King v The University of Notre Dame

Supreme Court of NSW|2015-01-30|Before: Davies J

Solicitors: In person (Plaintiff) Squire Patton Boggs (Defendant) File Number(s): 2014/143880

Judgment

The Plaintiff enrolled in the Bachelor of Medicine/Bachelor of Surgery degree at the University of Notre Dame in 2008. She withdrew from the program in 2008 and was later readmitted in 2013 as a first year student. She failed her first year as a result of her final grade in Foundations of Medical Vocation. She was unsuccessful in relation to appeals provided under the University's Regulations and, as a result, commenced the present proceedings on 13 May 2014.
By reason of the appeals that she brought against the University's determination that she did not satisfactorily pass MED1000, she was permitted to proceed to MED2000 in 2014. At the end of that year she again failed the course. She lodged an internal appeal which was unsuccessful.
As a result of the two failures (MED1000 and MED2000) she was terminated from the University.
Although the Plaintiff has not amended her Summons (in which she seeks declarations and judicial review of the University's decisions) to include the 2014 decisions to fail her and terminate her from the University, the interim order that she sought, and with which this judgment is concerned, was designed to preserve the status quo until she has both pursued the appeals provided by the University Regulations and the present proceedings which she has indicated will be amended. For the Plaintiff, the preservation of the status quo means that she should be permitted to proceed to MED3000 whilst the appeals and the proceedings are determined.

MED1000

It should be said at the outset that although the proceedings were commenced by the Plaintiff when she was legally represented, her solicitors ceased to act within a month of the proceedings being commenced. The Plaintiff thereafter continued the proceedings acting for herself. She is not without some ability to do this because, prior to embarking upon the study of medicine, she had completed a law degree and passed the Bar exams. Nevertheless, the material for consideration on the present interlocutory application was not well organised nor set out in a very coherent fashion. It was not easy to determine precisely what failures the Plaintiff sustained, precisely what appeal were lodged and when decisions were made by the University in relation to those failures.
What follows in relation to MED1000 has largely been discerned from the report of an external review conducted pursuant to an appeal lodged by the Plaintiff pursuant to the University's Regulations for review and appeal.
There appear to have been a number of issues that came to a head at the completion of MED1000 by the Plaintiff. She appealed to the Pro Vice Chancellor on three apparent bases from determinations of the University at the end of that year.
Provision for appeals is made in the University Regulations and a publication entitled "Policy: Student Appeals". The latter document relevantly provides: 21 FINAL GRADE - General Regulation 6.20 A. FIRST APPEAL TO DEAN FROM DECISION OF THE UNIT COORDINATOR OR BOARD OF EXAMINERS 21.1 A Student may appeal the final grade awarded to him or her in a unit by submitting a request in writing to the Dean. 21.2 Grounds for appeal: The Student may only appeal on the following grounds: (a) administrative error; or (b) a breach of the University's assessment policy, procedure or regulations sufficient to cause disadvantage to the Student; or (c) a failure to adhere to approved assessment procedures for that unit sufficient to cause disadvantage to the Student; or (d) unfair treatment in the process of assessment; or (e) unfair treatment by persons involved in the conduct of the examination. The Dean will not accept an appeal based on an allegation that the judgment of the Unit Coordinator was incorrect. 21.3 Form and content of appeal: The Student must make the appeal in writing and must include reasons and any evidence to support the submission. … B. FURTHER APPEAL TO PRO VICE CHANCELLOR, ACADEMIC FROM DECISION OF DEAN 21.8 A Student may appeal the decision of the Dean to deny an appeal regarding final grade to the Pro Vice Chancellor, Academic. 21.9 Grounds for appeal: The Student may appeal on any grounds that show that the Dean failed to follow due process. 21.10 Form and content of appeal: The Student must make the appeal in writing and must include reasons and any evidence to support the submission. 21.11 Timing for lodging appeal: The Student must lodge the appeal within 20 Working Days of the date the Student received notice of the Dean's decision. The Pro Vice Chancellor, Academic may extend the time for lodging the appeal in their absolute discretion. 21.12 Timing for University review of appeal: The Pro Vice Chancellor, Academic shall review and determine the appeal within 10 Working Days of receiving the appeal. 21.13 Notification: The Pro Vice Chancellor, Academic shall advise the Student, Dean and Student Administration in writing of the determination. 21.14 Further appeal: The decision of the Pro Vice Chancellor, Academic is final and not open to further internal appeal. … 23 EXTERNAL APPEALS … . 23.3 Domestic Students may appeal a decision of the University's internal appeals process to the University's independent external appointee. The procedure for such an appeal is as follows: (a) The Student must request in writing for the Head of Campus to refer the appeal to the independent external appointee and must include reasons and any evidence to support the submission. … 25 ENROLMENT AND ATTENDANCE UNTIL APPEAL OUTCOME 25.1 A Student who has lodged an appeal and is awaiting the outcome of their appeal may attend classes if the Semester has commenced and until they are notified of the outcome of their appeal. 25.2 A Student who has lodged an appeal with an external agency or person may attend classes until the University has been notified of the outcome of their appeal. In this circumstance: a student must, upon request by the University, provide appropriate evidence that an appeal has been lodged or is under consideration; and must inform the University in writing immediately when he or she is aware of the outcome of the appeal. 25.3 A Student who chooses to attend classes whilst an appeal is being processed: (c) will be liable for fees and/or charges applicable for the unit(s) they are enrolled in; and (d) must complete assessment tasks for the unit(s) which is due at the time the Student attends the unit(s). 25.4 Where a Student's appeal against termination from Course/University is upheld, the Student must continue to attend classes and submit all pieces of assessment. 25.5 Where a Student's appeal against termination from, Course/University is denied, the Student must cease attending classes immediately. The Student will be liable to fees and/or charges for the unit(s) they attended. (emphasis added)
There was nothing to suggest the Plaintiff first appealed to the Dean as clause 21.1 provides but no point was taken about this.
The first appeal lodged on 10 February 2014 to the Pro Vice Chancellor was an appeal against: 1. (a) The failure to grant "special consideration" pursuant to 6.10 of the General Regulations on the basis of a serious illness; 2. (b) The final Practice Based Learning (PBL) grade; 3. (c) An appeal lodged on 10 March 2014 against the final grade awarded to the Plaintiff for Foundations of Medical Vocation.
That appeal was rejected by the Pro-Vice Chancellor on 24 February 2014. On the same day the Plaintiff appealed to the University's External Appointee under clause 23.3 on the same grounds.
The External Appointee determined the appeal on or about 7 May 2014.
The External Appointee accepted that the Plaintiff provided apparently legitimate evidence of a severe illness which manifested itself in a number of ways arising from iron deficiency resulting in anaemia and hypoxia. The Plaintiff attended and attempted all four examinations between 7 to 15 November 2013. Although she was advised by the Dean that she had been given special consideration through the scheduling of her exams in the afternoon rather than the morning examination time slot, the Plaintiff argued that this was not in fact special consideration but was a random assignation of the slot attributable to 50% of the cohort who were not seeking special consideration.
The External Appointee found that the University had accorded special consideration in respect of her illness.
In relation to the final PBL grade the Plaintiff asserted that the grade should be favourably reassessed because of: 1. (i) Discrimination on the grounds of a perceived view of disability held by her supervising doctor; 2. (ii) Bias on the part of the supervising doctor based on his alleged preference towards other students in the course of the placement and by his alleged references to the Plaintiff's unexplained absences and his alleged expressed lack of confidence in her ability; and 3. (iii) The subjective nature of the grading process for PBL.
The External Appointee noted that the Plaintiff provided a detailed self-analysis of her review of her PBL scores and a rationale as to why her scores should be changed accordingly. Beyond her own opinion, the Plaintiff provided no corroborating evidence as to the bias she alleged on the part of her supervising doctor.
The External Appointee noted that the School of Medicine conducted a review of the final PBL grade awarded by the Plaintiff's supervising doctor according to their published processes and rubrics. That review yielded a grade lower than the one previously awarded but, despite that, the Plaintiff's grade was not altered accordingly.
The External Appointee found that there was no evidence provided to suggest administrative error or a breach of or failure to adhere to the University's assessment policy or procedures or Regulations including the School of Medicine's published Assessment requirements. The appeal against the final PBL grade was declined.
The appeal in relation to the final grade for Foundations of Medical Vocation turned on the grading of the marks for the course.
It is not necessary to enter into the detail of the weighting arrangements for the tasks completed by the Plaintiff nor the way in which the raw marks were calculated and subsequently graded. It is sufficient to note that her final mark was moderated within the University's guidelines in grade distribution to a fail grade with a mark of 48. Part of the reason for that at least seems to have been that she had failed three critical components being the BCS and CCS domains (quite what these were was not identified) and her continuous PBL mark. The Plaintiff had claimed that her raw mark for the course was 57 and there was no proper basis upon which the marks could be graded at that level.
She pointed to aspects of the Regulations which apparently permitted a grading of marks at high distinction and distinction level, and argued that the express right to do that for those levels implied that it could not be done at the level she achieved for her raw mark. That is the principle enunciated in the maxim expressio unius est exclusio alterius. The part of the University's General Regulation relied on was this: 6.21.1 In a Unit, the proportion of Students achieving the grade of: (a) "Distinction" or above shall not normally exceed 35%; (b) "High Distinction" shall not normally exceed 10%; of the total Student enrolment in that Unit.
The External Appointee found that she had been awarded a fail grade by the Board of Examiners because she had not demonstrated "at least an adequate level of knowledge/understanding/competencies/skills required to meet Unit objectives" as required by the General Regulations. On that basis the external reviewer declined her appeal. The External Appointee said also that there were no grounds to accept that the Plaintiff's appeals within the University's internal administration had been treated inequitably or contrary to stated procedures.

MED2000 and termination from the University

By reason of what appears in clause 25 of the Student Appeals Policy it seems that the Plaintiff was permitted to proceed to MED2000 pending the determination of the appeals. Despite the external appeal being determined in May 2014 it appears that the Plaintiff remained in attendance for the remainder of MED2000. It appears that the University permitted her to do that because these proceedings were on foot. However, the Plaintiff submitted that she was entitled to complete that year because on 13 May 2014 she commenced the present proceedings. She submitted that these proceedings were an appeal subject to Clause 25. I will return to this matter presently. Nevertheless, it should be noted that until the Plaintiff amended her Summons on 19 October 2014, all that she had sought by way of relief was a series of declarations that the determination made 21 December 2013, effectively that she had failed MED1000 was invalid and was made in breach of contract
In any event, at the conclusion of 2014 the Plaintiff failed MED2000. That led to the University advising the Plaintiff that she was terminated from the University in accordance with clause 5.2.4. of the Regulations on the ground that she had made unsatisfactory progress for two successive semesters (each semester was for a year). Clause 5.2.4. provides: 5.2.4 Terminated from University (a) Unless a Student can demonstrate that exceptional circumstances seriously impaired his or her performance, the University will terminate a Student's enrolment in a Course where the Student: (i) has made Unsatisfactory Progress for two successive Semesters; or (II) fails to meet any conditions imposed by the Dean; or (iii) fails a Core Curriculum Unit twice; or (iv) is declared by the Board of Examiners to have been absent from the University and not completed any piece of assessment in those Units in which the Student is enrolled for a given Semester, including, but not limited to, their first Semester of enrolment; or (v) is an international Student who has been terminated from Course due to continued Unsatisfactory Progress in accordance with DIAC and the ESOS Act. (b) A Student who has been terminated from the University cannot re-enrol at the University in any Course and/or Unit for a minimum period of 12 months or such longer periods (including permanently) as the Board of Examiners deems appropriate. (c) A Student may appeal the allocation of Terminated from University status in accordance with the Policy: Student Appeals. (d) A Student may appeal against the duration of Termination from University in accordance with the Policy: Student Appeals.
Relevant provisions of the Student Appeals Policy are these: 1. Application of policy and procedure 1.1 This policy and procedure applies to appeals against academic and administrative decisions where a right of appeal was expressly provided to a student or prospective student under the University's General regulations. 13 TERMINATED FROM UNIVERSITY - General Regulation 5.2.4 13.1 A Student may appeal the allocation of "Terminated from University" status to the Pro Vice Chancellor, Academic - except in the following circumstances where there is no right of internal appeal: (a) if a Student fails a Core Curriculum Unit for a third time - in these circumstances, the Student will be permanently terminated from the University; or (b) if a Student is terminated from University on more than one occasion - in these circumstances, the Student must serve the 12 months termination period from the University, following which the Student may apply in writing to the Campus Registrar for re-admission in accordance with General Regulation 2.8 (unless the Student has been permanently terminated). 13.2 Grounds for appeal: The Student may only appeal on the following grounds: (a) administrative error by the Board of Examiners; or (b) a breach of the University's policies and/or regulations by the Board of Examiners sufficient to cause disadvantage to the Student; or (c) grounds deemed acceptable by the Pro Vice Chancellor, Academic due to exceptional circumstances. … 13.7 Further appeal: The decision of the Pro Vice Chancellor, Academic is final and not open to further internal appeal. …
The Plaintiff had applied on 11 November 2014 to a Unit Coordinator for Special Consideration. That request was denied on 21 November 2014. She appealed to the Dean. The Dean reviewed the Unit Coordinator's decision and denied the appeal on 10 December 2014.
The Plaintiff sought a supplementary examination for the Population and Public Health Domain (PPH) in MED2000. She also lodged an appeal against the final grade of "Fail due to Non-Completion" (FN) for MED2000 and an appeal against the finding of Unsatisfactory Progress for MED2000. These appeals were made to the Dean and were rejected.
On 10 December 2014 the Plaintiff appealed to the Pro Vice Chancellor against the Dean's decision. On 6 January 2015 the Plaintiff was told that her appeal had been denied because it was considered that the matters upon which she relied did not fit within the circumstances in which Special Consideration could be granted. It was noted that the decision of the Pro Vice Chancellor was final and not open to any further appeal. The letter went on to say that the reasons and evidence that the Plaintiff had provided were inadequate and did not substantiate any of the grounds of appeal alleged. On that basis no valid appeal had been made against the Plaintiff's final grade.
The Pro Vice Chancellor said that the appeal against a finding of unsatisfactory progress for MED2000 was invalid. This was because unsatisfactory progress is a term defined under the Regulation and describes the situation where a student does not achieve satisfactory progress. A student fails to achieve satisfactory progress if they do not pass. There was therefore no basis for a separate ground of appeal in respect of that finding which was the consequence of the final grade. There was no valid appeal in respect of that final grade.
On 23 January 2015 the Pro Vice Chancellor wrote to the Plaintiff saying that she could not apply for a Supplementary Examination in respect of PPH and that the Pro Vice Chancellor had not granted one.
The Pro Vice Chancellor noted that the appeal the Plaintiff made to the Dean against her final grade of FN for MED2000 was on three bases as follows: 1. (a) Administrative error; or 2. (b) Breach of the University's assessment policy, procedure or regulations sufficient to cause disadvantage to the Student; or 3. (c) Unfair treatment in the process of assessment.
The Pro Vice Chancellor said it was not clear from the Plaintiff's letter to the Dean what reasons and evidence she relied on for the separate grounds of appeal. She noted the matters set out in [27] above.
On 13 January 2015 the Plaintiff appealed against her termination from the University on the grounds of exceptional circumstances which seriously impaired her performance in both MED1000 and MED2000. Her requests and appeals for Special Consideration due to exceptional circumstances were denied on 14 January 2014, 7 May 2014, 6 January 2015 and 23 January 2015. In those circumstances, the termination from the University was upheld on 27 January 2015.
On 27 January 2015 the Plaintiff requested that the following appeals be referred to an External Appointee: 1. (a) Appeal against failure to grant Special Consideration for MED2000; 2. (b) Appeal against final grade for MED2000; 3. (c) Appeal against termination from the University.
On 21 January 2015 the Plaintiff by Notice of Motion sought this order: The Defendant be restrained from terminating the plaintiff's enrolment at the University of Notre Dame Australia until finalisation of these proceedings.
This judgment concerns a determination of that prayer for relief. At the time the Motion was heard the external appeal referred to in [35] above had not been determined.
The Notice of Motion contains some ancillary orders including an application by the Plaintiff for leave to amend (again) her Summons although the precise form of the amendment was not put before the Court, and an application for the Defendant to produce certain documents listed in a Schedule to the Motion. These documents included exam scripts, model answers and all documents generally about the grading of marks. The Plaintiff sought all documents and communications between various persons at the University for almost everything to do with her time at the University. She required documents showing all grants of special consideration to medicine students at the University from 2008 to 2014. No argument was addressed to these documents until the Plaintiff mentioned it in passing at the conclusion of her address in reply. I declined to order production at this stage on the basis that the documents did not concern the interlocutory relief sought and their production was not urgently required.
The Plaintiff wishes to continue to attend lectures and complete her medical degree pending (a) the outcome of the appeal to the external appointee in respect of her 2014 failures, (b) her appeals against termination from the University and (c) the present proceedings. At the time of hearing the Motion the present proceedings dealt only with her failures in MED1000 semester but the Plaintiff says that she will amend the proceedings to include the other matters now in dispute.
The Plaintiff in supplementary submissions handed up on the second day of the hearing claimed that the interlocutory order she sought could be seen as an order for mandamus. She sought mandamus on an interlocutory basis. The purpose of seeking mandamus was said by the Plaintiff to be that it did not require her to show a serious question to be tried nor to demonstrate that the balance of convenience favoured her.
The basis for mandamus was said to be clause 25 of the Student Appeals Policy. Alternatively, the Plaintiff says that there is a serious question to be tried to justify the grant of the interlocutory injunction and says also that the balance of convenience favours her. She says that if she is not able to continue with MED3000 this year she will be disadvantaged by reason of her age in that she will be a year older by the time she manages to complete the medical degree.
I do not consider that characterising the order the Plaintiff seeks on an interlocutory basis as mandamus means that she does not have to satisfy the ordinary requirements for obtaining an interlocutory injunction. In any event it is difficult to read the order being sought as an order seeking mandamus. In substance what the Plaintiff seeks is the preservation of what she sees as the status quo, namely, her continuing the university course.
The Plaintiff, in substance, sought the injunction on one of two bases. First, she said that the Regulations and the Student Appeals Policy gave her a right to attend classes and continue with her course of MED3000. Alternatively, she submitted that she had a serious question to be tried, namely that there were errors of principle, procedure and interpretation by decision makers that would ultimately result in declarations and/orders in the nature of prerogative writs. Those declarations and orders would mean that she would be shown to have passed both MED1000 and MED2000.
It is convenient to deal first with her argument based on the Regulations and the Student Appeals Policy.

Students Appeal Policy

The University accepts that for internal and external appeals, not including termination from University, clause 25 would permit her to continue the course. The University denies that clause 25 enables the Plaintiff to continue attending classes where she has been terminated from the University. It also denies that judicial review proceedings are appeals within the meaning of clause 25.
As noted, the University accepts that under clause 25 of the Policy a student who has lodged an appeal whether an internal appeal or an appeal to an external appointee, may attend classes until they are notified of the outcome of their appeal.
In the proceedings as presently constituted, the Plaintiff is seeking judicial review of the University's decision with regard to her completion of MED1000. She was permitted to continue to attend classes to the time of termination of her final appeal to the External Appointee and that person's determination. By grace only, it would seem, she was permitted to complete MED2000 notwithstanding the determination of the External Appointee in May 2014.
The only issue on the construction of the Regulations and Student Appeals Policy is whether the Plaintiff has any right under clause 25 of the Student Appeals Policy or otherwise to insist on being allowed to continue with her classes because the present proceedings have been brought.
In my opinion, nothing in the Regulation or the Student Appeals Policy contemplates judicial review proceedings or anything similar. Where the term "appeal" appears in the Policy it is apparent that the only appeals being dealt with are internal appeals (clauses 4 to 22) and external appeals under clause 23. Some of the internal appeals have built within them a double appeal process such as clauses 12 (failure in a compulsory unit) and clause 19 (Special Consideration). The Plaintiff availed herself of such appeals.
It is also apparent that references to "an external person or agency" in clauses 3, 23 and 25 are references to specified external reviewers and agencies in respect of which the Registrar of the University maintains a list (see clause 23.1). The reference to "external reviewers and agencies" cannot be regarded as a reference to a Court. There is nothing, therefore, to support the Plaintiff's contention that, because she has brought the present proceedings, clause 25 enables her to continue to attend classes.
It does not seem to me that this position is altered by the fact that the Plaintiff was permitted to attend classes in her MED2000 semester and complete that semester. The Plaintiff did not suggest that any estoppel arose from that course of conduct. In any event, as I have noted already, the present proceedings do not seek any relief in respect of events concerned with her MED2000 semester.
To the extent that the Plaintiff relies upon the provisions of the Student Appeal Policy her claim to be allowed to continue classes must fail. Clause 25.1 allows her to continue to attend classes "until [she is] notified of the outcome of [her] appeal". The Plaintiff was so notified on about 7 May 2014. The fact that she was permitted to complete MED2000 does not accord her greater rights than the Student Appeal Policy allows.
It is not, therefore, strictly necessary to consider the Plaintiff's position flowing from her termination because from 7 May 2014 she has had no right to attend classes. However, in deference to the arguments advanced I will do so.
If the Plaintiff had successfully completed MED2000 she might have been in a better position to argue that, notwithstanding clause 25, she could demonstrate a serious question to be tried, namely, that there was a real possibility that she would be successful in establishing error on the part of the External Appointee who dealt with her appeal in respect of MED1000. Her failure in MED2000 has three consequences, in my opinion. First, it reinforces the fact that she has no right (as I have determined) to attend classes because all her appeals with respect to MED1000 have been decided adversely to her. Secondly, it strikes a serious blow against her argument that there is a serious question to be tried that the status quo should otherwise be maintained. Thirdly, it resulted in her termination from the University.
It is convenient to deal with the termination first because that also turns on construction of the Student Appeals Policy.
The Plaintiff argues that her right to attend classes continues until her appeals against the termination have been heard and determined. She includes amongst those appeals the present proceedings as she intends to amend them. However, I have already determined that as a matter of construction of the Student Appeals Policy the present proceedings do not constitute appeals in the Policy. The Plaintiff points to clause 1.1 of the Appeals Policy ([26] above) and clauses 25.1 and 25.2 to submit that an appeal against termination is in the same position as other appeals with the result that she can attend classes until such appeal is determined.
In my opinion, the Plaintiff's submission ignores clause 25.5 and the structure of the clause as a whole. Special provision is made by clause 25.5 in respect of termination. The requirement is to cease attending classes when an appeal against termination is denied. That requirement does not operate in respect of appeals concerning matters other than termination which are denied. The effect is for those appeals, as a reading of clauses 25.1 and 25.2 together shows, that an internal appeal may be denied but if an external appeal is lodged the student may continue to attend classes until that external appeal is determined.
Clause 25.5 applies only to appeals against termination. The clause does not refer either to "external appeal" or "final appeal" or "all appeals". Here, the Plaintiff appealed against her termination. That appeal was denied. Clause 25.5 operates to require her to cease attending classes even if she lodges another appeal to an External Appointee.

Serious question to be tried

The Plaintiff also submitted that there was a serious question to be tried and that the balance of convenience favoured her to justify an interlocutory injunction.
On 10 October 2014 the Plaintiff filed an Amended Summons in relation to orders she seeks in relation to the MED1000 year. In addition to the declarations previously sought she seeks orders setting aside the decision of the University on 11 December 2013 that she achieved a final mark of 48 and/or a final grade of Fail in MED1000. She seeks the same order in respect of a decision said to have been made on 7 May 2014. The evidence discloses that the 11 December 2013 decision was the date of rejection by the University of her appeal to the Pro Vice Chancellor and 7 May 2014 was the notification of the rejection of her appeal by the External Appointee.
However, the Plaintiff makes it clear that a number of earlier decisions are "the subject of collateral attack", as she put it in the Summons. These prior decisions appear to be steps along the way such as when she was awarded the mark of 48 and when a committee was established to review her final grade as well as the various dates on which appeals were rejected.
Although the Amended Summons is couched in terms that suggest on its face that the Plaintiff is seeking a judicial review based on commonly understood administrative law grounds, it is fairly clear that the Plaintiff is actually seeking a merits review including a re-mark of the paper that ultimately gave rise to the fail grade for the subject. The proceedings also seek to challenge the marking system in place at the University.
The High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 has elucidated the meaning of a serious question to be tried. Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed at [19]) said: [65] The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd . This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks. … [70] When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the considerations emphasised in Beecham. [71] However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried". That was followed by a proposition which appears to reverse matters of onus: So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. (emphasis added) Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. (citations omitted and emphasis added)
Accordingly, what the Plaintiff must demonstrate is a sufficient likelihood of success to justify the preservation of the status quo.
In Harding v University of New South Wales [2002] NSWSC 113 Wood CJ at CL said: [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.
Despite the Court of Appeal allowing the appeal from this judgment on one point, nothing was said to suggest that what is contained in those paragraphs does not state the law: Harding v University of New South Wales [2002] NSWCA 325.
In Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 Sedley LJ (with whom Lord Woolf MR and Ward LJ agreed) said: [12] The arrangement between a fee-paying student and U.L.H. is…a contract. …Like many other contracts, it contains its own binding procedures for dispute resolution, principally in the form of student regulations. Unlike other contracts, however, disputes suitable for adjudication under its procedures may be unsuitable for adjudication in the courts. This is because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example may also fall into this class. It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded… .[T]he issues which the courts remitted with obvious relief to visitors in such cases as Thomson v University of London (1864) 33 LJ Ch 625 (which concerned the award of a gold medal), Thorne v University of London [1966] 2 QB 237 and Patel v University of Bradford Senate [1978] 1 WLR 1488 (both of which concerned the plaintiff's academic competence) would still not be susceptible of adjudication as contractual issues in cases involving higher education corporations.
I agree with those remarks. They seem to me to be consistent with, and flesh out in a practical way, what Wood CJ at CL is saying in Harding.
As far as there being a serious question to be tried is concerned, the Plaintiff is in the position that she has to show error on the part of the External Appointee in respect of MED1000. Her position appears to have been reviewed a number of times. The External Appointee noted that the School of Medicine conducted a review of the Plaintiff's final PBL grade awarded by the Plaintiff's supervising doctor. They would have awarded a lower grade but her grade was not altered. Her appeals to both the Pro-Vice Chancellor and the External Appointee were unsuccessful. Her position has, therefore been reviewed three times up to the present. Absent a merits review which is not available in the present proceedings, it is not clear on what administrative law basis the Plaintiff seeks to challenge the determination of the External Appointee.
The Plaintiff submitted that part, at least, of her complaint about the External Appointee was that the Plaintiff was denied procedural fairness in that she was not given the opportunity to make submissions to the Appointee, and that the Reviewer did not provide detailed reasons for her decision.
There was no evidence about the procedure adopted by the External Appointee. In particular, there was no evidence from the Plaintiff (as opposed to a statement from the Bar Table) that she was not given an opportunity to make submissions. The determination of the External Appointee was Exhibit A on the Motion. It was an 11 page report with extensive reasons. On these two aspects of the Plaintiff's case I do not consider the Plaintiff demonstrates a sufficient likelihood of success.
Even, however, if she was successful in her challenge to the External Appointee, the result would be, presumably, that either the External Appointee needed to determine the appeal according to law or that the issue would somehow revert to the examiner for a further review.
If the Plaintiff was successful in that regard she would next need to demonstrate that her results in MED2000 were wrongly determined in a similar fashion to the challenge to the MED1000 results. As best I could understand the Plaintiff's submissions, she has simply put forward the same arguments at each level of review and/or appeal including on the present application in the hope that they would be accepted. Whilst that is not impossible, what seems tolerably clear is that the Plaintiff is really seeking a merits review, in the form of a re-mark of the exams and course she has failed.
In that regard clause 3.3 of the Student Appeals Policy may have some relevance. It provides: The University is not compelled to consider: … (c) Appeals made on the basis of the judgment of the University staff member who made the decision
One of the Plaintiff's chief complaints concerns her mark of 48 when she asserts her raw mark was 57. The University's Assessment Policy relevantly provides: Examination Requirements for Medicine Units Students must achieve an overall level of performance which meets the standard set for an academic grade of Pass or higher in each Unit (MED10000, MED20000, MED30000, MED40000). The Pass/Fail grade boundary (the 'borderline' score) for each end-of-year summative assessment is determined by experts using recognised standard-setting procedures. … The School of Medicine, Sydney recognises the importance of ensuring, as far as possible, that all students are competent and safe to practice (sic) medicine. The School therefore, reserves the right to review the performance of any student about whom concerns are expressed in relation to their capacity to perform competent and safe medical practice. … The Board of Examiners will review the overall performance during the year of any student with an overall score within a defined range (above and below) the 'borderline' score for the Pass/Fail grade boundary.
These provisions suggest that what the Plaintiff complains about (the grading of her marks) falls within a decision based on the judgment of a staff member who made the decision. They tend also to highlight that what the Plaintiff seeks is a merits review by means of a re-mark of her work. Because such a merits review is not available by judicial review proceedings, and is not achieved by the declarations the Plaintiff seeks, I do not consider that the Plaintiff demonstrates sufficient likelihood of success with respect to that aspect of the claim. If the Plaintiff does not succeed on that part of her claim, she will not have passed MED1000.
Given her history of failures in MED1000 and MED2000, the history so far of unsuccessful reviews and appeals, and what she is ultimately trying to achieve in the litigation I cannot be satisfied that there is a serious question to be tried.

Balance of convenience

The University says that it would be severely prejudiced if the Plaintiff were entitled to enrol in MED3000 because the MED3000 unit requires students to attend clinical placements external to the University. These clinical placements involve students attending placements, most of which are at hospitals and require students to use the knowledge and skills developed in MED1000 and MED2000 when interacting with patients. From the grades the Plaintiff achieved in MED1000 and MED2000 she has not demonstrated an ability to meet the performance requirements of those units.
The University says that it has obligations to help service providers who allow students from the University to attend their clinical facilities to ensure that its students are fit to undertake the tasks required for the placements. It says that the University is unable to protect itself against the risk of harm to patients at the clinical placement at which its students are placed. The University would be required to inform the health service providers of the Plaintiff's academic status at the University to allow them to make an informed decision about permitting the Plaintiff to carry out her clinical placements at facilities, and that this has the potential to harm the University's relationship with those health service providers and poses a risk to the University's academic and professional reputation.
The Plaintiff submits that she achieved sufficient marks in her practical skills courses in MED1000 and MED2000. She says that she will be supervised by a registered practitioner. She says that appropriate safeguards could be put in place to answer the University's concerns. As to the University's reputation she would undertake confidentiality in relation to any placement.
The Plaintiff says that she is prejudiced if not permitted to continue in MED3000 because it is a year out of her life when she has come to study medicine late. She says there are financial disadvantages to her being delayed a year or longer if the University does not re-admit her in 2016.
In my opinion, that balance overwhelmingly favours the University.
The damage that the Plaintiff will suffer if the injunction is denied is a delay until 2016 before she can continue her degree if she is successful. She points to her age in that regard. She is aged 43. However, her desire to do medicine appears to have emerged well after the time she first enrolled, or could have enrolled at a university. She obtained degrees in Law and Economics from Sydney University and a degree in Science from Macquarie University. She sat and passed the Bar Exams. Moreover, no explanation was offered for why she enrolled but withdrew from the medical degree in 2008 and did not re-commence until 2013. It is difficult to see, therefore, why a year's delay is a detriment or much detriment. If she is successful in showing that the University should not have terminated her there can be no question of her not being allowed to return to the University.
On the other hand I accept the University's concerns about permitting a student to continue to MED2000 who has been unsuccessful in completing the first two years of a medical degree where MED2000 involves clinical placements. Both the University and those conducting the placements need to be in the position to make safe assumptions about such a student's knowledge and learning.
Even, therefore, if the Plaintiff could show there was a serious question to be tried, she fails to show that balance of convenience favours her to justify the grant of an injunction.
In my opinion, the Plaintiff fails to show that an interlocutory injunction should be granted.

Conclusion

I make these orders: (1) Dismiss the Plaintiff's application for an interlocutory injunction contained in paragraph 3 of her Notice of Motion filed 21 January 2015; (2) The Plaintiff is to pay the Defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2015

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