Ivins v James Cook University
[2001] QCA 464
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Ivins v James Cook University[2001] QCA 464
- Add to List
Ivins v James Cook University[2001] QCA 464
Ivins v James Cook University[2001] QCA 464
COURT OF APPEAL
McMURDO P
THOMAS JA
AMBROSE J
| Appeal No 1350 of 2001 | |
| CHRISTINE JOY IVINS | Appellant |
| v. | |
| JAMES COOK UNIVERSITY | Respondent |
BRISBANE
DATE 24/10/2001
JUDGMENT
THE COURT RESUMED AT 11.32 A.M.
THE PRESIDENT: This is an appeal from an order of a Judge of the trial division dismissing the appellant's application for judicial review with costs.
The appellant represents herself. The grounds of her appeal are as follows:
"(a)Procedural defects and procedural fairness.
(b)Acting in excess of jurisdiction regarding making a judgment.
(c)Improper exercise of power as the Justice acted for an improper purpose and in bad faith when she fraudulently considered irrelevant issues.
(d)Improper exercise of power as the Justice considered irrelevant fraudulent evidence and did not consider relevant evidence, e.g. contractual thus making no evidence available.
(e)Improper exercise of power as the Justice made a decision in the absence of evidence and thus in excess of jurisdiction.
(f)Improper exercise of power due to an improper delegation as the matter was dealt with by inexperienced staff.
(g)Improper exercise of power as the Justice acted under dictation as emphasis on disruptive behaviour and time limits is a mechanical application of policy given that the matter had been reviewed internally."
She seeks the following orders:
"(a)That I am awarded my degree as per my contract without prejudice or penalty.
(b)That the respondent pays remuneration for all expenses incurred so far and any costs deemed appropriate by the Court."
She added in her oral submissions a request that this Court order that the respondent negotiate with her to enable her to finish her degree.
The orders sought are inappropriate for this Court to make in an appeal from an order dismissing an application for judicial review.
At best for the appellant, the orders that could be made by this Court are orders overturning the decision before the primary Judge and instead ordering an extension of time within which to lodge the application for judicial review.
The appellant filed the application for judicial review on 27 November 2000 and on 16 January 2001 the respondent filed an application to dismiss the application for judicial review on the following grounds: first that the application was made out of time and no reason is shown why time should be extended; second, no reasonable basis for the application is disclosed; and third, the application is frivolous, vexatious or an abuse of process of Court.
The learned trial Judge found it necessary to largely consider only the first point and granted the application on the basis that the application was out of time and the time should not be extended. The relevant facts are set out in the primary Judge's reasons and it is not necessary to repeat all of them.
Essentially, the appellant is upset because a lecturer said to her, in a workshop, that he thought she was behaving in a passive-aggressive manner. The workshop did not progress smoothly and the appellant was asked to leave.
The applicant was dissatisfied with the lecturer's decision requiring her to leave the workshop; with the respondent's subsequent decision recording her failure in the subject which the workshop concerned, the final subject needed to complete her Bachelor of Community Welfare at the respondent university, and with the review process following that decision.
It is clear from the orders she seeks, she wants to be awarded her degree. Mr Bradley, who appeared for the respondent, submitted that there is no suggestion Ms Ivins is prohibited from completing her degree at the respondent university.
It is difficult to ascertain precisely what decision, or refusal to make a decision, is the subject of the judicial review sought by the appellant. At best for the appellant it seems it is one of the following. The appellant was asked to make a complaint about her exclusion from the workshop on 7 July 1997 and made that complaint on 9 July 1997. She now claims that that complaint was never dealt with. However, the respondent responded to that complaint on 29 August 1997 upholding the exclusion from the workshop and failing her in that subject. Correspondence between the parties ensued. The appellant was offered and accepted alternative assessment for the final subject. She was not successful in the alternative assessment and the respondent indicated that it would record a failure on the alternative assessment on 28 October 1999. The appellant did not lodge any further appeal from that decision but continued correspondence with the respondent.
The appellant now claims that the respondent has never made a decision on her original complaint as to her exclusion from the workshop. She did not make that complaint to the respondent university until 12 October 2000, over three years after the original exclusion from the workshop. As I have noted, on 27 November 2000, she lodged the application for judicial review.
An application for judicial review is ordinarily made within 28 days of the decision complained of (s.26 Judicial Review Act 1991 (Qld)) although the Court may extend time (s.28(1)(b) Judicial Review Act 1991 (Qld)).
Even if the appellant's contention were to be accepted and the application for judicial review were from a failure to make a decision rather than from the making of a decision, any application would have to be filed within a reasonable time from the time when the decision ought to have been made: see s.26(4) Judicial Review Act 1991 (Qld).
Although the appellant did not apply to extend time, as she was unrepresented, the learned trial Judge treated the matter as though an application had been made. The learned trial Judge considered the matters before her but was not satisfied that the appellant had established any good reason to justify the lengthy extension of time and dismissed the application.
The appellant's grounds of appeal and her written and oral submissions do not address the learned trial Judge's reasoned judgment. The appellant asserts the Judge's decision was unreasonable, denied natural justice, was fraudulent, was in bad faith, and that the Judge was inexperienced, but she has placed no material before us to justify such insulting claims.
The appellant has not established that her Honour erred in refusing to extend time.
A consideration of the merits of the application for judicial review does not on their face support an extension of time. The application for judicial review is in embarrassing form; it does not clearly identify the decision under an enactment, or the failure to make a decision under an enactment, or something to which prerogative writs could apply, which the appellant claims is the subject of her application for judicial review.
The appellant also claims the Judge discriminated against her as an impecunious student in ordering her to pay the respondent's costs, but the costs order was unremarkable and within a sound discretion.
It follows that the appellant has failed to establish any good reason to show why the learned trial Judge's decision should be overturned.
I would refuse the appeal with costs to be assessed.
THOMAS JA: I agree. The appellant's application, apparently for judicial review, is embarrassing in both form and substance. It states:
"(1)I, Christine Joy Ivins, applicant, believe that I am authorised in compliance with the Act and Rules of the Court to make the claim:
.that some of the staff of the university took unlawful action that led to errors and a denial of natural justice exists as a result;
.that the matter is in need of review;
.the grounds of the claim are set out in the accompanying affidavit."
(2)The applicant seeks the following orders:
.that I be awarded my degree as per my contract without prejudice or penalty;
.that the respondent pay remuneration for all expenses incurred so far and any costs deemed appropriate by the Court."
Specificity was lacking in the accompanying affidavit. In the trial division and now in this Court, strenuous attempts were made to have the appellant identify any decision that was sought to be set aside under either part 3 or part 5 of the Judicial Review Act 1991. No satisfactory response has emerged.
The principal complaint, as the President has mentioned, seems to be that in or about July of 1997 her lecturer, Mr Bainbridge, following her voluntary abstention from attending a particular class, stated that he thought she was behaving in a passive-aggressive manner. It seems that when the applicant objected to the above comment he invited her or told her that she could make a complaint. That seems to have been a personal statement by a lecturer that if she thought he had acted improperly she could make a complaint against him. The applicant now says, "All I want is Mr Bainbridge to go back to the class and apologise to me." She also indicates that she wants her degree or at least to finish her degree course, and wants her expenses back.
It is possible that the claimant seeks to have some form of review of what she regards as the University's failure to deal with a letter that she wrote on 9 July 1997.
I am unable to see how an invitation by a lecturer to make a complaint invests in the complainant a right to have a decision made of a kind that is reviewable as a decision under an enactment or that it somehow subverts other decisions that were made in the course of her continuation of the course, such as the inquiry or a review set up by Professor Thorpe.
Quite plainly, no situation has been created where a decision had to be made under an enactment and there does not appear to have been any determination of a kind that would enable a prerogative writ to be issued. The other matters which have been again with some difficulty discerned either by the respondent or by this Court as possible matters of complaint are a possible decision of 29 August 1997, one of September 1998, and a recorded failure in 1999. But the appellant's complaint in respect of these matters is not that they are the product of reviewable error. Her real complaint is that none of these decisions would have been necessary if the university had done things her way and made Mr Bainbridge apologise to her. Her allegations of fraud and conspiracy are entirely unsubstantiated.
In short, it seems to me on a jurisdictional basis the matter could equally well have been struck out as an abuse of process as on the basis in which it was actually refused, namely a refusal to extend time. It would seem that the lapse of time has been significant and matters and events have moved on, at least for some, in the intervening years.
I do not pause to consider the feasibility of reassembling the class of '97 to enable Mr Bainbridge to present an apology to her.
I agree with what the President has said. I regard the present proceeding as completely hopeless and as one where the refusal of the extension of time that would have been necessary was amply justified. I also agree with the order proposed by the President.
AMBROSE J: I also agree with the order proposed. The only matter debated before the learned trial Judge was whether the application was within time and, in the absence of any specific application by the appellant, whether on the material before her the learned trial Judge ought extend time. That is the only matter that is the subject of the appeal and in my view it has not been demonstrated that the learned trial Judge erred in any way in the decision that she made. I also agree that the appeal should be dismissed.
THE PRESIDENT: The order is the appeal is dismissed with costs.