own rules and bylaws is unreasonable.

The Court, in these circumstances does have the power to Act in place of the committee and has the minimum duty to order the committee to meet and correctly determine the claimant's application but under all the circumstances the court should exercise its very real power to intervene and make the order for the claimant's re-enrolment.

The affidavit of one only member of the committee is insufficient response to the claimant's concerns and the legal officer and Deputy Registrar's being present in the back of the courtroom cannot speak for the actions of the committee members and cannot excuse the implications of the document before the committee which excludes the and/or and cannot "add to" the "notes" in order to justify the so called committee decision.

The University has not moved to allow for its errors of the past and to take factors into account to which the claimant is entitled and has not given weight to its own inaccurate assessment of the claimant's medical condition and unique circumstances which it is required by its own charter to do.

The University has a duty to admit its errors and false allegations with respect to the claimant's medical condition and effects on the academic record and ought properly to have had all student files relating to the claimant available to the committee especially as the claimant referred to "past matters of which the University is well aware".

The University has acted unconscionably and illicitly and the Court has a duty under these circumstances to intervene to the claimant's benefit.

Without minutes there can be no guarantee of how the committee was constituted and of matters which were put before the committee and that there was no other presence in the room which may have impacted on the just processing of the claimant's application.

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.

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.

(2) Each application shall be considered by the Admissions and Re-enrolment Committee of the relevant faculty or board of studies which shall determine whether the cause shown is adequate to justify the granting of permission to re-enrol.

Appeal 7. (1) Students who are excluded by the Admissions and Re-enrolment Committee from a course and/or subject under the provisions of the Rules will have their applications to re-enrol reconsidered automatically by the Admissions and Progressions Sub-Committee of the Academic Board.

(2) Students whose exclusion is upheld by the Admissions and Progressions Sub-Committee may appeal to an Appeal Committee constituted by Council for this purpose with the following membership: A Pro-Vice-Chancellor, nominated by the Vice-Chancellor who shall be Chairman.

The President of the Academic Board, or if its President is unable to serve, a member of the Academic Board, nominated by the President of the Academic Board, or when the President of the Academic Board is unable to make a nomination, nominated by the Vice-President.

One of the category of members of the Council elected by the graduates of the University, nominated by the Vice-Chancellor.

(3) The notification to students of a decision which has been upheld by the Admissions and Progressions Sub-Committee of the Academic Board to exclude them from re-enrolling in a course and/or subject shall indicate that they may appeal against that decision to the Appeal Committee. The appeal must be lodged with the Academic Registrar within fourteen days of the date of notification of exclusion and in special circumstances a late appeal may be accepted at the discretion of the chairman of the Appeal Committee. In lodging such an appeal with the Academic Registrar students should provide a complete statement of all grounds on which the appeal is based.

(4) The Appeal Committee shall determine appeals after consideration of each appellant's academic record, application for special permission to re-enrol, and stated grounds of appeal. In particular circumstances, the Appeal Committee may require students to appear in person.

Exclusion 8. (1) Students who are required to show cause under the provisions of R3, and either do not attempt to show cause or do not receive special permission to re-enrol from the Admissions and Progressions Sub- Committee (or the Appeal Committee on appeal) shall be excluded, for a period not in excess of two years, from re-enrolling in the subjects and courses on account of which they were required to show cause. Where the subjects failed are prescribed as part of any other course (or courses) they shall not be allowed to enrol in any such course.

(2) Students required to show cause under the provisions of R2, who either do not attempt to show cause or do not receive special permission to re-enrol from the Admissions and Progressions Sub-Committee (or the Appeal Committee on appeal) shall be excluded, for a period not in excess of two years, from re-enrolling in any subject they have failed twice. Where the subjects failed are prescribed as part of a course they shall also be excluded from that course. Where the subjects failed are prescribed as part of any other course (or courses) they shall not be allowed to enrol in any such course.

(3) Students who are required to show cause under the provisions of R2, or R3, and do not receive special permission to re-enrol may be excluded under one of the following categories: (a) one year with automatic re-admission. (b) two years with automatic re-admission. (c) one year without automatic re-admission. (d) two years without automatic re-admission. (e) two years without automatic re-admission and with re-admission subject to competing for a place with the current year's intake.

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.

REMEDY 59 The appellant seeks an order that she be enrolled for 2002, and submits in effect that the history shows that she cannot get a fair decision from the respondent. In my opinion, there is no principle on the basis of which this Court could properly make such an order; and in any event, I do not think the evidence would justify the making of such an order. 60 The respondent submits that this Court should refuse relief, as a matter of discretion. The following paragraphs appear in its written submissions before the primary judge: 5. The exercise of prerogative remedies are subject to the Court's discretion. Real injustice is an ingredient to the exercise of that discretion. That discretion should not be exercised "...for the creation of a real life counterpart to Chekov's perpetual student ..." (Regina v University Senate Ex Parte Roffey & Anor (1969) 2 QB 538). In this case we submit the Court should accept that based on the material Harding put before the Committee, she has not suffered any injustice.

6. The grant of an injunction is discretionary. The Court should exercise its discretion to refuse to grant an injunction where it is satisfied that no injustice has been done. See, for example, Glynn v Keele University (1971) 1 WLR 487. We submit the decision of the Committee in this case was completely appropriate and reasonable and no injustice has been suffered by Harding as a result of the procedures and determination of the Committee.

7. 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.

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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