ROE v NEW ZEALAND VICE-CHANCELLORS COMMITTEE [2021] NZHC 719

ROE v NEW ZEALAND VICE-CHANCELLORS COMMITTEE [2021] NZHC 719 [1 April 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-574[2021] NZHC 719UNDER The Judicial Review Procedure Act 2016BETWEEN KELLY ALEXANDRA ROEApplicantAND NEW ZEALAND VICE-CHANCELLORSCOMMITTEERespondentHearing: 9 March 2021 (via AVL)Appearances: Applicant in personT Smith and H Kerry for RespondentJudgment: 1 April 2021Reissued: 27 April 2021JUDGMENT OF ISAC JIntroduction[1] Ms Roe is a former postgraduate student of the University of Waikato.1 HerMPhil thesis was submitted to external examiners for assessment in October 2018. Theexaminers' reports were unfavourable. The Dean of the School of Graduate Research2advised Ms Roe that her thesis was not acceptable in its present form. She was invitedto revise and resubmit it for examination after re-enrolment for a minimum ofsix months.1 In this judgment, unless the context otherwise requires, I will refer to the University of Waikatoas "the University".2 Referred to as "the Dean" in the balance of this judgment.[2] Ms Roe was unhappy with the University's decision. In February 2019, shemade a complaint to the New Zealand Vice-Chancellors Committee (the Committee).She alleged the University:3(a) fraudulently recorded grades that were not earned or achieved (itappears by recording that she failed the MPhil when she refused tore-enrol);4(b) refused to follow its own regulations, namely that the outcome of theexaminations would be based on reports of external examiners; and(c) requested "bribe payments" by stating that she had one month to payadditional fees for an extended period of re-enrolment when there wasno basis for re-enrolment contained in the reports of the examiners.[3] After consideration of the complaint against the appropriate policy theChief Executive of the Committee determined that further investigation of theUniversity's conduct was unwarranted.[4] Ms Roe has applied for judicial review of the Chief Executive's decision. Shesays the respondent failed to apply its own Student Complaints Policy correctly. TheChief Executive, and therefore the Committee, wrongly determined there was no basisto investigate her claims of improper conduct.5[5] In this review application it is the decision of the Chief Executive that is inissue rather than the decision of the University itself. Nevertheless, because theappropriateness of the Chief Executive's decision necessarily turns on the substance3 At the hearing Ms Roe helpfully confirmed that these three overlapping propositions accuratelysummarise the core of her complaint against the University and, therefore, form the underlyingbasis for her application for judicial review against the respondent.4 As I understand her submission, Ms Roe contends that by conferring a failing grade for her MPhilthesis the University failed to act consistently with the examiners' reports, and, therefore,interfered with the normal process for assessing her degree and awarding grades.5 At the hearing Ms Roe, who had only recently received and considered the respondent'ssubmissions, responsibly conceded that an additional complaint she had made against theCommittee, namely that it ought to have applied a different policy to her complaint (the Policy onDealing with Claims of Serious Wrong-doing under the Protected Disclosures Act 2000) wasunsustainable and she did not pursue that aspect of her application.of Ms Roe's complaints against the University, it is necessary to consider in somedetail her period of study and the decision not to approve her MPhil thesis.Background[6] Ms Roe enrolled in a Master of Philosophy degree in the University's Facultyof Arts and Social Sciences on 1 May 2018.6 It was a one-year post-graduate courseof study and required her to successfully complete examination by thesis by 31 April2019 or face the prospect of re-enrolment and further tuition fees.[7] Ms Roe's thesis was on disability and equity in medicine and public health. ByOctober 2018 she had already completed a 55,000 word thesis that was submitted totwo external examiners for review in keeping with the University's CalendarRegulations governing the MPhil degree.[8] The examiners reports were made available to the University and Ms Roe inDecember 2018.[9] The report of the New Zealand examiner is 20 pages long. After a detailedoverview of the strengths and weaknesses of the thesis it goes on to set out detailedcomments and suggested revisions needed to the thesis' five chapters. TheNew Zealand examiner's report concluded:The thesis shows an appropriate familiarity with some, but not all, of therelevant literature. The breadth of the task the student has set for herself willmake showing an appropriate familiarity with all the relevant literaturedifficult. If a research hypothesis is refined, and made clearer throughout thethesis, this will make the thesis clearer and the arguments may be improved.The breadth of the thesis makes a sufficiently comprehensive coverage of thesubject matter very difficult within a Masters length of work. The approach tothe research is of extremely mixed quality; at times it fails to meet thestandards expected of both the philosophy thesis and, in particular, a work ofapplied philosophy. The quality of language, expression and generalpresentation is poor. Finally, the thesis cannot make an original contributionto knowledge as it stands because of the need to correct factual claims andimprove argumentation. Faults aside, the thesis does have the potential tomake an original contribution to knowledge after substantial revision.6 At the hearing Ms Roe submitted that she had been seeking to enrol from March 2018 and therewas some delay before her enrolment was accepted by the University, but nothing turns on thatquestion.[10] The report of the overseas examiner was in similar terms. It briefly summarisedthe thesis' strengths before identifying what were said to constitute "significantdeficiencies":Broadly speaking this is a thesis which shows some clear strengths but alsosome significant deficiencies that need to be addressed before this thesis willbe acceptable.In terms of weaknesses there were I think three significant deficiencies, and afew minor issues as well.The first significant issue which I think would help the thesis throughout isthat while the concept of discrimination is used repeatedly throughout thethesis there is no analysis of this concept within this thesis. I think such ananalysis would helpfully inform several sections of this thesis and make someof its conclusions more defensible. For example discrimination is typicallyconsidered immoral if it tracks a non-relevant characteristic, however severaltimes this thesis suggests that this kind of discrimination is morallyproblematic.The second major issue has to do with an ongoing pattern of makingsignificant empirical claims without providing references to underwrite theseempirical claims. Some (non-exhaustive) examples of this include:The final major issue has to do with the analysis and interpretation of some ofthose empirical claims, when rather than interpreting these charitably, insteadthe author seems to head to quite tendentious interpretations. Whilecontroversial interpretations can of course be correct, typically the evidentialbar for such claims needs to be much stronger, otherwise you risk arguingagainst a straw man rather than the actual position you are trying to criticise.I felt that a common pattern of reasoning offered was comparing two positions,and then concluding that since one is false, the other must be true, howeverthere are often many less contentious positions still available between the two.Some non-exhaustive examples of this are below:This is an interesting project, and I offer this feedback in the spirit ofimproving the overall piece once it is completed.The Dean's decision to invite re-enrolment[11] On 10 January 2019 an advisor in the School of Graduate Research wrote toMs Roe. The letter advised her that the Post-Graduate Research Committee hadconsidered the examiners' reports of her thesis and concluded it was not yet of asufficient standard to proceed to completion of the degree. The letter confirmed thatMs Roe had been sent the examination reports by her supervisor in December 2018 inorder to provide her with a timely understanding of the outcome of the examinationprocess.[12] The 10 January letter went on to invite Ms Roe to re-enrol, revise and submither thesis for re-examination in these terms:You are now invited to re-enrol, revise and submit your thesis forre-examination. If you intend to accept this invitation to re-enrol, please notethe following conditions:1. You must complete the re-enrolment process within one month of the dateof this letter. This requires you to enrol for additional months beyond thoseyou have already completed enrolment for.2. You must resubmit your thesis after a minimum period of six monthsenrolment.3. You will be required to pay normal tuition fees for the additional enrolmentperiod.Your six month re-enrol, revise and re-submit period could commence fromeither 1 January or 1 February 2019, whichever is your preference. As your2018 fees cover the period of 1 May 2018 - 30 April 2019, you will only berequired to pay fees for the additional months to take you up to the minimumsix months of re-enrolment. If you choose not to re-enrol, or any of the aboveconditions are not met, please note that you will not qualify to complete yourMPhil degree.The areas in which the thesis requires revision are outlined in the externalexaminers' reports, which are held by your Chief Supervisor.Please complete and return the enclosed form indicating your decision in thismatter.[13] As will be evident from this exchange, while the University was invitingMs Roe to re-enrol for a minimum period of six months, it was prepared to allow herre-enrolment to commence on 1 January 2019 and credit her with the remaining timeof her then existing enrolment—to 31 April 2019. In practical terms the effect of re-enrolment as offered would have been to extend Ms Roe's period of study, andresponsibility for the appropriate tuition fee, by two months.77 That is, the period between 1 May 2019 and 30 June 2019.[14] Enclosed with the 10 January letter was a form entitled "MPhil Resubmission".The form asked Ms Roe to tick an appropriate box and return it to the University. Theform was in these terms:[15] The next day, 11 January 2019, the Dean of the School of Graduate Researchalso wrote to Ms Roe. That letter confirmed, on the basis of the examiners' reports,that Ms Roe's thesis was not acceptable in its present form and reiterated the invitationto revise and resubmit for re-examination after a re-enrolment for a minimum periodof six months.[16] Although no reference is made in the Dean's letter to the University'sRegulations governing conferral of the degree, Ms Roe and the Committee wereagreed that the decision was made under reg 25 of the University's Calendar.Regulation 25 provides that on the basis of the final reports of the examiners the Deanmay determine:(a) that the thesis be accepted in its present form as fulfilling therequirements for the degree of Master of Philosophy, or(b) that the thesis be accepted as fulfilling the requirements for the degreeof Master of Philosophy subject to the candidate undertaking minoramendments and/or correcting typographical errors as required by theexaminer, to the satisfaction of the chief supervisor, or(c) that the thesis be accepted subject to the candidate completingsubstantial amendments to the satisfaction of the examiner or the chiefsupervisor, provided that these amendments are not so substantial asto necessitate re-submission and are completed within ten weeks, or(d) that an oral examination of the candidate be conducted, and a furtherreport, based on the oral examination, be provided by the examinersto the Dean of Te Mata Kairangi School of Graduate Research, or(e) that the thesis is not acceptable in its present form and will be returnedto the candidate, who may revise it and re-submit it for examinationafter a re-enrolment for a minimum period of six months, or(f) that the candidate has failed to meet the required standard and that nodegree be awarded.[17] Self-evidently, then, the Dean's conclusion based on the examiners' reportswas to invite Ms Roe to re-enrol and re-submit her thesis after a minimum period ofadditional study under reg 25(e), rather than approval of the thesis under reg 25(c).Ms Roe appeals the Dean's decision to the Research Committee of the University[18] On the same day the Dean notified Ms Roe of her decision, Ms Roe exercisedher right to appeal that decision to the Research Committee of the University.[19] In a letter of 29 January 2019, the Research Committee declined Ms Roe'sappeal. The letter set out the reasons for the decision in these terms:In considering your appeal the sub-committee has determined that the Deanof Te Mata Kairangi School of Graduate Research reached an appropriatedecision that was consistent with the examiners' feedback on your thesis, andmade in accordance with the University's regulations. As a result, the Sub-committee determined that your appeal could not be upheld and the decisionof Dean of Te Mata Kairangi School of Graduate Research should stand. TheSub-committee also discussed the issues you raised in your correspondence of21 January 2019 regarding timeframes for enrolment and examination. Afterdiscussion of the matter they did not agree with your interpretation of theregulations and subsequent assertion that there had been a breach in your case.Your options are, therefore, as outlined in the letter sent to you by the Te MataKairangi School of Graduate Research on 10 January 2019. Please confirmyour decision with them.Ms Roe complains to the Vice-Chancellors Committee about the University's conduct[20] On 29 July 2020, Ms Roe sent an email to the Committee indicating thatapproximately one year earlier she had complained to it about the University's conductbut had not received a response.[21] The following day Mr Chris Whelan, the Chief Executive of the Committee,advised Ms Roe that the Committee would only look into a matter where it fell withinthe Committee's "authority"; that is, where the complaint concerned a matter ofacademic quality or academic integrity. Mr Whelan noted that Ms Roe's complaintmight fall within the Committee's authority, but he would be unable to form a view onthat without receiving "the facts". Accordingly, he invited Ms Roe to provide him witha summary of her complaints against the University, and to provide anycorrespondence or report outlining its decision and the reasons for it. Mr Whelanindicated that he would use Ms Roe's response to determine, firstly, if the complaintdid fall within the Committee's authority and, secondly, if the matter appeared to besomething which the Committee should investigate.[22] On 31 July 2020, Ms Rowe provided Mr Whelan with the detail of hercomplaints. She advised that in 2018 she enrolled in a Masters of Philosophyprogramme at the University. On the basis of two reports of external examiners, herthesis was to have substantive changes "signed-off" by her supervisor or an examinerwithin 10 weeks of the outcome of examination.8 Instead, the University refused tohave her supervisor sign-off on her work and refused to allow an examiner to sign-offon it. Instead, the University re-enrolled her for an extended period in 2019 and thenawarded her a "fail" for the degree.[23] Ms Roe went on to advise that the Dean was required to base the outcome ofexamination on the reports of the examiners. She claimed there was no basis in thereports of examiners for any outcome other than one under reg 25(c), which wouldpermit approval of the thesis by either a supervisor or one of the two examiners aftersubstantial amendments taking not more than 10 weeks. In support of thisinterpretation of the reports, Ms Roe noted that neither examiner:(a) said in their report that re-enrolment was required;(b) said in their report that re-examination was required;8 As I understand Ms Roe's use of the term "sign-off", she refers to reg 25(c) of the University'sMPhil Regulations, which are noted at [16].(c) said in their report that the University "might like to reject the report ofthe examiners and invite the examiners to write another report at a laterdate";(d) said in their report that 6 months' additional work was required;(e) returned the thesis to the candidate (a reference to the language ofreg 25);(f) "said or did anything in their reports or their actions" for there to be abasis for the University to require re-enrolment and additional feespayments and another round of examination; and that(g) the University refused to have Ms Roe's supervisor sign-off the updatedthesis and instead demanded that she re-enrol for a further six monthsand pay tuition fees for the extended period of enrolment.[24] Ms Roe went on to advise Mr Whelan that she had supplied a substantivelyupdated thesis on 5 February to her supervisor for sign-off. The supervisor refused tosign the thesis off. She then supplied a substantively updated thesis on 24 February toher supervisor and the Dean to get it to the examiners for their sign-off. The Dean alsorefused this request. Ms Roe's complaint to Mr Whelan concluded by saying:Waikato refused to get my work to examiners, to allow me to work tointernational standards, refused to sign off on my Degree when that is whatreports of external examiners required them to do.[25] In support of her complaint Ms Roe provided Mr Whelan with the letters fromthe Dean and the Post-Graduate Research Committee of 10 and 11 January 2019, andthe Research Committee's letter of 30 January declining her appeal.[26] A few days later, on 31 July 2020, Ms Roe also sent Mr Whelan the examiners'reports.Mr Whelan's decision on Ms Roe's complaint[27] In an email of 6 August 2020, Mr Whelan advised Ms Roe of the outcome ofhis consideration of her complaint.9[28] He acknowledged that at least at one point the University appeared to haveerroneously mixed up the terms "MPhil" and "PhD", but on the face of the materialsMs Roe had provided (in particular the content of the reports themselves), Mr Whelandid not see anything that indicated "any substantive issues arising in relation to eitheracademic quality or academic integrity".[29] Mr Whelan went on to note that the views of the two thesis examiners wereconsistent in finding that the thesis was not at an adequate standard for achieving theMPhil degree. And the invitation given by the Dean to re-enrol for a further six monthsand re-submit was, in Mr Whelan's view, "fully in line" with the published regulationsof the University, and normal practice in New Zealand universities generally. Finally,Mr Whelan noted that it was similarly normal practice for New Zealand universitiesto require re-enrolling students to pay additional fees where the period of study wasextended.[30] On those grounds, Mr Whelan concluded that there was nothing that the Vice-Chancellors Committee would investigate. He advised Ms Roe that if she wasunsatisfied with his decision there was a right of appeal to the Ombudsman.Statutory context and relevant policiesThe University's Calendar and the MPhil degree Regulations[31] While the Dean's decision to decline to award Ms Roe with the MPhil andinvite her to re-enrol for a further period of study is not directly in issue in this9 In his affidavit of 5 February 2021 Mr Whelan detailed the various factors that fed into his decisionnot to recommend the Committee investigate Ms Roe's complaint further. While those detailedreasons are an amplification of the brief reasons set out in his email to Ms Roe of 6 August, I havepreferred to focus in my decision on the reasons set out in Mr Whelan's email which, in my view,provided Ms Roe with the pith of his reasoning. They are also consistent with the greatly amplifiedexplanation for his decision set out in his affidavit.proceeding, it is important context when it comes to the assessment of Ms Roe'schallenge to the decision of Mr Whelan to decline to investigate her complaint.[32] The University's Calendar contains a set of Regulations setting down therequirements for the award of the MPhil degree. Those Regulations are said to beexplicitly administered by the Dean of the School of Graduate Research and theUniversity's Post-Graduate Research Committee.[33] Under reg 24, the Dean appoints two examiners who are external to theUniversity and not directly connected with the candidate or the candidate's research.At least one of those external examiners needs to be based overseas. In the case ofwhat is referred to in the Regulations as "divergent examination outcomes", the Deanis required to appoint a third examiner.[34] Under reg 25, the Dean is provided with the power to make a "final decisionon the award of the Degree". And as noted already, the regulation goes on to providethat the Dean has the power to determine which of five outcomes are appropriate basedon the results of the examiners' final reports. In this case the two options in focus arereg 25(c), which Ms Roe says was the only outcome open to the Dean on the reportsof the examiners, and reg 25(e), requiring resubmission after a minimum period offurther study, which is what the Dean and the Research Committee of the Universitydetermined as the appropriate outcome.Statutory constitution of the Vice-Chancellors Committee[35] The Committee is a body corporate that was originally established under s 240of the Education Act 1989 and was continued by s 311 of the Education and TrainingAct 2020. It is made up of the Vice-Chancellors of New Zealand's eight universities.They are assisted in the administration of the Committee's affairs by a range ofsub-committees, working groups and an employed secretariat including aChief Executive.[36] Most of the provisions of the new 2020 Act, including those provisions dealingwith the Committee, came into force on 31 July 2020. Ms Roe's complaint was madeto the Committee on or before the commencement of the new Act, and while theEducation Act 1989 still applied. Mr Whelan's decision of 6 August 2020 was madeafter the new regime came into force. Despite this, other than noting the transitionbetween the relevant enactments, Ms Roe did not submit that anything turns on theissue and she was right to do so. The provisions of the Education Act 1989 dealingwith the functions and powers of the Vice-Chancellors Committee are carried overwithout any changes of consequence into the 2020 Act.10[37] Part 4 of the new Act deals with tertiary education and vocational educationand training. The purpose of pt 4 is set out in s 251, and includes "regulating learningand providing quality assurance for learning, including qualifications[and]assessment standards".11 Pursuant to s 253(c), the Vice-Chancellors Committee isthe body primarily responsible for quality assurance matters in respect of universities.[38] Section 256 provides that universities may charge fees for domestic students.Under s 256(5), a domestic student may not be enrolled or continue to be enrolled ina programme of study unless they have paid to the University's Council the tuition fee.[39] Mr Smith for the respondent submits that at the time of Mr Whelan's decisionon Ms Roe's complaint, the Committee's statutory functions included: 12(a) the establishment of inter-university course approval and moderationprocedures; and(b) the exercise, in relation to universities, of the powers of theNew Zealand Qualifications Authority under certain provisions of theEducation and Training Act relating to the approval of academicprogrammes, and the granting of accreditations to provide approvedacademic programmes.[40] These functions mean that, expressed in general terms, the Committee is thebody primarily responsible for quality assurance matters for New Zealand10 Compare ss 312 and 313 of the 2020 Act with ss 241 and 242 of the 1989 Act.11 Education and Training Act 2020, s 251(e).12 Education and Training Act 2020, ss 312, 453. The latter section grants the Vice-ChancellorsCommittee the powers of NZQA under s 439 to 448, 458(a)–(b) and 459 of the Education andTraining Act.universities. It is the statutory body charged with ensuring systemic regulation thatachieves uniform minimum standards in relation to moderation procedures, courseapproval and academic assessment.[41] While the systemic functions and powers of the Committee may properly beengaged by an individual bringing relevant issues to the attention of the Committee,the Committee does not act as a final appellate body in relation to complaints byindividuals about the individual award (or otherwise) of academic qualifications by auniversity. The Education and Training Act makes a clear distinction between the role,powers and functions of individual universities, and those of the Committee.13Individual concerns regarding the award of degrees by a particular institution are forthe institution to consider under its powers, subject to any appropriate internal appealprocess and, ultimately, subject to supervision by the High Court.[42] This high-level oversight, and the distinction between systemic regulation andappeals concerning individual academic achievement is reflected within theCommittee's "Policy on Complaints by Students of Academic Wrong-doing", to whichI now turn.Committee's Student Complaints Policy[43] In August 2017 the Committee adopted a policy on claims by students ofacademic wrongdoing within universities (the Student Policy).[44] The Student Policy is not a requirement under the Education Act or theEducation and Training Act. It therefore has no formal legal status.14 Rather, it isintended to provide guidance to students and universities on the types of complaintsthe Committee can consider given the limits on its statutory functions and powers.Indeed, I observe that to the extent the Student Policy might purport to confer on the13 For example s 266 of the Act states "The object of the provisions of this Act relating to institutionsis to give them as much independence and freedom to make academic, operational, andmanagement decisions as is consistent with the nature of the services they provide, the efficientuse of national resources, the national interest, and the demands of accountability." Sections 282,283, and 284 go on to outline the powers of institutions and councils, including the power toprovide courses of study or training, admit students (including provisionally and ad eundemstatum) and grant awards.14 This is not to say, though, that the Policy does not constrain the Committee at all.Committee a wider power it would be subject to challenge on the basis the Policy wasultra vires and unlawful.[45] The Student Policy notes that the Committee can only investigate and act onclaims where they fall within the Committee's statutory functions.15 Clause 3(a) of theStudent Policy then goes on to say that a claim for academic wrongdoing should bemade to the Committee "only where the student can provide evidence that":(a) the appropriate complaints processes have been followed and fullyexhausted (there is no issue that Ms Roe did this);(b) all those involved in complaints and appeals at the university inquestion are involved in the wrongdoing (arguably, based on Ms Roe'sallegations this requirement may have been met); and(c) finally:The wrong-doing is being perpetrated at an organisational leveland there is a strong case for Universities New Zealand [theVice-Chancellors Committee] to bypass individual universitycomplaint and appeal processes is necessary [sic] to protect theinterests of all students pursuing a particular qualification.(emphasis added)(Again, taken at face value, Ms Roe's allegations of corrupt practiceboth in the award of her degree and the demand for bribe paymentscould arguably have met this requirement.)[46] Clause 3(b) of the Student Policy then provides:[The Committee] will consider and, if appropriate, investigate claims ofwrong-doing where all the following criteria are met:i. The claim is made by a student of the university to which theallegation relates. "Student" means any existing or former personenrolled on a full-time or part-time course of study at the university inquestion.15 Student Policy, cl 2(c).ii. The disclosure concerns conduct capable of being academicwrongdoing within the statutory authority of [the Committee]. Someexamples of what [the Committee] would consider wrongdoinginclude:• fraudulent awarding of marks or grades to students or awarding ofmarks or grades that have not been fairly gained by students;• failure to follow policy and regulations in making decisions wherethe intent is to award marks that have not been fairly gained bystudents;• misrepresentation of the level of academic preparedness of studentsfor the course to which they are admitted;• receiving money or other gifts in return for award of marks that havenot been fairly gained.iii. There is sufficient evidence provided or able to be provided with theclaim that the Executive Director believes there is a prima facie casefor further investigationiv. The claim regards an academic programme or qualification offered bya New Zealand university.v. The claim involves an allegation that one or more of the CUAP-imposed conditions applying to an approval of or accreditation to offeran academic programme have been breached or not met.[47] Clause 6 of the Student Policy regulates the process for handling student claimsonce received. It provides that after considering the criteria in cl 3 of the StudentPolicy, the Chief Executive, "and one other person (usually the Deputy Chair ofCUAP) will determine whether it is appropriate for [the Committee] to furtherinvestigate the claim".16 Clause 6 goes on to provide that the Chief Executive and theadditional decision-maker may consider the process followed by the relevantuniversity and findings from any review carried out by the university in determiningif further investigation is warranted. Only where a further investigation is foundwarranted does the Committee itself then investigate the matter.17 However, if theChief Executive and additional decision maker do not consider it appropriate for theCommittee to further investigate the claim, they may advise the complainant that the16 The CUAP is a sub-committee of the Vice-Chancellors Committee established to administer theVice-Chancellors Committee's statutory functions, and is called the Committee of UniversityAcademic Programs (CUAP).17 Student Policy, cl 6(b).Committee declines to investigate the claim, and that the complainant can pursue thematter through the Ombudsman's Office or another appropriate authority.18Parties' submissionsMs Roe's case[48] The key plank of Ms Roe's case is that based on the examiners' reports, theonly decision open to the Dean and the Research Committee concerning her thesis wasunder reg 25(c); that is, the thesis should have been accepted subject to Ms Roecompleting substantial amendments to the satisfaction of her supervisor within10 weeks.[49] Ms Roe went on to argue that the examiners' reports themselves nowhere statedthat the examiners required Ms Roe to revise and resubmit the thesis for examination,and certainly did not record that she was required to re-enrol for a minimum period ofsix months or pay any additional tuition fees.[50] On this basis, Ms Roe contends that the decisions of the University and theDean were unlawful, and that the University's request for fees in the event of re-enrolment was a demand for a bribe payment (on the basis that the examiners' reportsrequired the approval of her thesis pursuant to reg 25(c)). Ms Roe also says that theUniversity's recording of a "fail" mark for her degree is fraudulent, because it is anoutcome which is not based on the examiners' reports.[51] She also contended that the University's refusal to have her supervisor"sign-off" on her substantially revised thesis in early February 2019, and thesubsequent refusal later that month to refer her revised thesis to the external examiners,was inconsistent with the requirements of reg 25(c). So again, the University refusedto follow its own regulations on this matter of process.[52] Ms Roe says these complaints went to the heart of academic integrity andacademic quality and, therefore, the Committee's statutory functions and powers, and18 Student Policy, cl 6(c)(i) and (v).the Committee's Student Policy, were fully engaged. Mr Whelan's decision on hercomplaint was affected by the same errors as that of the University.[53] Ms Roe does not take issue with the Student Policy itself. She takes issue withits application. In support of that challenge, she relies on the three grounds ofcomplaint19 made in support of her claims against the University. She says theChief Executive wrongly determined that there was no basis to investigate herallegations against the University.[54] During the hearing of the application Ms Roe developed a number ofarguments that I now set out, although at times their link to her pleaded claims wastenuous:(a) Ms Roe argued that the cover page on each of the examiners' reportsthat refer to examination for a PhD rather than an MPhil indicate thatthe examiners were misled as to the correct status of her thesis andassessed it against the wrong degree requirements. She submitted thata reading of the examiners' reports themselves indicate that thesubstantial revisions recommended by the examiners were intended bythem to bring her thesis up to PhD standard. In essence, she says therewas a radical error on the part of the assessors due to an administrativeerror by the University and that, in effect, her MPhil thesis has neverproperly been assessed as such.(b) Ms Roe's industry had been such that she had been able to complete a55,000 word MPhil thesis between 1 May 2018 and October, when itwas submitted for examination. Given the examiner's reports wereavailable in December 2018, that provided her with approximatelyfour months to make any revisions needed to have the thesis"signed-off" by her supervisor pursuant to reg 25(c). She says sherevised the thesis in light of the examiners' comments and sought toobtain her supervisor's sign-off (and, presumably, the award of theMPhil degree) twice in February 2019. But the University refused to19 That is, fraud, failure to follow regulations and demands for a bribe payment.permit her supervisor to give her sign-off, and then refused Ms Roe'srequest to have the revised thesis referred to the examiners forre-assessment. Instead, the University demanded that she re-enrol for afurther six months and pay a fee — all this against a backdrop of havingfour further months left of her original enrolment to run and having paidfees for a full year. Although she did not articulate it this way, I tookher point to be that she was deprived the benefit of a quarter of the timeavailable to her to complete her degree, and the value of the fees thatshe paid for a full year while being faced with a demand for a furtherminimum of six months' tuition fees.(c) While Ms Roe accepted when I asked her at the hearing that her thesiswas not in a state appropriate for the award of an MPhil, she contendedthe only clear interpretation of the examination reports was neverthelessthe approval of her thesis under reg 25(c). Amplifying this submission,she went on to contend that the proper interpretation of the examiners'reports is such that it was not open to the Dean or the University'sResearch Committee to make a decision under reg 25(e). Neither of thereports make any mention of re-enrolment for a minimum period ofsix months. Neither of the reports make any reference to a requirementto pay further tuition fees. On this basis, the "demand" (as Ms Roe putit) for a further six month's tuition fee, when the examiners' reportsplainly indicated the degree should be accepted under reg 25(c),amounted to a demand for a bribe payment.(d) In a very literal construction of reg 25(e), Ms Roe contended that thewords "[the thesis] will be returned to the candidate" meant that thehard copy bound manuscript which she presented to the University forthe assessment of the examiners needed to be physically returned to her,but the University had failed or refused to return the hard-copymanuscript, thus demonstrating a failure to follow its own regulations.(e) All of these points, but particularly the demand for payment when therewas no honest or legitimate basis for one, and the failure to accept herthesis despite the plain terms of the examiners' reports requiring thedegree to be confirmed under reg 25(c), amounted to a fundamentalcrisis for the academic integrity not only of the University but for alluniversities throughout New Zealand. Actions such as those of theUniversity were not unique, and the standing of New Zealanduniversities in the international academic community was now at rockbottom. Mr Whelan's refusal to refer her complaint to the Committeefor investigation was part of the problem affecting the university sector.(f) Mr Whelan was required under the Student Policy to consider hercomplaint with another person but did not do so. That error wasmaterial because the presence of another person ensures independenceand operates as a check on the decision-making of the Chief Executive.(g) Finally, in relation to relief, Ms Roe alluded to the possibility of someform of private prosecution of Mr Whelan but accepted that was notlikely to be within the Court's power to order. Instead, she sought anorder for Mr Whelan's removal from office and orders preventingNew Zealand universities from refusing to give thesis work by post-graduate students to external examiners. I took her also to seek adeclaration that requiring fees to be paid by a student for unnecessaryre-enrolment was a corrupt practice.[55] Although a number of Ms Roe's points appear to touch on matters of concernfor her involving the University of Auckland and the University of Otago, shehelpfully confirmed those matters are not pursued in this proceeding. She advised methat she had separate judicial review proceedings on-foot against the University, andboth the University of Auckland and the University of Otago.20 Those additionalmatters will be resolved within the context of her other proceedings.20 See the recent judgment of Roe v University of Auckland [2021] NZHC 368.The Committee's case[56] For the Committee Mr Smith submitted Ms Roe's application must fail becausethere was no reviewable error in deciding not to further investigate Ms Roe'scomplaint. Instead, Mr Whelan's decision was inevitable:(a) the Committee may only investigate complaints relevant to its statutoryfunctions and powers, relevantly including academic wrong-doing;(b) Ms Roe's core allegations that the University requested a bribe paymentand failed to follow regulations in relation to her thesis was notsupported by the material submitted by her to Mr Whelan forconsideration. Instead that material showed:(i) a reasonable assessment by the Dean, on the basis of theexaminers' reports, and in accordance with the University'sMPhil Regulations, that Ms Roe's thesis was not in anacceptable form (an assessment upheld by the ResearchCommittee on Ms Roe's appeal of the Dean's decision);(ii) the provision of an opportunity to resubmit the thesis after aperiod of enrolment to complete the necessary work was againconsistent with the University's regulations (which are in turnconsistent with the regulations of other New Zealanduniversities);(iii) a requirement, in accordance with s 256 of the Education andTraining Act, that fees would be paid in relation to anyadditional period of enrolment.The issues for determination[57] I pause at this point to note that many of Ms Roe's grounds of review seemedto be more a reflection that she was — unsurprisingly — unhappy with the finaldecision not to investigate her complaint. But to succeed in judicial reviewproceedings, applicants must broadly point to errors of law or processes that haveaffected the relevant decision or the exercise of a power. Mere unhappiness with thesubstantive outcome of a decision will not suffice.[58] And of course, context is everything in law.21 The facts of each case will —and must — have a bearing on deciding whether there is a reviewable error.[59] The decision of the University not to award Ms Rowe her an MPhil is in thecontext of this proceeding a question of fact underlying her challenge to theCommittee's decision. There are three pivotal aspects of Ms Roe's criticisms of theUniversity's decision-making process that inform the outcome of her reviewapplication. Those issues are:(a) Did the examiners mistakenly assess Ms Roe's thesis against therequirements of the PhD rather than the MPhil?(b) Is Ms Roe's interpretation of her thesis examiners' reports tenable?(c) Who had the power of decision under reg 25: the Dean or theexaminers?[60] After considering these questions I will turn to consider the Committee'sdecision and process under the following headings:(a) Was there a reviewable error in Mr Whelan's decision to decline toinvestigate Ms Roe's claims further?(b) Was the appropriate decision-maker involved on behalf of theCommittee, and if not, does anything material arise from the error?(c) Should any relief be ordered and, if so, what form of relief?21 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (HL) at [28].AnalysisFirst issue: did the examiners mistakenly assess Ms Roe's thesis against therequirements of the PhD rather than the MPhil?[61] The factual foundation for Ms Roe's submission that her thesis was assessedagainst the requirement for the wrong degree appears to be a reference to a clear erroron the cover-page to both examiners' reports. Both cover pages have the followingwords at the top: "Doctoral Examination Information".[62] It is not clear whether the cover pages, which include the emblem for theUniversity of Waikato, were in fact part of the examiners' reports, or were added bythe University at a later date. It is likely the cover pages were added later by anemployee of the University because the reports are, appropriately, anonymized.Regardless, nothing turns on that question.[63] Ms Roe went on to submit that the examiners' error was not limited to thewords on the cover page. She contended that it was plain from the contents of thereports themselves that the examiners had mistakenly assessed her for a PhD, and thatthe detailed comments and criticisms they had made of her thesis were intended bythem to bring her paper up to the level of a PhD. In that way, she would say, the mistakewas fundamental to their assessment of her thesis. The implication of Ms Roe'sargument is that her MPhil has never been assessed against the appropriate degreerequirements due to the error.[64] I have no hesitation in rejecting this aspect of Ms Roe's submission. Havingreviewed the contents of the reports themselves (as opposed to the cover sheets), thereis nothing in them at all to indicate the examiners misunderstood the level of degreethey were assessing Ms Roe's thesis against. Indeed, a plain reading of the reportsleads to precisely the opposite conclusion. Notwithstanding the erroneous referenceon the cover page to a "doctoral examination", the content of both reports indicate thatthe examiners clearly understood that Ms Roe's thesis had been submitted to them forexamination against the requirements of the MPhil.[65] For example, the New Zealand examiner's report notes in its first line:Kelly Roe, MPhil Thesis [66] In the first paragraph of the report, the examiner goes on to remark:The breadth of the thesis makes a sufficiently comprehensive coverage of thesubject matter very difficult within a masters length work(emphasis added).[67] The overseas examiner's report also indicates the examiner was aware theywere examining a masters-level degree. The opening line of the report is:Feedback regarding MPhil Thesis.(emphasis added).[68] Given the examiners' comments, I have no difficulty rejecting Ms Roe'ssubmission that there has been a material error on this point.[69] It follows that this underlying factual contention must be dismissed.Second issue: is Ms Roe's interpretation of her thesis examiners' reports tenable?[70] Given the way she presented her case, Ms Roe's application for review standsor falls on the proper interpretation of the examiners' reports.22 If as she contends theonly option available to the Dean based on the reports was to accept her thesisconditionally under reg 25(c), her challenge to Mr Whelan's decision might besustainable. Equally, if Ms Roe's interpretation of the reports is untenable, her othercriticisms of the University's conduct and, therefore, Mr Whelan's assessment of it,cannot be sustained.23[71] The views of the examiners were, as Ms Roe put it, "convergent" in findingthat her thesis was not of an adequate standard. The New Zealand examiner said thequality of language, expression and general presentation of the thesis was poor. Both22 While nothing in this judgment constitutes a finding in relation to the appropriateness of the Deanof Postgraduate Research's decision under reg 25, that issue is nevertheless the cornerstone ofMs Roe's challenge to the ViceChancellors Committee's decision to decline to investigateMs Roe's complaint against the University of Waikato.23 If it was open to the Dean to decline to approve Ms Roe's thesis under reg 25(c), the invitation forher to re-enrol under reg 25(e), and the obligation to pay tuition fees, cannot be said to involve afailure by the University to follow its own regulations, or a demand for a bribe payment.examiners went on to conclude that significant changes would be needed before thethesis would be acceptable or make an original contribution to academic scholarship.With respect to Ms Roe, I think it is fair to conclude that the level of revisions signalledin the reports went well beyond the frame of reference contemplated by reg 25(c) and"sign-off" by Ms Roe's supervisor.[72] More problematic still for Ms Roe is that reg 25(c) requires the Dean to resolvethat the thesis should be "accepted subject to the candidate completing substantialamendments to the satisfaction of the examiner or chief supervisor, provided that theseamendments are not so substantial as to necessitate re-submission and are completedwithin ten weeks" (emphasis added). The examiners' reports noted a wide range offundamental problems with the thesis. Neither examiner suggested the thesis shouldbe accepted by the Dean, whether provisionally under reg 25(c) or otherwise. Andgiven the scope of the issues identified in the reports, the amendments also appear tobe far more substantial than reg 25(c) envisages. Given the contents of the reportsthemselves, it is difficult to see a decision by the Dean to approve the thesis underreg 25(c) could have been open. Such a decision might well have resulted in the verycriticisms Ms Roe now levels at the respondent in relation to the maintenance ofacademic integrity and standards.[73] As I have noted already, given I am unable to accept Ms Roe's interpretationof the examiners' reports, the further criticisms she makes that were contingent on thatinterpretation fall away. But it is nevertheless useful to address Ms Roe's argument infull.[74] At first blush, there could be an argument that the University's invitation toMs Roe in early January 2020 to re-enrol for a minimum period of six months deprivedher of the benefit of tuition and the fees she paid up to the end of April 2020. As noted,Ms Roe enrolled on 1 May 2018 and had a year to complete her degree. Her thesis wassubmitted to examiners in October 2018, and their reports were made available inDecember of the same year. One might consider that with the benefit of a further fourmonths available to her it would have been appropriate for Ms Roe to have used thattime to undertake any substantial revisions to the thesis for resubmission, and therequirement to re-enrol for a further six months was, therefore, unreasonable.[75] There are three difficulties with that argument. The first is that it does notreflect Ms Roe's complaint to the Committee, or the case she has presented to theCourt. Ms Roe does not accept that the University was lawfully permitted to requireany re-enrolment under reg 25(e), given her interpretation of the examiners' reports.Rather, she says that the only decision open to the Dean was under reg 25(c), and as aresult the only remaining step after substantial revisions was for her supervisor to give"sign-off" to her thesis and the award of the MPhil degree. Ms Roe says, at most, therevisions contemplated would only require 10 weeks as required by reg 25(c).[76] So, Ms Roe does not argue she has been deprived of the full benefit of herone-year MPhil; her complaint relates to the substantive outcome of the examinationprocess and the requirement for her to re-enrol rather than a conditional approval ofher thesis.[77] The second difficulty is that the University was not inviting Ms Roe to enrolfor an additional six-month period. That is clear from the terms of the letter from theSchool of Graduate Research to Ms Roe of 10 January 2019, set out at [11]–[12]above. The invitation to re-enrol indicated that Ms Roe could if she wished commencethe six month period from 1 January 2019 and that her 2018 fees would cover theperiod of her re-enrolment to the end of April 2019. As a result, the net effect of theinvitation to re-enrol would have been to extend Ms Roe's period of study andexamination by, at most, two months only, and she would receive the full credit andbenefit of the period of her original enrolment and tuition fees.[78] Third, while the invitation was to re-enrol for a period of six-months, there wasnothing in that invitation that would have prevented Ms Roe from re-submitting herthesis for re-assessment before the expiry of the enrolment period. That is evident fromthe fact that she had been able to submit her thesis to examiners in October 2019 whenshe had only enrolled in May of that year.[79] In light of these realities, and in particular the content of the examiners' reportsthemselves, it is rather surprising that Ms Roe preferred to instigate reviewproceedings in the High Court rather than use her time to bring her thesis up to anacceptable standard. That said, Ms Roe made it clear during the hearing that she is notfocussed on the eventual award of the MPhil; the purpose of her proceedings is toexpose improper and corrupt academic practices, both at the level of New Zealanduniversities, and the Committee.[80] Ms Roe's contention that the only decision open to the Dean was theconditional approval of her thesis is unsustainable, especially when viewed against anobjective assessment of the findings of the examiners. Contrary to her submission,based on the evidence before me I consider that it was plainly open to the Dean andthe Research Committee to decline to accept Ms Roe's thesis and to invite her tore-enrol for a period of study under reg 25(e).Third issue: who had the power of decision under reg 25? The Dean or the examiners?[81] Ms Roe's application for review proceeded on the basis that it was theexaminers' reports that determined whether or not a thesis was accepted underreg 25(a)-(e).[82] However, this misunderstands the role of external examiners with that of theDean under the University's Regulations.[83] The Regulations require that external examiners provide examination reportson a candidate's thesis.24 The Regulations also make clear that the decision whether toaccept a thesis for the award of the MPhil under reg 25 is that of the Dean.25 While theDean's decision is clearly circumscribed by the examiners' reports, it is not for theexaminers to determine which of the outcomes in regs 25(a)-(e) are to follow. Thatquestion is reserved for the Dean alone. In essence, the examiners examine; that istheir area of expertise. They do not, after examining, decide what then should be donewith the thesis.[84] This misunderstanding reveals a further weakness with Ms Roe's complaintsto the Committee, and on review of that decision to this Court. The splitresponsibilities contemplated by the University's Regulations explains the absence ofany reference to reg 25 within the examiners' reports. While Ms Roe strongly argued24 University of Waikato Calendar, Regulations for MPhil degree, reg 24.25 University of Waikato Calendar, Regulations for MPhil degree, reg 25.the absence of any reference in the reports to a requirement for re-enrolment orpayment of fees was fatal to the Dean's decision under reg 25(e), the logic of her ownargument is fatal to her claim in this proceeding. That is because the reports do notmention the requirements of reg 25(c) either.Fourth issue: was there a reviewable error in Mr Whelan's decision to decline toinvestigate Ms Roe's claims?[85] Given I have found on the evidence before me that:(a) the examiners did not mistakenly assess Ms Roe's thesis against therequirements of the PhD;(b) Ms Roe's interpretation of her thesis examiners' reports isunsustainable, and the Dean's decision under reg 25(e) was open to her;and(c) it was the Dean rather than the examiners who had the power ofdecision under reg 25—I can see no error in Mr Whelan's decision of 6 August 2020. As Mr Whelan put it, onthe face of the material provided to him by Ms Roe there was nothing to indicate anyissue concerning academic quality or integrity had arisen, or that the invitation tore-enrol was a demand for a corrupt payment.[86] I accept that the material provided to Mr Whelan showed:(a) a reasonable assessment by the Dean, on the basis of the examiners'reports, and in accordance with the University's Regulations, thatMs Roe's thesis was not in an acceptable form (an assessment that wasultimately upheld on appeal by the University's Research Committee);(b) the provision of an opportunity to resubmit the thesis for a furtherperiod of enrolment to complete the necessary work was againconsistent with the University's Regulations; and(c) the requirement, in accordance with s 256 of the Education andTraining Act, that a fee would be paid in relation to any additionalperiod of enrolment.[87] Measured against the statutory functions of the Committee, and the scope ofthe Student Policy, I can find no error in the approach adopted by Mr Whelan to thedecision which he reached on Ms Roe's complaint.[88] I find that in determining whether the Committee ought to carry out aninvestigation into Ms Roe's complaint, Mr Whelan addressed himself to the correctquestion, being whether the materials provided by Ms Roe in support of her complaintdisclosed any conduct capable of being academic wrongdoing within the statutoryauthority of the Vice-Chancellors Committee. In undertaking that consideration,Mr Whelan did not take into account irrelevant considerations or fail to take intoaccount mandatory considerations. And nor does Ms Roe say Mr Whelan did so.[89] While Mr Whelan gave a detailed account of the reasons for his decision inaffidavit evidence, I find his succinct but informative email of 6 August 2020 toMs Roe an adequate outline of the reasons for his decision. It is clear that Mr Whelanhad read and considered the examiners' reports, and their conclusions on Ms Roe'sthesis. He also had regard to the outcomes available to the Dean under reg 25. Havingconsidered those matters, and Ms Roe's detailed allegations of corruption and fraud,he concluded that it was open to the Dean to determine to decline to award the degreeand invite re-enrolment under reg 25(e). That decision was plainly open to him in myview.[90] Overall, Mr Whelan concluded that the University had followed its ownRegulations, and that its Regulations were reasonable.26 Those conclusions wererelevant to the extent Ms Roe's complaints concerned conduct capable of beingacademic wrongdoing within the statutory purview of the Committee.[91] I conclude that there was no reviewable error affecting Mr Whelan's decision.26 The University's MPhil Regulations are broadly consistent with equivalent regulations atVictoria University of Wellington, and the University of Canterbury.Fifth issue: did the appropriate decision-maker make the decision not to investigateMs Roe's complaint and if not, does anything material arise from the error?[92] Clause 6(a) of the Student Policy provides that, after considering the criteria incl 3, the Executive Director (now the Chief Executive – Mr Whelan) "and one otherperson" will determine whether it is appropriate for the Committee to investigate aclaim.[93] Since the adoption of the Student Policy, the Committee has modified itsdelegations so that only one person determines whether it is appropriate for theCommittee to investigate claims. That change in practice has not, however, found itsway into the Student Policy.[94] In her pleadings and submissions,27 as noted, Ms Roe argued that therequirement for a second decision-maker to consider complaints under cl 6(a) wasmaterial because it would ensure transparency and accountability, and provide a checkon the decision making of a single individual.[95] It is clear the Committee failed to follow its own policy in relation to thenumber of decision-makers involved in the decision under review. A misapplication ora breach of policy by a decision-maker is a potentially reviewable error,28 but thesignificance of a misapplication or breach depends upon the context in which itoccurred.29[96] The Policy did not have the force of law. As Mr Smith submits, the StudentPolicy does not operate as a regulation and the Committee is entitled to modify itsdelegations framework and practices to ensure efficient resourcing decisions and howbest to administer its statutory functions and powers.27 It was agreed that Ms Roe's second affidavit would be treated as her submissions at the hearing.28 See for example Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA).29 Chiu v Minister of Immigration, above n 28, at 550. See also Attorney-General v ProblemGambling Foundation of New Zealand [2016] NZCA 609, [2017] 2 NZLR 470 at [125] where theCourt of Appeal held that a breach of mandatory rules imposed upon Government departments byCabinet does not automatically give rise to an illegality so as to vitiate a decision.[97] Given the findings I have made — particularly in relation to the examiners'reports — I have no hesitation concluding that the alleged error is immaterial.30 Insaying this, the Committee should update the Student Policy to reflect the fact thatonly one person determines whether it is appropriate to further investigate claims.[98] I also accept Mr Smith's argument that when considering the issue under thelens of legitimate expectation there could be no plausible claim to reliance by Ms Roeon the representation in the Policy that there were two decision-makers involved inthe initial assessment under cl 6(a). That is because, until she filed her second affidavit,Ms Roe's case was that her complaint ought to have been considered under a differentpolicy altogether.31 It was only at the hearing that Ms Roe conceded Mr Whelan hadcorrectly considered her complaint under the Student Policy. It follows that, had itbeen an issue, there would be no basis to find that Ms Roe had relied on the StudentPolicy's requirements to have two decision-makers, and that even if there had beensuch reliance, that it was reasonable for her to do so.32 Rather, the gravamen of hercase is simply that there was an error in the application of the policy to the facts of hercase.[99] Finally, even if the lack of a second decision-maker amounted to a reviewableerror on Mr Whelan's part, I would find the error was immaterial and does not justifythe grant of relief.33Sixth issue: relief?[100] It will be evident from the reasons set out above that Ms Roe has beenunsuccessful in her application for review and the question of relief does not arise.30 Any error must have affected the actual making of the decision and affected the decision itself.See Lumber Specialties Ltd v Hodgson [2000] 2 NZLR 347 (HC) at [140], citing Peters v Davison[1999] 2 NZLR 164 (CA).31 Ms Roe's original claim was that Mr Whelan ought to have considered her complaint under theCommittee's Policy on Dealing with Claims of Serious Wrong-doing under the ProtectedDisclosures Act 2000. Ms Roe abandoned this part of her claim at the commencement of thehearing having received and considered Mr Smith's written submissions for the Committee.32 A legitimate or reasonable reliance on a promise or commitment is a requirement for the doctrineof legitimate expectation. See Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598,[2014] 2 NZLR 137 at [126]; Green v Racing Integrity Unit Ltd [2014] NZCA 133, [2014]NZAR 623 at [13].33 As at [97], there would again be a lack of materiality to the error (if there was one) in thesecircumstances.[101] I observe, however, that had I found any of Ms Roe's claims made out to theextent that it sounded in relief I would not have granted the relief which she sought,being an order directing the removal of Mr Whelan from his office and variousdeclarations affecting all universities at a fundamental level. Nothing in the evidenceI have seen could justify the outcomes Ms Roe sought, even if it was open to the Courtto make the orders.[102] The appropriate relief in this instance — which would only be relevant, ofcourse, if reviewable errors were identified and the claim succeeded — would mostprobably be for the decision to be reconsidered.34 But Ms Roe does not seek suchrelief. So, the relief this Court would grant in the event Ms Roe could point toreviewable errors would be of little value to her.Result[103] For the reasons set out above I dismiss the application for review. Ms Roe'scharacterisation of the University's invitation to re-enrol to complete her thesis couldnot ever have been fairly described as a "demand" for a "bribe payment". Nor was itappropriate to describe the University's conduct as "fraudulent". I have recorded thisso there is a public record that these serious allegations have not in any way been madeout.[104] Costs would ordinarily follow the event. Should the Committee wish to pursuecosts, I would be minded to grant them on a 2B basis.[105] If there is an application for costs, the respondent is to file a synopsis no longerthan three pages in length within ten working days. Ms Roe is to file any submissionsin reply ten working days thereafter. I will then make a determination on the papers.______________________________________Isac JSolicitors:Chapman Tripp, Wellington34 Judicial Review Procedure Act 2016, s 17.