KATHLEEN HARDING v UNIVERSITY OF NEW SOUTH WALES [1993] NSWCA 129

KATHLEEN HARDING v UNIVERSITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 24 November 1993, 17 December 1993

[1993] NSWCA 129

ADMINISTRATIVE LAW — PREROGATIVE RELIEF — UNIVERSITY STUDENT SEEKS REVIEW FROM UNIVERSITY APPEAL COMMITTEE — QUORUM — LAPSE IN TIME

FACTS:

The Appellant was refused re-admission into the faculty of medicine of the respondent in 1989. She then appealed to the three member Appeal Committee constituted under the faculty rules of the respondent. This appeal was considered by only two members, the third excusing herself but indicating she favoured upholding the appeal. This appeal was ultimately dismissed by the other two members. The appellant argues that the determination of this Appeal Committee was invalid because the Committee was improperly constituted, and seeks re-admission.

HELD:

(1) The Committee was improperly constituted, as the rules made no provision for a quorum of two, but the passing of time has meant that any grant of prerogative relief would be futile.

The decision of the Committee related to admission for the year 1989 only, and as a result neither certiori, prohibition nor mandamus could effect re-instatement for the year 1989 nor could the granting of declaratory relief.

Brown v Andrew (1849) LJR 153.

Meagher JA This is an appeal from a refusal by McInerney J to grant prerogative relief against the University of New South Wales at the insistence of Mrs Harding. The appeal, in my view, should be dismissed with costs.

Mrs Harding, a "mature age" student, has had a less than distinguished academic career. In 1982, she completed the Higher School Certificate and was accepted by the University of New South Wales to study medicine.

Accordingly, in February 1983 she enrolled in the undergraduate courses of Bachelor of Medicine and Bachelor of Surgery. In May 1983 she discontinued her medical course. In 1984 she was refused re-admission to first year medicine. She appealed successfully against the refusal and was re-admitted, only to discontinue her courses in June of that year. Once more she was re-admitted to first year medicine in 1986, but did not sit for the exams at the end of that year. She applied to re-enrol at the commencement of 1987 but her application was rejected by the University's Admissions and Re-enrolment Committee. Notwithstanding that, the University did permit her to re-enrol in 1988. At the end of that year she failed Biochemistry and Introductory Clinical Studies. Following these failures, in December 1988 the University asked her to show cause why she should be entitled to re-enrol in 1989. In January 1989 she lodged an application for special permission to re-enrol. The terms of this application should be noted: it is an application to enrol in the Faculty of Medicine "for the Year 1989" (quotes supplied). Her application came before the Admissions and Re-enrolment Committee which rejected her application and excluded her for