New South Wales Court of Appeal CITATION : Harding v University of New South Wales (No 2) [2002] NSWCA 409 FILE NUMBER(S) : CA 40388/02; 40147/02 HEARING DATE(S) : 16 December 2002 JUDGMENT DATE : 16 December 2002 PARTIES : Frances Kathleen Harding - Appellant University of New South Wales - Respondent JUDGMENT OF : Heydon JA at 1; Hodgson JA at 18; Young CJ in Eq at 19 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 20878/01 FILE NUMBER(S) : LOWER COURT Wood CJ at CL JUDICIAL OFFICER : COUNSEL : SOLICITORS : Appellant in person Mr W Murphy, Bartier Perry, Sydney (Respondent) DECISION : See paragraph 17 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40147/02 CA 40388/02 CLD 20878/01 HEYDON JA HODGSON JA YOUNG CJ in Eq 16 December 2002 HARDING v UNIVERSITY OF NEW SOUTH WALES (NO 2) Judgment 1 HEYDON JA: On 25 September 2002 this Court, by a majority comprising Young CJ in Eq and myself, with Hodgson JA dissenting, made orders, the third of which was an order dismissing the appeal brought by the appellant against orders of Wood CJ at CL made on 1 March 2002. 2 On 5 November 2002 the appellant wrote a courteous letter to the Registrar. The court made arrangements for the respondent to be notified of the letter and for the matter to be listed at 9.30am this morning for argument. The letter raised three points. Was a costs order made by Wood CJ at CL? 3 In my judgment at [6] appear the words: "… if Wood CJ at CL made a costs order, it should be set aside, and the appeal allowed to that extent. However, there is no material indicating that he did make a costs order. His reasons for judgment conclude by dismissing the Notice of Motion, and nothing is said about costs." 4 Hodgson JA's dissenting judgment at [12] states that the appellant filed a Notice of Motion dated 30 January 2002 and on "1 March 2002 [Wood CJ at CL] dismissed that Notice of Motion with costs". 5 The reasons for judgment of Wood CJ at CL dated 1 March 2002 concluded at [55] with the words: "In all of these circumstances I am not persuaded that the plaintiff is entitled to any form of relief sought in the Notice of Motion. It should be dismissed." No reference is made to any costs order. However, the entry in the Common Law Division record of proceedings for 1 March 2002 is: "1. Reasons published (dismissed). 2. Plaintiff to pay costs of the motion." 6 Accordingly, as the solicitor representing the respondent conceded, Hodgson JA's statement that the Notice of Motion was dismissed with costs is correct. 7 The appellant's letter of 5 November 2002 opened as follows: "I have checked with the Court below and His Honour, Mr Justice Wood did make an oral order for costs on the day he handed down his judgment. I understand it is possible to appear before the Justices, in chambers, as this has a bearing on Mr Justice Heydon's orders, as he states in paragraph 6 of the judgment (C of A) 'if Wood CJ at CL made a costs order, it should be set aside, and the appeal allowed to that extent'. The records of the Court below show, 'Plaintiff to pay costs of motion'. Accordingly I am seeking the benefit Justice Heydon would have conferred had he known of the order." 8 Part 40 rule 9(3)(b) of the Supreme Court Rules provides: "The Court may, on terms, set aside or vary an order – … (b) where notice of motion for the setting aside or variation is filed before entry of the order." 9 Judgment reflecting the orders made by the court on 25 September 2002 has not been entered. 10 In my opinion it is appropriate to treat the letter as a Notice of Motion seeking variation of the orders made on 25 September 2002 by deleting order 3 and substituting the following order: "3. Vacates the costs order made by Wood CJ at CL on 1 March 2002 but otherwise dismisses the appeal." 11 My intention was that in view of the appellant's limited success in this Court, any costs order made by Wood CJ at CL should be set aside and the appeal allowed to that extent. It is now plain that he did make a costs order. Accordingly the appellant's application should succeed. Excluded/non-excluded issue 12 Young CJ in Eq concluded, for reasons with which I agreed, that there was no utility in granting any coercive relief or any declaration. Among the reasons he gave were those stated in [96]: "As I have said, there is a great reluctance to make executive orders against universities; see for example R v Aston University Senate; Ex parte Roffey [1969] 2 QB 538. Particularly does this apply in a case where a student has been excluded for as Blain J said in that case at 559: 'This Court should not be used for the creation of a real life counterpart to Chekhov's perpetual student …'." 13 The appellant's letter of 5 November 2002 says: "Although on less certain ground but, still, in my respectful submission, a simple error of fact, Justice Young in paragraph 96 quotes a case where 'Particularly does this apply in a case where a student has been excluded'. This appears to be contrary to the undertaking made before Adams J where I was to be considered as a non-excluded student. I am not a perpetual student, simply one who had a medical condition impacting on academic performance and evidence of that was before the Judges and part of my application to the University. I am not trying to raise new legal argument but merely seeking to have the adverse consequences of some error of fact in the orders made corrected similarly to the position with respect to the costs orders. … … A perpetual student would seem to imply a matter of choice where my choices were restricted by the medical symptoms I was experiencing and thus become beyond my conscious control." 14 The precise distinction between "excluded" and "non-excluded" students on which the appellant's reasoning turns rests on a meaning of "excluded" which is not that which Young CJ in Eq had in mind. Young CJ in Eq meant simply that the University had refused to admit the appellant. A reading of the whole of the judgments indicates that no member of the court was making any criticism of the appellant. But in any event the point which the appellant makes is not one which should cause this Court to change the orders made. It does not indicate any misapprehension. Error by Judge Latham 15 The third point made in the appellant's letter of 5 November 2002 is: "An added circumstance has emerged from the ADAT decision since handed down, which will be appealed to the Supreme Court where Judge Latham has referred to a pathology report as relating only to my thyroid condition on that particular day when it was clearly shown before her and in the ADT in the report of Professor Reeve dated 1993 that the pathology report had implications relating to my thyroid condition well after that date. The thyroid test does not refer to thyroid status on a particular day, there are effects before and after that date." 16 This Court has not been taken to the decision referred to. If any error was made, it is not an error which can be relied on by the appellant in relation to the present application. Orders 17 I propose that the orders made on 25 September 2002 be varied by deleting order 3 and substituting: "3. Vacates the costs order made by Wood CJ at CL on 1 March 2002 but otherwise dismisses the appeal." 18 HODGSON JA: I agree. 19 YOUNG CJ in Eq: I agree. ********** 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.