ROE v UNIVERSITY OF AUCKLAND [2021] NZHC 368

ROE v UNIVERSITY OF AUCKLAND [2021] NZHC 368 [3 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-795[2021] NZHC 368UNDER Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review ofdecisions made pursuant to the EducationAct 1989 Part 16 s 224(1)-(6) and theEducation Amendment Act 2011 s 224(1)-(6)BETWEEN KELLY ALEXANDRA ROEApplicantAND THE UNIVERSITY OF AUCKLANDRespondentHearing: 7 December 2020Counsel:Appearance:I Rosic and ZA Brentnall for respondentKA Roe, applicant in personJudgment: 3 March 2021JUDGMENT OF FITZGERALD J[As to application for judicial review]This judgment was delivered by me on 3 March 2021 at 4.00pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Gilbert/Walker, AucklandTo: K Roe, AucklandIntroduction[1] The applicant, Kelly Roe, applied to be enrolled in the Bachelor of Medicineand Bachelor of Surgery (MBChB) at the University of Auckland in 2018 (for the 2019programme) and 2019 (for the 2020 programme). The University1 declined herapplication each year, on the basis she did not meet the minimum requirements forenrolment. Ms Roe applies to judicially review each of those decisions on the basisthe University did not have the power under the Education Act 1989 (the Act) todecline her applications. The essence of Ms Roe's application is that under the Act,and being a domestic student aged 20 years or above, she was eligible to be enrolled.[2] Counsel for the University set out in their written submissions the followingkey issues for determination on Ms Roe's application:(a) Whether, in the relevant years, the University had the power to imposeeligibility criteria on domestic students aged 20 years or over applyingfor the MBChB programme (Issue 1).(b) Whether the University's decisions to decline Ms Roe's applications tothe 2019 and 2020 MBChB programmes "had legal basis, were validand correct" (Issue 2).(c) Whether the University's advice to Ms Roe that she was required toundertake further University-level study in order to be eligible for theMBChB programme was correct (Issue 3).(d) Whether the University was obliged to re-calculate Ms Roe's gradepoint average (GPA) and her rank order score, in light of what theUniversity accepts was an initial miscalculation of her GPA in relationto her application for the 2019 MBChB programme (Issue 4).21 For ease of reference, I will refer to the University of Auckland as "the University" (save where itis necessary to distinguish it from other New Zealand universities). Also for ease of reference, Iwill use the term "the University" to include the University's Council.2 Calculated at 8, but accepted as correctly calculated at 8.6.(e) Whether, if Ms Roe's application is successful, she is entitled to therelief she seeks (Issue 5).[3] Ms Roe accepted at the hearing that these issues cover the key matters arisingfrom her pleaded claim.3[4] This judgment is structured as follows:(a) I first set out the factual background to Ms Roe's application;(b) I then address the relevant statutory framework under the Act and otherrelated legislation;(c) I then summarise each party's submissions; and(d) I set out my discussion and conclusions on each of the issues.BackgroundIntroduction[5] The University has prescribed two "pathways" to general admission to theMBChB programme.4 The University requires that an applicant must either:(a) complete the first year of a Bachelor of Health Science or the first yearof a Bachelor of Science in Biomedical Science; or(b) have successfully completed a full time degree from a New Zealanduniversity with a minimum GPA of 6, with the last year of full timestudy in a completed qualification from a New Zealand universitywithin the last five years. This last requirement is referred to as "therecency requirement".3 I discuss later in this judgment, however, whether Issue 3 is appropriately the subject of anddetermined on this application for judicial review.4 There also exist separate pathways for targeted demographic groups and international students.They are not at issue here. Ms Roe has only ever sought general admission.[6] Ms Roe completed an MA at the University of Waikato in 2005, and the degreewas conferred in 2006. When she started corresponding with the University ofAuckland in 2014 about the possibility of applying for the MBChB, she was informedthat she would not meet the recency requirement (given the time since completion ofher MA), and thus would need to complete the first year of one of the degrees referredto at [5(a)] instead.[7] In 2015, Ms Roe enrolled in a Bachelor of Health Science. She failed a paperin that course and subsequently withdrew. She alleges in her submissions that this wasunfair and the internal complaints process did not function properly.5Ms Roe's application for admission to the 2019 programme[8] In 2018, Ms Roe corresponded with University staff about applying for the2019 MBChB programme. She confirmed that she intended to complete a Master ofPhilosophy degree (MPhil) at the University of Waikato in order to apply for the 2019MBChB programme via the graduate pathway. Ms Roe was advised that theUniversity would need to receive official evidence of completion of the MPhil by7 December 2018. It was also a requirement that an applicant provide an unofficialtranscript by 1 November 2018, though it does not appear Ms Roe was informed ofthis at the time.[9] Ms Roe did not provide an unofficial transcript by 1 November 2018, and herapplication was accordingly declined on 16 November 2018. Following furthercommunications with the University, she was nevertheless allotted an interview withUniversity staff on a provisional basis, in case she was able to provide confirmationof having completed her MPhil by 7 December 2018. She attended the interview on30 November 2018. She was not, however, in a position to provide evidence ofcompletion of her MPhil by 7 December 2018. Ms Roe takes significant issue withthe University of Waikato's processes in this regard, and I was informed that she hasseparate judicial review proceedings against that university in the High Court atHamilton. Those matters do not arise for determination on the present application.5 That is not at issue in this case requiring determination and I accordingly say nothing further aboutit.[10] Returning to the chronology, on 10 December 2018, the University informedMs Roe that it was unable to progress her application without evidence of completionof her MPhil. On 19 December 2018, the University informed Ms Roe that she hadnot met the recency requirement pathway to general admission to the MBChBprogramme, and that even if she had, her rank score would not have been high enoughto secure an offer of a place. The correspondence stated:Your application continued to be in the applicant pool right up until the pointyou were no longer eligible for consideration. (emphasis added)[11] On 19 December 2018, Ms Roe appealed to the Director of Admissions at theFaculty of Medical and Health Sciences. On 16 January 2019, the Director responded.He explained that the University calculated her applicable GPA from her previousstudy as 8.0 and declined the appeal. On the same day, Ms Roe appealed again to theDean of the Faculty of Medical and Health Sciences. Ms Roe suggested that her GPAhad been miscalculated and should have been 8.375 and then 8.6. On 28 January 2019,the Dean responded. He agreed that Ms Roe's GPA had been miscalculated, butsuggested that this error was because Ms Roe's academic transcript was complex. Henoted that in any case, Ms Roe "did not meet the eligibility criteria" (emphasis added)because she had not satisfied the recency requirement. The Dean also noted that:your GPA, whether rightly or wrongly calculated by the admissions team,does not outweigh the fact that your application was ineligible.(emphasis added)[12] The Dean therefore dismissed the appeal. On 26 January 2019, Ms Roeemailed the Vice-Chancellor disputing the decision to decline her application. On30 January 2019, the Vice-Chancellor responded, advising her that the Dean's decisionwas final.[13] Ms Roe then complained to the Chief Ombudsman. On 3 December 2019, theOmbudsman concluded that the University did not act unreasonably, and themiscalculation of her GPA was ultimately not the reason she was not offered a place.The Ombudsman stated:You were unable to show completion of your MPhil because it was notcompleted by that date. In my opinion the University was therefore entitledto decline your entry to the MBChB programme in accordance with itseligibility criteria. I find nothing unreasonable or unfair about this decision.(emphasis added)Ms Roe's application for admission to the 2020 programme[14] In 2019, Ms Roe again applied for admission to the MBChB, for the 2020programme. On 31 October 2019, she provided her academic transcript to the relevantstaff at the University. This showed that she had failed the MPhil. Ms Roe advisedthat the University of Waikato ought to have passed her, and that she was in the processof referring the failing grade to the Chief Ombudsman. The University of Aucklandagain granted her an interview provisionally, in case the failing grade was overturned.The Chief Ombudsman found that the University of Waikato had not actedunreasonably, and the grade was not overturned.[15] Accordingly, on 17 December 2019, the University of Auckland declinedMs Roe's application for admission to the 2020 programme. On 26 December 2019,24 January 2020, and 12 February 2020, Ms Roe appealed successively to the Directorof Admissions, the Dean and the Deputy Vice-Chancellor. She contended that she hadprovided evidence by the due dates of "completion" of her MPhil. Each appeal wasdeclined, on the basis that the relevant selection criteria required "successfulcompletion" of such a degree.[16] The final matter to address by way of factual background is that at theconclusion of the hearing of Ms Roe's application before me, I directed that theUniversity file a further affidavit confirming the total number of applications receivedfor admission to each of the 2019 and 2020 MBChB programmes. I also madetimetable directions for the parties to make any further submissions they wished onthat information. The further information confirmed the following:(a) There were 257 total places available in the MBChB programme foreach of the 2019 and 2020 years;(b) in the 2019 year, there were 864 total applications, with 461 of thosebeing from domestic students aged 20 years or above; and(c) in the 2020 year, there were 903 total applications, with 484 of thosebeing from domestic students aged 20 years or above.[17] As can be seen, the programme in each year was very significantly"oversubscribed". The General Counsel of the University, in her affidavit sworn inthese proceedings, also confirms that "entry into the MBChB is highly competitive".Ms Roe's application for judicial review[18] Ms Roe now seeks judicial review of the University's decisions not to admither to the 2019 and 2020 MBChB programmes.6 She contends that the University'sdecisions that she was not eligible for admission were unlawful.[19] Ms Roe filed her statement of claim on 11 May 2020. It did not properly statethe legal basis for the relief sought, and on 15 July 2020, Palmer J stayed theproceeding until Ms Roe clarified her pleading. Her application for judicial review isnow encapsulated in her amended statement of claim filed on 4 August 2020. Whileunclear in parts, the essence of Ms Roe's application is as follows:(a) She was mis-advised (and there was no lawful basis to advise her) thatshe was required to undertake additional university level study in orderto be eligible to be accepted into the 2019 and 2020 MBChBprogrammes.6 In her written submissions, Ms Roe notes she has also complained about these matters to theHuman Rights Tribunal, Amnesty International, the Auckland Central Library, the Queen (toattempt to have Queen's Counsel appointed to prosecute the Universities of Auckland andWaikato), the Police, the Ministers of Education and Health, local Members of Parliament, theLeader of the Opposition and the Prime Minister, but in each case was "sent away".(b) The University had no legal grounds to decline her applications on thebasis she was "ineligible", given she was a domestic student who hadattained the age of 20 years old. Ms Roe says that pursuant to the Act,such students are deemed eligible to enrol in the programme they haveapplied for.(c) The Act does not provide a legal basis for the University to setminimum academic standards for admission or entry requirements foreligibility for domestic students who have attained the age of 20 years.The University only has authority under the Act to set selection criteriafor such students.[20] In terms of relief, Ms Roe seeks the following:(a) a direction that the University reconsider its decision that she was noteligible for admission to the 2019 and 2020 MBChB programmes;(b) a declaration that the decisions that she was ineligible for admissionwere unlawful or invalid;(c) an order that the University pay or waive the student loan incurred as aresult of the alleged incorrect advice referred to at [19(a)] above;(d) an order that the University reimburse costs incurred by her as a resultof the University's unlawful decisions (such as costs associated withUMAT/UCATexaminations7);(e) an order that the University correctly apply the selection algorithm toher application and declare her resulting GPA for final selection, andher rank as against other applicants in each of the 2019 and 2020 years;7 The UMAT and UCAT are examinations that aim to measure clinical aptitude. ProspectiveMBChB students are required to submit a score on them as part of their application. The UCATreplaced the UMAT from 2019.(f) if as a result of (e) above, an applicant with a lower ranking than herwas offered enrolment, then an order that she be offered enrolment inthe next MBChB programme; and(g) if offered enrolment for the next intake, compensation for loss ofearnings she says she would have earned over the last seven years, hadshe properly been admitted to the programme.8[21] For completeness, I note that shortly after filing her amended statement ofclaim, Ms Roe filed a further statement of claim which raised various tort claims. AfterPalmer J sought clarification as to whether these new claims were intended to formpart of her amended statement of claim filed on 4 August 2020, Ms Roe confirmedthat the additional claim should be disregarded. This was recorded by Palmer J in hisminute issued on 19 October 2020. I accordingly say nothing further about theadditional claims.[22] The University then applied to strike out Ms Roe's application for judicialreview. Palmer J declined to direct that the strike out application be scheduled for aseparate hearing, on the basis that the most efficient pathway to disposition ofMs Roe's application was a prompt hearing on the substantive application.[23] Before turning to the parties' submissions, I first set out the relevant statutorybackground to Ms Roe's claims, which puts those submissions in their proper context.Education Act and related legislationIntroduction[24] The entrance criteria Ms Roe challenges are promulgated by the UniversityCouncil pursuant to the Limitation of Entry Statute 1991 (the Limitation Statute). TheLimitation Statute is delegated legislation pursuant to the Act, which provides that thecouncil of a relevant institution (such as the University) may make statutes governing,8 Based on Ministry of Business, Innovation & Employment Occupation Outlook 2017 data fordoctors' salaries, Ms Roe calculates this to be a total of $1,134,000 (said by her to be a conservativeestimate)."subject to Part 16 [of the Act], the enrolment of persons in courses of study ortraining of the institution or the admission of persons to examinations of theinstitution".9The Education Act 1989[25] Section 160 of the Act provided that the object of the provisions of the Actrelating to institutions is to:give [relevant institutions] as much independence and freedom to makeacademic, operational, and management decisions as it consistent with thenature of the services they provide, the efficient use of national resources, thenational interest, and the demands of accountability.[26] Section 194 of the Act relevantly provided as follows:194 Statutes(1) The council of an institution and the board of an NZIST subsidiarymay make statutes, not inconsistent with this Act or the State SectorAct 1988, with respect to any of the following matters:(a) the good government and discipline of the institution:(b) the imposition, by or on behalf of the council, of penaltiesupon staff or students of the institution for contravention of orfailure to comply with a statute with respect to a matterreferred to in paragraph (a):(e) subject to Part 16, the enrolment of persons in courses of studyor training of the institution or the admission of persons toexaminations of the institution:(f) subject to Part 16, the courses of study and training of theinstitution:(j) any other matter required or permitted by this Act to beprovided for by statutes.9 Education Act 1989, s 194(1)(e). The full text of s 194 is set out at [26] below.[27] Section 224 of the Act (which falls within Part 16 of the Act) relevantlyprovided as follows:224 Enrolment of students(1) In this section,—eligible student, in relation to a programme or training scheme at aninstitution, means a person who is eligible to be enrolled as a studentin that programme or scheme by virtue of subsection (2)year means a period of 12 months commencing on 1 January.(2) Subject to this section, a person is eligible to be enrolled as a studentat any institution in a programme or training scheme provided by theinstitution if, and only if,—(a) either—(i) the person is a domestic student; or(ii) the council of the institution consents; and(b) the person holds the minimum entry requirements for theprogramme or scheme as determined by the council; and(c) the person has attained,—(i) if the institution has fixed a minimum age forenrolment at the institution, the age so fixed; and(ii) if the institution has fixed a minimum age forenrolment in the programme or scheme, the age sofixed.(3) Subsection (2)(b) and (c) do not apply to a person if—(a) the person has attained the age of 20 years; or(b) the council of the institution is satisfied that the person iscapable of undertaking the programme or scheme concerned.(4) An eligible student who applies for enrolment in a programme ortraining scheme at an institution is, subject to this section, entitled tobe enrolled in that programme or scheme.(5) If the council of an institution is satisfied that it is necessary to do sobecause of insufficiency of staff, accommodation, or equipment, thecouncil may determine the maximum number of students who may beenrolled in a particular programme or training scheme at theinstitution in a particular year.(6) Where—(a) The maximum number of students who may be enrolled at aninstitution in a particular programme or training scheme in aparticular year is determined by the council of the institutionunder subsection (5); and(b) the number of eligible students who apply for enrolment inthat programme or training scheme in that year exceeds themaximum number so determined,—the council may, in the selection of the students to be enrolled, givepreference to eligible persons who are included in a class of personsthat is under-represented among the students undertaking theprogramme or training scheme.Limitation Statute[28] The Limitation Statute relevantly provides that:2. Where the Council is satisfied that it is necessary to do so because:(a) students cannot be allocated places in appropriate lecture roomsor laboratories at times when they can be reasonably expectedto attendor(b) the number of teaching staff does not ensure all studentsexpected to seek a place in a particular programme or coursecan be adequately taught;there shall be deemed to be an insufficiency of accommodation or of staff.3. The maximum number of students that may be enrolled for any suchprogramme or course shall be determined by the Council from time totime after considering any recommendations from Senate and bepublished in a schedule to this Statute.4. In determining such maximum number of students the Council may,after securing a recommendation from Senate:(a) prescribe academic standards to be achieved as a prerequisitefor enrolment for any such programme or courseand(b) prescribe other criteria for selection of students to be permittedenrolment for any such programme or course.[29] As can be seen, regs 2 and 3 of the Limitation Statute effectively mirrors 224(5) of the Act, in addressing those factors which permit the University to imposea limit or "cap" on how many students may be accepted into any given programme.Limitations Schedules[30] Sitting beneath the Limitation Statute, and made pursuant to reg 3 of thatstatute, is a "Limitations Schedule" which is determined and published for eachcalendar year. This sets out the limited entry programmes on a course-by-course basis,and the maximum number of students permitted for each programme. For presentpurposes, the following material is taken from the Limitations Schedule 2019; there isno suggestion the Limitations Schedule for the 2020 year was different in any materialway.[31] The Limitations Schedule 2019 provides as follows:Approved Limitations1 Students must apply for a place in any limited entry programme.Unless otherwise specified in Closing Dates for Admission, theclosing date for Application for Admission is 8 December 2018 andfor Enrolment is 14 February 2019. The closing date for Admission toSummer School is 1 December 2018 and for Enrolment is 22December 2018.2 Application for places in any limited-entry programmes and/orcourses will be made online, or in person.3 Applications received after the specified closing dates will be givenreduced priority in consideration for a place in a limited-entryprogramme and/or course.4 Where the number of applicants for a place in a limited-entryprogramme or course exceeds the approved number of availableplaces, the Faculty or department concerned will select students inaccordance with criteria that have been approved by the UniversityCouncil.5 Where a course is taught in both semesters, the Selection Committeewill allocate students to the First or Second Semester where numbersof applications for one semester exceed places available.6 Selection criteria will be available from the Faculty or departmentconcerned for the information of students. In general, selection willbe based upon academic merit. In those cases where the scholasticrecord is insufficient, eg, Discretionary Entrance and SpecialAdmission, other criteria such as the recommendation of the SchoolPrincipal or Advisor, or employment history, will be taken intoaccount. Account will also be taken of the University's EqualEducational Opportunity objectives. Limitations on programmes andcourses are listed below.[32] The Limitations Schedule 2019 then sets out admission criteria for, relevantlyin the present case, general admission to the MBChB programme. This provides asfollows (under the heading "Admission"):1 In order to be admitted to this programme, a student needs to have:a either(i) completed the requirements for the courses listed inPart I of the MBChB Schedule on a full-time basis,with a Grade Point Average of 6.0 or higheror(ii) successfully completed, normally in the minimumacademic time and no more than five years prior tothe date of application, a degree, postgraduate degreeor postgraduate diploma from a New Zealanduniversity with a Grade Point Average of 6.0 or higheror equivalentor(iii) met the requirements of a special entry schemeandb demonstrated in accordance with approved selection criteriathe qualities determined by the Faculty of Medical and HealthSciences as appropriate for a person seeking a qualification asa doctor. This requirement will normally include an interview.2 a Students selected for admission under Regulation 1a(i) willbe admitted to MBChB Part II.b Students selected for admission under Regulation 1a(ii) orRegulation 1a(ii) may be required to successfully completesome or all of the courses listed in Part I of the schedule tothese regulations before proceeding to Part II.[33] The schedule then sets out the various limited entry programmes (which refersto them as being "admission by selection") and the approved limit of students for each.For MBChB (domestic students), this is capped at 257.[34] Selection criteria for limited entry programmes are also reproduced in yearly"Programme Limitations". The Programme Limitations for the 2020 year, forexample, sets out the two "pathways" for general admission to MBChB and thenstates:Interview places will be offered on the basis of a ranking calculated on thegrades achieved in the four common courses that are offered in both the BHScand the BSc Biomedical Science programmes (MEDSCI 142, BIOSCI 107,CHEM 110, POPLHLTH 111). Unless there are exceptional circumstancesapplicants unable to attend their interview on the relevant date will not beconsidered further.Following interview, a rank order of applicants based on their academicperformance (based on the grades achieved in the four common courses),performance in the UCAT-ANZ test and interview performance is establishedat a meeting of the Medical Admissions Subcommittee. The weighting is GPA60%, UCAT-ANZ score 15%, Interview 25%.Places will be offered to the highest-ranking applicants until the limit isreached.[35] An explanation of the selection criteria and ranking process was also publishedeach year on the Faculty and Health and Medical Science (FHMS) website. Forexample, the introduction to the 2020 programme overview stated:Entry into the MBChB is limited and competitive. You will be selected on thebasis of academic merit, University Clinical Aptitude Test for Australia andNew Zealand (UCAT ANZ), performance and personal qualities exhibitedduring the admission interview (MMI). There are 257 domestic placesavailable each year.[36] Ms Roe also produced at the hearing a "FAQ – Medicine (MBChB)" document,which appears from the footer to have been "last updated June 2018" (though it isunclear when it was last published). It reflects the various selection criteria set outabove. In response to the question "Can I get into Medicine directly from school?",the document states:No. Applicants completing a secondary qualification in New Zealand oroverseas are not eligible to apply directly for the MBChB programme at theUniversity of Auckland.There are only two application categories into the MBChB programme, bothof which also require an applicant to sit the UMAT (see p. 3)Domestic graduates must have completed a full-time degree/degrees from aNew Zealand university with a minimum of GPA 6.0 (B+ average) to beeligible for consideration for an admission interview. Last year of full-timestudy in a completed qualification must not have been more than 5 years priorto the year. Where an applicant has completed more than 3 years full-timestudy (including Honours and Masters), the best 3 years will be considered inGPA calculations.(emphasis in original)The parties' submissionsMs Roe's submissions[37] Ms Roe's submissions largely traversed the factual background as set outabove. She also makes various submissions about the University of Waikato'sconduct, which as noted earlier, is not the subject of these proceedings. She also makesgeneralised submissions about universities refusing "to allow students the academicfreedom to work to international standards of scholarship", which again it is notnecessary to discuss on the present application.[38] More closely tied to her pleaded claim, Ms Roe submits that the Actdistinguishes between "eligibility" and "selection", and that pursuant to the Act, shewas at all times eligible to be enrolled in the MBChB 2019 and 2020 programmes.She says that "the public Universities of New Zealand refuse to accept that domesticadults are eligible to be enrolled in the programmes of study they apply to". Ms Roefurther submits that the University does not have authority to construct by-laws thatviolate the Act, which does not empower the University to set "eligibility criterion"for domestic adults. She says that the University refused to process her application atall, "on grounds they (unlawfully) deemed her 'ineligible'". In a similar vein, Ms Roesays there were no grounds for the University to have advised that she needed tocomplete further study in order to be "eligible" for the programme, or to deemdomestic students "ineligible" if their most recent tertiary level qualification was morethan five years old.The University's submissions[39] The University submits that eligibility under the Act is limited by s 224(5),which provides that the council of an institution can, if required by resourcinglimitations, determine the maximum number of students who can be enrolled in aprogramme. Counsel for the University, Ms Rosic, accordingly submits that forprogrammes where the number of students has to be limited due to resourceconstraints, the "entitlement" of any domestic student who is 20 years or older to enrolin that programme is fettered by that limitation. The University accordingly submitsthat the Limitation Statute, as delegated legislation, is consistent with the Act andconstitutes a lawful restriction on eligibility criteria.[40] Ms Rosic notes that reg 4 of the Limitations Schedule (set out at [31] above)reflects that the academic criteria are used to select successful applicants when thetotal number of applicants exceeds the number of available places in a limited entryprogramme. Looking at Ms Roe's case in the 2019 and 2020 years, Ms Rosic submitsthat there were plainly significantly more applicants (including domestic adults) thanavailable places. Accordingly, she submits it was lawful, and in accordance with theAct, to apply the relevant criteria to Ms Roe's application. Ms Rosic submits that thesimple point is that Ms Roe did not meet the recency requirement in either year, henceher applications were declined. Counsel submits that any suggestion that Ms Roe"completed" her MPhil despite the fact she was awarded a failing grade is untenable.[41] Ms Rosic further submits that it was correct for the University to adviseMs Roe that she needed to undertake the further study she did. Counsel accepts thatit could not be known with certainty in any given year how many applicants therewould be for the MBChB programme, but given the highly competitive nature of thatprogramme, it was proper, reasonable and lawful for the University to advise studentsgenerally of the need to comply with the criteria, so that when it came to assessingstudents for admission, those students were well placed to meet the criteria. And inthe 2019 and 2020 years in particular, the evidence is clear that the programme wasvery heavily oversubscribed. It was therefore correct for the University to have advisedMs Roe of what she needed to do in order to progress down one of the two pathwaysfor general admission.[42] As to Ms Roe's concerns about the calculation of her GPA, counsel submitsthat the University was not obliged to recalculate Ms Roe's GPA, given Ms Roe clearlydid not meet the preceding step of the recency requirement. This was the "causative"reason for her applications to the 2019 and 2020 programmes being declined, as theOmbudsman found.[43] Finally counsel queries many of the aspects of relief sought by Ms Roe. Forexample, the University notes that damages are not generally available in a judicialreview proceeding: only where a breach of the New Zealand Bill of Rights Act 1990is alleged can Baigent damages be sought, and proceedings where Baigent damagesare not sought should not be expanded to include them.10 Counsel notes that Ms Roefiled, but then did not proceed with, separate tort claims in this regard.[44] Ms Rosic accordingly submits that even if Ms Roe's application were to besuccessful, the only relief that should be granted would be a declaration. She submitsthat the decision to not grant Ms Roe entry into the 2019 and 2020 MBChBprogrammes is now past, and hence remitting it back to the University would be futile,as would recalculating her GPA and rank score. Ordering the University to grant herentry into the next MBChB intake would cut across the selection criteria and processfor enrolment in limited entry programmes, as well as being prejudicial to otherapplicants who do meet the selection criteria.AnalysisThe approach to enrolment under the Act[45] I start with the relevant provisions of the Act.[46] Section 194, set out at [26] above, permits the University to make statutes, andthus the Limitation Statute. But any such statute must not be inconsistent with the Act,and in relation to enrolments, is expressly subject to Part 16. Section 224 forms a partof Part 16 of the Act.[47] Subsection 224(1) defines an "eligible student", which is determined byreference to subsection (2). That subsection lays out three requirements that must be10 Flett v Dental Council [2016] NZHC 358, [2016] NZAR 459 at [58]; Philip A JosephConstitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington,2014) at 1208.met for a person to be eligible for enrolment in any programme or training scheme.One of those requirements (s 224(2)(b)) is that the person "holds the minimum entryrequirements for the programme or scheme as determined by the council".[48] But s 224(2) is expressly stated to be "subject to this section". Subsection(3)(a) provides that a person over the age of 20 does not need to satisfy two of thethree requirements to be an eligible student – including s 2(b)'s requirement of holdingthe minimum entry requirements. As such, in order to be an "eligible student", aperson over 20 years of age need only meet s (2)(a)'s requirement that they are adomestic student (or have the approval of the institution's council).[49] Having determined who are "eligible" students, s (4) goes on to provide thatthose students are entitled to enrol in a programme if they apply. Subsection (4)accordingly recognises a distinction between a student being eligible and beingentitled to be enrolled. Again, this subsection is also subject to the rest of the section.[50] Subsection (5) in turn empowers the relevant institution, if considerednecessary due to resourcing constraints, to set a maximum number of students whomay be enrolled in a particular programme in any given year (i.e. to determine limitedentry programmes). This accordingly places a lawful restriction on an eligiblestudent's entitlement to be enrolled.[51] Finally, s (6) notes that where a maximum number of students for a programmeor scheme has been set, and in circumstances where there are more applications forenrolment than places, the council may give preference to certain classes of eligiblestudents. But other than permitting the council to prefer certain classes of studentswhen a programme is oversubscribed, s 224 (and the Act generally) is silent as to howthe council should or may choose between the pool of eligible students.[52] In this context, and unless inconsistent with the Act (including Part 16), thecouncil must be permitted to adopt mechanisms or criteria to choose between eligiblestudents in the expressly foreseen scenario of an oversubscribed limited entryprogramme. Conceivably Parliament could have intended that the councils pickrandomly from the pool of eligible students. Or perhaps Parliament could haveintended that institutions pick on the basis of who posted their application first. Suchmechanisms would, however, be somewhat arbitrary. But there is nothing in s 224 ofthe Act which prohibits the council of an institution from determining minimumacademic criteria as a means of determining which students will be enrolled in alimited entry programme, when that programme is oversubscribed. This is consistentwith Act's object of giving institutions as much independence and freedom in theirdecision making as possible, and is consistent with the efficient use of nationalresources.[53] I accordingly summarise s 224's (relevant) effect as follows:(a) First, there is a pool of eligible students, one category of which isdomestic students aged 20 years and older, irrespective of whether theyhold any minimum entry requirements for the programme in question.(b) Second, all eligible students who apply to programmes are entitled tobe enrolled in those programmes, except if a maximum number ofstudents to be enrolled has been duly set by the council of an institutionfor resourcing reasons (meaning the programme is a limited entryprogramme).(c) Third, if a limited entry programme is oversubscribed, the council ofan institution can select from the pool of eligible student applicantsthose that will be permitted to enrol in the programme, using whatevermechanism or criteria it prefers (so long as not inconsistent with Act).(d) Fourth, the council of an institution is expressly permitted (though notrequired) to prefer under-represented groups when carrying out thatselection process.[54] It is relevant to note at this juncture that Ms Roe did not dispute that theUniversity may set "selection" criteria (for the purposes of (c) above), and thatadopting academic criteria for that selection process was permissible.Issue 1: Did the University of Auckland, in relation to the 2019 and 2020 programmes,have the power to impose a recency requirement on domestic students over the age of20 applying for the MBChB?[55] As noted, the MBChB is a limited entry programme.[56] The evidence confirms that both the 2019 and 2020 programmes weresignificantly oversubscribed. A little more than half of the applicants in each yearwere domestic students who would have been 20 or older at the time of enrolment.They, including Ms Roe, were accordingly "eligible students" in relation to theprogramme.[57] As the programme was heavily oversubscribed in both years, there was nothingunlawful in the University imposing the recency requirement as part of a mechanismfor selecting those eligible students who would be offered enrolment. This includesthose students who were "eligible students" by virtue of being a domestic student aged20 years and older (and thus including Ms Roe). As noted, other than the permittedpreference of certain classes of eligible students, the Act does not direct or evensuggest how the relevant institution might go about selecting from a pool of eligiblestudents those who will be admitted to an oversubscribed limited entry programme.The very fact the Act is silent on this point is consistent with the object of the Act, asset out at [25] above.[58] For completeness, and while Ms Roe does not allege the recency requirementis unreasonable or capricious, it has a clear academic purpose, in ensuring aappropriate level of academic consistency and competence among prospectiveMBChB students. For example, an excessive lapse of time between the relevantdegree and the programme to which an eligible student applies could call into questionwhether the academic ability required to achieve the relevant degree remains current.[59] I am therefore satisfied the University lawfully applied the recencyrequirement to Ms Roe's 2019 and 2020 applications. Given the matters raised byMs Roe on her application, however, it is appropriate to say something about theacademic criteria for admission to the MBChB programme more generally.[60] The manner in which reg 4 of the Limitation Statute is framed suggests that theUniversity may prescribe minimum academic standards to be achieved as a pre-requisite to enrolment in a limited entry programme, that is, even where thatprogramme is not oversubscribed in any given year. But the power to set a maximumnumber of students is driven by resourcing factors only, and is not related to or drivenby academic standards.[61] Nevertheless, s 224 of the Act plainly envisages that there may, or even will,be minimum entry requirements for an institution's programmes and schemes, givenmeeting those requirements is one of the three express requirements to be an "eligiblestudent" pursuant to s 224(2)(b). Through the operation of ss 224(2) and (3), it is onlydomestic students who are 20 years and over (or who the council is satisfied has therequisite capability to undertake the programme) to which the minimum entryrequirements do not apply. Minimum entry requirements accordingly remain relevantto all other categories of persons who might fall within the scope of an "eligiblestudent." Thus, reg 4 of the Limitations Statute, in empowering the University Councilto prescribe academic standards to be achieved as a prerequisite for enrolment in alimited entry programme, is not itself ultra vires the empowering legislation.[62] In my view, however, it would be inconsistent with the Act – and thus ultravires the Act – to apply minimum entry requirements to domestic students who haveobtained the age of 20 years when they have applied to a limited entry programmewhich is not oversubscribed. They are, subject to the fetter set out in s 224(5), entitledto be enrolled in such a programme.[63] So, for example, in the event only around 50 persons applied for the MBChBprogramme (and thus well under the cap of 257), it would be unlawful for theUniversity to decline enrolment to any applicant who was a domestic student aged 20years and over. The fetter on their entitlement to enrolment contained in s 224(5)would not come into play. I appreciate, however, that such a scenario is unlikely tocome to pass in relation to the MBChB programme, given the evidence that it is highlycompetitive, as illustrated by the very significant number of applications in the 2019and 2020 years.Issue 2: Was the University's decisions to decline Ms Roe's applications to the 2019and 2020 MBChB programme legal, valid and correct?[64] It follows from the above discussion that the answer to this issue is "yes",insofar as the decisions were legal and valid. It is not for the Court in an applicationfor judicial review to comment on whether the decision was "correct", from asubstantive or merits-based approach.[65] For the reasons set out above:(a) At the time of her applications, Ms Roe was a domestic student aged20 years or over. She was thus an eligible student.(b) The 2019 and 2020 MBChB programmes were each heavilyoversubscribed.(c) It was therefore lawful for the University to apply criteria to theapplicants, including Ms Roe, in order to determine who was to beoffered a place in the limited entry programme. There was nothingunlawful in that criteria including the recency requirement.(d) Ms Roe did not meet the recency requirement. There was no evidencebefore the University at the time it made its decisions that Ms Roe had"successfully completed, normally in the minimum academic time andno more than five years prior to the date of application, a degree,postgraduate degree or postgraduate diploma from a New Zealanduniversity with a GPA of 6.0 or higher or equivalent."11 Ms Roe mayhave had a dispute with the University of Waikato as to the completionof her MPhil, but the point remains that she was not in a position tosupply the University of Auckland with evidence of satisfaction of therecency requirement.11 Limitations Schedule 2019, reg 1(a)(ii); Limitations Schedule 2020, reg 1(a)(ii).Issue 3: Was the University's advice to Ms Roe that she was required to undertakefurther University level study in order to be eligible for the MBChB correct?[66] Judicial review is concerned with the review of the exercise of public powers,and more particularly, with the review of statutory or public decisions. This aspect ofMs Roe's claim does not relate to any particular decision made by the University, norfalls within the bounds of what might otherwise be considered in the context of ajudicial review application. Rather, whether non-contractual advice given by a partyto another is or is not correct (and if incorrect, what damages might flow from that)would ordinarily be considered in the context of a tort analysis, or under the rubric ofthe Fair Trading Act 1986 (to the extent the party giving the advice was "in trade"when doing so). As noted, Ms Roe did not pursue her separate tort claims.[67] The courts are also hesitant to permit applications for judicial review to expandto incorporate such other claims, including claims for damages. Fundamentally,applications for judicial review, focusing on the lawfulness of decisions taken bystatutory or other public bodies, are intended to be heard and determined in an efficientand speedy manner, reflected in a simplified procedure shorn of many of the stepsattending to other forms of civil proceedings.12 In commenting on this approach, inAttorney General v Dotcom, the Court of Appeal observed:13[w]e consider the objective of dealing with judicial review proceedings inthe way that is most convenient and expeditious will provide reason for a HighCourt Judge to be cautious about allowing the expansion of a judicial reviewclaim by the addition of a claim for damages. We endorse what this Court saidin Orlov v New Zealand Law Society in that regard, and stress that it is theexpedition of the application for judicial review that must be the focus.We do not think there is any point in our setting out particular guidelines orspecifications in which non-judicial review claims can be added to judicialreview claims. Ours is not a legislative role. However, we accept the generalthrust of Mr Boldt's submission that the objective of maintaining thesimplicity of the judicial review procedure should not lose sight of whenapplications to extend a claim beyond the initial judicial review claim aremade.(emphasis in original)12 For example, discovery and viva voce evidence.13 Attorney General v Dotcom [2013] NZCA 43 at [47].[68] As Ms Roe submitted at the hearing, the Court of Appeal in Attorney-Generalv Dotcom noted there are no decisions creating absolute rules in this regard. But theCourt's observations set out above plainly guide what might ordinarily be expected inthe context of judicial review proceedings and hearings.[69] Allegations of "mis-advice", and damages claims as a result, are accordinglynot suitable for determination on an application for judicial review. For completeness,however, I make the following observations on Ms Roe's claims of mis-advice.[70] Ms Roe's amended statement of claim says the advice was given to her "from2013". The University could not locate any such advice in 2013, and Ms Roe did notproduce any. The University accepts it gave such advice to Ms Roe in 2014, 2015,2016 and 2018, but says that the advice was correct.[71] It appears the advice, at least in some instances, used the term "eligible"; inother words, Ms Roe needed to meet the various academic criteria in order to be"eligible" for the MBChB programme. It is the use of the word "eligible" in suchadvice, and in the communications with Ms Roe discussed earlier in this judgment,with which Ms Roe takes issue. She says the University did not have the power toimpose eligibility criteria on domestic students aged 20 years or over.[72] In that context, Ms Roe is strictly right. Who will be deemed an "eligiblestudent" for the purposes of the Act is defined by s 224(2). For the reasons set outabove, holding certain minimum academic requirements does not apply to domesticstudents aged 20 years and over.[73] But in my view, it is plain from the various communications and materials thatthe University was using the term "eligible" in its common parlance, in the context ofa limited entry programme, rather than in the statutory context of who can form partof the broader pool of "eligible students" for the purposes of s 224. Further, andpragmatically, in the context of a highly competitive programme such as the MBChB,it is no doubt appropriate for the University to communicate to students in advance theminimum academic requirements for entry into the programme, so that in the event ofoversubscription, those who have applied are in a position to be considered forenrolment. There would likely be significant complaint if the University did notcommunicate these requirements. And as noted, those minimum academicrequirements will still be relevant to others falling within the pool of "eligiblestudents" pursuant to s 224(2), who are not domestic students over 20 years in anyevent.[74] These matters do not, however, alter the outcome of Ms Roe's application forjudicial review, which concerns the lawfulness of the University's decisions to declineher application to enrol in the 2019 and 2020 MBChB programmes. As concludedabove, those decisions were lawful.Issue 4: Is the University obliged to recalculate Ms Roe's GPA and rank score?[75] Given the outcome on the earlier issues, this issue does not arise fordetermination. Again, I make some brief observations only.[76] The University concedes that it miscalculated Ms Roe's GPA. This meant thather rank score (given provisionally on the basis that she would have provided evidenceby the relevant deadlines of having successfully completed her MPhil) was lower thanit should have been. Given that I find the University was permitted to declineMs Roe's enrolment applications because she did not meet the recency requirement,there is no legal obligation on the University to recalculate her GPA. Even if her GPAhad been correctly calculated at the time, Ms Roe would still not have met the recencyrequirement. Accordingly, there would be no practical utility in ordering theUniversity to recalculate Mr Roe's GPA.14Issue 5: Is Ms Roe entitled to relief?[77] As will be apparent from the above, I do not consider that Ms Roe is entitledto any relief.14 In Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA), the Court ofAppeal observed at [39] that "if some form of relief could have a practical value then it ought tobe granted."Result and costs[78] Ms Roe's application is dismissed.[79] The parties are encouraged to agree costs between themselves. If they cannot,the University may file a costs memorandum within 15 working days of the date ofthis judgment, with any memorandum in response by Ms Roe to be filed within afurther five working days. No memorandum is to be longer than three pages in length.I will thereafter determine costs on the papers.______________________________Fitzgerald J