Lamb v Massey University [2006] NZCA 167 (13 July 2006)

Last Updated: 26 July 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA241/04

BETWEEN TANIA JOY LAMB
Appellant

AND MASSEY UNIVERSITY
Respondent

Hearing: 8 March 2006

Court: William Young P, Hammond and Allan JJ

Counsel: G D S Taylor for appellant
P Chemis and H Kynaston for respondent

Judgment: 13 July 2006

JUDGMENT OF THE COURT

A The appeal is dismissed

B The respondent is awarded costs of $6000 together with usual disbursements

REASONS

(Given by Allan J)

Introduction

[1]	Between 1989 and 1991, and again in 1993, the appellant, Ms Lamb, was enrolled in a three year course for a Diploma of Teaching in Primary Education at the Palmerston North College of Education. The College was disestablished in 1996 and became part of the respondent, Massey University. Because all of the events which are material to this appeal occurred during the lifetime of the College, we refer in this judgment to "the College". There is however no dispute that the respondent is responsible in law for the acts and omissions of the College in its dealings with Ms Lamb.
[2]	In 1989 and 1990 Ms Lamb fulfilled all the necessary academic requirements, but in 1991, which was intended to be her third and final year, she failed the majority of her papers. The policy of the College was that a student who failed more than half of his or her papers in any one year was deemed to have made "insufficient progress" and was excluded from the College during the following academic year.
[3]	She returned to the College in 1993 but was again unsuccessful. As required by the stand down policy, she did not attend the College in 1994 and, although she re-applied for admission in 1995, her application was not accepted.
[4]	Ms Lamb was dissatisfied with her treatment at the hands of the College. An extensive mediation followed, but no resolution was achieved. Ultimately, she filed two separate claims against the respondent in the High Court. The first, filed on 18 January 2000, alleged that the respondent had breached its contract with her by:

a) Failing or refusing properly to reconsider the courses that she had failed in 1993, and
b) Failing or refusing to allow her to complete her courses in 1995 or subsequently.

[5]	In that proceeding Ms Lamb claimed unquantified special damages for losses she claimed to have suffered as a result of the alleged breaches of contract, and unquantified general damages for humiliation and distress.
[6]	Her second claim, brought by way of application for judicial review, was filed on 28 February 2000. In that proceeding, she pleaded that the failure of the College to pass her in 1991 and 1993, and the subsequent refusal in 1995 to allow her to complete her teaching practice course, amounted to the exercise of statutory powers of decision. She claimed that the decisions so made were vitiated by presumed bias or, alternatively, were made in breach of her legitimate expectation that the College would assess her work fairly and in a manner consistent with its assessment of other students, and that she would be allowed to complete her studies in 1995. There is a further claim in the judicial review proceedings that the College was in breach of Ms Lamb’s right to natural justice affirmed by s 27 of the New Zealand Bill of Rights Act 1990.
[7]	In the judicial review proceeding, Ms Lamb sought an order declaring the College’s decisions to be invalid, and consequential orders setting the decisions aside and requiring the respondent to amend her academic record and consider her entitlement to complete her course of academic study. She also claimed unspecified damages for breach of her rights under the New Zealand Bill of Rights Act 1990.
[8]	The two proceedings were heard together by Wild J on 11 and 12 October 2004. In a judgment delivered on 19 October 2004 the Judge rejected Ms Lamb’s claims in their entirety. In a second ruling given on 23 December 2004, the Judge awarded the respondent costs against Ms Lamb of $27,737.11.
[9]	Ms Lamb now appeals from the judgment of Wild J insofar as it rejected her claim for judicial review. She does not however, seek to disturb the Judge’s findings on the breach of contract claim.

Grounds of appeal

[10]

Mr Taylor for the appellant relied upon five distinct grounds, although the last of them is really conclusionary in that it amounts in effect to a contention that the Judge’s factual findings ought to be set aside by reason of the combined effect of the errors alleged in the first four grounds. The separate grounds relied upon are:

a) The Judge adopted the wrong test for bias and in doing so put the threshold for bias too high, asked himself the wrong question by considering material that went beyond what was relevant to the proper test, and assessed that material from the wrong perspective;
b) The Judge wrongly admitted privileged documents and referred to them in his judgment;
c) There was a factual error in the judgment in respect of certain inquiries claimed by Ms Lamb to have been made by the College of her medical advisers, and to be relevant to Ms Lamb’s claim that the College was biased against her for medical reasons;
d) The Judge inappropriately included in his judgment passages which expressed his own view of the quality of academic work undertaken by Ms Lamb.
e) In consequence of the foregoing errors, the interests of justice require that the judgment under appeal should be set aside.

[11]

As Mr Taylor readily concedes, it is now some 15 years since difficulties between Ms Lamb and the College first arose and 12 years since she was last in training to be a teacher. She no longer seeks to return to the College. She does however, seek vindication in the Courts, and asks that if this Court is minded to allow her appeal, the judgment should simply be set aside and the order for costs made in the High Court quashed.

[12]

Against that background we turn to consider the grounds of appeal in the order in which they were advanced by Mr Taylor.

The test for bias

[13]	Mr Taylor submits that the Judge articulated and applied the wrong test for bias and in consequence misdirected himself. It is necessary to place this argument in its proper factual context.
[14]	In her earlier years, Ms Lamb suffered significant injuries (including head injuries) in three separate traffic accidents. Having completed a period as a teacher aide at an intermediate school in 1987-88, she attended the Palmerston North Hospital Rehabilitation Unit in early 1989 for an assessment of the effects of her injuries. During that assessment, she was told by a psychologist at the Unit that it would be unwise to seek primary school teacher qualifications and that if she did attempt to do so she would be setting herself up for failure.
[15]	As earlier recounted, Ms Lamb did however set out to qualify as a primary school teacher. For two years all went reasonably well. But her evidence was that at the beginning of 1991, her third and final year, she met her social studies lecturer to discuss an assignment. She had just received her first unfavourable grade. At the meeting, her lecturer appeared to be upset and confided to Ms Lamb that it was his daughter’s birthday and she was severely intellectually handicapped. In turn, Ms Lamb revealed that she had had a head injury as the result of a motor accident, and had been advised by a psychologist not to undertake teacher training, because by so doing she would be setting herself up for failure.
[16]	Ms Lamb’s evidence was that from that time on she encountered numerous difficulties at the hands of College staff. She was the subject of much derogatory comment, both in class and in connection with her assignments. She did not receive the assistance from staff which she expected to get and was assessed more harshly than her fellow students in similar circumstances. Further, Ms Lamb says that in 1991, a representative of the College contacted her general practitioner in the context of information which that caller had already allegedly obtained from the Palmerston North Hospital Rehabilitation Unit.
[17]	Against that factual background we turn to the appellant’s first argument.
[18]	Ms Lamb’s case was that her disclosures to her lecturer about her head injuries, coupled with the information allegedly obtained separately by the College, caused the College and its staff, whether deliberately or not, to discriminate against her. In 1995 she applied to re-enrol, in order to complete her studies, but her application was declined.
[19]	Ms Lamb says that the College had a duty to treat her fairly and equally with other students. She says that the failure of the College to give her a passing grade in certain third year subjects and to decline her application for re-enrolment in 1995, amounted in each case to the exercise of a statutory power of decision. She says that those decisions were invalid by reason of presumed bias and breach of her legitimate expectations.
[20]	The respondent denies that the decisions of which Ms Lamb complains constituted the exercise of statutory powers of decision, but it accepts that it was under a duty to act fairly and without bias in respect of Ms Lamb, and that it was obliged to treat her equally with other students. That being so, jurisdictional questions of the sort discussed in Griffith University v Tang [2005] HCA 7; (2005) 213 ALR 724 do not arise.
[21]	In her amended points of appeal, Ms Lamb summarised this ground of appeal as follows:

Ground (1) His Honour erred in paragraph 56 when he substituted the former and more stringent test of bias in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) at 149 for the more recent English test adopted by the Court of Appeal in Erris Promotions Ltd v Commissioner of Inland Revenue [2003] NZCA 163; (2003) 16 PRNZ 1014 (CA) and Ngati Tahinga and Ngati Karawa Trust v Attorney General [2003] NZCA 224; (2003) 16 PRNZ 878 (CA).

[22]	Paragraph [56] of Wild J’s judgment reads:

[56] As to bias, I accept Massey’s submission that there is no evidence of actual bias. The plaintiff’s evidence (her own and that she has adduced from other witnesses) falls short of establishing apparent bias in the now well established sense, that a reasonable person knowing all the relevant facts would consider there to be a real danger or likelihood of bias: Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) 149.

[23]

This ground of appeal appears to us to be based on something of a misapprehension of the effect of recent discussion in this Court of the test for bias which ought to be applied in New Zealand. The authorities are conveniently discussed and summarised in the judgment of this Court in R v Jessop CA13/00 19 December 2005. The argument there was that a High Court Judge ought to have recused herself from presiding over a pre-trial application, and the subsequent trial and sentencing procedure, having previously sentenced the appellant following an earlier trial. There was an issue as to whether that constituted apparent bias.

[24]

On that occasion we said:

[65] The test to be applied in New Zealand in determining whether a Judge is biased is that enunciated by Lord Goff of Chievely in R v Gough [1993] UKHL 1; [1993] AC 646 at 670:

Accordingly, having ascertained the relevant circumstances, the Court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.

[66] That test was adopted by this Court in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) at 149 and applied in Man-O-War Station Limited v Auckland City Council [2001] 1 NZLR 552 at [12]-[13]. It was also applied in the decision of this Court in Erris Promotions Limited v Commissioner of Inland Revenue CA68/03 24 July 2003.
[67] In Erris, this Court noted that the test taken from Gough differed from that now applied in England (‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’; Porter v Magill [2002] 2 AC 357 (HL) at [103] per Lord Hope of Craighead). It also differs from the test postulated by the High Court of Australia in R v Webb [1994] HCA 30; (1994) 181 CLR 41. In its judgment in Erris at [32], this Court suggested that a new test might be:

Would the reasonable informed observer think that the impartiality of the adjudicator might be/might have been affected?

[68] The Court stopped short of overruling the test adopted in the Auckland Casino Limited case, and that is the test we will apply in this case. However, as will become apparent, it seems to us that whatever test is applied there can be no doubt that there was no bias on the part of Potter J in the present case.

[25]

It is not therefore correct to contend that the test set out in Auckland Casino has been supplanted by a different test. In the Erris and Ngati Tahinga cases this Court adopted the Auckland Casino test. So the Judge was therefore quite right to cite that case as a leading authority on the point. But on examination, it seems that the Judge has in fact applied the rather less stringent test to be found in such cases as Porter v Magill. The primary difference between the tests lies in the viewpoint from which the circumstances are assessed. On the Auckland Casino test the assessment is undertaken from the viewpoint of the Court. On the Porter v Magill test, the circumstances are assessed from the viewpoint of a fair minded and informed observer.

[26]

At [56], Wild J said that the test was whether:

A reasonable person knowing all the relevant facts would consider there to be a real danger or likelihood of bias.

He appears therefore to have adopted a test significantly more favourable to Ms Lamb than is mandated by Auckland Casino. If that is so, then it is sufficient to dispose of the first ground of appeal as formulated in the amended points on appeal.

[27]	But Mr Taylor submitted that, while it may be arguable that the Judge had set out the wider test in his judgment, he did not apply it. The test focuses upon what would be known to a fair minded and informed observer. It does not permit the Court to attribute to that observer knowledge which is confined to the parties and to the Court.
[28]	As was said by the Visitors to the Inns of Court in In Re P (A Barrister) [2005] 1 WLR 3019, 3052:

The perception of impartiality is to be based on that which is open to view and not on facts which would be hidden from an outside fair-minded observer.

[29]	The Judge did not find it necessary to sift through the evidence relied upon by Ms Lamb as supporting apparent bias. Instead, he concentrated primarily upon the disclosure made by Ms Lamb to the lecturer of her head injury and the advice she had received from the psychologist to the effect that she would be setting herself up for failure if she took a teacher’s training course. He is not criticised by Mr Taylor for that approach.
[30]	We infer that the alleged consequences of that disclosure provided the real foundation for Ms Lamb’s bias claim in the High Court. They were certainly the focus of Mr Taylor’s submissions in this Court.
[31]	On this point the Judge said:

[57] Mr Loveridge could not recall such a conversation and said that he had no idea what the plaintiff’s disability was. He deposed that he was ‘stunned to hear’ the plaintiff’s allegation that he was biased against her because of her disabilities. He explained that his whole life had revolved around disability: his mother was a quadraplegic for 18 years; he had a severely handicapped daughter and he had taught Special Needs as Deputy Principal at Central Normal School. He said that he considered himself to be deeply considerate of anyone’s special needs.

[32]	Mr Taylor was critical of this passage because he said it demonstrated that the Judge had incorrectly taken into account material which would not have been available to a fair-minded and informed observer. He submitted that such an observer might have known of Mr Loveridge’s history as a teacher of children with special needs, and might possibly have known of the handicapped daughter, but might not have known that Mr Loveridge’s mother was a quadraplegic.
[33]	In this case, such a speculative exercise must be largely unproductive. If anything, it is likely that a fair-minded observer, knowing of one or more of the features of Mr Loveridge’s personal background recorded by the Judge, would instinctively have assumed that he would be unusually sensitive to the needs of people like Ms Lamb, who have suffered physical or mental set-backs. So it would seem illogical to conclude that the notional observer might have a concern about bias.
[34]	If a test based on a fair-minded and informed observer is applicable, then it is necessary for a Judge to discount material which is before the Court, but which would be unavailable to such an observer. In a given case, that might prove to be a difficult exercise, but here the proper inference to be drawn from the judgment is that the Judge was quite unconvinced that the plaintiff had come close to making out her case. He said that the evidence:

... falls well short of establishing apparent bias ...

[35]	Mr Taylor’s subtle argument, based as it is on speculation as to what a notional fair-minded and informed observer might know and might conclude, does not persuade us that it would have been right to interfere with the robust judgment of Wild J, even on the wider test.
[36]	It is convenient to summarise our conclusions in respect of the first ground of appeal. The Judge correctly cited the Auckland Casino decision. The test for bias set out therein remains applicable in this country. The test reproduced by the Judge at [56] of his judgment is however, consistent with the less stringent test propounded in such cases as Porter v Magill. That is a more favourable test from the point of view of Ms Lamb. A fair-minded and informed observer might have knowledge of some or all of the features of Mr Loveridge’s involvement with disabled people. Such an observer would be likely to believe that Mr Loveridge would thereby have a special affinity for, and sympathy with, people under a disability. To such an observer there would be no appearance of bias on the part of Mr Loveridge. The Judge’s rejection of Ms Lamb’s bias claim was well justified, even if the wider test for bias applied in this country. However, it does not. The more stringent test set out in Auckland Casino remains the law. Under that test, given the Judge’s factual findings, Ms Lamb could not possibly succeed.
[37]	We reject the first ground of appeal.

Inadmissible documents/error of fact

[38]

In June and November 2002, and in June 2003, the respondent wrote to Ms Lamb’s solicitors setting out in each case detailed proposals for settlement. Each letter was marked "Without prejudice except as to costs". The letters found their way into the agreed bundle, and were ultimately annexed to an affidavit sworn on 19 July 2004, by Judith Murray Carter, associate director of Teacher Education at Massey University College of Education, and filed by the respondent .

[39]

The letters were remarked upon by Wild J, who at [20] of his judgment said:

[20] In June and November 2002, and again in June 2003, in order to avoid litigation, Massey made an offer to the plaintiff to enable her to obtain a teaching diploma. Although Massey could not guarantee that the Teacher Registration Board would register the plaintiff, it offered her the opportunity to either re-sit the teaching practice paper, or to complete a full-year post-graduate diploma in teaching. In addition, the defendant offered to waive the plaintiff’s fees, and to make a $5,000 contribution towards her costs. The offer was intended to constitute full and final settlement of the plaintiff’s dispute. The plaintiff rejected the offers on each occasion.

[40]	Mr Taylor submits that the documents ought never to have been included in the agreed bundle and ought never have been produced to the Court. They are privileged because they relate to the offer of a compromise. When the common bundle was settled, Ms Lamb was self-represented. Mr Taylor submitted that she was not alive to the implications of including privileged documents in the bundle, and that the respondent’s solicitors ought not to have filed an affidavit exhibiting privileged documents, irrespective of whether they appeared in the bundle.
[41]	On this ground of appeal the argument is that the Judge ought not, without satisfying himself that privilege had been waived, to have relied upon the documents concerned, or referred to them in any way in his judgment.
[42]	As part of the opening narrative the Judge did, as set out in [39] above, summarise the letters written by the respondent to Ms Lamb, and note that each offer was rejected by her. Mr Taylor submits that the contents of the letters may well have coloured the Judge’s thinking as to the merits of the case, by demonstrating the bone fides of the respondent and its willingness to reach an accommodation with Ms Lamb if it could.
[43]	The respondent’s position is that privilege was lost when the documents were included in the common bundle, so that they were properly annexed as admissible documents to Ms Carter’s affidavit.
[44]	It is unnecessary to engage in an extended discussion on this point. The Judge probably assumed that the documents were admissible because no objection was taken at trial to their inclusion as exhibits to Ms Carter’s affidavit. He may well have thought it appropriate to include reference to the documents in the factual narrative, simply to record the procedural history of the matter, but it is possible also that he regarded these letters as evidencing an objective and reasonable approach on the respondent’s part.
[45]	The Judge does not return to the letters later in his judgment. Nor do the letters themselves bear on any findings of fact made by the Judge, as Mr Taylor fairly concedes in his written synopsis where he says:

It cannot be said that His Honour’s error fed into specific findings of fact.

[46]	Mr Taylor told the Court that Ms Lamb is aggrieved that the respondent has effectively taken advantage of her in a procedural sense. That said, Ms Lamb did address the letters concerned in her reply affidavit of 22 September 2004 (paragraphs 13 and 14).
[47]	Because, as she accepts, the letters appear to have played no part in the Judge’s findings, or in the eventual outcome of her proceeding, further discussion will not serve any useful purpose. We simply express the view that while we have not been shown the course of correspondence between the parties with respect to the preparation of the common bundle, there may be some justification for Ms Lamb’s concern.
[48]	An associated point, also of limited significance, arises from a single sentence which appears at the commencement of [21] of the judgment, immediately after the Judge’s reference to the settlement letters. Having referred to the contents of those letters and to Ms Lamb’s rejection of the offers made, he said:

Instead, the plaintiff instituted the current proceedings.

[49]

The point which Mr Taylor makes here is that Ms Lamb did not institute proceedings following rejection by her of the successive offers made by the respondent. As earlier recounted, she had commenced her proceedings in January and February 2000, so the offers were made in the context of proceedings which were well advanced. To that extent there is an error in the Judge’s narrative, but nothing turns on that and it is unnecessary to say anything more about it.

Medical evidence

[50]	This ground of appeal challenges as unsatisfactory the way in which the Judge dealt with evidence of alleged attempts made by the respondent to contact both Ms Lamb’s general practitioner and the Palmerston North Hospital Rehabilitation Unit. Ms Lamb gave evidence that during 1993 she approached her general practitioner, Dr John Elliot, and asked him whether the respondent had contacted him at any time. She said that Dr Elliot told her that someone from the College of Education had requested further information about her, in connection with information the College had already received from the Rehabilitation Unit. Dr Elliot had refused to divulge any such information. Ms Lamb further said in evidence that she then approached the Rehabilitation Unit to find out what had been said by the Unit to the College. Initially she was told by a Unit staff member that a letter had been sent by the Unit to the College about Ms Lamb, but the staff member recanted and denied having sent such a letter when Ms Lamb pointed out that the disclosure of information to the College would amount to a breach of patient confidentiality.
[51]	Ms Lamb produced to the Court an affidavit from Dr Elliot which confirmed Ms Lamb’s inquiry to him, and his response, although the doctor was unable to specify the year in which the inquiry had been made.
[52]	As we apprehend it, Ms Lamb’s complaint about [58] of the judgment, which deals with this evidence, is that it focuses upon one issue only – whether there had been an actual breach of privacy. The Judge found that there had been no actual breach because nothing had been disclosed. Mr Taylor submitted that the Judge overlooked the real issue, namely whether the inquiries said to have been made on behalf of the respondent suggested that the respondent was vitally interested in Ms Lamb’s health, that being the matter which Ms Lamb claimed to be responsible for the respondent’s adverse view of her.
[53]	Counsel for the respondent submitted that certain aspects of Ms Lamb’s evidence amounted to hearsay. That seems to be so, but it is unnecessary to discuss the matter further because we are satisfied that the evidence of Dr Elliot and of Ms Lamb on this point lacked probative weight, even if what Ms Lamb claimed was correct. Nothing more was established than that some unknown person, purporting to be acting on behalf of the respondent, had endeavoured to obtain medical information about Ms Lamb. There is nothing to suggest that such information, even if supplied – which is doubtful - was subsequently used by the respondent in a manner adverse to her. The brevity of the Judge’s summary of this evidence provides, of itself, an indication that he regarded it as of little weight.
[54]	Mr Taylor also addressed us in respect of an error which he claimed the Judge had made at [59] of his judgment. There, Wild J ruled that there was an insuperable legal obstacle to the claim for judicial review, in that Ms Lamb was not a student at the College in 1995, and did not have the legal rights, powers and privileges of a student. The refusal of the College in 1995 to re-enrol her could not, in the Judge’s view, amount to the exercise of a statutory power of decision.
[55]	That finding is not challenged. But as a subsidiary issue Mr Taylor submitted that the reference to the year 1995 is to the year in which Dr Elliot received a call from the respondent about Ms Lamb, and that it was erroneous, in that the respondent’s inquiry of Dr Elliot was made much earlier.
[56]	We think that Mr Taylor has misread the judgment. The reference in [59] to the year 1995 is to the year of her application for re-enrolment. It is not intended by the Judge to relate back to the discussion in [58] of medical matters. There is nothing in this point.

The Judge’s academic assessment

[57]	In support of her bias claim, Ms Lamb relies heavily upon critical and derogatory comments made by members of the respondent’s academic staff on written work submitted for assessment by her. In particular she complains about a number of comments and notations made by Mr Loveridge.
[58]	The Judge held that Mr Loveridge’s comments did not evidence bias. Rather, they were simply indicative of Mr Loveridge’s genuine opinion. At [44] and [63] of the judgment, Wild J expressed his own view that the work concerned was of poor quality, and that Mr Loveridge’s comments and the unfavourable marks awarded were well justified.
[59]	Ms Lamb takes exception to the expression by the Judge of his own view of her written work. Mr Taylor submitted that the Judge had departed from his judicial role when making his own assessment, and that he had done so in ignorance of the proper standard for assessing such work at the right level, and for the qualification concerned. He submitted that his client had thereby gained the impression that the Judge had little time for her, or for her case.
[60]	Whether the Judge was wise to express himself in quite the terms he did may be open to debate, but there is no doubt that it did fall to the Judge to determine whether Mr Loveridge’s opinion could genuinely be held. He formed a view adverse to Ms Lamb on that point.
[61]	There is no substance in this argument.

Effect of the claimed errors

[62]

Ms Lamb’s fifth ground of appeal consisted of the submission that by reason of the earlier claimed errors, the judgment ought to be set aside. It was open to the Judge to conclude, as he did, that Ms Lamb’s case fell well short of meeting the test for apparent bias, as formulated in such cases as Porter v Magill. It follows that Ms Lamb’s case could not meet the more stringent Auckland Casino test. The minor factual errors in the judgment cannot possibly have the effect, as is argued by Mr Taylor, of rendering the Judge’s findings unsafe. There is no basis upon which it would be proper to disturb the High Court judgment.

Disposition

[63]	The appeal is dismissed. We award the respondent costs of $6000, together with usual disbursements.

Solicitors:
Innes Dean, Palmerston North for appellant
Buddle Findlay, Wellington for respondent