(1) Whether this Court has jurisdiction
24The plaintiff relies upon two grounds for judicial review of the "decisions". Although, the plaintiff refers to these as "decisions", the final result regarding her grade for PREX 902 is still in limbo, as it is presently RU. In these circumstances, it is debateable whether the final result is a decision. Firstly, the plaintiff submitted that there was a breach of the principles of natural justice; and secondly, that the making of the "decisions" were an improper exercise of power that failed to take into account a relevant consideration. The plaintiff also submitted that the power was exercised in such a way as to constitute an abuse of power.
25UNE submitted that the plaintiff was given the opportunity to have the matter internally reviewed at several levels. More importantly, it was submitted that this Court has no power to grant an order in the nature of mandamus or other order compelling UNE to make a particular decision on the merits regarding a grade that it gave to the plaintiff, because questions of academic judgment are not justiciable. In support of that proposition UNE relied upon the decisions of Norrie v Senate of the University of Auckland [1984] 1 NZLR 129 at 134; Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at 1992 and 1996; and Mathews v University of Queensland [2002] FCA 414 at [17] to [27].
26Further, UNE submitted that should the amended summons identify a justiciable decision and a ground of review, the plaintiff's summary of argument impermissibly invites the Court to review the merits of the decision to grade the plaintiff's report as unsatisfactory. In support of this proposition it referred to the decisions of Hanna v University of New England [2006] NSWSC 122 at [66] and Walsh v University of Technology, Sydney [2007] FCA 880 and Walsh v University of Technology [2007] FCA 1308.
27The starting point is Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335, where Davies J stated at [26]:
"[26] ... Disputes between students and establishments of learning are ordinarily unsuitable for adjudication in the courts and ought to be resolved by internal procedures: Clark v University of Lincolnshire and Cumberside [2000] 1 WLR 1988 at [12] and [30] - [31], seemingly approved in Griffith University v Tang (2005) 221 CLR 99 at [58] and [165]; and see also Walsh v University of Technology, Sydney [2007] FCA 880 at [71]-[80]."
28I shall refer to only one other decision and that is Walsh v University of Technology, Sydney [2007] FCA 880. The brief facts are that Mr Walsh was a student at UTS, enrolled for the degree of Master of Education. He was required to satisfactorily complete eight subjects. He failed one of the subjects, Enhancing Learning Environments with Educational Technology. The assessment of that subject involved four assignments and Mr Walsh passed only one assignment. Mr Walsh sought judicial review, seeking passes for the three failed assignments, which would result in him then being able to pass the subject. He claimed relief under various provisions of the Trade Practices Act 1974 (Cth). Mr Walsh did not rely on any cause of action under contract law, torts or administrative law. UTS brought an application for summary judgment, seeking to have Mr Walsh's statement of claim struck out for failure to comply with requirements for pleadings. At [70], Buchanan J stated that Mr Walsh's case, both factually and legally, depended "upon the suggestion that the Court can both directly and effectively substitute an opinion for that of UTS and require a different result to be awarded."
29Buchanan J provided a useful outline of the leading cases in this area. At [72] to [80] in Walsh, his Honour stated:
"[72] In Griffith University v Tang (2005) 221 CLR 99 the High Court considered whether a decision to exclude a PHD student from its programmes was reviewable under the Judicial Review Act 1991 (Qld). It decided by majority that it was not. The university had acted in the exercise of a general discretion deriving from its activities generally as a university pursuant to the functions and general powers granted by its enabling Act which included setting academic standards.
[73] Gleeson CJ said (at [15]):
'The functions of the appellant include providing education, providing facilities for study and research, and conferring higher education awards. Its powers include the power to do anything necessary or convenient in connection with its functions. Subject to any other legal constraint, it may establish a PhD research programme, and decide who will participate in the programme and on what terms and conditions.'
[74] Similarly in the present case, and the contrary was not argued, it was open to UTS to establish the course of study in which Mr Walsh enrolled and set the requirements to be satisfied, including the academic standard to be achieved as demonstrated by assignments or other coursework. Decisions about such matters are inherently unsuited to judicial review.
[75] Gummow, Callinan and Heydon JJ referred to this at [58], although like Gleeson CJ they decided the case on other grounds. They said:
'Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside. The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, 'jejune and inappropriate'.'
[76] Kirby J dissented on the question of reviewability of the particular decision to exclude Ms Tang from the PhD programme. However, he drew a distinction between disciplinary decisions and matters of academic judgment. He said (at [165]-[166]):
'[165] The special position of universities: I recognise that universities are in many ways peculiar public institutions. They have special responsibilities, as the University Act envisages in this case, to uphold high academic standards about which members of the academic staff will often be more cognisant than judges. There are issues pertaining to the intimate life of every independent academic institution that, sensibly, courts decline to review: the marking of an examination paper; the academic merit of a thesis; the viability of a research project; the award of academic tenure; and internal budgets. Others might be added: the contents of a course; particular styles of teaching; and the organisation of course timetables. As Sedley LJ noted in Clark v University of Lincolnshire and Humberside, such matters are 'unsuitable for adjudication in the courts ... 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'. Judges are well aware of such peculiarities. The law, in common law countries, has consistently respected them and fashioned its remedies accordingly.
[166] However, as Maurice Kay J explained in R v University of Cambridge; Ex parte Persaud (a recent English case similar to the present appeal), it is entirely 'correct' of courts 'to distinguish between the disciplinary type of case and the situation where what is in issue is pure academic judgment'. In the present appeal, the respondent's claim fell squarely within the former class. Academic judgment is one thing. But where an individual who has the requisite interest is affected by disciplinary decisions of an administrative nature made by a university body acting according to its powers under a statute, outside the few categories peculiar to 'pure academic judgment', such decisions are susceptible to judicial review. They are so elsewhere. They should likewise be so in Australia. An appeal to 'academic judgment' does not smother the duties of a university, like any other statutory body, to exhibit, in such cases, the basic requirements of procedural fairness implicit in their creation by public statute and receipt of public funds from the pockets of the people.'
[77] The present case does not raise disciplinary issues. It raises questions of academic assessment and judgment.
[78] The English case cited by Gummow, Callinan and Heydon JJ and by Kirby J, Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, concerned an action in contract, brought by a student against a university, which was initially struck out. The Court of Appeal, although allowing the student to replead to raise conventional allegations of breach of contract (a circumstance which does not arise in the present case) approved the summary rejection of the 'claim as originally pleaded [which] had travelled deep into the field of academic judgment' (at p 1988). The leading judgment was given by Sedley LJ. He said (at p 1992):
'... 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 or whether an aegrotat is justified.'
[79] Lord Woolf MR said (at p 1996):
'The court, for reasons which have been explained, will not involve itself with issues that involve making academic judgments. Summary judgment dismissing a claim which, if it were to be entertained, would require the court to make academic judgments should be capable of being obtained in the majority of situations.'
[80] It seems to me that the matters Mr Walsh wishes to agitate are of the character to which these observations were directed. At the heart of Mr Walsh's claims, and underpinning the relief sought, is an attempt to involve the Court directly in an adjudication upon a matter of both academic standards and of the assignment of specific grades to particular assignments. In addition, his claim is that the Court enforce its own view directly. In the circumstances revealed by the present case I can discern no legal foundation for doing so."
30As in Walsh, the plaintiff in these proceedings attempts to involve the Court directly in an adjudication upon a matter of both academic standards and of the assignment of specific grades to her practical teaching assessment. There is no legal foundation for this Court to do so. The plaintiff's application for judicial review fails on this basis.
31If I am wrong, I will turn to consider the plaintiff's other complaints. They are, firstly, that the final report should award her a pass in PREX 902 on the basis that the assessments of her teaching placement at Fairvale High School were satisfactory; and secondly, the reports provided were not in accordance with the Handbook.