Kathleen Harding v University of New South Wales [2001] NSWSC 301

New South Wales Supreme Court

CITATION : Kathleen Harding v University of New South Wales [2001] NSWSC 301 FILE NUMBER(S) : SC 20148/95 HEARING DATE(S) : 19-20/3/01 JUDGMENT DATE : 12 April 2001

PARTIES : Kathleen Harding University of New South Wales JUDGMENT OF : Sully J

COUNSEL : Plaintiff - in person Mr. S. W. Gibb SC - Defendant SOLICITORS : Plaintiff - in person Bartier Perry Purcell - Defendant Brimson v Rockla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 944G-945A Bayley-Jones v University of Newcastle (1990) 22 NSWLR 424 CASES CITED : X (Minors) v The Bedfordshire County Council (1995) 2 AC 633 at 731 D-G Northern Territory v Mengel (1995) 185 CLR 307 at 345 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 DECISION : that the principal proceedings commenced by the statement of claim in the further amended form filed on 8 February 1999 be dismissed generally; that the plaintiff pay the defendant's costs of the principal proceedings and of the notice of motion filed by the defendant on 23 August 1999 and the costs reserved by Greg James J on 23 November 1998.

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SULLY J

Thursday 12 April 2001

20148/95 - KATHLEEN HARDING v UNIVERSITY OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: There are current in the Court principal proceedings in which Mrs Kathleen Harding, as plaintiff, sues the University of New South Wales as defendant. The proceedings concern events that happened initially as long ago as 1988. The proceedings were commenced by the filing on 1 March 1995 of a statement of claim. An amended statement of claim was filed on 26 June 1997. A further amended statement of claim was filed on 8 February 1999. The issue for present decision is whether the proceedings, as originated by that further amended statement of claim, should be either stayed permanently or dismissed generally. Should it be decided that no such orders should be made, then it will be necessary to consider whether particular parts of the further amended statement of claim should be struck out and whether the plaintiff should be ordered to give, and if so upon what terms, security for the costs of the defendant. 2 The power to stay or to dismiss generally is conferred by Pt 13 r 5 of the Supreme Court Rules, which provides relevantly: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally, or in relation to any claim for relief in the proceedings: (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court; the Court may order that the proceedings be stayed or dismissed generally, or in relation to any claim for relief in the proceedings (2) the Court may receive evidence on the hearing of an application for an order under subrule (1)." 3 The principles by which the Court is to be guided in the application in a particular case of this rule are well settled. They are summarised as follows by Cross J in Brimson v Rockla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 944G-945A: "Where the Court is asked to reject the plaintiff's case either under its statutory rules or its inherent jurisdiction, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial and applications to deprive him of that right will succeed only in the clearest of cases. True, the Court will not look merely at the suggested weakness of the plaintiff's case but - though to a less extent - at the suggested strength of the defendant's case and, true, forensic argument and subsequent judicial reflection are not necessarily inconsistent with a firm conclusion that the cause of action should not be allowed to proceed. But fatal defects in the plaintiff's case must be very clear before the Court will intervene in this fashion." 4 Before turning to the detail of the further amended statement of claim, it is necessary to take note of the course of pleading that gave rise to the further amended statement of claim. 5 The defendant moved to strike out the 1995 statement of claim. In a judgment delivered on 3 June 1997, Master Greenwood ordered that the whole of the statement of claim be dismissed, but gave the plaintiff 28 days in which to replead. The Master made these orders notwithstanding findings "that the plaintiff's pleading takes her nowhere" and that "it seems that the flaws in the plaintiff's case are such that repleading will not enable her to overcome them". 6 The 1997 amended statement of claim to which I have earlier referred was pleaded in response to the opportunity left open by the Master's orders. It too was met by the defendant with a notice to strike it out. That motion was dealt with by Gregg James J, who dealt simultaneously with an appeal by the plaintiff against the Master's order striking out her original pleading. The view of his Honour as to the merits of the two matters before him, was expressed thus: "On listening to the argument and reviewing the amended statement of claim, I share the Master's reluctance, not because for one minute I think that the plaintiff has established any particular cause of action, not for one minute because I think there might be some novel cause of action which might apply on the material as it presently stands, but because I think that there might be some possibility of some proper cause of action, perhaps in negligence, negligent advice or something of that order, at least to enable argument to proceed over whether such cause of action might properly arise, if the plaintiff has the assistance of competent legal advice and representation." 7 His Honour made, accordingly, orders striking out the amended statement of claim, dismissing the appeal against the Master's orders and granting the plaintiff leave to replead by, at the latest, 4pm, 8 February 1999. The further amended statement of claim, being the pleading with which the present judgment is concerned, was thereupon filed. 8 The first 19 paragraphs and paragraph 22 of the further amended statement of claim plead the essential facts that are asserted by the plaintiff in support of her claim for relief. It is, I think, better to set them out in full, rather than to attempt a paraphrase: "1. The defendant is a statutory body constituted under the laws of New South Wales and liable to be sued under its said statutory name and style 2. At all material times during the year 1998 the plaintiff was an enroled student with the defendant in the Faculty of Medicine. 3. During 1998 the plaintiff suffered ill health as a result of a thyroid hormone replacement programme following total thyroidectomy in 1987 and on two occasions namely 7 June 1998 and 9 November 1988 sought special consideration from the university under its rules in respect of supplementary examination which could result in an upgrade of marks from mid-term and end of year examinations, the waiving of show cause and appeal procedures or potential adjustment of marks in the event of failure in the end of year examinations and other possible benefits. 4. The defendant failed to consider these applications but a Mr Gordon Rees an officer of the Faculty advised the plaintiff to sit the end of year examinations and the plaintiff failed to pass all subjects. 5. By letter dated 20 December 1988 the defendant required the plaintiff to show cause why she should not be allowed to enrol in 1989. 6. The plaintiff duly made application to the defendant for special permission to re-enrol but this was refused by letter dated 24 February 1989. 7. The said letter of 24 February 1989 informed the plaintiff that her application had been reviewed by the Admissions and Progression Sub-committee of the Academic Board (The Sub-committee) under Rule 7(1) of the Defendant's Rules and that the decision of the Sub-committee was that the plaintiff be excluded from the Faculty for 1989 and 1990 but that the plaintiff could appeal from this decision to the Appeals Committee of the Council (the Appeals Committee). 8. The plaintiff duly appealed to the Appeals Committee and was informed by letter dated 15 March 1989 that her appeal had been rejected but gave no reasons for the decision. 9. The said Appeals Committee was required under Rule 7(2) to be constituted by three nominated members. 10. At the time of the said meeting the Deputy Registrar Judith Tonkin informed the two members present namely Professors Gilbert and Anderson that the absent nominated member Deputy Vice-Chancellor Dr Milner Davis had telephoned that morning saying she would be absent due to her daughter's illness and said that the plaintiff's medical evidence should be taken into consideration and the plaintiff's application should be given favourable consideration. 11. Professors Gilbert and Anderson referred to the plaintiff's file which included a letter from the Dean of the Faculty Professor Glover dated 15 June 1988 and rejected the plaintiff's appeal. 12. The said letter dated 15 June 1988 from Professor Glover written to Professor Ronane and placed before the Appeal Committee meeting had referred to the plaintiff's re-enrolment in the Medical Faculty in 1988 (after having been disallowed in 1987) and purported to give an expert opinion that the plaintiff's ill health and medical condition had not contributed to her previous record and went on to make critical comment in respect of the plaintiff's age, opportunity to serve the community and ability to pay back the high cost of her medical education. 13. The purported expert opinion of Professor Glover which was before the two Appeal Committee members was in opposition to Dr Davis's opinion but neither Dr Davis nor the plaintiff were given the opportunity to provide further medical opinion or advice in respect of the plaintiff's illness. 14. In March 1989 the plaintiff took action through various avenues of redress available within the defendant including the Equal Opportunity Unit (EOU) and EOU officer Ms Brady formed the opinion that the issue should be taken up by the Director of Affirmative Action. 15. During the remainder of 1989 and during 1990 the plaintiff continued to pursue various avenues available through the defendant alleging discrimination and unfairness and appealed personally to the said Professor Ronane the Deputy Vice Chancellor. 16. The Dean of the Faculty the said Professor Glover continued to oppose any reconsideration of the plaintiff's application and gave purported expert medical opinion to Professor Ronane (by letter dated 11 September 1989) following which Professor Ronane made a decision that the plaintiff's requests be given no further consideration. 17. The plaintiff was neither informed of this further expert opinion or given an opportunity of rebuttal. 18. During these periods of active campaigning by the plaintiff to set aside the decision of the Appeals Committee of 13 March 1989 the defendant continued to fail to give reasons for the Appeal Committee decision and failed to notify the plaintiff of the defects in the Appeal Committee meeting and decision-making process as set out in paragraphs 9, 10, 11, 12 and 13. 19. The plaintiff commenced litigation against the defendant in the Administrative Law Division of the Supreme Court which failed and then appealed to the Court of Appeal which on 17 December 1993 held that the Appeal Committee had been unconstitutional and its decision was void and of no effect but declined to order declarative or injunctive relief due to futility as a result of the delay. ….. 22. In 1997 the plaintiff made a further application for admission and application for special consideration for entry to the Faculty of Medicine but her applications were again dealt with unconstitutionally and a decision was made to give her applications no further consideration. Particulars of Unconstitutionality of Meeting (1) Failure to supply Committee members with full context of plaintiff's application for admission and application for special consideration. (2) Taking into account criteria applicable to enrolment as at 1997 and failing to apply criteria applicable at the relevant time namely 1989/90."