Makowski v Legal Profession Admission Board

Supreme Court of NSW|2019-07-17|Before: Adamson J

Solicitors: Crown Solicitor's Office (Defendants) File Number(s): 2019/203641

Introduction

By notice of motion filed on 8 July 2019, Daniel Makowski (the plaintiff) seeks an interim order that he be permitted to access "Canvas", a web platform which gives students at the University of Sydney access to study material relating to subjects in which the student is enrolled. The plaintiff submitted that he requires interim relief to protect the utility of the substantive challenge made in his summons to decisions of the Legal Profession Admission Board (the defendant, or the LPAB).
All references to legislation in these reasons are, unless otherwise stated, references to the Legal Profession Uniform Law Application Act 2014 (NSW) (the Act).

The facts

Before addressing the plaintiff's application for interim relief, it is necessary to set out, in summary form, the background facts.
In August 2017, the plaintiff became a student-at-law. In October 2017 he enrolled in Legal Institutions and Criminal Law and Procedure, both of which he passed with merit. In April 2018, the plaintiff enrolled in Torts, which he passed with distinction, and Contracts, which he failed. In November 2018, he enrolled in Contracts, Real Property and Australian Constitutional Law, having obtained a relaxation of the requirement that he be permitted to sit examinations in no more than two subjects. He obtained a pass with distinction in Real Property but did not sit either Contracts or Australian Constitutional Law.
The final date for late enrolment and late applications for relaxation of the progression rule for the Winter 2019 Session was 3 May 2019. The plaintiff purported to enrol in Equity and Commercial Transactions although he had passed neither Contracts nor Australian Constitutional Law. As a consequence of his purported enrolment, he was provided with access to Canvas for those two subjects.
On 8 May 2019 the LPAB informed the plaintiff that his enrolment would not be processed but invited him to apply for a relaxation of the progression rule, provided that any such application was made within seven days. This amounted to a dispensation as the final day for such applications was 3 May 2019.
By letter dated 9 May 2019, the plaintiff denied that he was seeking to do subjects out of order. However, on 14 May 2019 he made an application to the LPAB to be permitted to enrol in Equity and Commercial Transactions, notwithstanding that he had not passed Contracts or Australian Constitutional Law (the First Application). By letter dated 16 May 2019 the Acting Executive Officer of the LPAB refused the application. On 21 May 2019 the plaintiff sought reasons for the decision and expressed an intention to appeal the decision. On 31 May 2019, the Acting Executive Officer provided reasons for her decision.
On 4 June 2019 the plaintiff lodged an appeal to the Examinations Committee from the decision of the Acting Executive Officer pursuant to r 27J(3) of the Board Rules
On 18 June 2019 the Examinations Committee refused the plaintiff's application. By letter dated 19 June 2019 the plaintiff was informed of the decision and the reasons in the following terms: "At its meeting on 18 June 2019 the Examinations Committee considered your appeal on the Acting Executive Officer's refusal of your student course application to attempt subjects out of order. After due consideration of the material you provided, the Committee resolved to confirm the decision of the Acting Executive Officer and refuse your appeal. The Exam Committee has given the following reasons for their decision: 1. Whether the issue is a reconsideration of a matter delegated under rule 27J or a fresh determination by the Committee under rule 59(4), the circumstances are not sufficiently special to relax the order of subjects set out in rule 53. 2. Contracts and Constitutional Law provide a good basis from which to approach both Equity and Commercial Transactions, and the knowledge is fundamental to undertaking the rest of the subjects. 3. Other than dissatisfaction with the way his assignments have been marked, the student has advanced no substantive reasons as to why he should be granted permission to study subjects out of order. 4. Personal preference alone does not qualify as a reason."
On 21 June 2019 the plaintiff asked the Acting Executive Officer whether an internal appeal against the decision of the Examinations Committee was available.
On 24 June 2019 the plaintiff made a further application to enrol in Equity and Commercial Transactions (the Second Application). In the statutory declaration in support of his application he said that he was suffering from a "disability in the form of a chronic mental illness". He referred to the statistics for the last three years which indicated that 95.9% of applications for relaxation had been granted.
By letter dated 28 June 2019, which was sent on 1 July 2019 by email and post, the Acting Executive Officer informed the plaintiff that he could appeal the Examination Committee's decision of 18 June 2019 and that any such appeal would be considered by the LPAB at its meeting on 6 August 2019 but that his Second Application would not be processed as "the Examinations Committee has made its decision".
In the interim, on or about 26 June 2019, a representative of the LPAB informed the Law Extension Committee orally that the plaintiff's application for relaxation of the progression rule had been refused. The effect of the refusal was that the plaintiff was not enrolled in any subject for the Winter 2019 Session. Ms Goldsmith, of the Law Extension Committee, wrote an email to the plaintiff in the following terms: "The LPAB have informed us that you are not enrolled this semester. Therefore, we have removed your access to subjects in Canvas."
On 1 July 2019 the plaintiff's enrolment fees for Equity and Commercial Transactions were refunded.

The relief sought in the summons

The summons seeks relief on the following grounds: "ORDERS SOUGHT 1 An order in the nature of certiorari, quashing the decision of the Examinations Committee to not set aside the Acting Executive Officer's decision to refuse the plaintiff's Student Course Application (14/05/19) under Rule 59(4) of the NSW Admission Board Rules 2015. 2 And, or alternatively, an order in the nature of certiorari, quashing the decision of the Acting Executive Officer to refuse a relaxation of progression Rule 59(1) by rejecting the plaintiff's Student Course Application (24/06/19) under Rule 59(4). 3 An order of interim relief lifting the denial of access to 'Canvas' so that the plaintiff is able to continue studying for his '07 Equity' and '08 Commercial Transactions' examinations (which are scheduled for 30/08/19 and 04/09/19, respectively). . . . DETAILS OF DECISION 1 The decision maker (in 'matter 1') was the Examinations Committee of the LPAB. 2 The decision to be reviewed was the plaintiff's appeal of the Acting Executive Officer's decision to refuse the plaintiff's Student Course Application (14/05/19). 3 The plaintiff seeks relief from the whole of that decision. 4 The decision-maker (in 'matter 2') was the Acting Executive Officer of the LPAB. 5 The decision to be reviewed was a refusal of the plaintiff's Student Course Application (24/06/19) after the higher requisite [sic] arising out of the reasons from the decision in 'matter 1' was allegedly met. 6 The plaintiff seeks relief from the whole of that decision. GROUNDS 1 In relation to 'matter 1', the plaintiff seeks relief on the basis of a lack of procedural fairness amounting to a denial of natural justice by the decision-maker attributing errors of fact on which the decision was based, specifically where it is alleged that, i) the Plaintiff did not advance substantive reasons, and ii) that his reason was a mere personal preference. 2 In relation to 'matter 2' the plaintiff seeks relief on the basis that i.) the decision-maker did not have the authority or that the procedures that are required by law to have been observed in respect of the conduct had not been observed because the plaintiff i.) was not informed of the decision, ii.) the right to request reasons for the decision could not have been extended, and iii.) the right of appeal could not have been extended."

The claim for interim relief

The only relief sought by the plaintiff on 17 July 2019 is that he be permitted to have access to Canvas pending the determination of the proceedings. He submitted that, unless he had such access, his "appeal" to this Court would be rendered nugatory because he would not be in a position to sit the examinations for Equity and Commercial Transactions.
One of the difficulties with this submission is that, even if the plaintiff were wholly successful in this Court and obtained relief setting aside the decision of the Examinations Committee in respect of the First Application, this would not give him access to Canvas since he would still not have a decision of the LPAB relaxing the progression rule in his favour with respect to Equity and Commercial Transactions. It would not be open to this Court to make an order relaxing the progression rule, that being a matter within the LPAB's power and not within this Court's powers under s 69 of the Supreme Court Act 1970 (NSW).
Secondly, had the plaintiff availed himself of his right to have the LPAB itself, rather than its delegates, determine his application for relaxation of the progression rule, he could have had such a decision by 6 August 2019, being the date of the LPAB's next meeting. Further, there is nothing to indicate that, had the plaintiff applied to the LPAB for review of the Examination Committee's decision, the Law Extension Committee would not have continued to treat his enrolment as pending and continued to allow the plaintiff to have access to Canvas. Indeed, in light of the evidence of Ms Daley relied on by the defendant, this is likely to have been the situation.
Another difficulty with the plaintiff's submission is that he would appear to have had no entitlement to have his Second Application dealt with at all. It was lodged almost eight weeks out of time (the final day being 3 May 2019). Further, given that the plaintiff was entitled to a further level of merits review by the LPAB itself, which could take into account additional material he provided, including the material which accompanied the Second Application relating to his disability, there would appear to have been no entitlement in any event for him to have the Acting Executive Officer decide the Second Application on its merits.
There would also appear to be a further impediment to making the interim order as sought. Access to Canvas is in the hands of the Law Extension Committee. All that could be ordered is that the LPAB do all things reasonably necessary to restore the plaintiff's access to Canvas. However, the only arguable reason for the plaintiff to have access to Canvas would be if he were to be permitted to sit the examinations for Equity and Commercial Transactions.
It would appear that the only avenue which would permit the plaintiff to obtain a relaxation of the progression rule for this term (or, indeed, the next) in respect of Equity and Commercial Transactions would be for the plaintiff to make an application to the LPAB itself under r 13(1) of the Board Rules. Whether this is regarded as an appeal from the decision of the Examination Committee refusing his First Application or a direct application, he has a right to have his application considered and determined by the Board itself. To date, the plaintiff has refused to take this course.
In oral submissions, the plaintiff also indicated that he challenged the "decision" by the Law Extension Committee to deprive him of access to Canvas. This decision would appear to me to be a purely administrative act and not one made under any enactment and therefore not subject to judicial review. The evidence of Ms Daley was to the effect that access to Canvas depended on a student being enrolled in a subject, although latitude was given, as referred to above, to students whose applications were still pending.
In these circumstances, I am not persuaded that there is any utility in granting the interim relief sought, even if an appropriate order could be framed to allow the plaintiff to obtain access to Canvas.
I note for completeness that the plaintiff has made extensive submissions about the grounds of his challenge to the decisions set out in the summons. For the purposes of his application for interim relief, it is neither necessary nor appropriate to address these substantive submissions since the relief has been refused on the assumption, which I am prepared to make, but which has not been made out, that he otherwise has an arguable claim for relief.

Orders

For the reasons given above, I make the following orders: 1. Dismiss the plaintiff's notice of motion filed on 8 July 2019. 2. Order the plaintiff to pay the first defendant's costs of the notice of motion.

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: 19 July 2019

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (3)

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