Harding v UNSW [2002] NSWSC 113

New South Wales Supreme Court

CITATION : Harding v UNSW [2002] NSWSC 113 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20878/01 HEARING DATE(S) : 26/2/02 JUDGMENT DATE : 1 March 2002

PARTIES : Kathleen Frances Harding The University of New South Wales JUDGMENT OF : Wood CJatCL at 1

COUNSEL : SOLICITORS : Plaintiff in Person W Murphy (Defendant) CATCHWORDS : Merits review - Administrative Decisions Tribunal - whether discrimination on the basis of medical disability occurred - whether there was error on the face of the record - failure to take into account relevant considerations, or irrelevant considerations taken into account - Wednesbury unreasonableness - Judicial notice - damages - lost opportunity. Associated Provincial Picture House Limited v Wednesbury Corporation (1948) 1 KB 223 Glynn v Keele University (1971) 1 WLR 487 CASES CITED : Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Norrie v Auckland University Senate [1984] 1 NZLR 129 at 135 The Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1997) AC 1014 DECISION : See paragraph 55

- 6 -

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WOOD CJ at CL

Friday 1 March 2002

20878/01

KATHLEEN FRANCES HARDING v UNIVERSITY OF NEW SOUTH WALES The plaintiff sought, by notice of motion, an order that she be enrolled in the Bachelor of Medicine program at the UNSW for the year 2002. The current proceedings followed upon a long history of litigation between the parties in the supreme Court and in the Administrative Appeals Tribunal, dating back to January 1989, concerning an appeal from a decision then made refusing her enrolment for that year, and purportedly excluding her for two years. On 6 Nov 2001, the plaintiff filed a further statement of claim for damages for an alleged lost opportunity to enrol in the Faculty of Medicine, as well as an order that she be enrolled for 2002. Adams J dismissed this application, however, in the course of proceedings, the University gave an undertaking that it would consider any application lodged by the plaintiff for the year 2002, both as an excluded student, and as a non-excluded student, which ever of those two bases were more favourable to her. On 30 Nov 2001, the plaintiff lodged a further application for enrolment into Medicine, along with an Application for Special Consideration for Applicants with Tertiary Studies (SCATS application). On 11 January 2002, the Admissions and Re-enrolment Committee gave consideration to the plaintiff's application as an excluded student, as a non-excluded student and by reference to her SCATS application. She was refused enrolment on these bases. She now seeks orders that the decision of the Committee be declared invalid, and that the University be ordered to redetermine the application according to law. Held: (dismissing the application): The plaintiff was unable to show that the University in any way breached accepted principles of administrative law. Undertakings The plaintiff submitted that the University failed to honour undertakings given in the proceedings before Adams J. Held: the Committee had complied with the undertakings. Absence of Student File The plaintiff claimed procedural irregularity, on the Committee's part, for failure to consider the entirety of the relevant material. In circumstances where the 2002 Committee was obliged to consider the matter afresh, and upon the basis of the material placed before it, there was no occasion for it to refer to the student's file. The plaintiff had complained, in the past, that this file contained material which displayed bias or improper pressure. Held: this was a matter operating in her favour, and the ground must fail. Admission of "and/or" in University Resolution It was submitted that the Committee may have been misled, as the words "and/or" were omitted from the copy of the University resolution which set out the criteria for excluded students, and was attached to the agenda papers. This submission was not made good, as it is clear that express regard was had to all of the criteria mentioned, and there is no reason to suppose that the committee were otherwise unaware of the terms of the resolution, or that the plaintiff was in any way disadvantaged. Alleged Misrepresentation in the Administrative Decisions Tribunal Hearing This ground was not made out, as the tape of the submissions made to the Administrative Decisions Tribunal was, at the plaintiff's request, played to the committee, and she was able to address the Committee through her submissions in relation to those observations which she claims had been incorrect. Excluded Student The plaintiff contended that she should not have been considered as an excluded student, as the earlier Appeal Committee decision had been invalid. This ground is not made good, as the plaintiff was considered on all possible bases; had the basis for an excluded student proved the most favourable to her application, then she would have received the benefit of that determination.