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 2 UNREPORTED JUDGMENTS two years. She took the matter to the Appeal Committee, which confirmed the decision of the Admissions and Re-enrolment Committee. The relevant rules governing the applicable procedures adopted by the Faculty are rules 6,7 and 8 of the Restrictions on Students Re-enrolling rules. These are as follows - Showing Cause 6. (1) Students wishing to show cause must apply for special permission to re-enrol. Application should be made on the form available from the Academic Registrar and must be lodged with the Academic Registrar by the dates published annually by the Academic Registrar. A late application may be accepted at the discretion of the University. (2) Each application shall be considered by the Admissions and Re-enrolment Committee of the relevant faculty or board of studies which shall determine whether the cause shown is adequate to justify the granting of permission to re-enrol. Appeal 7. (1) Students who are excluded by the Admissions and Re-enrolment Committee from a course and/or subject under the provisions of the Rules will have their applications to re-enrol reconsidered automatically by the Admissions and Progressions Sub-Committee of the Academic Board. (2) Students whose exclusion is upheld by the Admissions and Progressions Sub-Committee may appeal to an Appeal Committee constituted by Council for this purpose with the following membership: A Pro-Vice-Chancellor, nominated by the Vice-Chancellor who shall be Chairman. The President of the Academic Board, or if its President is unable to serve, a member of the Academic Board, nominated by the President of the Academic Board, or when the President of the Academic Board is unable to make a nomination, nominated by the Vice-President. One of the category of members of the Council elected by the graduates of the University, nominated by the Vice-Chancellor. The decision of the Committee shall be final. (3) The notification to students of a decision which has been upheld by the Admissions and Progressions Sub-Committee of the Academic Board to exclude them from re-enrolling in a course and/or subject shall indicate that they may appeal against that decision to the Appeal Committee. The appeal must be lodged with the Academic Registrar within fourteen days of the date of notification of exclusion and in special circumstances a late appeal may be accepted at the discretion of the chairman of the Appeal Committee. In lodging such an appeal with the Academic Registrar students should provide a complete statement of all grounds on which the appeal is based. (4) The Appeal Committee shall determine appeals after consideration of each appellant's academic record, application for special permission to re-enrol, and stated grounds of appeal. In particular circumstances, the Appeal Committee may require students to appear in person. Exclusion 8. (1) Students who are required to show cause under the provisions of R3, and either do not attempt to show cause or do not receive special permission to re-enrol from the Admissions and Progressions Sub- Committee (or the Appeal Committee on appeal) shall be excluded, for a period not in excess of two years, from re-enrolling in the subjects and courses on account of which they were URJ KATHLEEN HARDING v UNIVERSITY OF NEW SOUTH WALES (Meagher JA) 3 required to show cause. Where the subjects failed are prescribed as part of any other course (or courses) they shall not be allowed to enrol in any such course. (2) Students required to show cause under the provisions of R2, who either do not attempt to show cause or do not receive special permission to re-enrol from the Admissions and Progressions Sub-Committee (or the Appeal Committee on appeal) shall be excluded, for a period not in excess of two years, from re-enrolling in any subject they have failed twice. Where the subjects failed are prescribed as part of a course they shall also be excluded from that course. Where the subjects failed are prescribed as part of any other course (or courses) they shall not be allowed to enrol in any such course. (3) Students who are required to show cause under the provisions of R2, or R3, and do not receive special permission to re-enrol may be excluded under one of the following categories: (a) one year with automatic re-admission. (b) two years with automatic re-admission. (c) one year without automatic re-admission. (d) two years without automatic re-admission. (e) two years without automatic re-admission and with re-admission subject to competing for a place with the current year's intake. Students excluded under (c) or (d) will be advised by the Academic Registrar of courses of action they may take to improve their chances of re-admission. Students excluded under (e) must meet the same standard as students entering the course for the first time. In 1989 the Appeal Committee mentioned in R7(2) were Professor Gilbert, Professor Anderson and Dr Davies. Shortly before they were to meet to consider a batch of appeals, of which one was Mrs Harding's, Dr Davies rang Dr Judith Tonkin, the Deputy Registrar of the University, explained that domestic problems precluded her attendance at the meeting, and stated that she favoured upholding Mrs Harding's appeal. Professors Gilbert and Anderson took her views into account but did not agree with them. Despite the protestations of Mr Littlkemore QC, senior counsel for the University, the University Appeals Committee took an indefensible course. The only authority they had was that set out in the rules I have quoted. Those rules conferred power to determine appeals on a Committee of three, not a committee of two. There were no rules providing for a quorum of two. If the committee was to act at all, its decision had to be made in the presence of all members of the Committee, (Brown v Andrew (1849) LJR 153). This decision, therefore, was invalid and void. Mr Haylen QC, senior counsel for Mrs Harding, also attacked the Appeal Committee's decision on another ground, but it was one which lacked any substance. However, in the circumstances of this case the irregularity of the Appeal Committee's procedures does not entitle Mrs Harding to any relief. In my view, no relief is now possible. To grant it would be a futility. She seeks orders in the nature of certiori, prohibition and mandamus. A consideration of the oddity of her appeal may be demonstrated by considering her request for a mandamus. What would be the point of ordering the University to re-hear an application to enrol in the Faculty of Medicine in 1989? That is an application which, because of the lapse in time, would have to be refused. And, what is true of mandamus would likewise be true of prohibition and certiori as well. Insofar as she sought a declaration, it was a declaration that the Appeal 4 UNREPORTED JUDGMENTS Committee's decision was "unreasonable". This is a declaration which could not be granted, as on the face of it the decision seems very reasonable indeed. If she had sought this litigation in early 1989, on receiving the Appeal Committee's decision, she would have been entitled to a declaration that the decision was invalid. But again it is impossible to discern any utility in making such a declaration in 1993. The appeal must be dismissed with costs. Sheller JA I have had the benefit of reading the judgment of Meagher JA and agree with it and the orders proposed therein. Powell JA If she had acted with far greater expedition to enforce such rights as she claimed to have, and if her advisers, instead of seeking prerogative relief in the Administrative Law Division, had approached the Duty Judge in the Equity Division with a view to obtaining an urgent hearing of an application for a Declaration, the Appellant may well have succeeded in having her appeal reconsidered by the Review Committee in time to enable her, if her appeal had been successful, to recommence her studies in 1989. However, the facts, first, that these proceedings were not commenced until after the 1989 academic year had expired; and, second, that the relief then sought, even if granted, would not have advanced the Appellant's cause, inevitably meant that these proceedings were doomed from the start, and their further prosecution, particularly when it was as dilatory as it appears to have been, nothing less than an exercise in futility. I agree with Meagher JA that the appeal should be dismissed with costs. (1) Appeal dismissed with costs. Counsel: Appellant: W. HAYLEN QC with M ASHURST Respondent: S. LITTLEMORE QC Solicitors: Appellant: YELDHAMS Respondent: BARTIER PERRY and PURCELL