BI v Board of Studies [2000] NSWSC 921

New South Wales Supreme Court

CITATION : BI v Board of Studies [2000] NSWSC 921 FILE NUMBER(S) : SC 30058/2000 HEARING DATE(S) : 13/09/2000, 14/09/2000 JUDGMENT DATE : 22 September 2000

PARTIES : BI (a minor) by his tutor CI v Board of Studies JUDGMENT OF : Bell J at 1

COUNSEL : Dr G Flick SC/Ms P Sibtain - Plaintiff Ms C Ronalds - Defendant SOLICITORS : Abbott Tout - Plaintiff IV Knight, Crown Solicitor - Defendant LEGISLATION CITED : Education Act, 1990 CASES CITED : Re Becker and Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696 Re: John Holman & Company Pty Limited and Minister for Primary Industry & Anor (1983) ALN N219. DECISION : Summons dismissed; Plaintiff to pay the defendant's costs

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

BELL J Friday, 22 September, 2000

30058/2000 - BI (a minor) by his tutor CI v The Board of Studies

JUDGMENT 1 HER HONOUR: By Amended Summons filed on 22/8/2000 the plaintiff, by his tutor, seeks judicial review of a number of determinations made by the defendant, the Board of School Studies ("the Board"), with respect to his application to be granted special provisions when he undertakes the Higher School Certificate examination ("the HSC") this year. I am informed that the HSC is fixed to commence on 18 October 2000. The hearing of this matter was expedited in the light of this fact. 2 The Amended Summons claims declarations with respect to three determinations made by delegates of the Board on 14 April 2000, 31 May 2000 and 3 August 2000. In the way the matter was argued, it was common ground that the relevant determination was that made by Ms Robyn Speers, Director Examinations and Certification, on 21 July 2000 being a determination which was communicated to the plaintiff by letter dated 3 August 2000. Overview 3 The plaintiff is aged seventeen years. He is a student in Year 12 at a Sydney High School ("the school"). 4 In June 1999 Dr Selikowitz diagnosed the plaintiff as suffering from mild attention deficit disorder ("ADD"). 5 On 2 November 1999 the plaintiff made application for special examination provisions with respect to the HSC 2000. His application was signed by the principal of the school on 8 February 2000 and submitted to the defendant on 10 February 2000. Dr Selikowitz supported the plaintiff's application noting that the plaintiff's ADD would be likely to affect his performance in the HSC in the following ways: "Poor concentration and poor sequencing skills; impair ability to read questions in examinations; impair ability to plan answers to questions; impair ability to check answers …. [B] requires extra time to compensate for his difficulties. Without extra time he would be unable to demonstrate his knowledge." 6 The application submitted by the school on the plaintiff's behalf sought the grant of both extra time and rest breaks. 7 Rest breaks and extra time are two categories of special provisions which may be granted by the Board to students who demonstrate a special need. When granted it is common to allow 5 minutes per half hour of examination time in either case. A student undertaking a three hour examination who is approved to take rest breaks or extra time would thus have a period of three and a half hours in which to complete the examination. The provision of extra time differs from rest breaks in that the student is permitted to continue answering the examination questions during the additional time. A student is not permitted to use time allocated by way of rest breaks to answer the examination questions. 8 The evidence disclosed that the Board approves the provision of extra time to students whose ability or read or to write is functionally affected. Students with severe physical disabilities such as cerebral palsy or juvenile arthritis may be eligible for extra time. Students who use the services of a writer may be granted extra time to take into account the dictation process. 9 The provision of rest breaks is granted to students who have demonstrated difficulties with concentration and focussing. 10 The plaintiff has been approved to take rest breaks during each of his examinations. He has not been granted extra time. He challenges this determination contending firstly that the Board's policy relating to the grant of special provisions for students suffering from ADD ("ADD students") is flawed. The deficiency identified by Dr Flick SC, who with Ms Sibtain appears on the plaintiff's behalf, is that the Board's guidelines for the grant of special examination provisions do not contemplate that extra time may ever be appropriate for ADD students. It is contended that the Board assessed the plaintiff's application by reference to the policy and accordingly (upon an acceptance that the policy is flawed) I would find the determination to be tainted. Alternatively, the plaintiff submits, if the policy withstands challenge, I would in any event grant him the relief he seeks since it is submitted that the evidence discloses that the policy was applied inflexibly in his case. Statutory Framework & the Board's Policy for Special Examination Provisions 11 The Board is a statutory corporation created by s 99 of the Education Act 1990 ("the Act"). The functions of the Board are set out in s 102 of the Act. Relevantly that section provides as follows: "S102 (2)(i) To make such arrangements as may be necessary for the conduct of examinations or other forms of assessment for candidates for the recognised certificates and to regulate the conduct of those examinations or other forms of assessment and the recording of candidates' achievements in them, (j) to prepare and distribute to schools information relating to the conduct of examinations and other forms of assessment for candidates for the recognised certificates, … (l) to provide advice and guidance to schools concerning the policies and practices of the Board." 12 In pursuance of its statutory functions relating to the conduct of the certificate examinations the Board has established a special examination provisions programme. Guidelines concerning the range of and eligibility for special provisions are made available to schools and the public generally through the Board's Assessment Certification and Examination Manual ("the ACE manual"). In August 1999 the defendant published a revised version of the ACE manual. For the first time provision was made in the table of special examination provisions for ADD students. 13 The policy expressed in the ACE manual concerning the HSC special examination provisions is in these terms: "13.1 Policy Special provisions may be available for Higher School Certificate examinations. The Board may approve special provisions if a student has a special need which would, in a normal exam situation, prevent him/her from: (a) reading and interpreting the exam questions; and/or (b) communicating knowledge or understanding to an examiner as effectively as a student without that need . 13.2 Special Examination provisions Special provisions are granted to address the effects of a special need on examination performance. Regardless of the nature of the special need, the provisions granted will be solely determined by the implications of that need on examination performance. Provisions may include braille papers, large print papers, use of a writer, use of a reader, extension of exam time, rest breaks, use of a personal computer, establishment of a special exam location, separate supervision, permission to take medication, or others judged necessary." 14 Appendix I of the ACE manual contains a table of special provisions. ADD students are described as suffering from "difficulty with focussing and impulse control". Under the heading "Some Possible Provisions" reference is made to "rest breaks, medication" for ADD students. 15 The 1999 Special Examination Provisions criteria for applications based on medical grounds record as the standard provisions with respect to ADD students "rest breaks five mins half hour" and medication. The 2000 Special Examination Provisions are expressed in similar terms. 16 Ms Speers explained the purpose of the special provisions program in this way: "The special examination provisions program is designed by the Office of the Board of Studies to ensure that candidates with special examination needs supported by functional evidence can access the School Certificate test and the Higher School Certificate examination questions and communicate their responses within the context of a timed examination situation and equity for the candidature across the state." 17 Ms Speers was cross examined concerning the development of the Board's policy with respect to ADD students. In 1986 the Board established a Special Examination Provisions Panel ("the panel") to provide it with independent advice regarding decisions concerning the grant of special provisions. The panel comprises fourteen members of whom ten are specialists in the field of learning difficulty. There are two paediatrician members, one vision specialist and one hearing specialist. The learning difficulty panel members have a background in either clinical or educational psychology. The panel has developed guidelines which are used both by its members in making recommendations and officers of the Board in determining applications for special examination provisions. 18 Sometime probably in late 1998 Ms Speers attended a meeting with Dr Concannon and Dr Zilibowitz, the two paediatrician members of the panel. During the meeting the doctors said that they had been discussing a proposal to formalise the practice relating to ADD. It had become common to allow the provision of rest breaks to ADD students. The doctors favoured making rest breaks a standard provision for ADD students. 19 Ms Speers invited Dr Concannon to submit a proposal in writing with respect to ADD students. In due course Dr Concannon did so by letter dated 11 February 1999. The letter was in these terms: "Could I propose for consideration that we offer a standard provision for HSC and SC for students with ADD and ADHD. Often these students have difficulty concentrating for periods without a break. If we were to offer rest breaks (five minutes per half hour of examination time) this would give them the opportunity to walk around and get rid of excess restlessness which often hinders their concentration. Offering this provision would also indicate that we acknowledge the existence of the problem and (are) attempting to address the practical issues involved with examinations. I don't feel we should be offering any extra time, unless there are compounding problems such as motor or learning difficulties. I would be interested in feedback, especially from the LD specialists as to this proposal." 20 Subsequently, on 26 February 1999, a memorandum setting out the background to Dr Concannon's proposal was prepared by Ms Lyn McLintock, team leader, Special Provisions Examinations and Certification Branch. Among other things the memorandum recited that: "the doctors believe that the granting of these provisions will indicate to interested parties that the Board is seriously addressing the issue of access to examinations for students suffering from ADD/ADHD." 21 Ms McLintock recorded in her memorandum that she had sought comments from all members of the learning difficulty sub-panel concerning the proposal. 22 On 11 March 1999 a meeting of the panel discussed the proposal. Neither Dr Concannon nor Dr Zilibowitz were present at that meeting, however, a number of psychologists with expertise in ADD were. Ms Speers said that those in attendance had expressed general support for the proposal. 23 Around March or April 1999 Ms Speers met with the Learning Difficulties Coalition. This is a state wide umbrella organisation of groups concerned with students with learning difficulties. Ms Speers discussed the proposal to formalise special examination provisions for ADD students with representatives of the Coalition. They were supplied with a copy of a letter prepared by Ms Speers which set out the terms of the proposal (students who submitted a report from a doctor or clinical psychologist indicating a diagnosis of ADD, and whose teacher comments indicated a difficulty with focusing and/or impulse control, were to be granted rest breaks of five minutes per half an hour of examination time. It was noted that the rest breaks were independent of any other provisions for which the student may be eligible). 24 Ms Speers said that the representatives of the Coalition welcomed the introduction of the guidelines concerning the special provision of rest breaks for ADD students. She explained that this was an additional provision and did not limit consideration of the other special provisions for students making an application. Thus an ADD student with a demonstrated functional need might qualify both for rest breaks and extra time. 25 At the time of formalising its policy with respect to ADD students the Board undertook a literature search but did not otherwise seek to ascertain any relevant overseas experience in the field. 26 Ms Speers was cross examined as to whether there had been public consultation concerning the proposed ADD policy. She said that submissions had not been invited. The Board was formalising an existing practice. Ms Speers noted that the panel includes representatives from the Department of Education, Catholic Education and Independent Schools. In this sense Ms Speers considered that there had been input into the development of the policy from a range of interested bodies. 27 Ms Speers approved the ADD special provisions policy as the Board's delegate. 28 In her affidavit Ms Speers noted that the provision of extra time may provide a significant advantage to a candidate. She observed that: "The Higher School Certificate examination tests ability on the day of the examination to complete the examination. It is essential that as far as practicable the same criteria and requirements are provided to all candidates". 29 Ms Speers was asked whether consideration would be given to the grant of extra time to a student who exhibited difficulty in sustaining his attention span. She said that this would not be done unless there was evidence to confirm that the difficulty in maintaining attention impacted functionally on the student's writing or reading speed. The Board's provision for students who experience difficulty in maintaining concentration is the rest break. 30 In determining whether a student is granted extra time, the Board looks to evidence of the student's literacy and/or writing skills. In the course of her cross examination Ms Speers put it this way: "We're looking for their literacy skills, we're looking for their sustained writing speed, yes, as a form of functional evidence. We would also, I think your question asked is that the primary thing we're looking for with extra time. It depends also on the particular candidate. As I mentioned earlier, there are other means in which we would give extra time, so that if a student has a profound physical disability then that would also be a basis for granting extra time." 31 Ms Speers agreed with the proposition that she would not grant extra time to a student who presented with difficulties in maintaining concentration unless the student also demonstrated a functional deficiency with writing or literacy. The Plaintiff's Application for the Grant of Special Examination Provisions 32 The plaintiff's application for the grant of special examination provisions was accompanied by the results of two tests undertaken by him (these are tests required by the Board to assist with the determination of applications for special examination provisions). The Woodcock Reading Mastery Test - Revised ("the Woodcock test") showed the plaintiff to have reading skills consistent with a person of or above his age. The plaintiff also submitted an essay completed within a set time ("the timed essay"). The results obtained on this test showed that he wrote at a normal speed. He had been allocated thirty five minutes in which to complete the essay. He was observed to write for thirty two of those minutes. This is within the normal range. The content of the essay was assessed to be good. 33 The plaintiff's application was reviewed by Ms Lorraine Palmer who is a member of the panel. Ms Palmer supported the application for rest breaks, but recommended against the provision of extra time. That recommendation was acted upon by Ms Lyn McLintock. The plaintiff and the school principal were duly advised. 34 By letter dated 12 May 2000 the school lodged an appeal. A report of Dr Selikowitz dated 3 May 2000 was submitted in support of the appeal. Dr Selikowitz advised that the plaintiff's needs were for extra time spent answering examination questions. In Dr Selikowitz's opinion rest breaks were contra indicated for the plaintiff's condition. He explained that the plaintiff has great difficulty starting to work and that he works at a very slow pace. Dr Selikowitz expressed concern that rest breaks would mean that the plaintiff would have more episodes during an examination when he had to get started again. This would make things even more difficult for him. 35 The appeal was considered by Ms Lesley Barr, educational psychologist, Ms Barr is also a member of the panel. Ms Barr recommended that the appeal be declined. Ms Speers acted upon that recommendation. The approval of rest breaks was confirmed. Separate supervision is provided automatically with rest breaks. Separate supervision is itself a special provision. Ms Speer additionally approved the use of separate supervision in the event that the plaintiff determined that he did not wish to use the provision of rest breaks. 36 By letter dated 15 June 2000 the principal of the school lodged a second appeal against the decision. That appeal was supported by a further letter from Dr Selikowitz dated 14 June 2000. 37 Ms Speers referred the appeal to Dr Concannon. Dr Concannon is the senior medical member of the panel. 38 On either 18 or 19 July 2000 Ms Speers participated in a telephone conference with Dr Concannon and Ms Ariane Payne of the Examinations and Certification branch to discuss the plaintiff's appeal. On 19 July 2000 Dr Concannon recommended that the appeal be declined. On 21 July 2000 Ms Speers determined that the appeal would be declined. By letter dated 3 August 2000 the plaintiff was so advised. 39 As I have noted it was Dr Flick's submission that the policy developed by the Board with respect to the grant of special examination provisions for ADD students is deficient in that it fails to address extra time as an available special provision. Without the grant of such a provision an ADD student may be prevented from communicating knowledge to an examiner as effectively as a student who was not suffering from ADD. The policy fastened on only one aspect of the difficulties experienced by ADD students; concentration difficulties such as may be addressed by the provision of rest breaks. 40 In the course of her evidence Ms Speers agreed with the proposition that difficulty in maintaining concentration or difficulty in keeping focused, could well affect the ability of a student to communicate knowledge. She agreed that a difficulty in coping with work or organising responses might detract from a student's ability to communicate knowledge. Equally she agreed that a person who is often distracted may have a difficulty in communicating knowledge. 41 The cross examination on this topic served to focus on an issue as between the plaintiff and the Board as to the construction of the Board's policy expressed in Part 13 of the ACE Manual. The plaintiff submits that the guidelines by their refusal to contemplate extra time for ADD students are inconsistent with the Board's own statement of its policy in paragraph 13.1 of the ACE Manual. The plaintiff urges that he suffers from a recognised disability which may impact on his ability to communicate knowledge to an examiner. He has produced to the Board a medical report from a consultant paediatrician which suggests that extra time would address this difficulty. The plaintiff says that his superior results in the Woodcock test and the timed essay merely serve to indicate his intellectual capacity. The medical evidence nonetheless points to him as possibly suffering some reduction in his ability to communicate knowledge to an examiner. 42 The Board says its guidelines conform with the policy set out in Part 13 and draws attention to paragraph 13.2. The special examination provision of extra time allows students to reach a functional level in terms both of reading and production of work such that the student is able to access the examination. The Board contends that extra time is an advantage to a candidate and that considerations of equity do not admit of extra time being approved in the case of students who do not present as having a functional difficulty with writing and/or literacy. 43 The statement of the special examination provisions policy contained in Part 13 of the ACE Manual and its application in the sense explained by Ms Speers in paragraph 16 above do not seem to me to be inconsistent with the exercise of the broad powers and duties conferred on the Board by the Act. 44 I turn now to the question of whether the guidelines are inadequate in the sense that they unreasonably fail to make provision for the grant of extra time to ADD students. The only evidence to which the plaintiff points in this respect is that which might be inferred from the contents of Dr Selikowitz's reports which were submitted in support of the plaintiff's application. Thus in his letter of 3 May 2000 Dr Selikowitz says: "What [B], in fact, needs is extra time spent answering examination questions and separate supervision. Rest breaks are contra indicated for his condition. … [B's] problem is attention deficit disorder. He has great difficulty starting to work and works at a very slow pace. A separate room allows him less distractions and extra time allows for his slowness in commencing and doing the work. However, rest breaks only mean that he has more episodes during the exam when he has to get started again and this makes things even more difficult for him." 45 It is not entirely clear from this report (or the other reports of Dr Selikowitz) that the author was aware that the grant of rest breaks described as "rest breaks of five minutes per half an hour of examination time" is as flexible as the evidence shows it to be. Thus, the concern that frequent rest breaks may cause some ADD students additional difficulties in starting work again does not seem to me to be to the point when one has regard to the circumstance that the whole of the rest break may be taken at the one time. 46 Dr Selikowitz is the plaintiff's treating doctor. On the plaintiff's behalf he forcefully advocates for the provision of extra time. As I have noted the evidence falls short of establishing that Dr Selikowitz has an informed understanding of the nature of the special provisions offered by the Board. It does not establish that Dr Selikowitz has any background in education and the assessment of students with learning difficulties. I do not read Dr Selikowitz' reports as tending to establish that the guidelines developed by the panel are inadequate. 47 In developing his challenge to the adequacy of the Board's policy Dr Flick invited me to consider that the policy was of recent origin (and accordingly entitled to less weight than one which had been tested over time). It was a policy developed at departmental as distinct from ministerial level and had not been the subject of public consultation or input from a wide range of persons with expertise in the area of ADD. Dr Flick referred me to Re Becker and Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696 and Re John Holman & Company Pty Limited and Minister for Primary Industry and Anor (1983) 5 ALN N219. In particular he drew attention to the observations of Brennan J (as he then was) in Becker as to the distinction to be drawn between ministerial and departmental policies. I note that both of these cases are decisions of the Administrative Appeals Tribunal which has a jurisdiction to review decisions on the merits including a merits review of policy. The discussion in Becker of the distinction between polices settled at the political as distinct from the departmental level is in the context of this latter jurisdiction. I accept that if the policy were shown to be inconsistent with the Act or, for that matter unreasonable or unjust, the plaintiff's challenge might succeed. However, in the absence of evidence in support of either contention I do not see the need to dwell on an analysis of the deliberative process which led to its formulation. 48 I should however note that it was submitted on the plaintiff's behalf that a review of the documents relating to the formulation of the policy pointed to the Board being driven by the need to appear to be seen to be doing something (in this respect I was referred to the contents of Dr Concannon's letter extracted in paragraph 19 above and to Ms McLintock's memorandum which is extracted at paragraph 20 above). It was also submitted that those devising the policy had been motivated, in part at least, by a concern to ensure that it did not impact adversely on the workload of the Special Provisions section. It is possible to deal shortly with these two matters by noting firstly that neither contention was taken up with Ms Speers in the course of her cross examination. Dr Flick dealt with this by submitting that the documents contained concessions and it was open to the plaintiff to rely on the same without the need to invite Ms Speers' response. Suffice it to say that I do not draw the inference from either Dr Concannon's letter of 11 February 2000 or Ms McLintock's memorandum of 26 February 2000 that the formulation of the guidelines concerning special provisions for ADD students was motivated by a desire to be seen to be doing something. In support of the proposition that the policy had been drafted in part with a view to not increasing the workload on the Board's staff Dr Flick pointed to a hand written notation on a memorandum of 2 March 1999 apparently written by Ms Ariane Payne, section leader, Special Provisions and Appointments. Ms Payne noted: "Recommendations supported. A careful check of the extra work involved will be made to ensure that current staff are able to cope with the work load". The construction for which the plaintiff contends seems to me strained and I reject it. 49 I do not consider that the plaintiff has made good his challenge that the guidelines developed by the Board are defective by reason of their failure to include a provision for extra time as a standard provision for ADD students or otherwise. 50 The alternative way in which the plaintiff put his case was that if the policy was not flawed I would find that it had been inflexibly applied such that the merits of his application had not been considered. It was said that when one looked to the tenor of the teacher comments attached to the plaintiff's application, the support for extra time given by the school, and to Dr Selikowitz's reports one was driven to the conclusion that the guidelines had been given pre-eminent force to the exclusion of a fair and reasonable assessment of the merits of his application. Further, I was invited to find that the refusal of the grant of extra time was motivated in part by a concern not to have to change the guidelines for the HSC 2000. 51 The final (and relevant) determination made by Ms Speers was that of 21 July 2000. Prior to making this determination, Ms Speers requested Dr Concannon to advise her with respect to the plaintiff's re-appeal. It is to be noted that the letter to Dr Concannon requesting him to review the papers prepared by Ms Ariane Payne states: "Rob Speers has requested that you have a look at this re-appeal and give us your recommendation. The case has previously been considered by LD Panel members but given the strong case put by Dr Selikowitz, Rob would value your input". 52 Dr Concannon recommended against allowing the plaintiff's appeal. His reasons are recorded as follows:- "1. Woodcock - normal. 2. Essays - normal speed. - good content. 3. Only evidence of sequencing is picture arrangement. 4. Above indicate that any learning difficulty isn't major. He functions in essays etc within the normal range. To give him extra time would potentially advantage him - peers. 5. To give him extra time would mean changing the guidelines by which we have decided on other candidates this year already. 6. For future years we could seek opinion as to whether we need to revise the ADD guidelines". 53 Ms Speers said that she agreed with Dr Concannon's recommendation. In making her determination to refuse the plaintiff's re-appeal she said that she reviewed the whole of the material and that she took into account the views expressed by the school, by Dr Selikowitz and the functional evidence. In looking at the question of the school's support for the plaintiff being allocated extra time, Ms Speers noted: "I have to take it out of just the school context and put it in the context of special provisions for students across New South Wales. There are equity considerations that have to be made. I have a wider responsibility than just the school. … The starting point is always the individual application and the individual evidence within that application is always the starting point for our consideration. Schools will sometimes express a view as to what is appropriate and we take that into consideration but that has to be done also in the context of the board's responsibility to all students presenting and to ensure that we don't give an undue advantage to a student through the approval of special provisions." 54 Ms Speers considered that the teacher comments evidenced mixed support for the application for extra time. Ms Speers was looking for evidence of how the plaintiff's condition impacted upon his examination presentation. In this sense she was looking for functional evidence to support the grant of extra time. Ms Speers took into account Dr Selikowitz's view that rest breaks were contra indicated. She considered that without evidence of a functional deficit the grant of extra time to the plaintiff would be potentially to give him an advantage were he to make use of that time. 55 Ms Speers was cross examined as to whether her determination had been made because to allow the appeal would have been to change the guidelines by which other applications had been determined. I set out her evidence on this point below: "Q. You expressed agreement with the view of Dr Concannon did you not? A. I did. Q. Dr Concannon said to give this student extra time "would mean changing the guidelines". You agreed with that? A. I did. I took that to mean that this student was outside the existing guidelines and that to provide extra time would be to give a significant advantage to that student. Q. May I suggest to you that one thing which you were concerned not to do was to change the guidelines for the current year? A. No, my concern was not to provide extra time for a student where that need had not been demonstrated as that would advantage him against the rest of the students sitting their examination. Q. May I suggest to you that you recognised the necessity to change the guidelines for future years for ADD students? A. No I did not recognise that at that stage. Q. So, when you expressed agreement with Dr Concannon's assessment that it would mean changing the guidelines that was irrelevant to your decision making process? A. I expressed agreement to grant that student extra time would be outside the guidelines and give him an advantage over the other students in New South Wales." 56 Ms Speers presented as an impressive witness. I had no hesitation in accepting her evidence. It was not suggested I would do otherwise. To my mind the submission that the Board's policy was applied inflexibly with respect to the plaintiff is not made out. I consider the evidence shows that the Board, through its delegate Ms Speers, demonstrated a willingness to reconsider the plaintiff's application (described as a "re-appeal") on its merits. Support for this view, if it were needed, might be evidenced by the circumstance that Ms Speers sought Dr Concannon's views in the light of the strong support provided by Dr Selikowitz. I find that Ms Speers had regard to the individual merits of the application in making her determination. 57 For these reasons I consider that the plaintiff has not made good his claim for relief. ORDERS: 1. Summons is dismissed. 2. The plaintiff is to pay the defendant's costs. *****