FEDERAL COURT OF AUSTRALIA

Walsh v University of Technology

[2007] FCA 1308

PETER ANTHONY WALSH v UNIVERSITY OF TECHNOLOGY SYDNEY

NSD 1274 OF 2007

RARES J

2 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.         The order made on 23 July 2007 is set aside.

2.         The time in which the applicant may file an application for leave to appeal against the orders made by Buchanan J on 15 June 2007 is extended to 5 July 2007.

3.         The application for leave to appeal against Buchanan J’s orders made on 15 June 2007 is dismissed.

4.         The applicant pay the respondent’s costs, excluding any costs arising out of or occasioned by the hearing and the making of orders on 23 July 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time in which to seek leave to appeal.  The matter came before the duty judge last week.  Her Honour was under the misapprehension that as it had been listed for hearing the matter was ready to proceed, whereas the parties had been notified by letter from the Court that it was listed only for directions.  Neither party informed her Honour of the fact that they had understood the proceedings were listed only for directions.  After having embarked on a hearing of the application, her Honour made an order dismissing it with costs.  But later that day she became aware that the listing notification to the parties had been as I have described.  Of her own initiative, her Honour immediately took steps to inform the parties of her having proceeded under the misapprehension.  She stayed the operation of her orders.  The applicant’s motion to set those orders aside was then filed to be dealt with today.

2                     Mr Walsh has said that he was not prepared on the last hearing before her Honour so that he was not able adequately to argue the substance of his application for leave to appeal.  That position is not contested.  In those circumstances it seemed to me appropriate that I should set aside her Honour’s orders and hear the matter afresh.  Mr Walsh informed me that he was prepared to deal with the matter substantively today were I of that view and I have heard full argument.

3                     Mr Walsh has sought an extension of time in which to file an application for leave to appeal against the decision of Buchanan J in Walsh v University of Technology Sydney [2007] FCA 880.  His Honour dismissed the proceedings pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) after having struck out Mr Walsh’s statement of claim.

4                     Mr Walsh has explained that the reason he filed the application for leave to appeal 20 days after his Honour made those orders was that he was preparing the lengthy revision of the statement of claim which he filed with his current application.  I see no reason why I should not accept that as an explanation of his delay; however, as I explained to him, the function of the present application is to examine whether he has made out a case warranting the grant of leave to appeal.

5                     The principles that govern the grant of leave to appeal are well established.  An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and must also show that substantial injustice will result from refusal of leave to appeal:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 per McHugh, Kirby and Callinan JJ at [29].

6                     I am of opinion that the decision made by Buchanan J to dismiss Mr Walsh’s proceedings is one which requires leave to appeal.  It was an interlocutory order of the character of similar orders dismissing proceedings which do not disclose a reasonable cause of action in circumstances where the court does not adjudicate on the merits of the underlying issues sought to be raised: see Re Luck (2003) 203 ALR 1 at 3-4 [6]-[9] per McHugh ACJ, Gummow and Heydon JJ.

7                     The dispute which Mr Walsh seeks to agitate involves a claim that the university at which he was a student did not award him passes in a number of assignments within his degree of Master of Adult Education, for the award of which he was a student at the university.  The relevant subject was Enhancing Learning Environments with Educational Technology, in which Mr Walsh, apparently, was failed by the university.  As his Honour pointed out, the overall process of assessment for the subject involved four assignments.  Mr Walsh received a pass in only one.  In the motion which was before me today, Mr Walsh sought, in addition to the extension of time, orders that he be given pass grades in each of the other three assignments, together with a pass grade in the subject overall and an award of his degree as Master of Adult Eduction.  I pointed out to him that those latter prayers sought relief which I had no jurisdiction to grant in any event, and ordered that they be struck out.  But they are in substance the ultimate relief Mr Walsh seeks were his case able to be litigated, in the event that an appeal were successful and the orders of Buchanan J set aside.

8                     His Honour delivered a detailed and carefully considered reserved judgment before arriving at the conclusion at which he did.  He set out the substance of the various ways in which Mr Walsh had articulated his case before him at the hearing of the respondent’s motion for summary dismissal.  In essence, Mr Walsh made, as his Honour found, a conscious and considered decision to rely solely upon the provisions of the Trade Practices Act 1974 (Cth) as the foundation for the relief he ultimately sought.  He He made no attempt to rely independently on a cause of action under the law of contracts or torts or to seek a remedy based on a claim arising under the principles of administrative law.  Moreover, Mr Walsh indicated before his Honour that he no longer relied on s 52 of the Trade Practices Act and solely relied on s 87 of that Act as the sole source of the relief he claimed.

9                     I pointed out to Mr Walsh that the reformulated statement of claim which he filed with his application papers was not something which I could take into account since the application was for leave to appeal against the orders his Honour made.

10                  The way his Honour approached the task was to examine Mr Walsh’s very lengthy statement of claim and the complaints made in it. In that examination his Honour identified that, in substance, what Mr Walsh complained of was a failure of the university properly to assess his work as having satisfied its requirements for a pass in each of the three assignments, the subject and the ultimate degree.  His Honour said that Mr Walsh’s claim raised questions of academic assessment and judgment ([2007] FCA 880 at [77]). 

11                  Mr Walsh argued that in applying the test for entering judgment as he did under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) his Honour erred.  He said that his Honour should have found that there would be reasonable prospects of Mr Walsh’s claim succeeding if there were evidence which might reasonably be believed so as to enable him to succeed at the final hearing.  This is a paraphrase made by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] of the ratio decidendi of my decision in Boston Commercial Services Pty Ltd  v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at 153-157 [31]-[45].  The principle which is involved in this respect is one that identifies whether there was evidence upon which a trial judge could reasonably find for a plaintiff (or defendant if it is the defendant who is resisting the summary decision).  Unless that evidence is so negligible in character as to amount only to a scintilla, a judge should not direct a jury or himself or herself to find a verdict for the other side.  Once evidence could have an ambivalent character, prior to final determination at a trial, then as a matter of law there are reasonable prospects of success within the meaning of s 31A:  Boston70 IPR at 156-157 [43].

12                  At the heart of this dispute there lay, in my opinion, as identified by his Honour, a deeper question.  His Honour reviewed the principles which the courts have developed in cases where students seek to contest the way in which academic institutions assess their academic merit.  Buchanan J said that he expressed directly to Mr Walsh during the oral submissions at the hearing his reservations about the power of the Court to grant any remedy of the kind Mr Walsh sought.  He noted that Mr Walsh was not able to draw to his Honour’s attention any statutory provision, authority or legal principle which might provide a foundation or starting point for the proposition that the court could direct a university as to its course content or requirements or require it to award him passing grades in either individual assignments or a whole subject.  Mr Walsh acknowledged that he had been unable to find any case of this kind and agreed that he was asking the court to strike out to new legal territory ([2007] FCA 880 at [71]).

13                  His Honour reviewed the reasons of the High Court in Griffith University v Tang (2005) 221 CLR 99 and those of the English Court of Appeal to which a number of the justices there had referred, namely Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988.  In Clark [2000] 1 WLR at 1992 Sedley LJ said:

‘… there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate.’

His Lordship said that that was not a consideration peculiar to academic matters and gave as examples religious or aesthetic questions which also fell in the class.  He continued:

‘It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified.’

14                  His Honour then referred to the observation of Lord Woolf MR, that questions of this kind would require the courts to make academic judgments, with which his Lordship said they would not involve themselves.  Buchanan J observed that the matters Mr Walsh wished to agitate were of the character to which their Lordships and the High Court’s observations were directed.  He said:

‘At the heart of Mr Walsh’s claims, and underpinning the relief sought, is an attempt to involve the Court directly in an adjudication upon a matter of both academic standards and of the assignment of specific grades to particular assignments.  In addition, his claim is that the Court enforce its own view directly.  In the circumstances revealed by the present case, I can discern no legal foundation for doing so.’  [2007] FCA at [80]

15                  He concluded that there was no reasonable prospect that Mr Walsh could succeed in obtaining that relief, after reviewing the material before him, which I note is not before me.  His Honour concluded that it would be futile to allow the proceedings to go forward to an examination of the factual issues because ultimately nothing useful could come of it.  As he said, the complaints relating to two of the assignments within the subject lacked virtually any factual foundation.  These were a group exercise and a second assignment (Mr Walsh having successfully passed the first assignment in the course).  His Honour said those complaints appeared to consist, at least on a factual level, of a refusal by Mr Walsh to accept the legitimacy or correctness of the evaluation made of his work by the two lecturers responsible for delivering the subject.

16                  The main area of controversy was the issue of the third assignment, which was worth 40 per cent of the overall assessment for the course.  Mr Walsh argued before his Honour and before me that when he was asked to resubmit that assignment the inference to be drawn was that he had passed the two previous assignments.  He said this was because the university would not allow him to submit for reassessment the final assignment, as it sought on this occasion to do, unless he already passed the preceding assignments.  Mr Walsh alleges that he refused to resubmit his assignment, taking into account the views expressed by the reassessor, on the basis that he believed he had already satisfied the requirements of both the course and university and that his assignment should be marked and passed accordingly.  Moreover, he argued that he had actually done precisely what he had been told to do and therefore, in substance, ought to have been awarded a pass.

17                  Buchanan J has dealt with that position in his judgment in a way which I do not see raises any arguable error or has occasioned any reason to doubt the soundness of the result at which he arrived.  In essence, as his Honour found, Mr Walsh is seeking to challenge the university’s determination, as a matter of its academic judgment, of the merit of his third assignment and, consequentially, the earlier two assignments on the implied basis that I have set out above.

18                  Mr Walsh is seeking from the Court a remedy which, in my opinion, it is unable to award him, namely the award of a degree or of a pass in a subject, or even of passes in various individual assignments.  For the Court to embark on such an exercise necessarily involves it in making a judicial decision about questions of academic judgment.  Mr Walsh’s claims seek to assert an area of operation for s 87 of the Trade Practices Act concerning academic assessments which is not easy to reconcile with that Act’s scope of operation in matters of trade or commerce.

19                  At the end of the day, his Honour approached the University’s motion to dismiss the proceeding under s 31A(2) of the Federal Court of Australia Act as a matter of substance rather than one merely directed to the form of Mr Walsh’s pleading.  No doubt there were considerable formal issues with that pleading.  But, reading his Honour’s judgment as a whole, I am satisfied that there is no sufficient reason to doubt the correctness of his substantive assessment that Mr Walsh’s complaint sought the adjudication of the Court on matters of academic standards and the assignment of specific grades to his particular assignments.  Nor do I see any reason to doubt the correctness of his Honour’s assessment that those are matters which it is inappropriate for the Court to be called upon to determine.

20                  While Mr Walsh clearly feels a deep sense of grievance about the way in which his academic efforts were approached by the University’s lecturers and staff in his subject, Enhancing Learning Environments with Educational Technology, I am not satisfied that he would suffer substantial injustice from a refusal of leave to appeal.  I do not consider that he has established that there is any reason to doubt the correctness of Buchanan J’s decision or that his Honour made any error in the way in which he determined the matter. 

21                  For these reasons I am of the opinion that the application for an extension of time should be granted but the application for leave to appeal which Mr Walsh, necessarily, must then seek to make should be refused.

Associate:

Dated:         22 August 2007