New South Wales Supreme Court CITATION : HARDING v UNIVERSITY OF NEW SOUTH WALES [2001] NSWSC 1198 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20878/01 HEARING DATE(S) : 26 November 2001 29 November 2001 JUDGMENT DATE : 29 November 2001 Kathleen Frances Harding (Plaintiff) PARTIES : v University of New South Wales (Defendant) JUDGMENT OF : Adams J at 1 Plaintiff in person COUNSEL : Mr W Murphy (Defendant) Plaintiff in person SOLICITORS : Bartier Perry (WGM 950457) DECISION : Notice of Motion dismissed. Costs awarded to University of New South Wales. IN THE SUPREME COURT OF NEW SOUTH WALES common law DIVISION ADAMS J THURSDAY 29 NOVEMBER 2001 20878/01 KATHLEEN FRANCES HARDING v UNIVERSITY OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: Kathleen Frances Harding brings an application to this Court by notice of motion seeking orders that the University of New South Wales enrol her in the Faculty of Medicine, MBBS CBS course for the academic year 2002 and such other order or orders as is appropriate. 2 Ms Harding has informed me that she has not yet enrolled but that she expects when she enrolls that the University will reject her enrolment and that it will do so for reasons which would entitle her to legal redress. 3 It is clear from this brief description of the litigation that this notice of motion is premature. I do not see how this Court can order an enrolment before even an application for enrolment is made, let alone that it could do so before the University has determined the outcome of that application. 4 Litigation between the plaintiff and the university has agitated the Court for a number of years, almost without exception resulting in the failure of Ms Harding to make her case as it has been differently constructed. I mention this simply to show that, so far as I have been able to appreciate the matter, nothing in the previous litigation, even accepting the case made by Ms Harding in those actions, could permit the Court to make the order presently sought in the circumstances. 5 One matter, however, has resulted in a favourable finding from Ms Harding's point of view, namely, the decision by the Court of Appeal on 17 December 1993 that the Appeal Committee constituted for the purpose of considering her application for readmission to the Faculty of Medicine in 1989 following a rejection by the Admissions and Re-enrolment Committee, was not properly constituted. 6 The Court concluded that the decision of the Appeal Committee was void, although I observe that the decision was described by Meagher JA (with whom Sheller J agreed on this point) as "very reasonable indeed". The position therefore is that, for whatever reason, the decision of the Admissions and Re-enrolment Committee rejecting her application for special permission to re-enrol for the year 1989 was not completely considered in accordance with the rules of the University for which, as is clear, Ms Harding was not responsible. 7 Upon questioning in this Court Mr Murphy, who appears for the University, has conveyed the undertaking without any admissions of the University, that it will not have regard adversely to Ms Harding to the decision of the Admissions and Re-enrolment Committee to which I have referred for the purpose of considering any application for enrolment that Ms Harding might now make for the academic year 2002. 8 On the face of it, this undertaking is no more than reasonable and reflects in my opinion what would at all events have been a probable order if one to that effect had been sought. However, I have not considered the merits of any such application, none having been made, and I do no more than indicate a tentative view on the material as it appears to me at the moment. 9 The appropriate order is that the notice of motion is dismissed, the Court noting the undertaking to which I have referred. 10 The undertaking is this: that the University will consider any application that Ms Harding might make for enrolment in the 2002 academic year on the basis that she was not an excluded student by virtue of the decision of the Admissions and Re-enrolment Committee in 1989 or that she was such an excluded student, whichever of those two bases favours her enrolment. 11 My view is this is a matter where the conventional costs order should be made and I accordingly give costs to the University. **************** Last Modified: 01/30/2002 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.