Shapkin v McCutcheon [2013] NZHC 2864 (30 October 2013)

Last Updated: 11 November 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3649 [2013] NZHC 2864

BETWEEN VLADIMIR ALEXANDROVICH SHAPKIN

Plaintiff

AND STUART MCCUTCHEON First Defendant

JOHN MORROW Second Defendant

THE UNIVERSITY OF AUCKLAND, DISCIPLINE COMMITTEE

Third Defendant

Hearing: 30 October 2013

Appearances: Plaintiff in Person

D J Neutze for Defendants

Judgment: 30 October 2013

_{JUDGMENT OF COOPER J}

Solicitors:

Brookfields, Auckland

Copy to: Mr Shapkin, Auckland

SHAPKIN v MCCUTCHEON [2013] NZHC 2864 [30 October 2013]

[1] What is best described as an application for interim relief under the

Judicature Amendment Act 1972 was listed for hearing before me this morning.

[2] The hearing has involved a rather discursive process in which I have discussed the position with Mr Shapkin and Mr Neutze rather than hearing submissios proceeding in a traditional way.

Procedural Background

[3] It is appropriate to say something about the history of the proceeding in this Court. Initially there was an application for interim injunction made by Mr Shapkin and on which he sought to proceed on a without notice basis. That proceeding had had as its aim prevention of a meeting of he University of Auckland’s Discipline Committee on 5 August 2013.

[4] On 2 August Venning J minuted the file recording his view that it was inappropriate for the applicant to seek leave to have the application heard on an ex parte basis. He directed Mr Shapkin to serve the proceedings and that the matter should be mentioned in the Duty Judge List at 10.00 am on Monday 5 August 2013.

[5] The matter came before Wylie J on that day. The Judge noted that an application only had been filed and there was no substantive proceeding. He recorded that Venning J had declined to deal with the application on a without notice basis and also recorded that Mr Neutze had appeared on behalf of the three defendants that had been named, indicating that the University agreed to adjourn the hearing that was due to take place on that day.

[6] The agreement was recorded in a letter dated 2 August 2013 which Mr Shapkin made available to the Court. Wylie J noted that the University had advised that “the disciplinary hearing will not proceed until the outcome of the present proceeding is finalised”. Wylie J then made various procedural directions in relation to the application that was before him.

[7] On 2 September 2013 a minute was issued by Lang J. He referred to the fact that Mr Shapkin had sought a telephone conference, but indicated that the matter

could not realistically proceed further until a statement of claim was filed setting out the basis of Mr Shapkin’s substantive claim. He also recorded that the issue of whether or not interim relief should be granted would depend at least in part on the Court’s assessment of whether Mr Shapkin had a good arguable case in respect of the underlying claim. Lang J directed Mr Shapkin file and serve a statement of claim within 14 days.

[8] A statement of claim was filed in accordance with Lang J’s direction. It was filed on 20 September 2013. It was intituled in an appropriate way under the Judicature Amendment Act 1972. In my view the best way of analysing the application that was originally made for interim relief is that it should be considered as if it had been all along, an application under s 8 of the Judicature Amendment Act.

Background Facts

[9] The factual background of the present dispute involves the fact that Mr Shapkin took with him into an examination room, a mobile phone. During the exam that he was sitting that day he placed the phone in front of him on the floor in a way which, he says, meant that he could not access it without it being obvious that he was doing so. At some time during the exam the phone was observed by a supervisor who removed it. In papers on the file she is shown as reporting that she did not consider Mr Shapkin accessed the phone at any time and that he did not observe her removing it, he being too pre-occupied with the exam.

[10] Mr Shapkin evidently took the view that there was no justification for the phone to be removed and when discinplinary proceedures were envoked there was an argument which took place with the Manager (Examinations), Mr Graham Roberts, as to whether he had offended in any way by taking the mobile phone into the examination room.

[11] In circumstances which have not been established there was allegedly a confrontation between Mr Roberts and Mr Shapkin in which Mr Shapkin took the phone from Mr Roberts’ hands and used threatening language to him. The threatening words alleged to have been used are not particularised in the affidavits which have been before the Court for present purposes.

[12] As a result of what took place between Mr Roberts and Mr Shapkin the Deputy Vice-Chancellor (Academic), Professor Morrow, decided to refer Mr Shapkin’s conduct in removing the phone from Mr Roberts and using threatening language, to the Discipline Committee. It was the meeting of that Committee due to take place on 5 August this year, that the University agreed should not proceed whilst the present proceedings were unresolved.

[13] It is plain from what Mr Shapkin has said to me this morning that he has a different view of what took place in his discussion with Mr Roberts. It is clear, however, that he removed the phone from Mr Roberts’ room and left.

Discussion

[14] In the circumstances that the University had agreed that the meeting should not proceed there was no basis upon which this Court would issue interim relief to prevent the Discipline Committee from proceeding. There would be no need to do so. However, the effect of the agreement that was reached meant that the Disciplinary Committee has never met to determine whether or not the allegations that have been made against Mr Shapkin are correct and if so, what penalty should be imposed.

[15] It appears that pursuant to the relevant University Regulations a fine of up to

$100 may be imposed in respect of the original transgression that was alleged, namely taking the phone into the examination room and not leaving it in a place that the supervisor directs. That is in fact not the subject of the Disciplinary Committee hearing. Even so, it seems that a matter which had its beginnings in a comparatively insignificant incident has escalated to a point where Mr Shapkin felt the need to commence and maintain the present proceeding.

[16] He has spoken this morning of his fears his appearance before the Disciplinary Committee might result in severe consequences, referring to the possibility that he would no longer be able to continue as a student at the University and complete the courses upon which he had embarked to achieve his tertiary qualifications.

[17] Without the facts being fully established this Court obviously cannot express an opinion either way, but on the basis of the affidavits that have been filed in the Court it seemed to me that severe consequences of that kind would be a disproportionate response. Indeed, when I put this to Mr Neutze he readily agreed.

[18] In those circumstances it seems to me that the practical course to follow would be to allow the disciplinary process to take its course. If, as a result of that process, Mr Shapkin were to continue to feel aggrieved, at least the Court would have the benefit then of a decision by the Disciplinary Committee which expressed that Committee’s view of what in fact had occurred and also expressed its view (in terms of any penalty imposed) about the gravity of what had occurred. But, at least that would result in the intended procedures applicable being able to be carried out.

[19] Mr Neutze has this morning reminded me about what was said by Cooke J in

Norrie v Senate of the University of Auckland:¹

In general at the present stage in New Zealand the Courts should be unwilling, it seems to me, to grant discretionary remedies in University disputes, by way of judicial review or otherwise, if the applicant has not resorted to his domestic remedy. This accords with the approach prevailing in the Canadian Courts, for instance, although the emphasis there has been on alternative domestic remedies other than the Visitor: see Re Harelkin and University of Regina (1979) 96 DLR (3d) 14, 57; Re Bezeau and Ontario Institute for Studies in Education (1982) 134 DLR (3d) 99. Of course one result of recognising that the Court retains a discretion is that the New Zealand approach can always be modified in the light of experience of the working of the visitatorial system.

[20] That decision is now quite old but I have no doubt that it remains appropriate for the University’s internal processes to be carried out before this Court is asked to decide in a substantive or final way on what happened in a university examination room or how serious it was.

[21] I think Mr Shapkin has seen the sense of the disciplinary process proceeding having regard to what has just been said about the unlikelihood of severe penalties being imposed. However, having said that, the Disciplinary Committee must be

_{allowed to decide the matter in the way that it considers appropriate and, of course,}

¹ Norrie v Senate of the University of Auckland [1984] 1 NZLR 129, at 141.

as Mr Neutze reminds me, there is an appeal process that should also be followed if

Mr Shapkin is unhappy with the outcome before the Committee.

[22] This leaves for consideration what should happen in respect of the application for interim relief. For reaasons that I have endeavoured to explain to Mr Shapkin, it is not appropriate to grant interim relief of the kind that he seeks. The University’s stance hitherto has been that it would not proceed until the present proceeding is determined. However, as a result of today’s hearing and this judgment the disciplinary process will be able to proceed and it remains inappropriate for there to be a formal order of the Court that it not proceed.

[23] The other part of the application for interim relief concerned declarations. I have again explained to Mr Shapkin that the Court would not make a declaration in the absence of facts that have been ascertained and determined. To do so would simply be to put the Court in the position of a hypothetical advisor, a stance that it is traditionally reluctant to adopt. One issue for example which he is keen to see a declaration on is whether or not the telephone was in his possession. That depends at least in part on where it was and the extent to which he was in a position to exert control over it or intended to exercise control over it. Those are questions which ought not to be examined without the facts first being found.

Result

[24] The consequence of the foregoing discussion is that the application for interim relief is refused. The substantive proceedings are adjourned. The disciplinary process should proceed.

[25] It is appropriate that I also record Mr Shapkin’s position that he would be prepared now to pay the $100 fine which the University Regulations provide for in respect of taking mobile phones into an examination room in circumstances where they are not left in a part of the room that the supervisor directs.

[26] There is a factual issue here in as much as Mr Shapkin claims that the direction given was that the phone be placed in a bag and left in the front of the room and he did not have a bag in which to put the phone. Be that as it may, he has today

adopted the position that he would pay the fine, if that were a means of settling the whole issue. If he wishes to pursue that I suggest that he advance it in discussion with Mr Neutze or Professor Morrow. Another possibility mentioned by Mr Neutze, is to speak to Mr Greville, the University Registrar, who made the decision that the Disciplinary Committee hearing should be adjourned.

[27] It would seem to be to be desirable in all the circumstances if some way were able to be found whereby the matter is able to be resolved, if that is possible.

[28] Otherwise the Disciplinary Committee hearing should be arranged in a way which reflects Mr Shapkin’s commitments to examinations and also his intention to leave New Zealand after 17 November to pursue employment in Australia. He is to return in the New Year. Obviously the parties should confer about an appropriate date.

[29] If the charge of using threatening language is to proceed, Mr Shapkin should be advised precisely what words it is alleged he used so as to be threatening.

[30] I request that the parties report on progress by memorandum filed on or before Wednesday 12 March 2014.

[31] A statement of defence was due yesterday. Mr Shapkin agrees that it need not be filed pending the disciplinary process that is now to take place. The statement of defence need not be filed pending the memorandum to which I have referred of 12

March.

[32] Questions of costs are reserved.