Harding v UNSW

Harding v UNSW - [2002] NSWSC 113 - NSWSC 2002 case summary — Zoe

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KATHLEEN FRANCES HARDING v UNIVERSITY OF NEW SOUTH WALES The plaintiff sought, by notice of motion, an order that she be enrolled in the Bachelor of Medicine program at the UNSW for the year 2002. The current proceedings followed upon a long history of litigation between the parties in the supreme Court and in the Administrative Appeals Tribunal, dating back to January 1989, concerning an appeal from a decision then made refusing her enrolment for that year, and purportedly excluding her for two years. On 6 Nov 2001, the plaintiff filed a further statement of claim for damages for an alleged lost opportunity to enrol in the Faculty of Medicine, as well as an order that she be enrolled for 2002. Adams J dismissed this application, however, in the course of proceedings, the University gave an undertaking that it would consider any application lodged by the plaintiff for the year 2002, both as an excluded student, and as a non-excluded student, which ever of those two bases were more favourable to her. On 30 Nov 2001, the plaintiff lodged a further application for enrolment into Medicine, along with an Application for Special Consideration for Applicants with Tertiary Studies (SCATS application). On 11 January 2002, the Admissions and Re-enrolment Committee gave consideration to the plaintiff's application as an excluded student, as a non-excluded student and by reference to her SCATS application. She was refused enrolment on these bases. She now seeks orders that the decision of the Committee be declared invalid, and that the University be ordered to redetermine the application according to law. Held: (dismissing the application): The plaintiff was unable to show that the University in any way breached accepted principles of administrative law. Undertakings The plaintiff submitted that the University failed to honour undertakings given in the proceedings before Adams J. Held: the Committee had complied with the undertakings. Absence of Student File The plaintiff claimed procedural irregularity, on the Committee's part, for failure to consider the entirety of the relevant material. In circumstances where the 2002 Committee was obliged to consider the matter afresh, and upon the basis of the material placed before it, there was no occasion for it to refer to the student's file. The plaintiff had complained, in the past, that this file contained material which displayed bias or improper pressure. Held: this was a matter operating in her favour, and the ground must fail. Admission of "and/or" in University Resolution It was submitted that the Committee may have been misled, as the words "and/or" were omitted from the copy of the University resolution which set out the criteria for excluded students, and was attached to the agenda papers. This submission was not made good, as it is clear that express regard was had to all of the criteria mentioned, and there is no reason to suppose that the committee were otherwise unaware of the terms of the resolution, or that the plaintiff was in any way disadvantaged. Alleged Misrepresentation in the Administrative Decisions Tribunal Hearing This ground was not made out, as the tape of the submissions made to the Administrative Decisions Tribunal was, at the plaintiff's request, played to the committee, and she was able to address the Committee through her submissions in relation to those observations which she claims had been incorrect. Excluded Student The plaintiff contended that she should not have been considered as an excluded student, as the earlier Appeal Committee decision had been invalid. This ground is not made good, as the plaintiff was considered on all possible bases; had the basis for an excluded student proved the most favourable to her application, then she would have received the benefit of that determination.

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(b) Appendix B - Re-admission After Exclusion: Council Resolution 80/31 This extract noted that: "' ..The responsibility of Admission and Re-enrolment Committees shall be to: … [c] Decide applications for re-admission to courses [now programs] of the University by students who have previously been excluded under the re-enrolment rules The decisions of the Administration and Re-enrolment Committees shall be made in accordance with the following general guidelines… 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 [now program] or in employment or in any 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; (iv) any other matter submitted in support of an application. Applications for re-enrolment after infringement of re-enrolment rules and for re-admission after exclusion should not be considered on the basis of a comparison with current admission standards but in comparison with the group of students with whom the student was originally admitted.' Processing: 1. Excluded students may apply for re-admission after the period of exclusion has expired. All applicants for re-admission after exclusion are instructed to lodge an application for Special Consideration and provide a statement setting out why they consider they will now succeed in the program of their choice [page 184 2002 UAC Guide]. 2. All applications for re-admission are referred to the Medicine Admissions and Re-Enrolment Committee for decision. 3. Applications are considered in accordance with the guidelines under Council Resolution 80/31. 4. Applicants who apply during their 2nd year of exclusion to be re-admitted the following year to a program, and are unsuccessful, will have the right of appeal against the decision to the Re-enrolment Committee of the Academic Board." 8 It was common ground that the words "and or" which should have appeared between sub paragraph (iii) and (iv) in this document had been omitted from it. 9 This resolution had been adopted by the Council for the University on 8 September 1980, and by the Professorial Board on 2 September 1980. 10 The minutes of the meeting of the Committee of 11 January 2002 (referred to as "notes" of the Committee) recorded those present as Professor Dowton (the Presiding Member), Ms Gatwood, Professor Henry, Dr Sutherland, Dr Tancred and Ms Tucker. The minutes record, at the outset: " 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." 11 In relation to the plaintiff's applications, the minutes recorded: " APPLICATIONS FROM FORMER UNSW MEDICINE STUDENTS … 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 … 5. APPLICATIONS FOR SPECIAL CONSIDERATION The Presiding Member gave an overview of the Special Consideration for Applicants with Tertiary Study (SCATS) Scheme and referred members to Attachment E - 'Special Consideration Applicants - Entry in 2002'. 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 ." 12 Finally, since it was a matter which drew a submission from the plaintiff, it is necessary to note the final item in the minute: " 8. ANY OTHER BUSINESS 8.1 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."

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13 In her affidavit in support of the motion, the plaintiff asserts that the University had not complied with the undertaking given to Adams J, that she was still being denied the special consideration to which she was entitled, and that incorrect statements or misrepresentations had been made by the University to the Administrative Decisions Tribunal concerning whether or not she had attended Dr Stiels' surgery in June 1988 and concerning other medical issues, along with a "deliberate distortion of factual evidence and certain admissions from which UNSW is unable to retreat". Malpractice was alleged in relation to the way in which consideration had been given to her medical condition for 1988, and for every year up to and including the year 2002, which she claimed had impacted "on the just and proper appraisal of [her] applications for special consideration". 14 The affidavit, to which no objection was taken, despite it not being in a form deposing as to facts, continued in relation to these matters: "12. For the University to depart from its expressed views disclosed on the ADT tape would require serious admissions of malpractice which malpractice and its intent are obvious and indisputable. 13. It is thus becomes the province of the Court to make the order sought to return me to the course from which I was invalidly excluded and to acknowledge the medical evidence and its impact. The University cannot be relied on to consider the application nor correct its bad practices" 15 Reference was also made to the remarking of the Biology paper, and to the problems which the plaintiff asserted that she had faced when attempting the science subjects in the year 2000. The allegations made in that regard were in the following terms: " My performance in Science, in 2000, for one session, undertaken at short notice, with effectively loss of 3 weeks, with no recent subject experience since a range from 18 to 12 years and with late enrolment and, under protest, for the sole purpose of academic rehabilitation, attracted a ranking of 82 to which the University gives no substance and when adjusted for the 3 weeks late start without any allowance for the years away from appropriate related study the ranking adjusts close to 99% which demonstrates my ability and the medical faculty courses require experience only of chemistry and most students come to the other subjects with no prior experience so my experience and recent study and private study and proven competence in the past in two of those subjects despite medical disadvantage make success in first year almost guaranteed and having qualified initially for the study of medicine with no concessions there is no need to assume I would not have a reasonable chance of success with the course which is the only standard I am required to meet, not a high chance of success. The failure of the University to take my medical circumstances into account is gross error. Even for the year 1988 my ranking shows at 65 and the University compares me inappropriately with the current intake, which, taking all factors into account, puts me in a very strong position in relation to the current intake, which comparison is not allowed but the University consistently treats my applications inappropriately and the degree of its malpractice cannot be overcome." 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:

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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.

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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.

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