[1948] HCA 35
Calvin v Carr (1979) 22 ALR 417
Forge v ASIC (No 2) (2007) 69 NSWLR 575
[1976] HCA 58
Wishart v Fraser (1941) 64 CLR 470
Source
Original judgment source is linked above.
Catchwords
[1948] HCA 35
Calvin v Carr (1979) 22 ALR 417
Forge v ASIC (No 2) (2007) 69 NSWLR 575[1976] HCA 58
Wishart v Fraser (1941) 64 CLR 470
Judgment (4 paragraphs)
[1]
Background
The Board approved Mr Makowski's application for registration as a student-at-law on 13 August 2017. In Term 1 of 2018, he undertook and passed two courses: Legal Institutions, and Criminal Law and Procedure. In Term 2 of 2018, he undertook Torts and Contracts. He passed Torts with distinction, but he did not pass Contracts.
On 29 October 2018, Mr Makowski's application for acceleration progression (a relaxation of r 59(3) of the Board Rules) was approved. In Term 1 of 2019, he enrolled in Contracts, Real Property, and Australian Constitutional Law. He completed Real Property, but he did not sit the examinations for Contracts or Australian Constitutional Law.
On 14 May 2019, Mr Makowski applied for permission to enrol in Equity and Commercial Transactions in the Winter 2019 session, despite not having completed Contracts or Australian Constitutional Law; that is, he applied for a relaxation of r 59(1) of the Board Rules. On 16 May 2019, the Acting Executive Officer of the Board wrote to Mr Makowski, stating that his application had been refused. Mr Makowski requested reasons for that decision, which were provided. On 4 June 2019, Mr Makowski applied (under r 27J(3) of the Board Rules) for reconsideration by the Examinations Committee of the Acting Executive Officer's decision. The Examinations Committee considered the matter on 18 June 2019, and on 19 June 2019 conveyed the first decision to Mr Makowski in the following terms:
"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."
Makowski v Legal Profession Admission Board [2020] NSWCA 305 | Case summary | Zoe
On 24 June 2019, Mr Makowski made a second application for relaxation of the progression rule in respect of the same subjects (Equity and Commercial Transactions), for Term 2 of 2019. This time, he attached a statutory declaration, setting out that he suffered "disability in the form of a chronic mental illness", and statistics for the last three years showing that 95.9% of applications for relaxation had been granted.
By letter of 28 June 2019, the Acting Executive Officer informed Mr Makowski of the second decision, namely that his second application would not be processed, as the Examinations Committee had already made its decision, and also that he could appeal the decision of 18 June 2019 to the Board, and that the next Board meeting would be on 6 August 2019.
Mr Makowski did not at that stage appeal the first decision to the Board, but instead, on 1 July 2019, filed a Summons in the Supreme Court, seeking:
"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."
By notice of motion filed on 8 July 2019, Mr Makowski sought 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. On 18 July 2019, Adamson J dismissed Mr Makowski's application for interim relief, and ordered that he pay the Board's costs of the motion. Her Honour observed: [3]
"24 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.
25 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).
26 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.
27 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.
28 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.
29 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.
30 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.
31 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."
Subsequently, on 22 July 2019, Mr Makowski applied under r 29 of the Uniform Admission Rules for a review by the Board itself of the second decision. By letter dated 6 August 2019 the Board confirmed the second decision, and subsequently provided reasons ("first rule 29 decision"). Mr Makowski then, on 16 September 2019, sought review by the Board itself of the first decision. Upon review, the Board confirmed the first decision, and provided reasons on 8 October 2019 ("second rule 29 decision").
On 15 October 2019, Mr Makowski applied to enrol in Equity, Commercial Transactions and Administrative Law in Term 1 of 2020 (requiring a relaxation of rr 59(1) and (3)). He was informed that he was precluded from doing so by r 64 of the Board Rules ("the exclusion rule"). On 21 October, Mr Makowski applied under r 67 of the Board Rules for a relaxation of the exclusion rule. By letter of 25 October 2019, the Acting Executive Officer offered to relax the exclusion rule on certain conditions relating to Mr Makowski's progression, but Mr Makowski declined the conditional offer.
[2]
The judgment below
Mr Makowski sought judicial review of the first and second decisions (that is, the decision of the Examinations Committee on reconsideration of the refusal of the Acting Executive Officer to relax the progression rule, and the subsequent decision of the Acting Executive Officer not to process the second application). No relief was sought in respect of the two rule 29 decisions of the Board itself. Cavanagh J found that it was the first and second rule 29 decisions of the Board that were the "operative decisions", and that there was "no utility in the challenge to the first and second decisions, as even if successful, the two rule 29 decisions would still stand". [4]
His Honour nonetheless proceeded to consider Mr Makowski's submissions in relation to the first and second decisions. In relation to the first decision, his Honour concluded: [5]
"no error has been demonstrated in respect of the first decision. The plaintiff was afforded procedural fairness. No error of fact is disclosed in the reasons provided for the decision. No error of law is disclosed in the Examination Committee's consideration, construction or application of rule 59(4)."
In relation to the second decision, after considering Mr Makowski's submissions on procedural fairness and the effect of the order sought, his Honour concluded that "there [was] no merit in the [applicant's] submissions in support of the second order he [sought]". [6]
His Honour also dismissed Mr Makowski's claim in contract, seeking an order for specific performance requiring that his second application be processed. His Honour concluded that even if there were a contract, and even if specific performance were otherwise appropriate, there was no point in making an order in 2020 that would require the Board to process an application to progress out of sequence in Term 2 2019. [7]
[3]
Leave to appeal
Mr Makowski's summary of argument rightly acknowledges that to attract a grant of leave, there should be established either an injustice which is reasonably clear, an issue of principle, or a question of general public importance, and that that it does not suffice to show that the Court below was merely arguably wrong. [8]
First, Mr Makowski submitted that his Honour erred in dismissing the summons on the basis of the perceived inutility of quashing the impugned decisions, when there was real and significant utility in doing so for his progression in the Board's course, as quashing those decisions would "abrogate the militating effect of the Exclusion Rule … against the applicant's progression in the Board's course". Thus he submitted that the quashing of the first or second decisions would have assisted his application under r 67 for a relaxation of the exclusion rule, and thereby had the effect of allowing him to continue his studies. He submitted that this alleged error constituted an injustice which was reasonably clear.
These submissions misconceive the basis on which his Honour concluded that there was no utility in granting the relief sought. His Honour was conscious of the argument that quashing the first or second decisions might have some impact on the exclusion rule. It had been raised in the course of submissions, [9] and his Honour recorded it in the judgment:
"43 I asked the plaintiff at the end of the hearing about the utility of these proceedings. He said:
'[T]he utility of that is that the further I progress in the course the less chance a second failure in Contracts would exclude me from the Board's course. That's the utility. By putting Contracts and Australian Constitutional Law at the end of the course there is less likelihood that even if I were to fail again that I would be revoked from further progression in the course.'"(Citations omitted.)
The conclusion of inutility was not based on rejection of that proposition, but on the ground that there was no point in quashing the decisions of the Examinations Committee and the Acting Executive Officer when they had been superseded by the rule 29 decisions of the Board itself. This appears from the following:
"52 Although the plaintiff dismisses the significance of the first and second rule 29 decisions by the Board itself (describing them as irrelevant), they are now the operative decisions: see Wishart v Fraser (1941) 64 CLR 470 at 477; [1941] HCA 8; Forge v ASIC (No 2) (2007) 69 NSWLR 575; [2007] NSWCA 42 at [3].
53 As the LPAB submits, not only did the Board refuse to disturb the first and second decisions, it considered both of the plaintiff's student course applications and determined afresh to dismiss therein. There is no utility in quashing the decisions of the delegates from whom the plaintiff appealed to the Board.
…
55 On the plaintiff's request, he was provided with reasons for both the Board's first and second rule 29 decisions. It is clear from the reasons that not only did the Board satisfy itself that there was no error in the first and second decisions but it also considered that it had jurisdiction under rule 13(1) of the Board Rules to determine for itself each of the first and second student course applications. As it said in its reasons for the second rule 29 decision provided on 8 October 2019:
"25. The Board is satisfied that it also has jurisdiction under rule 13(1) of the Rules to determine the First Student Course Application, as rule 13(1) gives the Board a general power to relax any of the Rules. The Board is not satisfied that the first or second contentions made in the appeal justify the relaxation of rules 53 and 59. For the purposes of rules 13(1) and 59(4) the Board does not regard the circumstances as sufficiently special to relax rules 53 and 59, for the same reasons as those given by the Examination Committee."
56 The Board had similarly considered the second student course application and refused it, on its merits, as identified in its reasons for the first rule 29 decision.
57 There is no utility in the challenge to the first and second decisions, as even if successful, the two rule 29 decisions would still stand. Further, in both student course applications, the plaintiff seeks relaxation of the progression rule for Term 2 of 2019.
58 Setting aside the decisions in respect of those applications has no utility. In doing so, the Court would not be making orders in respect of the plaintiff's enrolment in Term 2 of 2020.
59 Even if the plaintiff had maintained the position that he adopted at the commencement of these proceedings, that is, not to exercise a right to ask the Board to review under rule 29, the plaintiff's application might have been dismissed on discretionary grounds.
60 Surprisingly, the plaintiff considers that the appeal to the Board is a powerful factor against any discretionary refusal to make the orders sought. Of course, the absence of such an appeal can no longer be raised against him, but the fact of the appeals renders the earlier decisions of no consequence to his progression in his course.
61 Subject to the additional orders raised by way of his amendments to the summons, that would be sufficient to dispose of the summons. However, for completeness, I will deal with the first and second decisions."
Thus at least the primary basis of the "no utility" conclusion was that quashing the decisions of the Examinations Committee and the Acting Executive Officer would achieve nothing, since the decisions of the Board on the r 29 applications would stand. The fact that quashing those decisions (about Term 2 2019) would resolve nothing about his enrolment in Term 2 2020 was an additional reason.
Moreover, as [61] of his Honour's judgment indicates, the 'no utility' conclusion was not the basis on which the summons was dismissed: his Honour proceeded to deal with Mr Makowski's complaints about the first and second decisions, and found none of them substantiated. Even if the "no utility" conclusion were incorrect, it was not productive of injustice because his Honour did not dispose of the summons on that basis, but proceeded to consider the issues raised by the applicant's arguments about the first and second decisions. There would be utility in a grant of leave to appeal only if there appeared to be more than merely arguable error in the manner in which his Honour did so. The applicant's submissions do not identify any error, let alone an arguable one, in his Honour's disposition of those issues.
Secondly, Mr Makowski submitted that his Honour erred in finding that the first and second rule 29 decisions were the "operative decisions". [10] He submitted that this conclusion was not open to the primary judge unless his Honour first considered and was satisfied that Mr Makowski had been afforded "full and fair hearings" in relation to the first and second rule 29 applications, such that any alleged denial of procedural fairness in relation to the first and second decisions was "cured". He submitted that this raises an issue of principle.
The applicant's submission conflates two different propositions. The first, of which Wishart v Fraser, [11] Forge v ASIC (No 2), [12] and Navazi v New South Wales Land and Housing Corporation [13] are illustrations, is that where a decision is confirmed on appeal, the decision of the appellate tribunal becomes the operative decision. The second, referred to in cases such as Calvin v Carr, [14] Bowen v Australian Workers' Union (No 2), [15] Twist v Randwick Municipal Council, [16] and Ainsworth v Criminal Justice Commission, [17] is that a denial of procedural fairness may be cured if the person aggrieved is afforded a full and fair hearing in an internal appeal. The second proposition does not deny that, regardless of whether or not any defect in the earlier hearing is cured, the operative decision is that of the review tribunal; but it means that if the review hearing is not such as to "cure" the defect in the first hearing, then that operative decision will still be liable to be quashed, on account of the defect at the earlier stage. However, it is the decision of the review tribunal that is the operative one. The decisions that ultimately affected Mr Makowski were those of the Board, under r 29, which, once made, operated in place of each of the anterior decisions.
His Honour's point was that there was no utility in challenging the decision of its delegates - the Examinations Committee and the Acting Executive Officer - when they had been superseded by the r 29 decisions of the Board, which Mr Makowski studiously avoided challenging but discarded as irrelevant. Moreover, once again, his Honour did not dispose of the summons on that basis, but proceeded to deal with Mr Makowski's complaints about the first and second decisions, and found none of them substantiated. No issue of principle arises.
Thirdly, Mr Makowski submitted that the application for leave raises a question of public importance. He says his case has been discussed in Lawyers Weekly, and reportedly in a Facebook group of his cohort of students, and submits that it is of public importance that he has brought an internal appeal on a question of law, and that question has been ignored.
Even if it be the case that his matter has been the subject of some discussion of the kind to which he refers, that does not make it of public importance. As to the complaint that his internal appeal to the Examinations Committee on an error of law was not addressed, it is to be observed that although the terminology of "appeal" has been used, and in the broad sense one can understand why, the function of the Examinations Committee under rule 27J was one of "reconsideration". Its reasons explained that "whether the issue is a reconsideration of a matter delegated under rule 27J or a fresh determination by the Committee under rule 59(4)", it was of the view that "the circumstances are not sufficiently special to relax the order of subjects set out in rule 53". Let it be assumed that there was some error of law in the Acting Executive Officer's decision: had the Examinations Committee been so persuaded, then it would have had to substitute its own decision. In circumstances where, whether on reconsideration or on treating it as a fresh application, it was of the view that the circumstances were not such as to warrant a relaxation of the rules, there was nothing to be served by delving into whether there was some error of law in the Acting Executive Officer's decision.
No question of public importance arises.
The draft notice of appeal contains other proposed grounds of appeal, none of which were elaborated in the summary of argument. None of them are such as to warrant the grant of leave to agitate, in a fifth forum, Mr Makowski's application for permission to enrol in certain subjects out of the prescribed sequence, having so far failed at four previous levels: the Executive Officer, the Examinations Committee, the Board, and the Court below.
The order of the Court is that the application be dismissed, with costs.
[4]
Endnotes
Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443.
Makowski v Legal Profession Admission Board [2019] NSWSC 921.
[2019] NSWSC 921.
Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443 at [52], [57].
Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443 at [88].
Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443 at [96].
Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443 at [97]-[99].
Be Financial Pty Ltd (as trustee for Be Financial Operations Trust) v Das [2012] NSWCA 164 at [33].
8 April 2020, T66.
Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443 at [52] citing Wishart v Fraser; Forge v ASIC (No 2).
(1992) 175 CLR 564 at 593; [1992] HCA 10.
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: 25 November 2020
Solicitors:
Karen Smith, Crown Solicitor (Respondent)
File Number(s): 2020/140211
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law
Citation: [2019] NSWSC 921
[2020] NSWSC 443
Date of Decision: 18 July 2019
Before: Adamson J
Cavanagh J
File Number(s): 2019/203641