ROE v THE UNIVERSITY OF OTAGO [2021] NZHC 2952

ROE v THE UNIVERSITY OF OTAGO [2021] NZHC 2952 [3 November 2021]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2020-412-115[2021] NZHC 2952UNDER Judicial Review Procedure Act 2016IN THE MATTER OF an application for judicial reviewBETWEEN KELLY ALEXANDRA ROEApplicantAND THE UNIVERSITY OF OTAGORespondentHearing: 20 October 2021Appearances: Applicant in PersonR J M Sim for RespondentJudgment: 3 November 2021JUDGMENT OF GENDALL JThis judgment was delivered by me on 3 November 2021 at 4 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .Introduction[1] The applicant, Ms Kelly Roe, applied to be enrolled in the Bachelor ofMedicine and Bachelor of Surgery (MBChB) programme (the programme) at theUniversity of Otago (the University) in 2010, 2017, 2018 and 2021 under the"Alternative category". Each year, the University declined her application. Ms Roeapplies to judicially review the latter three decisions on the basis the University didnot have the power under the Education Act 1989 (the Act) to decline her applications.Ms Roe's application for admission[2] Admission to the MBChB programme is governed by the University's MBChBRegulations (the Regulations), which were established by the University Councilunder the Act and now operate subject to the Education and Training Act 2020. Of thethree pathways to entry established by the Regulations, the only one applicable to MsRoe, and the only one under which she has sought admission, is that now known asthe Alternative category.1 The purpose of this category is attract a range ofacademically suitable applicants with broad life experiences, skills and perspectivesto the medical programme who do not fit in the other categories for entry. Regulation1(h) of the Regulations stipulates an applicant can only apply once under theAlternative category.[3] In 2010, Ms Roe sought admission to the programme through this Alternativepathway. Her application for entry was considered, including through holding aninterview with her, but was ultimately not successful.[4] Despite reg 1(h) preventing multiple applications under the Alternativecategory, in April 2017 Ms Roe submitted a second Alternative category application.In doing so, she referred to reg 1(k) of the Regulations which allows for admission for"exceptional reasons" for applicants who have not satisfied the Regulations "in aparticular aspect". There being no meeting of the Medical Admissions Committeetimetabled for some months, the matter of whether exceptional circumstances existed1 At no stage has Ms Roe suggested she can seek enrolment under either of the other pathways("Health Sciences First Year" and "Graduate"). Ms Roe has not completed the Health SciencesFirst Year course and, at the time of her first application in 2010, she had not completed a degreewithin the previous three years so as to avail herself of the Graduate category.to receive a second Alternative category application was considered at the time undera specific delegation by its Convenor and the Admissions Dean. Ms Roe was advisedher request that the University accept a second Alternative category application wasnot approved and her application had accordingly been declined.[5] Pursuant to the University's Appeals Statute 2011, Ms Roe sought leave toappeal that decision to the Appeals Board of the University Council. The Boarddeclined leave for an extension of time to file the out-of-time application. However,the Board recorded it had considered both the adequacy of the delegation under whichthe exceptional circumstances issue had been considered, and the overall merits of theproposed appeal, and was satisfied there was no realistic prospect of an appealsucceeding.[6] In April 2018, Ms Roe again communicated her wish to be considered foradmission to the programme in reliance on exceptional circumstances. Ms Roe wasadvised the University did not accept there were exceptional reasons to allow a furtherAlternative category application and that it would not progress an application foradmission. Ms Roe then sought leave to appeal that decision, on this occasion withintime, and her situation was considered by the Appeals Board. After considering a fullreport prepared on behalf of the University Senate by one of its professorial members,the Board declined leave to appeal. As a result, an application for admission whichMs Roe had lodged on 30 April 2018 was not progressed by the University.[7] In early 2021, Ms Roe engaged with the University's online enrolment systemin an endeavour to again apply for enrolment to the programme under the Alternativecategory. The system identified Ms Roe and prevented her progressing the application.It directed her to the electronic address "AskOtago" as the appropriate source ofassistance. Ms Roe communicated with AskOtago until, as a result of the issues raised,the Registrar and Secretary to the Council, Mr Stoddart, took over the correspondence.The Registrar explained to Ms Roe that it remained open to her to advance a case forexceptional reasons to the Convenor of the Medical Admissions Committee. No suchfurther application was received and these proceedings followed.[8] The present proceedings, however, are not the first Ms Roe has pursued in thisCourt. She has also unsuccessfully sought judicial review of her non-admission to themedical programme at the University of Auckland,2 as well other judicial reviewproceedings she has issued against the University of Waikato,3 and the New ZealandVice-Chancellor's Committee.4 This Court's decision, first noted above in Roe vUniversity of Auckland (the "Auckland University Decision"), is an importantauthority in considering the present matter, whereas the latter two decisions, whicharise from the non-award to Ms Roe of a MPhil degree at the University of Waikato,are of less relevance to this proceeding. Ms Roe also sought to appeal the AucklandUniversity Decision to the Court of Appeal. However, the Registrar of that Courtdeclined her application for a waiver of security for costs. Ms Roe then applied forreview of the Registrar's decision, but this was declined by Miller J in the Court ofAppeal.5Ms Roe's present application for judicial review[9] Ms Roe filed an initial statement of claim on 21 December 2020. She soughtthree remedies:(a) a declaration that the University's decision to refuse to process herapplications in 2017 and 2018 was invalid "by reason of conflictingwith the Education Act";(b) unspecified damages; and(c) removal from office of the (unnamed) "remaining senior level officials"involved in decisions to refuse to provide her an application form andto process an application to enrol her.[10] Following a case management conference, Dunningham J in this Court issueda minute on 1 March 2021. It recorded that the first of the claims related solely to the2 Roe v University of Auckland [2021] NZHC 368.3 Roe v University of Waikato [2021] NZHC 1808.4 Roe v New Zealand Vice-Chancellor's Committee [2021] NZHC 719.5 Roe v University of Auckland [2021] NZCA 423.interpretation of s 224 of the Act,6 and Ms Roe's claim that under a properinterpretation of the section she was automatically "eligible" to enter the programme.In relation to the other claims, her Honour directed that Ms Roe file an amendedstatement of claim specifying the quantum of damages sought and the individuals MsRoe sought to have removed from office.[11] Ms Roe then filed an amended statement of claim but, rather than respondingwith additional detail as directed, significantly repleaded the claim. Minutes thenissued since by Mander J clarify that Ms Roe has abandoned her claims for damagesand for the removal of University personnel from office, and Ms Roe confirmed thisat the hearing before me. Mander J also confirmed the core issue in Ms Roe'sapplication was whether the University has correctly interpreted s 224 of the Act.[12] For completeness, I note that, following the first case management conference,Ms Roe filed an application for an interlocutory injunction, seeking that the Universitysupply her with, or allow her to submit, an application to enrol in a programme of herchoosing. At the second case management conference in the Court, Mander J directedthat application be heard together with the substantive judicial review application asthe relief sought in both applications was the same. In any event, Ms Roe made nosubmissions in the hearing before me in this Court on the issue and she can be takenas having abandoned the claim for injunctive relief.Ms Roe's submissions[13] Ms Roe's submissions do not identify the matters at issue here with clarity.However, case management conferences have confined the matters at issue. The issuescan be identified through consideration of the remedies sought by Ms Roe's amendedstatement of claim, which can be deduced from that statement of claim and Ms Roe'sadvice to the Court in the course of the case management conferences as follows:(a) An order that the University be required to supply application to enrolforms so that students who may be eligible to be enrolled in variousprogrammes may apply to be enrolled in various programmes.6 Section 255 of the Education and Training Act 2020 is in materially equivalent form.(b) The endorsement of an interpretation of the Education and Training Actwhereby Parliament only intended the University to consider domesticteenagers in cases where the programme is under-subscribed bydomestic adults.(c) An order that the University supply an application to enrol to Ms Roeand any other candidate who wants one.[14] At the hearing, Ms Roe emphasised she was not seeking entry to theprogramme but simply to obtain a declaration from the Court as to the legal parametersof the enrolment process "for other students in the future".[15] In her submissions, Ms Roe appeared to pursue an additional point, namely, achallenge to the validity of the decision to decline her 2010 application for enrolmenton the basis that the University's response involved discrimination against her on thegrounds of disability and was consequently unlawful. Although Ms Roe's amendedstatement of claim refers to her 2010 application being wrongly decided, no remedywas sought in relation to that. Seeking to advance the issue now is inconsistent withconfirmation given by Ms Roe during the case management conferences that the 2010decision was not under challenge. Regardless, Ms Roe did not disclose at the hearingbefore me what, if any, disability she may have, much less did she establish that theUniversity took into account any disability in an unlawful way in 2010. There is noevidential basis on which any adverse finding on that issue could be made against theUniversity, and I reject Ms Roe's belated attempt to challenge the 2010 decision.[16] So far as the University's submissions in response are concerned, I confirmthey are outlined and addressed in my analysis that follows.Analysis[17] The remedies sought by Ms Roe arise from her interpretation of the meaningand effect of s 224 of the Act, which relevantly provides: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.[18] In the Auckland University Decision, Roe v University of Auckland, FitzgeraldJ considered s 224 in detail and summarised its effect as follows:7(a) First, there is a pool of eligible students, one category of which isdomestic students aged 20 years and older, irrespective of whetherthey hold any minimum entry requirements for the programme inquestion.(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 aninstitution for resourcing reasons (meaning the programme is a limitedentry programme).(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.[19] It appears the use of the term "eligibility" in s 224 may have caused Ms Roesome confusion. She seems to believe that her status as a "domestic adult" guaranteesthat simply submitting an application will entitle her to enter the programme as ofright. Under s 224, a person is an eligible student inter alia if they are a domesticstudent, which s 2 of the Act defines as including all New Zealand citizens, and haveattained the age of 20 years. There is no doubt that Ms Roe is an eligible student inaccordance with s 224.[20] However, meeting the definition of an eligible student under s 224(1) does nottranslate into a guaranteed right to enter a specific course. Ms Roe's entitlement to beenrolled in the programme is subject to her being selected for one of the limited placesavailable under the processes adopted by the University. Where a course has a lawfullyestablished limitation on numbers, an institution is able to select entrants from the7 Roe v University of Auckland, above n 2, at [53].eligible student pool "using whatever mechanism or criteria it prefers (so long as notinconsistent with the Act)".8 The mechanism or criteria adopted by the University hereare those established through the Regulations. The process of assessing an eligiblestudent's ability to be selected under those Regulations may (perhaps to a limiteddegree a little confusingly) be referred to as a process of considering eligibility, butthis is a matter of eligibility under the Regulations, not the Act.[21] Fitzgerald J confirmed in Roe v University of Auckland that a university'sability to design its own selection process scheme is virtually unfettered:9As noted, other than the permitted preference of certain classes of eligiblestudents, the Act does not direct or even suggest how the relevant institutionmight go about selecting from a pool of eligible students those who will beadmitted to an oversubscribed limited entry programme. The very fact the Actis silent on this point is consistent with the object of the Act [22] The object of the provisions of the Act relating to institutions was set out ins 160 of the Act. It is preserved in identical form in s 266 of the Education and TrainingAct 2020. It confirms the very wide-open freedoms the University has to make itsdecisions:160 ObjectThe object of the provisions of this Act relating to institutions is togive them as much independence and freedom to make academic,operational, and management decisions as is consistent with thenature of the services they provide, the efficient use of naturalresources, the national interest, and the demands of accountability.[23] In the Auckland University Decision, Ms Roe's application for entry wasrejected due to her failure to meet a "recency" requirement under the Aucklandadmission scheme. This required the completion of a qualifying degree not more thanfive years prior to the date of application.10 I note that in Ms Roe's application forreview by the Court of Appeal of its Registrar's decision to decline her application fora waiver of security for costs in relation to an appeal of the Auckland decision, Miller Jmade comments as to the merits of the substantive appeal, which bear on this case.118 Roe v University of Auckland, above n 2, at [53].9 Roe v University of Auckland, above n 2, at [57].10 The University's scheme here contains a similar requirement for those applying for entry underthe Graduate pathway.11 Roe v University of Auckland, above n 5.In declining Ms Roe's application for review, his Honour agreed with the Registrarthat there was no prospect of the University being required to enrol Ms Roe, and thatFitzgerald J's reasoning, to the effect that the legislation allows the University toimpose entry requirements that all applicants must meet, appeared "unanswerable".12The consequences of a finding that all adult applicants who met the recencyrequirement could enrol as of right regardless of capacity constraints would, in MillerJ's opinion, be "startling to say the least".13[24] In the present situation, the obstacle facing Ms Roe has been the "once-onlyrequirement" in the Regulations, that is, the stipulation that a candidate can apply onlyonce under the Alternative pathway. Ms Roe did not challenge the lawfulness of thisrequirement (as opposed to the requirement that she face a selection process at all) andthere can be no suggestion it is inconsistent with the objects of the Act or otherwiseunlawful. I accept Mr Sim's submission on behalf of the University that, in any event,it is clearly legitimate for the University to impose such a restriction as part of its widepowers to determine how students will be selected for admission to an over-subscribedlimited entry programme from a pool of eligible students. If the University could notreject applications for non-compliance with the "once-only requirement", it would berequired to consider what might become a flood of potentially unmeritorious andrepetitive applications, undermining the efficiency of University procedures.[25] Further, I acknowledge the potentially severe effects of an unbending "once-only requirement" are ameliorated by the discretion afforded by reg 1(k) of theRegulations to the Medical Admissions Committee to "consider any applicant who,not having satisfied these regulations in a particular aspect, warrants admission to theprogramme for exceptional reasons". Ms Roe has twice advanced a case for theexercise of that discretion in her favour, and on both occasions, via applications to theUniversity Council's Appeals Board, pursued review of the decisions declining to doso. The University has expressly highlighted to Ms Roe her ongoing right to advancea case for "exceptional reasons", but she has not pursued that avenue. Were there anybasis for review in this matter, I consider the fact Ms Roe has not pursued this avenue,12 At [6].13 Roe v University of Auckland, above n 5, at [6].given the opportunity made available to her to do so, would strongly point against theCourt exercising its discretion in favour of Ms Roe.[26] Having addressed these contextual matters, I now turn to the argumentsMs Roe sought to advance. Ms Roe's principal contention appeared to be an assertionthat Parliament only intended universities to consider "domestic teenagers" in caseswhere a programme was under-subscribed by applications from domestic adults. Inother words, Ms Roe suggested the Act requires that priority be given to applicantswho are in the pool of "eligible students" because they are domestic students over theage of 20.[27] In my view, this submission has no support whatever in the wording of the Act.It is plainly inconsistent with the extensive discretion the Court in Auckland UniversityDecision, Roe v University of Auckland, identified is afforded to universities in theestablishment and exercise of their decision-making processes. Prioritising domesticadults at all times would significantly impede the object of the Act in relation toensuring the efficient use of national resources. This is the case because it wouldimpair the University's ability to select candidates it assessed as best qualified forundertaking the MBChB programme and, in due course, who would be best suited formeeting the needs of New Zealand's health workforce. As Mr Sim submitted, anextreme implication of Ms Roe's interpretation of s 224 is that the medical schoolintake could be comprised largely of retirees with no demonstrated aptitude for thestudy of medicine.[28] The second line of argument put forward by Ms Roe was that the University isin breach of the Act by not allowing her to complete an application and have itconsidered under the Alternative category. She argued this is the case even incircumstances where it is patently clear such an application would be rejected oncethe Regulations assessment criteria were applied to it. In her amended statement ofclaim (but not in her submissions before me), Ms Roe argued that, because the totalnumber of domestic adult applications that will be received is not precisely known atthe time Alternative category admissions are considered, it is not certain theprogramme will be over-subscribed by domestic adults, and consequently it cannot beknown with certainty that a selection process will be necessary. On this basis, Ms Roecontended the Regulations should not be applied to decline any applications.[29] Before me, Mr Sim noted this submission appears secondary to Ms Roe'sargument about the priority right of admission for domestic adults, which I havealready rejected. However, if the submission is approached by reference to the entirepool of eligible students, it cannot be reconciled with the inevitability that (as hasoccurred throughout) the programme will be substantially oversubscribed. TheUniversity Registrar's affidavit before the Court details a longstanding pattern ofoversubscription where applications exceed available places by a factor of at leastthree. For instance, in 2021, 1,126 applications were made for the programme forwhich, in 2022, only 282 domestic places are available.14 The Registrar deposed thatthe number of First Year Health Science enrolments in 2021 demonstrates beyond anydoubt that this pattern will continue.[30] I am left in no doubt that it is both lawful and reasonable here for the Universityto approach its decision-making in relation to enrolment in the programme on the basisthat the programme will be significantly over-subscribed. The Act does not require theUniversity to receive or process enrolment applications from eligible students at anyparticular time. Similarly, a process in which the University declines to receive anapplication at a time it has a clear basis for concluding that it will not be successful,cannot be regarded as either unlawful or unreasonable. As I see it, the University mightbe lawfully required to admit eligible students without some form of selection processonly in the hypothetical event of under-subscription that might emerge at a time whenall categories of application recognised by the Regulations had closed.[31] Moreover, I accept Mr Sim's submission that it would be futile to grant anyaspect of the remedies sought here by Ms Roe as, in the absence of exceptional reasons(which she has declined to advance despite being invited to do so), supplying her anapplication form for her to submit would not alter the inevitable rejection of such an14 In 2017, there were 1,081 applications; in 2018, 998 applications; in 2019, 1,070 applications; andin 2020, there were 1,056 applications.application under the Regulations. It is appropriate for the Court to decline relief whereit is inevitable the substantive outcome the applicant seeks will not be achieved.15[32] The University responsibly considered it was not appropriate to seek to resolvethese proceedings through providing Ms Roe with the ability to complete anapplication for admission to medicine, only for it to be inevitably rejected for thereasons given. To have done so would have been disingenuous. This is so because itwould have constituted holding out an imaginary hope to Ms Roe that her applicationwould be accepted, when it would inexorably be declined under the "once-onlyrequirement" and in circumstances where Ms Roe had not sought admission under theexceptional reasons power in the Regulations. This is especially the case given thatMs Roe believes her status as a "domestic adult" means that submitting an applicationwill automatically entitle her to enter the programme as of right.Conclusion[33] For all the reasons I have outlined above, Ms Roe's application is dismissed.Costs[34] Costs are reserved. The parties are encouraged to agree costs betweenthemselves. They may be sought by the University given that costs would ordinarilyfollow the event. If the parties are unable to agree, the University may file a costsmemorandum within 20 working days of the date of this judgment, with anymemorandum in response by Ms Roe to be filed within a further 10 working days. Nomemorandum is to be longer than three pages in length. I will then make adetermination on the papers.Solicitors:Gallaway Cook Allan, Lawyers Dunedin15 See Wislang v Medical Practitioners Disciplinary Committee [1974] 1 NZLR 29 (SC) at 42; andStininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1 (CA)Copy to:Kelly Roe - Applicant