The judgment states
[4] The plaintiff seeks orders quashing decisions of the LPAB which have prevented him from undertaking some subjects in the order that he wishes, rather than as determined by the rules governing his course. ...
[9] The matter has already been the subject of an interim hearing pursuant to a motion filed by the plaintiff on 8 July 2019. He sought an order that he be permitted to access “Canvas”, a web platform that gives students at the University of Sydney access to study material relating to subjects in which the student is enrolled. His application was unsuccessful: Makowski v Legal Profession Admission Board [2019] NSWSC 921. ...
[14] The plaintiff provided extensive written submissions, referring the Court to some 64 cases, numerous texts and articles and even works of fiction such as Bleak House by Charles Dickens. The plaintiff’s submissions covered a wide range of topics including administrative law, contract law, equity, damages, remedies and statutory interpretation.Perhaps unsurprisingly, the plethora of topics were unpersuasive.
The judgment goes on to state
On 13 August 2017, the plaintiff’s application for registration as a student-at-law was approved by the LPAB. He undertook and passed two courses being Legal Institutions and Criminal Law and Procedure in Term 1 of 2018. He passed Torts with distinction in Term 2 of 2018. He undertook, but did not pass, Contracts.
On 29 October 2018, his application for accelerated progression to sit examinations in Contracts, Real Property and Australian Constitutional Law was approved. He completed Real Property in Term 1 of 2019 but did not sit the examinations in Contracts and Australian Constitutional Law.
The plaintiff sought an interview with the marker of his Australian Constitutional Law assessment for which he received 10 out of 20. He says that he did not sit the exam because he did not want to risk failing the subject.
He requested an interview with the person who assessed his assignment because he required additional feedback to that provided on the assignment. The Executive Director responded on 27 February 2019 stating that she had reviewed the assignment and felt that adequate feedback had been provided by the marker. She thus rejected the approach for further feedback.
The plaintiff was not satisfied with this response and, in his email of 23 April 2019, made a number of personal criticisms of the marker, suggesting that he has a case to answer. Unfortunately to a certain extent, this has been a common thread in the plaintiff’s approach.
Having not received the response that he sought, he then lodged his first student course application, being a form used to apply for relaxation of the progression rule in the circumstances set out in the form as follows:
“Students must use this form to apply for a relaxation of the progression rules, i.e. enrol in more subjects than is normally allowed under r59(3) (Accelerated Progression) or, enrol in a subject or subjects outside of the normal sequence as prescribed in r53 and r59(1) (Out-of-Order). Please refer to the Course Handbook or the LPAB website for more details and payment options.”
The plaintiff was thus applying to undertake Equity and Commercial Transactions out of the order prescribed in Rule 53 of the Board Rules.
On 16 May 2019, the second defendant wrote to the plaintiff informing him that the LPAB had refused his application. He then responded by a memo dated 21 May 2019 requesting a statement of the reasons for the decision and suggesting that he would be appealing the decision to the Examinations Committee. He received a response on 31 May 2019. He then lodged an appeal with submissions on 4 June 2019 and further corrections to the submissions on 15 June 2019.
The Examinations Committee met on 18 June 2019 and considered his appeal. On 19 June 2019, the second defendant wrote to the plaintiff in the following terms:
“After due consideration of the material you provided, the Committee resolved to confirm the decision of the Acting Executive Officer and refuse your appeal. The Exam Committee has given the following reasons for their decision:
1. Whether the issue is a reconsideration of a matter delegated under rule 27J or a fresh determination by the Committee under rule 59(4), the circumstances are not sufficiently special to relax the order of subjects set out in rule 53.
2. Contracts and Constitutional Law provide a good basis from which to approach both Equity and Commercial Transactions, and the knowledge is fundamental to undertaking the rest of the subjects.
3. Other than dissatisfaction with the way his assignments have been marked, the student has advanced no substantive reasons as to why he should be granted permission to study subjects out of order.
4. Personal preference alone does not qualify as a reason.”
I will refer to the decision of the Examinations Committee of 18 June 2019 as the first decision. It is the decision referred to in Order 1 of the summons.
On 24 June 2019, the plaintiff filed a second student course application, again, seeking relaxation of the progression rule in respect of the same subjects for Term 2 of 2019. The plaintiff says that the difference between his first application and this application was that he made reference to his disability (described by him as anxiety and depression).
By letter dated 28 June 2019, the second defendant informed the plaintiff that the second student course application would not be processed as the Examinations Committee had already made its decision. She informed the plaintiff that he may appeal the Examinations Committee’s decision of 18 June 2019 to the LPAB. The LPAB would be next meeting on 6 August 2019. I will refer to the decision not to process the second student application as the second decision. It is the subject of Order 2 in the summons.
The plaintiff originally chose not to appeal the decision of 18 June 2019.
Instead, he filed the summons in this Court. He then pursued a motion seeking interim relief in respect of the blocking of access to Canvas which was dismissed. Adamson J observed in her judgment that the plaintiff had not availed himself of the right to have the LPAB itself, rather than its delegates, determine his application for relaxation of the progression rule.
Only thereafter (on 22 July 2019) did he apply (pursuant to rule 29 of the Uniform Admission Rules) to the Board itself for a review of the second decision (rather than the first decision).
By letter dated 6 August 2019, the LPAB confirmed the second decision and again refused the plaintiff’s application to sit courses out of order (“the first rule 29 decision”). At the request of the plaintiff, the LPAB then provided reasons for its decision of 6 August 2019.
The plaintiff thereafter requested a review of the first decision by the LPAB. The first decision was reviewed and the plaintiff’s application was again refused (“the second rule 29 decision”). The Board provided reasons on 8 October 2019. The plaintiff then sought to amend the summons which was ultimately filed on 18 October 2019. However he did not amend the summons to seek any orders in respect of the rule 29 decisions. Nor has he sought to do so in the further amended version provided to the Court on 15 April 2020.
On 15 October 2019, the plaintiff again applied to enrol in Equity, Commercial Transactions and Administrative Law in Term 1 2020. However, the LPAB informed him that he was precluded from so enrolling by rule 24 and that he would need to apply for relaxation of that rule. On 21 October 2019, he so applied.
For completeness and although the plaintiff objected to the Court being made aware of this, the result of the plaintiff’s application for relaxation of the rule on 21 October 2019 was that the Executive Officer of the LPAB wrote to the plaintiff offering to relax the rule but on certain conditions. The plaintiff declined the conditional offer.
There is no evidence as to the terms of the offer or the reason for the plaintiff’s refusal. The plaintiff objected to the admission of such evidence at the end of the hearing.
As I understand the position, the plaintiff is not currently enrolled in any subjects. He is unable to progress in his course without completing certain subjects.
As there is no evidence before me as to the exchange between the parties in October 2019, I am unable to comment further on the offer by the LPAB to allow the plaintiff to progress with his course. The plaintiff says that what happened between the parties in October 2019 is not relevant to the orders he seeks in respect of the two decisions made in June 2019. As an explanation for his refusal to accept the LPAB’s offer in October 2019 to relax the progression rule on certain conditions, he said in submissions that “I cannot comply with conditions which have arisen from an allegedly erroneous decision”.
Whatever might be his views, it is of concern that he was offered an opportunity to continue with his course but chose not to do so, instead, continuing with these proceedings in which he seeks orders in respect of decisions which have long since been superseded by the passage of time and other decisions.
I asked the plaintiff at the end of the hearing about the utility of these proceedings. He said:
“[T]he utility of that is that the further I progress in the course the less chance a second failure in Contracts would exclude me from the Board’s course. That’s the utility. By putting Contracts and Australian Constitutional Law at the end of the course there is less likelihood that even if I were to fail again that I would be revoked from further progression in the course.”
He wishes to continue with his course but has spent the last nine months pursuing this litigation. Perhaps in the expectation that orders made in these proceedings would allow him to do so in the subject order that he seeks, he asked the Court to hand down its decision within two weeks (the last date for enrolment being 24 April) so that he could enrol in subjects for next term.
