Makowski v Legal Profession Admission Board

Supreme Court of NSW|2020-04-08|Before: Cavanagh J

Judgment

The plaintiff is a student-at-law undertaking the Legal Profession Admission Board course.
The first defendant, the Legal Profession Admission Board ("LPAB"), is a statutory corporation constituted by s 19 of the Legal Profession Uniform Law Application Act 2014 (NSW) ("the Act"). It is described in the Act as the NSW Admissions Board.
The Second Defendant is the Acting Executive Officer of the LPAB.
The plaintiff seeks orders quashing decisions of the LPAB which have prevented him from undertaking some subjects in the order that he wishes, rather than as determined by the rules governing his course.
The plaintiff appears in person. Mr Hugh Atkin of Counsel appears on behalf of the LPAB. The second defendant filed a submitting appearance.
The principal orders that the plaintiff seeks are as follows: "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 to process the plaintiff's Student Course Application (24/06/19)."
He also seeks orders for specific performance, damages and a declaration of breach of a constructive trust.
On 14 April 2020, he sought leave to file a further amended summons, even though the hearing had been completed a week earlier. He said that he wished to avoid a multiplicity of proceedings. On one view, the amendments merely reflected some of the issues raised on the hearing. The LPAB did not consent to or oppose the amendments. I granted leave.
The matter has already been the subject of an interim hearing pursuant to a motion filed by the plaintiff on 8 July 2019. He sought an order that he be permitted to access "Canvas", a web platform that gives students at the University of Sydney access to study material relating to subjects in which the student is enrolled. His application was unsuccessful: Makowski v Legal Profession Admission Board [2019] NSWSC 921.

Legislative framework

The legislative framework is summarised in the earlier judgment of Adamson J in this matter and I adopt her Honour's summary as follows: [1] "3. The LPAB is a statutory corporation established by s 19 [of the Act]. It has the functions conferred on it by the Act and the Legal Profession Uniform Law (NSW) (the Uniform Law): s 20. The LPAB may delegate any of its functions under the Act or the Uniform Law to any of its committees or to an officer of the LPAB: s 20A. 4. Rule 30 of the Legal Profession Uniform Admission Rules 2015 (NSW) (Uniform Admission Rules) empowers the LPAB to establish and determine the terms of reference of any committee or sub-committee. Rule 29 of the Uniform Admission Rules allows the LPAB to review, vary or set aside any decision of any of its committee or delegates "in the circumstances and in the manner determined by [the LPAB]." 5. Pursuant to s 21A the LPAB may make rules, relevantly, with respect to 'any administrative matters relating to [its] functions' and 'the examination and assessment in academic subjects of candidates for registration and students-at-law'. The LPAB made the NSW Admission Board Rules 2015 (the Board Rules), which are those presently applicable. 6. The Board Rules relevantly provide: '11 The Board may adjourn consideration of an application or matter before it under these Rules pending the provision of such further material or evidence as it considers necessary or appropriate. 12 The Board may inform itself of any matter which it considers relevant to an application before it in any manner it thinks appropriate, but the Board shall not determine an application adversely to an applicant on material not supplied by the applicant without first giving notice of the material to the applicant. 13 (1) Subject to the provisions of the Act, the Board, the Legal Qualifications Committee or the Examinations Committee may, in circumstances which it regards as sufficiently special and upon such conditions as it thinks fit, relax any of these Rules. (2) An application for relaxation of the Rules shall be made through the Executive Officer not less than 14 days before the meeting at which the application is to be considered. (3) Without derogating from the generality of sub-rule (1), the Board may relax any of the rules relating to the registration as a student-at-law. (4) An application for relaxation of any of the rules relating to students-at-law may be made together with a corresponding application for registration. ... 27J … (3) The Examinations Committee may delegate to its Chairperson, a member, several members, the Executive Officer or any combination of the foregoing the making of a decision on any particular matter or class of matters, provided always that a person aggrieved by a decision of a delegate on any matter may apply for a reconsideration of the matter by the Examinations Committee. ... 53 The Board's examinations are: (a) the following subjects: Legal Institutions Contracts Torts Criminal Law and Procedure Real Property Australian Constitutional Law Equity Commercial Transactions Administrative Law Law of Associations Evidence Taxation and Revenue Law Succession Conveyancing Practice and Procedure Legal Ethics Jurisprudence ... 59 (1) A student-at-law who has not passed the examinations in or been credited with or exempted from at least 11 subjects must sit for the examination in the order in which they appear in rule 53 … ... (4) The Examinations Committee may, in circumstances which it regards as sufficiently special and upon such conditions as it thinks fit, relax this rule. 60 (1) A person desirous of proceeding to any examination or examinations under these Rules (in this and succeeding rules referred to as the candidate) shall make application to the Board for enrolment in accordance with the procedures and within the times set out in the Course Information Handbook for the session in which he or she intends to proceed. (2) The candidate shall enrol for the examination or examinations and at the same time for the corresponding course or courses of instruction conducted by the Law Extension Committee.' 7. The requirement to pass examinations for subjects in the order provided for in rr 53 and 59 above is known as 'the progression rule'. 8. The times set out in the Course Information Handbook for the Calendar Winter 2019 Session (being the current session) are as follows: 'LPAB Enrolment Period Monday 15 April- Friday 26 April 2019 ... Week 1 Lectures commence 6-10 May 2019 ... Examination period Thursday 29 August - Thursday 5 September 2019 Other Important Dates Final Day for Application for Relaxation Friday 26 April 2019 Of Progression and Exclusion Rules Final Day for late enrolment and Friday 3 May 2019 (late fees apply) Late Applications for Relaxation of Progression and Exclusion rules ...' 9. The times set out in the Course Information Handbook for the Proposed Calendar Summer 2019-20 Session (being the next session) provide for an enrolment period from Monday 14 October- Friday 25 October 2019. These times are incorporated by reference into r 60(1) of the Board Rules."

Background to the proceedings

On 13 August 2017, the plaintiff's application for registration as a student-at-law was approved by the LPAB. He undertook and passed two courses being Legal Institutions and Criminal Law and Procedure in Term 1 of 2018. He passed Torts with distinction in Term 2 of 2018. He undertook, but did not pass, Contracts.
On 29 October 2018, his application for accelerated progression to sit examinations in Contracts, Real Property and Australian Constitutional Law was approved. He completed Real Property in Term 1 of 2019 but did not sit the examinations in Contracts and Australian Constitutional Law.
The plaintiff sought an interview with the marker of his Australian Constitutional Law assessment for which he received 10 out of 20. He says that he did not sit the exam because he did not want to risk failing the subject.
He requested an interview with the person who assessed his assignment because he required additional feedback to that provided on the assignment. The Executive Director responded on 27 February 2019 stating that she had reviewed the assignment and felt that adequate feedback had been provided by the marker. She thus rejected the approach for further feedback.
The plaintiff was not satisfied with this response and, in his email of 23 April 2019, made a number of personal criticisms of the marker, suggesting that he has a case to answer. Unfortunately to a certain extent, this has been a common thread in the plaintiff's approach.
Having not received the response that he sought, he then lodged his first student course application, being a form used to apply for relaxation of the progression rule in the circumstances set out in the form as follows: "Students must use this form to apply for a relaxation of the progression rules, i.e. enrol in more subjects than is normally allowed under r59(3) (Accelerated Progression) or, enrol in a subject or subjects outside of the normal sequence as prescribed in r53 & r59(1) (Out-of-Order). Please refer to the Course Handbook or the LPAB website for more details and payment options."
The plaintiff was thus applying to undertake Equity and Commercial Transactions out of the order prescribed in Rule 53 of the Board Rules.
On 16 May 2019, the second defendant wrote to the plaintiff informing him that the LPAB had refused his application. He then responded by a memo dated 21 May 2019 requesting a statement of the reasons for the decision and suggesting that he would be appealing the decision to the Examinations Committee. He received a response on 31 May 2019. He then lodged an appeal with submissions on 4 June 2019 and further corrections to the submissions on 15 June 2019.
The Examinations Committee met on 18 June 2019 and considered his appeal.
On 19 June 2019, the second defendant wrote to the plaintiff 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."
I will refer to the decision of the Examinations Committee of 18 June 2019 as the first decision. It is the decision referred to in Order 1 of the summons.
On 24 June 2019, the plaintiff filed a second student course application, again, seeking relaxation of the progression rule in respect of the same subjects for Term 2 of 2019. The plaintiff says that the difference between his first application and this application was that he made reference to his disability (described by him as anxiety and depression).
By letter dated 28 June 2019, the second defendant informed the plaintiff that the second student course application would not be processed as the Examinations Committee had already made its decision. She informed the plaintiff that he may appeal the Examinations Committee's decision of 18 June 2019 to the LPAB. The LPAB would be next meeting on 6 August 2019. I will refer to the decision not to process the second student application as the second decision. It is the subject of Order 2 in the summons.
The plaintiff originally chose not to appeal the decision of 18 June 2019.
Instead, he filed the summons in this Court. He then pursued a motion seeking interim relief in respect of the blocking of access to Canvas which was dismissed. Adamson J observed in her judgment [2] that the plaintiff had not availed himself of the right to have the LPAB itself, rather than its delegates, determine his application for relaxation of the progression rule.
Only thereafter (on 22 July 2019) did he apply (pursuant to rule 29 of the Uniform Admission Rules) to the Board itself for a review of the second decision (rather than the first decision).
By letter dated 6 August 2019, the LPAB confirmed the second decision and again refused the plaintiff's application to sit courses out of order ("the first rule 29 decision"). At the request of the plaintiff, the LPAB then provided reasons for its decision of 6 August 2019.
The plaintiff thereafter requested a review of the first decision by the LPAB. The first decision was reviewed and the plaintiff's application was again refused ("the second rule 29 decision"). The Board provided reasons on 8 October 2019.
The plaintiff then sought to amend the summons which was ultimately filed on 18 October 2019. However he did not amend the summons to seek any orders in respect of the rule 29 decisions. Nor has he sought to do so in the further amended version provided to the Court on 15 April 2020.
On 15 October 2019, the plaintiff again applied to enrol in Equity, Commercial Transactions and Administrative Law in Term 1 2020. However, the LPAB informed him that he was precluded from so enrolling by rule 24 and that he would need to apply for relaxation of that rule. On 21 October 2019, he so applied.
For completeness and although the plaintiff objected to the Court being made aware of this, the result of the plaintiff's application for relaxation of the rule on 21 October 2019 was that the Executive Officer of the LPAB wrote to the plaintiff offering to relax the rule but on certain conditions. The plaintiff declined the conditional offer.
There is no evidence as to the terms of the offer or the reason for the plaintiff's refusal. The plaintiff objected to the admission of such evidence at the end of the hearing.
As I understand the position, the plaintiff is not currently enrolled in any subjects. He is unable to progress in his course without completing certain subjects.
As there is no evidence before me as to the exchange between the parties in October 2019, I am unable to comment further on the offer by the LPAB to allow the plaintiff to progress with his course. The plaintiff says that what happened between the parties in October 2019 is not relevant to the orders he seeks in respect of the two decisions made in June 2019.
As an explanation for his refusal to accept the LPAB's offer in October 2019 to relax the progression rule on certain conditions, he said in submissions that "I cannot comply with conditions which have arisen from an allegedly erroneous decision".
Whatever might be his views, it is of concern that he was offered an opportunity to continue with his course but chose not to do so, instead, continuing with these proceedings in which he seeks orders in respect of decisions which have long since been superseded by the passage of time and other decisions.
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." [3]
He wishes to continue with his course but has spent the last nine months pursuing this litigation. Perhaps in the expectation that orders made in these proceedings would allow him to do so in the subject order that he seeks, he asked the Court to hand down its decision within two weeks (the last date for enrolment being 24 April) so that he could enrol in subjects for next term.
Whilst the plaintiff referred the Court to many cases, he placed particular emphasis on Prothonotary v Ord (1976) 1 NSWLR 421 ("Ord"). He sought to emphasise the overall supervisory role of the Court in respect of students-at-law as was observed by Moffitt P in Ord. His Honour considered a student-at-law in the Barristers Admission Board course, as it existed under the statutory regime at the time, to be subject to a degree of control by the Court and cited the decision of the Queensland Full Court in Re Costello (a student at law), [4] in which a student-at-law was described as an officer of the Court and subject to the common law discipline of the Court over its officers.
The plaintiff says that his rights have been affected by the decisions. He says that as a student-at-law he raised a question of law with the Examinations Committee and it was not dealt with. He says that as a student-at-law he is in the embryonic stage of progression towards becoming a barrister and considers that questions of law raised by him should be considered properly by the Examinations Committee. It is not necessary to comment further on the plaintiff's characterisation of his status.
However, it is appropriate to emphasise that parties have duties under s 56 of the Civil Procedure Act 2005 (NSW). Further, any officer of the Court should not: 1. pursue proceedings that have no utility; 2. decline to agree facts about which there could be no genuine dispute; 3. make submissions that do not have a proper foundation; or 4. make statements about persons, including as to bias, partiality and improper motives without any foundation for doing so.
A student-at-law who represents himself in his own proceedings should adhere to the same obligations.
For the reasons set out in this judgment, the plaintiff is not entitled to any of the orders he seeks.

The Operative Decisions

When the plaintiff commenced these proceedings, he had chosen not to appeal from the first and/or second decisions to the LPAB under rule 29 of the Uniform Admission Rules. After his preliminary application was dismissed, he did so.
Rule 29 of the Uniform Admission Rules is in the following terms: 29 Review of decisions The Board may review, vary or set aside any decision of the Board, or of any committee, sub-committee or delegate of the Board, or anything done under the authority of any of them, in the circumstances and in the manner determined by the Board.
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].
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.
In Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [85], Sackville AJA stated: "If in the present case, the effect of the District Court's decision was that its orders replaced the Tribunal's orders 'for all purposes', it would seem that relief in the nature of certiorari would not be available to challenge the decision of the Tribunal. The reason for this is that an order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. If the Tribunal's decision had been replaced by the District Court's orders, presumably the Tribunal's exercise of power has been spent." (Footnote omitted.)
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."
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.
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.
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.
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.
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.
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.

The first decision

The plaintiff submits that: 1. the Examinations Committee erred in law in not applying the statutory criteria by way of an objective test, which is said to have compounded the same error of law initially made by the original decision-maker from whom the plaintiff appealed; 2. the Examinations Committee erred in denying him procedural fairness in that it did not consider all of his submissions; 3. the Examinations Committee erred in asking the wrong question, that is, that it expected to be convinced as to why the plaintiff should be granted permission to study subjects out of order beyond a personal preference, rather than asking whether the circumstances might be special as set out in rule 59(4); 4. the Examinations Committee failed to give proper reasons; 5. the Examinations Committee made a number of errors of fact which the plaintiff asserted in oral submissions as being: 1. the Examinations Committee assumed that the plaintiff's desire to take subjects out of order was a matter of personal preference when the applicant says it was a matter of necessity; 2. the Examinations Committee failed to consider that the plaintiff was intending to take Australian Constitutional Law again in Term 2 in addition to the other subjects; and 3. the Examinations Committee erred in stating that other than dissatisfaction with the way his assignments had been marked the student has advanced no substantive reasons as to why he should be granted permission to study subjects out of order. The plaintiff points to his concern about a lack of proper feedback in respect of an assignment in Constitutional Law and his concerns about being required to undertake that course again at that time; 1. finally, the plaintiff submitted that the Examinations Committee did not demonstrate impartiality. This is apparently based on the proposition that there was a reasonable apprehension of bias because the Examinations Committee did not give sufficient reasons.
In respect of the first the decision the LPAB submits that: 1. an error of fact does not establish a denial of procedural fairness and does not give rise to a claim to relief under s 69 of the Supreme Court Act; 2. the plaintiff has not established any errors of fact in any event; 3. the plaintiff has not established any error of law, either by the Acting Executive Officer or the Examinations Committee; 4. there was no lack of procedural fairness; 5. the plaintiff has not established that the Examinations Committee failed to consider all of his submissions; 6. further, there was no obligation on the Examinations Committee to give reasons, even though it did so; 7. the plaintiff has not established either that the Examinations Committee failed to give proper reasons or that it asked the wrong question; and 8. the plaintiff's submission as to impartiality or reasonable apprehension of bias is without substance.

Consideration

A decision-maker does not come under a duty at common law to provide reasons for the decision, although such a duty may arise in special or exceptional circumstances. [5]
The Board Rules only provide for the provision of written reasons in certain circumstances (e.g. rule 31). Those circumstances do not encompass the circumstances in this matter.
Having said that, the Examinations Committee did provide reasons for its decision. For the purposes of s 69(3) of the Supreme Court Act the face of the record includes the reasons: Supreme Court Act s 69(4).
The reasons can be used to examine the decision itself on whether the decision is valid, but it is the decision which is the subject of review and the reasons have no legal consequence in themselves. [6]
The absence of discussion or response on every point or issue raised by a plaintiff in the reasons does not point to error on the part of the Examinations Committee. In some circumstances, the absence of adequate reasons may be an error of law but the plaintiff does not demonstrate error merely by identifying matters raised by him which were not responded to in writing by the Examinations Committee.
The Court will generally not infer irregularity unless the decision cannot be explained on any ground which would be consistent with the valid exercise of the discretion: Denver Chemical Manufacturing v Commissioner of Taxation (1949) 79 CLR 296; [1949] HCA 25. Further, reasons should not be examined too critically. The Court is not engaged in the task of looking for error.
The plaintiff seeks to use the reasons set out in the letter of 19 June 2019 as establishing the errors of fact to which he refers (assuming that leads to an error of law) and to the error of law which he identifies as being the failure to properly apply rule 59(4). I do not consider that the reasons demonstrate any error of the type submitted.
I have difficulty understanding what the plaintiff means by his submission that the second defendant, in rejecting the application on 16 May 2019, failed to apply the statutory criteria (which he then describes as "the objective test") in its application of rule 59(4) and that the Examinations Committee then compounded the "Error of Law" by overlooking it.
The problem with his submission is that it is based on his own erroneous approach to rule 59(4). He suggests that once the pre-conditions to the relaxation of the rule (being the lodgement of the application and the provision of an explanation) have been satisfied, the decision-maker was bound to apply an objective test. What that means in this context is unclear.
Perhaps he is referring to the presence of a fact on an objective basis as a jurisdictional fact. This would be misconstruing the broad nature of the discretion. There are no statutory guidelines or limits on the circumstances that the Board might consider sufficiently special. The presence or absence of a fact or state of affairs does not, of itself, invalidate the decision.
Rule 59(4) specifies that the Examinations Committee may, in circumstances which it regards sufficiently special and upon such conditions as it thinks fit, relax the rule.
The plaintiff placed considerable emphasis on the content of the LPAB Annual Report of 2018 in which there is a statistical analysis showing that in the period 2017-2018, 97.6% of applications to take subjects out of order were approved.
The Examinations Committee was afforded a broad discretion, not fettered by any statistical analysis. Nor was it bound to relax the rule absent a good reason not to. Error is not established by establishing that most applications are granted.
If the submission that the Examinations Committee failed to apply an objective test is related to the Committee's reference to the plaintiff's personal preference, again, no error has been demonstrated. The Committee has a discretion to relax the rule in circumstances which it considers sufficiently special. It did not consider the plaintiff's personal preference (as it surely was) sufficiently special.
The plaintiff relies on alleged errors of fact as supporting submissions that the decision-maker has taken into account an irrelevant consideration (being a wrong assumption as to the facts) or in some way based the decision on a non-existent fact or demonstrated a lack of procedural fairness.
The plaintiff has not established any errors of fact or that any such errors were material.
Firstly, his submission that the Examinations Committee erred in considering that personal preference was a reason for the relaxation of the progression rule when the application was based on necessity should be rejected. [7] His "necessity" arose from his preference, that is, he did not want to undertake the two subjects until the end of his course. Further, the Examinations Committee expressly referred to his dissatisfaction with the way his assignments had been marked.
The plaintiff submits that the Examinations Committee wrongly assumed that he had failed contracts when he had already put that in issue in separate proceedings which he had apparently attempted to file in this Court. He says that the Examinations Committee should have considered it "a mere allegation" that he had failed Contracts. The proposition that he had not failed contracts as he wished to mount some challenge (which he had not mounted) need only to be stated to be rejected.
Further, there is nothing on the face of the record which would permit a finding that the Examinations Committee wrongly proceeded on the assumption that the plaintiff would not be enrolling in Constitutional Law that term. In any event, it would not be a material error.
The plaintiff submitted that he intended to do so, but that statement is somewhat at odds with his statement made during the course of the hearing that he wished to leave that subject to the end of his course. In any event, the relevance of that matter to the consideration of whether the progression rule should be relaxed is unclear. It is not in dispute that the plaintiff had not completed Australian Constitutional Law.
Finally, the plaintiff says that the Examinations Committee failed to consider his reasons for the application which included that no feedback was provided on his Constitutional Law assignment. Again, this is not apparent from the reasons given. The Committee referred to his dissatisfaction with the way his assignments were marked. The plaintiff must be asking the Court to infer that the Committee did not consider his submissions on appeal merely because they are not each dealt with separately in the letter of 19 June 2019.
Further, the assertion that the plaintiff's real concern was with the lack of feedback rather than the ways his assignment had been marked, rather ignores many of the comments he made about the marker in his own emails or memoranda.
The plaintiff submits that the alleged brevity of the reasons can be used as a basis for establishing an apprehension of bias or a lack of impartiality. This is a submission without a proper foundation. No evidence has been adduced in support of the submission. The correct approach to an allegation of apprehended bias requires an assessment of the connection between the facts and circumstances demonstrating the apprehension and the conclusion that the judge might not bring an impartial mind to the task required: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [67]. The reasons themselves cannot be used to support an allegation of apprehended bias: DJ Singh v DH Singh [2018] NSWCA 30 at [53].
The plaintiff merely submits that the alleged failure to refer to his so-called Error of Law ground would cause a fair-minded observer to apprehend that the Examinations Committee had not brought an impartial mind to its decision. It would follow on the plaintiff's case that the absence of adequate reasons, without more, would allow a finding of a lack of impartiality or an apprehension of bias. This is not so.
In the circumstances, 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).

The second decision

On 24 June 2019, the plaintiff completed and submitted a further student course application, again, applying to undertake Equity and Commercial Transactions in Term 2 of 2019. Accompanying this application was a statutory declaration dated 24 June 2019. The first paragraph of the declaration is as follows: "Even though the Applicant suspects a waft of design to humiliate or intimidate him, with the execution of this Declaration the Applicant accepts the implied invitation in the Examinations Committee's reasons for their decision as outlined in the Acting Executive Officer's letter to the Applicant dated 19 June 2019, to provide additional reason/s to sit 07 Equity and 08 Commercial Transactions examinations out-of-order, by advancing such reasons as justification directly from his personal circumstances as an individual living with a disability in the form of a chronic mental illness".
It is apparent from the statutory declaration that the plaintiff sought to raise his disability as an additional ground for his second application to undertake the same subjects out of order.
The basis on which the plaintiff suspected a "design to humiliate or intimidate him" or thought that there was an implied invitation to make a further application with additional reasons is uncertain.
In any event, by letter dated 28 June 2019, the second defendant informed the plaintiff that the second student course application would not be processed as the Examinations Committee had made its decision.
The plaintiff submits that the second decision should be quashed on the basis of a lack of procedural fairness. The plaintiff submits that the second defendant made two decisions being to refuse to process the application and to refuse access to Canvas. The plaintiff submits that the delegation to the second defendant pursuant to rule 27J(3) of the Board Rules could only be done with the proper exercise of procedural fairness. The plaintiff says that this required the second defendant to: 1. inform the plaintiff that a decision is going to be made; [8] 2. provide the plaintiff with a summary of the case against him; [9] and 3. be given an opportunity to make submissions in respect of the case against him. [10]
These statements of principle rather ignore the facts being that: 1. the second student course application was made out of time; 2. the second application was merely a reiteration of the first application with the additional reference to the plaintiff's disability. The plaintiff appears to be suggesting that he can circumvent the review procedure set out in the Board Rules by simply lodging a new application; and 3. no case was raised against the plaintiff. He was not denied procedural fairness by the second defendant considering some other person's opposition. The second defendant was not obliged to inform the plaintiff that it would not be processing the second application in advance of not processing the second application.
Indeed the plaintiff's submissions on the second decision highlight the futility of the proceedings. The plaintiff ultimately chose to appeal the first decision to the Board itself, as the second defendant suggested he could in her letter of 28 June 2019 when she refused to process the second application. The Board considered that appeal and considered the plaintiff's application and the relevance of the plaintiff's disability on its merits (the second rule 29 decision). Yet, in these proceedings, the plaintiff asks the Court only to quash the second defendant's refusal to process his second application for review by the Examinations Committee. The point of seeking such an order is not apparent.
In my view, there is no merit in the plaintiff's submissions in support of the second order he seeks.

The contract claim

The plaintiff altered the nature of his claim in contract through the amended summons filed after the conclusion of the hearing. The plaintiff now seeks "an order for specific performance compelling the execution of the contract in specie" so that the second student course application is processed according to the implied term of the contract.
I understand that the plaintiff asserts that on becoming registered with the LPAB in 2017, a contract was formed and it was an implied term of that contract that the LPAB would process his application (the second application).
It is only necessary to say that the Court would not make an order for specific performance of a contract (I am not suggesting that there was one) which would serve no purpose. The plaintiff seemingly wants the Court to order that the LPAB now process the second student course application to progress out of order in Term 2 of 2019. There could be no point to such an order.

Damages

In his written submissions the plaintiff refers to a monetary order, that is, he seeks damages apparently based on the proposition that there has been a breach of contract on the part of the first defendant. He seeks damages in the sum of $64,667.25 on the basis that he will suffer a loss of a year's salary (that is, a year's delay in completion of his course) because of the conduct of the defendants.
It is not necessary to consider this claim further. It is not pleaded. The first defendant objects. It would hardly fall within order 5 "any further or other order that the Court sees fit". Even the plaintiff said that he was "not big on damages". [11]

Declaration

Finally, the plaintiff seeks a declaration that the LPAB has breached its equitable duty under a constructive trust to refund the $90 application fee. The LPAB has offered to refund the $90 fee paid with the student course application. The plaintiff has not accepted the offer. The basis on which he would be entitled to a refund is unclear.
The plaintiff says that he is seeking clarification of the parties' legal rights and the nature of the transaction and that the Court ought to make a ruling on the issue. He has advanced pages of submissions on the issue, all over $90, which he has been offered in any event.
The plaintiff is entitled to refuse to accept the $90 if he wishes but the Court is not a venue for arguing theoretical points which have no consequence.

Orders

The plaintiff is not entitled to any of the orders he seeks.
The summons is dismissed.
Costs would normally follow the event. I order that the plaintiff is to pay the first defendant's costs.
I grant liberty to the parties to apply on three days' notice should the parties wish to contend for a different costs order.

Endnotes

Makowski v Legal Profession Admission Board [2019] NSWSC 921.
Makowski v Legal Profession Admission Board [2019] NSWSC 921 at [25]-[26].
Tcpt, 8 April 2020, p 63(16-21).
(1889) 3 QLJ 129.
Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 670 (Gibbs CJ) and 676 (Deane J); [1986] HCA 7.
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 253 ALR 263 at [31] (Perram J).
Tcpt, 8 April 2020, p 16(36-40).
Cooper v Wandsworth Board of Works [1863] EngR 424.
Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494.
FAI Insurances Ltd v Winneke (1982) 151 CLR 342; [1982] HCA 26.
Tcpt, 8 April 2020, p 62(35). 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: 24 April 2020

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Judgment (12 paragraphs)

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Legislation Cited (4)

Cases Cited (19)

Cited By (2)