Makowski v Legal Profession Admission Board

1. [1]

   THE COURT: The applicant Mr Daniel Makowski is a student-at-law under the NSW Admission Board Rules 2015 (“Board Rules”). Those rules prescribe the sequence in which certain examinations must be undertaken and passed by students-at-law in order to qualify for a Diploma in Law. In particular, Contracts and Australian Constitutional Law must be passed before sitting for Equity and Commercial Transactions. The rule may be relaxed by the respondent Legal Profession Admission Board (“Board”), or its Examinations Committee, or its delegate the Executive Officer, “in circumstances which it regards as sufficiently special”, so as to permit a student to sit subjects out of the prescribed sequence.

2. [2]

   Before the Court is Mr Makowski’s application for leave to appeal from a decision of Cavanagh J given on 24 April 2020 in the Common Law Division of the Supreme Court, [1] dismissing Mr Makowski’s application for judicial review in respect of a decision of the Examinations Committee on 18 June 2019 to confirm a decision of the Acting Executive Officer on 16 May 2019 to refuse his application for permission to enrol in Equity and Commercial Transactions in the Winter 2019 session, despite not having completed Contracts or Australian Constitutional Law (“first decision”); and in respect of a decision of the Acting Executive Officer on 28 June 2019 not to process a second application for relaxation of the progression rule in respect of the same subjects for Term 2 of 2019 (“second decision”). Mr Makowski also seeks leave to appeal from a costs order made against him by Adamson J on 18 July 2019, on an interim application. [2]

Relevant Legislation and Rules

1. [3]

   Legal Profession Uniform Law Application Act 2014 (NSW), s 21A, provides that the Board may make rules with respect to “the examination and assessment in academic subjects of candidates for registration and students-at-law”. Under that section, the Board has made the Board Rules, which make provision in relation to academic progression for students-at-law, relevantly as follows:

2. [4]

   Provision is made in relation to applications for the relaxation of the Board Rules, as follows:

3. [5]

   The Legal Profession Uniform Admission Rules 2015 (NSW) (“Uniform Admission Rules”) provide for the review by the Board of decisions made by the Board, or any committee or delegate of the Board:

Background

1. [6]

   The Board approved Mr Makowski’s application for registration as a student-at-law on 13 August 2017. In Term 1 of 2018, he undertook and passed two courses: Legal Institutions, and Criminal Law and Procedure. In Term 2 of 2018, he undertook Torts and Contracts. He passed Torts with distinction, but he did not pass Contracts.

2. [7]

   On 29 October 2018, Mr Makowski’s application for acceleration progression (a relaxation of r 59(3) of the Board Rules) was approved. In Term 1 of 2019, he enrolled in Contracts, Real Property, and Australian Constitutional Law. He completed Real Property, but he did not sit the examinations for Contracts or Australian Constitutional Law.

3. [8]

   On 14 May 2019, Mr Makowski applied for permission to enrol in Equity and Commercial Transactions in the Winter 2019 session, despite not having completed Contracts or Australian Constitutional Law; that is, he applied for a relaxation of r 59(1) of the Board Rules. On 16 May 2019, the Acting Executive Officer of the Board wrote to Mr Makowski, stating that his application had been refused. Mr Makowski requested reasons for that decision, which were provided. On 4 June 2019, Mr Makowski applied (under r 27J(3) of the Board Rules) for reconsideration by the Examinations Committee of the Acting Executive Officer’s decision. The Examinations Committee considered the matter on 18 June 2019, and on 19 June 2019 conveyed the first decision to Mr Makowski in the following terms:

4. [9]

   On 24 June 2019, Mr Makowski made a second application for relaxation of the progression rule in respect of the same subjects (Equity and Commercial Transactions), for Term 2 of 2019. This time, he attached a statutory declaration, setting out that he suffered “disability in the form of a chronic mental illness”, and statistics for the last three years showing that 95.9% of applications for relaxation had been granted.

5. [10]

   By letter of 28 June 2019, the Acting Executive Officer informed Mr Makowski of the second decision, namely that his second application would not be processed, as the Examinations Committee had already made its decision, and also that he could appeal the decision of 18 June 2019 to the Board, and that the next Board meeting would be on 6 August 2019.

6. [11]

   Mr Makowski did not at that stage appeal the first decision to the Board, but instead, on 1 July 2019, filed a Summons in the Supreme Court, seeking:

7. [12]

   By notice of motion filed on 8 July 2019, Mr Makowski sought an interim order that he be permitted to access “Canvas”, a web platform which gives students at the University of Sydney access to study material relating to subjects in which the student is enrolled. On 18 July 2019, Adamson J dismissed Mr Makowski’s application for interim relief, and ordered that he pay the Board’s costs of the motion. Her Honour observed: [3]

8. [13]

   Subsequently, on 22 July 2019, Mr Makowski applied under r 29 of the Uniform Admission Rules for a review by the Board itself of the second decision. By letter dated 6 August 2019 the Board confirmed the second decision, and subsequently provided reasons (“first rule 29 decision”). Mr Makowski then, on 16 September 2019, sought review by the Board itself of the first decision. Upon review, the Board confirmed the first decision, and provided reasons on 8 October 2019 (“second rule 29 decision”).

9. [14]

   On 15 October 2019, Mr Makowski applied to enrol in Equity, Commercial Transactions and Administrative Law in Term 1 of 2020 (requiring a relaxation of rr 59(1) and (3)). He was informed that he was precluded from doing so by r 64 of the Board Rules (“the exclusion rule”). On 21 October, Mr Makowski applied under r 67 of the Board Rules for a relaxation of the exclusion rule. By letter of 25 October 2019, the Acting Executive Officer offered to relax the exclusion rule on certain conditions relating to Mr Makowski’s progression, but Mr Makowski declined the conditional offer.

The judgment below

1. [15]

   Mr Makowski sought judicial review of the first and second decisions (that is, the decision of the Examinations Committee on reconsideration of the refusal of the Acting Executive Officer to relax the progression rule, and the subsequent decision of the Acting Executive Officer not to process the second application). No relief was sought in respect of the two rule 29 decisions of the Board itself. Cavanagh J found that it was the first and second rule 29 decisions of the Board that were the “operative decisions”, and that there was “no utility in the challenge to the first and second decisions, as even if successful, the two rule 29 decisions would still stand”. [4]

2. [16]

   His Honour nonetheless proceeded to consider Mr Makowski’s submissions in relation to the first and second decisions. In relation to the first decision, his Honour concluded: [5]

3. [17]

   In relation to the second decision, after considering Mr Makowski’s submissions on procedural fairness and the effect of the order sought, his Honour concluded that “there [was] no merit in the [applicant’s] submissions in support of the second order he [sought]”. [6]

4. [18]

   His Honour also dismissed Mr Makowski’s claim in contract, seeking an order for specific performance requiring that his second application be processed. His Honour concluded that even if there were a contract, and even if specific performance were otherwise appropriate, there was no point in making an order in 2020 that would require the Board to process an application to progress out of sequence in Term 2 2019. [7]

Leave to appeal

1. [19]

   Mr Makowski’s summary of argument rightly acknowledges that to attract a grant of leave, there should be established either an injustice which is reasonably clear, an issue of principle, or a question of general public importance, and that that it does not suffice to show that the Court below was merely arguably wrong. [8]

2. [20]

   First, Mr Makowski submitted that his Honour erred in dismissing the summons on the basis of the perceived inutility of quashing the impugned decisions, when there was real and significant utility in doing so for his progression in the Board’s course, as quashing those decisions would “abrogate the militating effect of the Exclusion Rule … against the applicant’s progression in the Board’s course”. Thus he submitted that the quashing of the first or second decisions would have assisted his application under r 67 for a relaxation of the exclusion rule, and thereby had the effect of allowing him to continue his studies. He submitted that this alleged error constituted an injustice which was reasonably clear.

3. [21]

   These submissions misconceive the basis on which his Honour concluded that there was no utility in granting the relief sought. His Honour was conscious of the argument that quashing the first or second decisions might have some impact on the exclusion rule. It had been raised in the course of submissions, [9] and his Honour recorded it in the judgment:

4. [22]

   The conclusion of inutility was not based on rejection of that proposition, but on the ground that there was no point in quashing the decisions of the Examinations Committee and the Acting Executive Officer when they had been superseded by the rule 29 decisions of the Board itself. This appears from the following:

5. [23]

   Thus at least the primary basis of the “no utility” conclusion was that quashing the decisions of the Examinations Committee and the Acting Executive Officer would achieve nothing, since the decisions of the Board on the r 29 applications would stand. The fact that quashing those decisions (about Term 2 2019) would resolve nothing about his enrolment in Term 2 2020 was an additional reason.

6. [24]

   Moreover, as [61] of his Honour’s judgment indicates, the ‘no utility’ conclusion was not the basis on which the summons was dismissed: his Honour proceeded to deal with Mr Makowski’s complaints about the first and second decisions, and found none of them substantiated. Even if the “no utility” conclusion were incorrect, it was not productive of injustice because his Honour did not dispose of the summons on that basis, but proceeded to consider the issues raised by the applicant’s arguments about the first and second decisions. There would be utility in a grant of leave to appeal only if there appeared to be more than merely arguable error in the manner in which his Honour did so. The applicant’s submissions do not identify any error, let alone an arguable one, in his Honour’s disposition of those issues.

7. [25]

   Secondly, Mr Makowski submitted that his Honour erred in finding that the first and second rule 29 decisions were the “operative decisions”. [10] He submitted that this conclusion was not open to the primary judge unless his Honour first considered and was satisfied that Mr Makowski had been afforded “full and fair hearings” in relation to the first and second rule 29 applications, such that any alleged denial of procedural fairness in relation to the first and second decisions was “cured”. He submitted that this raises an issue of principle.

8. [26]

   The applicant’s submission conflates two different propositions. The first, of which Wishart v Fraser, [11] Forge v ASIC (No 2), [12] and Navazi v New South Wales Land and Housing Corporation [13] are illustrations, is that where a decision is confirmed on appeal, the decision of the appellate tribunal becomes the operative decision. The second, referred to in cases such as Calvin v Carr, [14] Bowen v Australian Workers’ Union (No 2), [15] Twist v Randwick Municipal Council, [16] and Ainsworth v Criminal Justice Commission, [17] is that a denial of procedural fairness may be cured if the person aggrieved is afforded a full and fair hearing in an internal appeal. The second proposition does not deny that, regardless of whether or not any defect in the earlier hearing is cured, the operative decision is that of the review tribunal; but it means that if the review hearing is not such as to “cure” the defect in the first hearing, then that operative decision will still be liable to be quashed, on account of the defect at the earlier stage. However, it is the decision of the review tribunal that is the operative one. The decisions that ultimately affected Mr Makowski were those of the Board, under r 29, which, once made, operated in place of each of the anterior decisions.

9. [27]

   His Honour’s point was that there was no utility in challenging the decision of its delegates – the Examinations Committee and the Acting Executive Officer – when they had been superseded by the r 29 decisions of the Board, which Mr Makowski studiously avoided challenging but discarded as irrelevant. Moreover, once again, his Honour did not dispose of the summons on that basis, but proceeded to deal with Mr Makowski’s complaints about the first and second decisions, and found none of them substantiated. No issue of principle arises.

10. [28]

    Thirdly, Mr Makowski submitted that the application for leave raises a question of public importance. He says his case has been discussed in Lawyers Weekly, and reportedly in a Facebook group of his cohort of students, and submits that it is of public importance that he has brought an internal appeal on a question of law, and that question has been ignored.

11. [29]

    Even if it be the case that his matter has been the subject of some discussion of the kind to which he refers, that does not make it of public importance. As to the complaint that his internal appeal to the Examinations Committee on an error of law was not addressed, it is to be observed that although the terminology of “appeal” has been used, and in the broad sense one can understand why, the function of the Examinations Committee under rule 27J was one of “reconsideration”. Its reasons explained that “whether the issue is a reconsideration of a matter delegated under rule 27J or a fresh determination by the Committee under rule 59(4)”, it was of the view that “the circumstances are not sufficiently special to relax the order of subjects set out in rule 53”. Let it be assumed that there was some error of law in the Acting Executive Officer’s decision: had the Examinations Committee been so persuaded, then it would have had to substitute its own decision. In circumstances where, whether on reconsideration or on treating it as a fresh application, it was of the view that the circumstances were not such as to warrant a relaxation of the rules, there was nothing to be served by delving into whether there was some error of law in the Acting Executive Officer’s decision.

12. [30]

    No question of public importance arises.

13. [31]

    The draft notice of appeal contains other proposed grounds of appeal, none of which were elaborated in the summary of argument. None of them are such as to warrant the grant of leave to agitate, in a fifth forum, Mr Makowski’s application for permission to enrol in certain subjects out of the prescribed sequence, having so far failed at four previous levels: the Executive Officer, the Examinations Committee, the Board, and the Court below.

14. [32]

    The order of the Court is that the application be dismissed, with costs.