Supreme Court New South Wales

• Medium Neutral Citation: Shvetsova v The University of New England [2014] NSWSC 918
• Hearing dates: 3 July 2014
• Decision date: 11 July 2014
• Jurisdiction: Common Law - Administrative Law
• Before: Harrison AsJ

Decision

The Court orders that:

(1) The amended summons filed 18 December 2013 is dismissed.

(2) The plaintiff is to pay the defendant's costs as agreed or assessed.

• Catchwords: ADMINISTRATIVE LAW - Judicial review - whether decision by university justiciable - application for judicial review
• Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 7; Trade Practices Act 1974 (Cth)
• Cases Cited: Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335; Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988; Griffith University v Tang (2005) 221 CLR 99; Hanna v University of New England [2006] NSWSC 122; Mathews v University of Queensland [2002] FCA 414; Norrie v Senate of the University of Auckland [1984] 1 NZLR 129; Walsh v University of Technology, Sydney [2007] FCA 880; Walsh v University of Technology [2007] FCA 1308
• Category: Principal judgment
• Parties: Elena Shvetsova (Plaintiff); The University of New England (Defendant)
• Representation: Counsel: M Allars SC (Defendant); Solicitors: E Shvetsova (Plaintiff in person); University of New England Armidale (Defendant)
• File Number(s): 2013/352780
• Publication restriction: Nil

Judgment

1 HER HONOUR: By amended summons filed 18 December 2013, the plaintiff seeks that the defendant provide her with a final report written in accordance with the University of New England instructions, criteria set by the New South Wales Institute of Teachers and the feedback documented in the plaintiff's daily lesson evaluation booklet, costs and interest [Grounds 2, 6 and 7]. The plaintiff no longer relies upon the other grounds of relief sought in the amended summons [Grounds 1, 3, 4 and 5].

2 The plaintiff is Elena Shvetsova. The defendant is the University of New England ("UNE"). Ms Shvetsova was self represented. UNE was legally represented.

3 The plaintiff relied upon the affidavit of Elena Shvetsova affirmed 17 December 2013. The defendant relied upon the affidavit of Ydeet Winter-Irving affirmed 6 February 2014. I have carefully read both parties' written submissions.

4 In oral submissions, the gravamen of the plaintiff's concern went beyond the supply of "the final report". She says that the final report should award her a pass in PREX 902 on the basis that the assessments of her teaching at her practical experience placement at Fairvale High School were satisfactory and the reports provided were not in accordance with the Professional Experience Handbook ("the Handbook").

5 UNE's key submissions are firstly, that the issues the plaintiff seeks to raise are not justiciable; secondly, the plaintiff seeks a merits review, which is impermissible; thirdly, the report has been provided to the plaintiff but it is not a final decision; and finally, the plaintiff's views in relation to her practical training assessment are not correct.

Background

6 The plaintiff was enrolled as a student at UNE. In July 2009, the plaintiff enrolled in the Master of Teaching course before transferring to the Graduate Diploma in Education course in January 2010.

7 In August 2011, to complete the subject PREX 902, the plaintiff had a practical experience placement at Fairvale High School.

8 On 26 August 2011, Ms Ivona Zilic, the Pre-Service Teachers Co-ordinator, provided the plaintiff with an unsatisfactory final report regarding her practical experience placement at the school.

9 On 29 August 2011, the plaintiff complained to the Director of Professional Experience in the School of Education at UNE, Dr Masters.

10 On 29 August 2011, Georgia Christiansen, an Education Officer in the Professional Experience Office at UNE, responded to the plaintiff and informed her that her grade for PREX 902 would be changed to "RU" (Result Unknown).

11 On 8 September 2011, the plaintiff complained to the Deputy Head of School, Associate Professor Stephen Winn about her grade in PREX 902.

12 On 20 September 2011, Dr Masters informed the plaintiff by email that Associate Professor Winn had determined that her grade should be determined as RU and requested that the plaintiff complete a further placement of 10 days in order to complete PREX 902.

13 On the same day, the plaintiff sought to have Associate Professor Winn's "decision" reviewed by Associate Professor Stephen Tobias, the Acting Head of School. On 22 September 2011, Associate Professor Tobias affirmed Associate Professor Winn's "decision".

14 On 28 September 2011, the plaintiff then sought to have Associate Professor Tobias' "decision" reviewed by Professor Victor Minichiello, the Pro Vice Chancellor and Dean of the Faculty of the Professions at UNE. On 5 October 2011, Professor Minichiello upheld Associate Professor Tobias' "decision".

15 On 16 December 2011, Dr Masters wrote to the plaintiff recommending that she undertake the further 10 day placement, which the plaintiff refused to do.

16 In January 2012, the plaintiff made a complaint to the Anti-Discrimination Board. She has also lodged a complaint to the New South Wales Ombudsman.

17 On 29 February 2012, Dr Masters contacted the plaintiff about undertaking the 10 day placement. The plaintiff advised Dr Masters that she wished to await the outcome of the Anti-Discrimination Board's decision before undertaking that placement.

18 On 3 June 2012, 5 November 2012 and 10 December 2012, the plaintiff again declined to undertake the additional placement and requested that the RU grade be maintained.

19 On 19 April 2013, the plaintiff was informed of a "decision" by Associate Professor Huy Phan that her RU grade could no longer be maintained and that should she not complete the additional placement by the end of the second trimester in 2013, the plaintiff would receive a grade of Fail Incomplete.

20 On 1 August 2013, the Academic Registrar at UNE wrote to the plaintiff, recommending that she complete the placement and informed her that the RU grade cannot stand indefinitely.

21 The plaintiff submitted that she has "analysed the feedback percentagewise" and says that she achieved an overall mark of 79% and this was provided the Student Quality Unit ("SQU") as part of her complaint.

22 On 9 September 2013, Garry Connelly, a Senior Administrative Officer in the SQU wrote to the plaintiff advising her of the SQU's investigation. Mr Connelly advised that the PREX 902 Professional Experience Handbook stated that "the final decision regarding the assessment of the student will lie with the Supervising Teacher and the Principal." He concluded that the School of Education acted in accordance with UNE and the School of Education guidelines.

23 It is clear that the plaintiff has availed herself of a number of internal reviews within UNE, but she still remains dissatisfied with the results.

(1) Whether this Court has jurisdiction

24 The plaintiff relies upon two grounds for judicial review of the "decisions". Although, the plaintiff refers to these as "decisions", the final result regarding her grade for PREX 902 is still in limbo, as it is presently RU. In these circumstances, it is debateable whether the final result is a decision. Firstly, the plaintiff submitted that there was a breach of the principles of natural justice; and secondly, that the making of the "decisions" were an improper exercise of power that failed to take into account a relevant consideration. The plaintiff also submitted that the power was exercised in such a way as to constitute an abuse of power.

25 UNE submitted that the plaintiff was given the opportunity to have the matter internally reviewed at several levels. More importantly, it was submitted that this Court has no power to grant an order in the nature of mandamus or other order compelling UNE to make a particular decision on the merits regarding a grade that it gave to the plaintiff, because questions of academic judgment are not justiciable. In support of that proposition UNE relied upon the decisions of Norrie v Senate of the University of Auckland [1984] 1 NZLR 129 at 134; Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at 1992 and 1996; and Mathews v University of Queensland [2002] FCA 414 at [17] to [27].

26 Further, UNE submitted that should the amended summons identify a justiciable decision and a ground of review, the plaintiff's summary of argument impermissibly invites the Court to review the merits of the decision to grade the plaintiff's report as unsatisfactory. In support of this proposition it referred to the decisions of Hanna v University of New England [2006] NSWSC 122 at [66] and Walsh v University of Technology, Sydney [2007] FCA 880 and Walsh v University of Technology [2007] FCA 1308.

27 The starting point is Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335, where Davies J stated at [26]:

"[26] ... Disputes between students and establishments of learning are ordinarily unsuitable for adjudication in the courts and ought to be resolved by internal procedures: Clark v University of Lincolnshire and Cumberside [2000] 1 WLR 1988 at [12] and [30] - [31], seemingly approved in Griffith University v Tang (2005) 221 CLR 99 at [58] and [165]; and see also Walsh v University of Technology, Sydney [2007] FCA 880 at [71]-[80]."

28 I shall refer to only one other decision and that is Walsh v University of Technology, Sydney [2007] FCA 880. The brief facts are that Mr Walsh was a student at UTS, enrolled for the degree of Master of Education. He was required to satisfactorily complete eight subjects. He failed one of the subjects, Enhancing Learning Environments with Educational Technology. The assessment of that subject involved four assignments and Mr Walsh passed only one assignment. Mr Walsh sought judicial review, seeking passes for the three failed assignments, which would result in him then being able to pass the subject. He claimed relief under various provisions of the Trade Practices Act 1974 (Cth). Mr Walsh did not rely on any cause of action under contract law, torts or administrative law. UTS brought an application for summary judgment, seeking to have Mr Walsh's statement of claim struck out for failure to comply with requirements for pleadings. At [70], Buchanan J stated that Mr Walsh's case, both factually and legally, depended "upon the suggestion that the Court can both directly and effectively substitute an opinion for that of UTS and require a different result to be awarded."

29 Buchanan J provided a useful outline of the leading cases in this area. At [72] to [80] in Walsh, his Honour stated:

"[72] In Griffith University v Tang (2005) 221 CLR 99 the High Court considered whether a decision to exclude a PHD student from its programmes was reviewable under the Judicial Review Act 1991 (Qld). It decided by majority that it was not. The university had acted in the exercise of a general discretion deriving from its activities generally as a university pursuant to the functions and general powers granted by its enabling Act which included setting academic standards.

[73] Gleeson CJ said (at [15]):

'The functions of the appellant include providing education, providing facilities for study and research, and conferring higher education awards. Its powers include the power to do anything necessary or convenient in connection with its functions. Subject to any other legal constraint, it may establish a PhD research programme, and decide who will participate in the programme and on what terms and conditions.'

[74] Similarly in the present case, and the contrary was not argued, it was open to UTS to establish the course of study in which Mr Walsh enrolled and set the requirements to be satisfied, including the academic standard to be achieved as demonstrated by assignments or other coursework. Decisions about such matters are inherently unsuited to judicial review.

[75] Gummow, Callinan and Heydon JJ referred to this at [58], although like Gleeson CJ they decided the case on other grounds. They said:

'Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside. The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, 'jejune and inappropriate'.'

[76] Kirby J dissented on the question of reviewability of the particular decision to exclude Ms Tang from the PhD programme. However, he drew a distinction between disciplinary decisions and matters of academic judgment. He said (at [165]-[166]):

'[165] The special position of universities: I recognise that universities are in many ways peculiar public institutions. They have special responsibilities, as the University Act envisages in this case, to uphold high academic standards about which members of the academic staff will often be more cognisant than judges. There are issues pertaining to the intimate life of every independent academic institution that, sensibly, courts decline to review: the marking of an examination paper; the academic merit of a thesis; the viability of a research project; the award of academic tenure; and internal budgets. Others might be added: the contents of a course; particular styles of teaching; and the organisation of course timetables. As Sedley LJ noted in Clark v University of Lincolnshire and Humberside, such matters are 'unsuitable for adjudication in the courts ... because 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'. Judges are well aware of such peculiarities. The law, in common law countries, has consistently respected them and fashioned its remedies accordingly.

[166] However, as Maurice Kay J explained in R v University of Cambridge; Ex parte Persaud (a recent English case similar to the present appeal), it is entirely 'correct' of courts 'to distinguish between the disciplinary type of case and the situation where what is in issue is pure academic judgment'. In the present appeal, the respondent's claim fell squarely within the former class. Academic judgment is one thing. But where an individual who has the requisite interest is affected by disciplinary decisions of an administrative nature made by a university body acting according to its powers under a statute, outside the few categories peculiar to 'pure academic judgment', such decisions are susceptible to judicial review. They are so elsewhere. They should likewise be so in Australia. An appeal to 'academic judgment' does not smother the duties of a university, like any other statutory body, to exhibit, in such cases, the basic requirements of procedural fairness implicit in their creation by public statute and receipt of public funds from the pockets of the people.'

[77] The present case does not raise disciplinary issues. It raises questions of academic assessment and judgment.

[78] The English case cited by Gummow, Callinan and Heydon JJ and by Kirby J, Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, concerned an action in contract, brought by a student against a university, which was initially struck out. The Court of Appeal, although allowing the student to replead to raise conventional allegations of breach of contract (a circumstance which does not arise in the present case) approved the summary rejection of the 'claim as originally pleaded [which] had travelled deep into the field of academic judgment' (at p 1988). The leading judgment was given by Sedley LJ. He said (at p 1992):

'... 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. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class. 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.'

[79] Lord Woolf MR said (at p 1996):

'The court, for reasons which have been explained, will not involve itself with issues that involve making academic judgments. Summary judgment dismissing a claim which, if it were to be entertained, would require the court to make academic judgments should be capable of being obtained in the majority of situations.'

[80] It seems to me that the matters Mr Walsh wishes to agitate are of the character to which these observations were directed. 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."

30 As in Walsh, the plaintiff in these proceedings attempts to involve the Court directly in an adjudication upon a matter of both academic standards and of the assignment of specific grades to her practical teaching assessment. There is no legal foundation for this Court to do so. The plaintiff's application for judicial review fails on this basis.

31 If I am wrong, I will turn to consider the plaintiff's other complaints. They are, firstly, that the final report should award her a pass in PREX 902 on the basis that the assessments of her teaching placement at Fairvale High School were satisfactory; and secondly, the reports provided were not in accordance with the Handbook.

The Booklet

32 Before I refer to the final report form, while the plaintiff was undertaking her practical training at Fairvale High School, the supervising teachers completed a booklet. The booklet sets out the classes the plaintiff taught and a lesson evaluation sheet for each particular class. For each class the plaintiff was assessed as satisfactory or unsatisfactory. In the evaluation undertaken and recorded in this booklet, satisfactory was defined as "displayed evidence of development" and unsatisfactory as "displayed little/no evidence of development". Comments were also provided.

33 In 2013, the plaintiff analysed the ratings given in this booklet and says:

"The analysis of the feedback shows 79% satisfactory marks and competency in all major areas: Planing and Preparation - 99%, Communication - 78%, Implementation - 70%, Classroom Management - 73%.

The UNE's Assessment Policy (p 16) requires 50% for a pass: 'Pass...Numerical conversion: scores and/or aggregate marks between 50% and 64%.' The overall mark (79%) achieved by the plaintiff is well above the minimum level required for a pass."

The final report

34 On 26 August 2011, the Professional Experience Report Form ("the final report") was provided to the plaintiff (Aff, Ydeet Winter-Irving, Ex WI-1 at 117-120).

35 In the final report, the plaintiff was rated on seven key areas. Comments were provided next to each key area. The rating criteria used in assessing the plaintiff's performance in these key areas were as follows:

HC HIGHLY COMPETENT	C COMPETENT	AN ATTENTION NEEDED	US UNSATISFACTORY
Element of professional competence demonstrated at a high level for the Professional Experience placement stage completed	Demonstrated at an acceptable level for the Professional Experience placement stage completed	Development of Element of professional competence is of concern for the Professional Experience placement stage completed	Development of Element of professional competence is unsatisfactory for the Professional Experience placement stage completed

36 The plaintiff says that the final report shows that she met the expected standard in four out of the seven key areas and that being so, her overall performance should have been assessed as satisfactory. However, the plaintiff's overall assessment was certified as "Unsatisfactory".

37 Satisfactory and unsatisfactory are defined as:

"SATISFACTORY: The student has met the expected standard in most Elements as described by the NSW Institute of Teachers for this stage in their professional development.

UNSATISFACTORY: The student is generally weak with some serious deficiencies in meeting the Elements of the NSW Institute of Teachers for this stage in their professional development. The supervising teacher and the Principal or Executive Staff Member believes that the student requires an additional professional experience placement to attempt to establish their competence for teaching or that they have not demonstrated suitability for teaching."

38 The purpose of the practical teaching placement is to assess whether the student has met the expected standards in their professional development in the classroom environment.

39 A satisfactory result is not ascertained merely because out of the total number of entries, there were more satisfactory entries compared to unsatisfactory entries. Likewise, the result in the final report is not obtained merely because there are more entries of "competent" compared to the combined entries of "attention needed" and "unsatisfactory" entries. While regard is to be had to those results set out in the final decision, the overall assessment of the plaintiff's performance as being satisfactory or unsatisfactory is a discretionary one. This Court is not permitted to interfere in this type of decision. As Buchanan J stated in Walsh, such matters are inherently unsuitable to judicial review.

40 The plaintiff claimed that the procedure laid out in the Handbook was not followed. The Handbook can best be described as a policy document. The plaintiff says that it required an interim report to be given to her at the mid point of her placement, but the interim report and the final report were not given to her until the last day of her placement. I accept that the plaintiff was given the interim report on the last day of the placement, not mid term as set out in the Handbook.

41 The plaintiff submitted that the Handbook required the final report to be signed by her supervising teachers. She says that this was not done because it was Ms Zilic who signed the report and Ms Zilic was not one of the two teachers who supervised her. The plaintiff further submitted that the report did not meet another requirement of the Handbook, being that the school did not stamp the final report. She says that the Handbook specified that the final report must be accurate and that her final report was not accurate.

42 The advice concerning the final report in the Handbook reads:

"If a student has more than one Supervising Teacher, we ask that teachers involved co-operate to write one composite report, and each of the Supervising Teachers involved sign this report."

43 Ms Zilic was the co-ordinator of the practical training component of the course. Apparently she sat in on one of the classes taken by the plaintiff.

44 So far as the interim report issue is concerned, a letter from the Academic Registrar dated 1 August 2013 stated:

"I understand that the School has been in contact with you in an attempt to reach a resolution to your concerns. In acknowledgement of a potential error on behalf of the supervising school, Fairvale High School, in not adequately notifying you of your pending unsatisfactory result, the University made a decision to offer you the option of completing 10 more days of professional experience and holding a result of RU against your name until the requirements of PREX902 are complete, with an SR being granted for the unit if you pass or N if you fail.

As your final report was marked unsatisfactory with a recommendation that you would 'greatly benefit from further practicum experience and support prior to commencement of your career in the teaching profession', the University believes that the compromise outlined above is an equitable solution. The NSW Ombudsman, following an investigation into your concerns, endorsed this position."

45 At the time of the hearing in this Court, the plaintiff stated that she remained unwilling to complete a further 10 day placement.

46 The plaintiff also submitted that UNE failed to follow its assessment policy that "assessment must be fair, equitable, reasonable, transparent and valid".

47 In relation to the "decision" by the SQU on 9 September 2013 ("SQU decision"), the plaintiff submitted that the SQU did not give her a reasonable opportunity to put her case at the hearing. She also says that the SQU "decision" did not consider her percentage calculations, which she submitted was a failure to take into account a relevant consideration. I have already dealt with this submission earlier in this judgment. The failure to take into account her percentage calculations is not a failure to take into account a relevant consideration. The plaintiff also stated that the SQU did not inform her of the rights to review its "decision".

48 Lastly, the plaintiff referred to an email from Complaints, Tertiary Education Quality and Standards Agency ("TEQSA") addressed to her, dated 16 September 2013 (Ex A). It reads:

"From the emails below and the information provided, the two bodies that I refer you to are: (a) the NSW Ombudsman and (b) the NSW Administrative Decision Tribunal."

49 The plaintiff submitted that TEQSA referred her to the Administrative Decisions Tribunal and the Ombudsman, but all of her requests to UNE to provide a statement to the Administrative Decisions Tribunal were ignored. The plaintiff was unable to identify the source of UNE's purported legal obligation nor whether the "decisions" were "administratively referrable decisions" pursuant to s 7 of the Administrative Decisions Review Act 1997 (NSW).

50 So far as the complaints about this "decision" of the SQU and the Ombudsman are concerned, Sarah Unwin, an Investigations Officer on behalf of the NSW Ombudsman, wrote to the plaintiff in relation to this "decision" and in relation to her application for advance standing.

51 This letter relevantly stated:

"I have reviewed your complaint and the supporting documents you submitted. I also made inquiries with the University about your application and reviewed the SQU's decision and correspondence with you about this matter.

On the information provided, I am unable to find any evidence to suggest that the SQU's handling of your complaint was inappropriate.

The role of the SQU is to investigate concerns about the University's administrative activities and to review and recommend changes in business processes where appropriate. The SQU is not empowered to review academic matters other than those of administrative process and service delivery.

In the course of its investigation, the SQU reviewed the School of Education's decisions in relation to your enrolment in PREX 902 against the University and School's published guidelines. It concluded that the School acted in accordance with the University and School's procedures when awarding you your final grade for the subject and refusing your application for advanced standing.

In relation to your appeal rights, I note the SQU's email to you dated 16 September 2013 in which it advised:

'The NSW Ombudsman is the external reviewed agency the University would typically recommend to students, such as yourself, as an avenue of appeal. As you have previously received an outcome from that body you are advised to contact the NSW Ombudsman and seek his/her advice regarding further appeals'."

52 The Ombudsman declined to take any further action. Once again, the matters raised by the plaintiff in relation to the SQU "decision" is not one where this Court would intervene.

53 The result is that the plaintiff's application for judicial review fails. The amended summons filed 18 December 2013 is dismissed.

54 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

The Court orders that:

(1) The amended summons filed 18 December 2013 is dismissed.

(2) The plaintiff is to pay the defendant's costs as agreed or assessed.

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Decision last updated: 11 July 2014