PARTIES: DEBORAH BRACKENREG

v

NORTHERN TERRITORY UNIVERSITY

TITLE OF COURT: Local Court

JURISDICTION: Local Court

FILE NO(s): 20212198

DELIVERED ON: 22.6.04

DELIVERED AT: Darwin

HEARING DATES: 01.09.03 and 02.09.03

DECISION OF: D TRIGG SM

CATCHWORDS:

Contract: breach

REPRESENTATION:

Counsel:
Plaintiff: Mr Cantrill
Defendant: Ms Hill

Solicitors:
Plaintiff: nil
Defendant: Cridlands

Judgment category classification: B
Judgment ID number: [2004] NTMC 043
Number of paragraphs: 201

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20212198

BETWEEN:

DEBORAH BRACKENREG
Plaintiff

AND:

NORTHERN TERRITORY UNIVERSITY
Defendant

REASONS FOR DECISION

(Delivered 22 June 2004)

Mr Trigg SM:
1. This claim commenced on the 13th day of August 2002 when the plaintiff filed a Statement of Claim seeking $9,000 damages from the defendant. The claim was expressed in the following short terms:
“I contracted with NTU to do unit Advanced Criminal Law LWA004 the NTU did not let me sit the assessment. As a result of this breach I suffered damages.”
2. To that claim the defendant filed a Notice of Defence on the 18th of September 2002 in the following terms:
“I intend the defend the claim against me on the following grounds:
1. The Defendant admits that the Plaintiff was enrolled in Advanced Criminal Law (LWA 004) at the Northern Territory University in second semester 1999.
2. The Defendant denies that it did not allow the Plaintiff to “sit the assessment”.
3. The Defendant says that the Plaintiff failed to submit an essay for the unit Advanced Criminal Law (LWA 004).
4. The Defendant says that the Plaintiff failed to sit the examination for the unit Advanced Criminal Law (LWA 004).
5. The Defendant denies that the Plaintiff is entitled to the relief sought in the Statement of Claim, or any relief.”
3. As can be seen, the pleadings, in particular the Statement of Claim, did not assist in identifying the issues to be tried. In particular, the Statement of Claim did not allege what the terms of any contract were, nor did it specify which terms were allegedly breached. In relation to paragraph 3 of the Defence the plaintiff agreed in her evidence (T21) that she did not submit an essay as alleged. She said that she had the option of doing an essay plus an exam or just an exam. Her reason for not submitting an essay was “because I’d missed the essay deadline. That’s why I was doing 100% exam.” She did not suggest in her evidence that she had ever intended to do an essay, or that she had even commenced one. She is the only one who would know.
4. It appears that by letter dated 24 October 2002 the solicitor for the defendant requested some particulars from the plaintiff. This letter requesting particulars was not placed in evidence before me and I do not know what it contained. However, the plaintiff did file in court, on the 16th of December 2002, answers to that request. In particular, there were answers to paragraphs 6 to 9 of the apparent letter. This answer (which I will hereinafter refer to as “Further Particulars”) was as follows:
“ What is the breach you are alleging?
I had two exams within 24 hours of each other. Because I have a spinal condition (syringomyelia) this means that I am unable to sit assessments within a short timer period. When I supplied a medical certificate to the University, in addition to one they already had The Acting Dean of Law Matthew Storey denied my request for a later exam and I was given a fail mark for the unit.

What assessment was it that you allege you were not allowed to sit?
The exam for the unit LWA004 I was not given the chance of an alternate assessment.

How did the Defendant prevent you from sitting the assessment?

My medical condition prevented me from sitting the assessment on the set date. As per University policy I provided one medical certificate and then a second one to support my inability to sit two assessments in less that 24 hours. In all other cases where appropriate medical certification is provided the University provides an alternative (special or deferred) exam at a later date.

Please provide particulars as to how the claim of $9000 is made up.
(Please see attached)
Particulars of Financial claim

I completed the second course of LWA004 in 2001. This was done as an intensive in the mid-semester break of July 2001. There was 40 hours contact (lectures) based on a day of 9am – 5pm. Contact hours - while times vary I would estimate that I studied for four hours per one contact hour, this equals 200 study hours and 20 hours revision for exam. Total – 220 hours.

Hourly rate $33.00 (based as my employment as a tutor at FATSIS (NTU).

220 x 33 = $ 7,260.00
HECS 400.00
Textbook 95.00
Sundries 200.00 (photocopying, internet connection, stationery)
Travel 50.00 (6 cylinder vehicle, fuel, parking costs and depreciation.)
Filing fee 65.00 (Small Claims Court)

Total $8,296.00”

5. Accordingly, these Further Particulars expand and alter the Statement of Claim. Rather than alleging that the defendant “did not let me sit” the exam (as pleaded in the Statement of Claim), she appears to in fact be alleging that she was allowed to sit it but couldn’t because of her spinal/medical condition.
6. In the course of his opening, Mr Cantrill (counsel for the plaintiff) also referred to a Further Answer to a Request for Further and Better Particulars. I was unable to locate any such document on the court file. Mr Cantrill then handed up a two page document. Each page of this document clearly bore the seal of the Local Court and also clearly displayed an original receipt stamp from the courts office Darwin indicating it was received on the 20th of February 2003. For some inexplicable reason this document does not appear to have made its way onto the file. I retained the original document which Mr Cantrill provided and placed this on the file myself. This document contained the following further information;
“What is the breach you are alleging?
The Defendant has breached the contract by failing to permit me to sit a later examination contrary to the Special Arrangements, Students with a Disability – Faculty of Law Handbook 1999, and the NTU Disability Policy 1997. It was an express term of the contract that the Defendant would comply with the scheme of the Special Arrangements, Students with a Disability – Faculty of Law Handbook 1999 and NTU Disability Policy 1997.”
7. The pleadings were left in this state. Because the plaintiff expanded upon her claim in the Further and Better Particulars the defendant has not formally pleaded to these further allegations. Therefore there are no admissions or denials to any of these allegations.
8. The evidence produced in this case was at times very vague. The memories of all witnesses appears to have been affected by the passage of time.
9. The plaintiff bears the onus on the balance of probabilities on all the issues. In the event that the evidence does not enable me to reach a decision on any issue to the requisite standard then the plaintiff must fail on that issue.
10. Somewhat unusually in a small claim both the plaintiff and the defendant were represented by counsel at the hearing. In the usual course where parties are unrepresented then (as is required in s14 of the Small Claims Act) I conduct an inquiry into the matters in issue in the proceedings. In that way, I try to ensure that I am informed as much as possible as to what the parties really say happened and also to ensure that every document that might be relevant to either support, or otherwise, any contention is presented and tendered as an exhibit. In this case, as both parties were represented I tried to allow counsel to present their own case and cross-examine the opponent’s witnesses so that the normal adversarial process could occur. Although I did ask some questions at various stages I tried to limit my involvement. The consequence has been that the evidence has at times been left in a confusing state. I must try and make sense of the evidence as it is.
11. The first thing to note is that the plaintiff claims a contract between herself and the defendant. The defendant does not plead to this assertion at all in its Notice of Defence. The word “contract” does not appear at all in the Notice of Defence. Rather, the defendant appears to ignore that pleading altogether and pleads the “the Defendant admits that the Plaintiff was enrolled”.
12. Further, there is no pleading or assertion as the whether the contract was wholly or partly in writing, wholly or partly oral, or wholly or partly to be implied.
13. No “enrolment” or any similar document was tendered before me. The plaintiff gave no evidence whatsoever as to how she came to be studying at the Northern Territory University, what (if anything) she signed, what (if anything) she was given at the time she commenced or what (if anything) she was told (and by whom) at the time that she commenced.
14. All I know is the admission in paragraph one of the notice of defence. I have no idea as to how she became enrolled or what this process involved.
15. The evidence and cross-examination appears to have proceeded on the assumption (from both counsel) that there was a “contract” between the plaintiff and the defendant at some relevant time. However, nobody bothered to explain the matter to the court. I am left in the situation whereby I am unable to find on the balance of probabilities as to what were the terms of any such contract.
16. However as previously noted from the Further and Better Particulars of the plaintiff filed on the 20th of February 2003 she asserts:
“it was an express term of the contract that the Defendant would comply with the scheme of the Special arrangements, Students with a Disability – Faculty of Law Handbook 1999 and NTU Disability Policy 1997.”
There is simply no evidence as to how any contract was formed, when, or what terms (if any) were incorporated into it. There is therefore no evidence to support this assertion. I do not know what “express” terms, if any, there were to any alleged contract.
17. Ms Hill tendered into evidence the “Faculty of Law Handbook 1999” and this became ExD1. At page 15 thereof appears the following:
“Special Arrangements
Note: refer to Faculty of Law Policy 2.7
Application for special arrangements for examinations (i.e. alternative venue, time, special needs) may be made to the Executive Officer. The application must be on the appropriate form and submitted AT LEAST 10 days prior to the examination.”
The Faculty of Law Policy 2.7 appears at page 101 of ExD1 and is as follows:
“Students with a Disability (see, also, the NTU Disability Policy)
Students with disabilities have the right to seek alternative or modified assessment arrangements, consistent with the maintenance of academic standards and parity with assessment standards generally applicable for that unit. Students should make any special needs known to the Associate Dean early in the semester and might be required to produce medical or other evidence of those needs, as specified by the Associate Dean. The form of any special arrangement will be determined by the Associate Dean, in consultation with the unit co-ordinator, consistent with any policy set by the University of Faculty Board.”
18. Accordingly, it appears to be common ground (although it would have been helpful if this had been spelled out clearly for the court) that ExD1 somehow formed part of any contract between the parties. I don’t know whether this was an express term (as pleaded). Although the plaintiff has not asserted in the alternative any implied term I consider that I should consider this bearing in mind the way that this small claim was run.
19. I now turn to consider the evidence herein in chronological order (as much as possible).
20. The plaintiff was born on the 5th day of November 1958. Accordingly she was 45 years of age at the time she gave her evidence before me.
21. She said that she was involved in a motor vehicle accident on the 7th of March 1984. She went on to say that she suffered “fairly substantial injuries” which eventually caused her to be retired from the public Service in about 1987. She said (T3) that she had a “longitudinal tear down the spinal cord and damaged discs at the same side”. She said that she had continuing disabilities from that injury namely “headaches, weakness in my arms and inability to write for a long period. Inability to maintain a standing or sitting position for a long time. Weakness in the arms and legs and neck. Clumsy, drop things, loss of feeling in the fingers….loss of feeling in hands and feet which causes lots of accidents”. She went on to say that the medication she was on causes stomach ulcers and asthma.
22. Despite this motor vehicle accident and her stated disabilities she said that she enrolled in a Batchelor of Arts degree in 1984, which she finished in 1986. After completing her Batchelor of Arts degree in Darwin she then went into an honours program, which was through the University of Queensland. She did not complete that course because “I had health problems” (T4). When asked to be more specific about this she said “at that stage I was on fairly strong painkillers, morphine and pethidine and I found it very difficult to maintain a consistent study program with the level of medication”.
23. Dr Chong Wah (general practitioner) gave evidence on behalf of the plaintiff. She had been a patient of his since about “1986/87” (T76). He said that over the years he had prepared a number of reports in relation to the plaintiff. I will refer to some of these later in these reasons.
24. The Plaintiff said that she “had another fall in 1991 or thereabouts” (T5) when “I fell off my horse and fractured my skull and had a brain haemorrhage and lost my memory and smell and taste”.
25. The plaintiff also said she had some marital problems in this same period, but these were not elaborated upon.
26. The plaintiff said that syringo myelia was diagnosed in about 1991 or 1992. I do not know whom by. I am not asked to consider the correctness or otherwise of this diagnosis.
27. At T5 and 6 the following evidence was given:
“Now you did enrol in law through the Queensland University in 1993 as an external student, is that right?---Yes.
And again, I think you had some personal – both physical and emotional problems that prevented you from completing that exam, is that right?---My marriage failed and I had cancer.
And you – did you continue to go to sit for exams through the Queensland University after that enrolment?---Yes.
In 1997 – I withdraw that. At some stage did you enrol as a – I think it’s called a cross–institutional student with the Northern Territory University?---1998, yes.
1998. And was that for the purpose of continuing your law degree or continuing to try and get a law degree at least?---That’s correct.
And did you in fact, during the course of that enrolment, sit for examinations at the NTU?---That’s correct.
And did you, at any stage, provide any information to the faculty or staff of the NTU relating to any physical disabilities?---I provided the information with my enrolment and NTU in 1998.”
28. I was not told anything further about this enrolment and no documents were produced relevant to the same. She was asked what information she supplied and she said “would have been doctor’s reports”. When asked the names of the doctors she replied “probably Dr Boyce, a neurologist, Dr Chong Wah, my GP and possibly ……..Dr Marinovich” (T6). Some medical reports subsequently made their way into evidence and I will refer to these later in my reasons.
29. She said that she did not receive any indication from the defendant that her enrolment had been rejected or refused and she subsequently sat for examinations with the defendant. A copy of an e-mail from Jeremy Muir (who described himself as “student facilitator, equity & projects, Equity & Student Access, NTU”) to a Melissa Franken dated 30.11.01 was tendered into evidence without objection and became ExP10. This e-mail asserted that:
“Deborah was given approval for special arrangements by Ned Aughterson in 1998 due to a number of chronic health problems….. Once granted these arrangements became permanent as Deborah’s needs for arrangements in examinations related to her medical problems do not change……. I can also say that the Law School has been sent all the copies of her medical documentation in the past. I am not willing to send more copies of medical documentation without Deborah’s permission…..”
30. The alleged 1998 “approval” did not make it’s way into evidence. I note that it is not asserted in the plaintiff’s pleadings that “Equity & Student Access” (which is variously described in the course of evidence, and which I will hereinafter refer to as “Equity”) was at any time the servant or agent of the defendant. At T65 in re-examination the plaintiff gave evidence as to her understanding of the role of Equity. Her evidence went no further than that, and was not evidence as to the truth of her belief. On the whole of the evidence it appears more probable than not that Equity acted as some form of facilitator on behalf of the plaintiff. Accordingly, if the organisation were anybody’s agent, then it was more likely to be the plaintiff’s. I will return to this aspect later in these reasons. As such ExP10 is no more that a self-serving assertion.
31. In cross-examination the following evidence was given at T50:
“But it’s true that in 1998 when you enrolled as a cross institutional law student at the university, special arrangements were put in place for you by the university. And these arrangements were permanent?---Yes.
So every time you sat an exam at the university special arrangements were in place for you?---Yes.
And they consisted of ergonomic furniture?---Yes.
And ten minute breaks every hour?---No, that changed – Yes.
That changed. So what were you going – what were you seeking---?---And a tilt table.”
32. Accordingly, it appears to be accepted by the defendant that some special arrangements were in place between the plaintiff and the defendant. I note that document 1.8 in the defendant’s list of documents (ExD4) was “Application for Supplementary or Special Examination or Special Consideration” with the date 15.10.98, but this document was not sought to be tendered or relied upon by either party.
33. Dr Chong Wah identified a report dated 8 October 1998 as one that he provided in relation to the plaintiff. This report became ExP16, but he did not say who he provided it to. On it’s face the hand-written report is not addressed or directed to anyone in particular. It does say in part:
“I would recommend that she be given hourly rest periods during her coming examinations.”
Accordingly, on it’s face it is directed to some examinations that the plaintiff would be undertaking in the future. I note in particular that it makes no reference to the plaintiff needing a break of 24 hours or more between exams. This document does not appear in the defendant’s list of documents (ExD4). Therefore either the defendant never received it or they lost it. The plaintiff did not identify ExP16 as a document that she ever received, saw or did anything with. Accordingly, there is no evidence from either the plaintiff or Dr Chong Wah that ExP16 was ever given to the defendant at any time before 18 November 1999. In the absence of such evidence I am unable to conclude that it was ever given to the defendant. This document therefore appears irrelevant to my considerations.
34. Jeremy Muir gave evidence in the defendant’s case. In 1999 he was the “Student Facilitator Disabilities or Student Facilitator Disabilities and Equity” (T86). He said he was employed with the Northern Territory University and his main role “was to assist students with disabilities who attended the university in participating in university life, so advocating for students with disabilities”. He went on to confirm that the plaintiff was registered as a student with a disability, who “mostly……required special arrangements for examinations at the end of each semester” (T86).
35. The plaintiff was asked whether she could recall prior to November of 1999 what examinations for the Faculty of Law she had sat for or passed and she said Civil Procedure, Equity, and Property. She said that “every assessment I sat required special arrangements” (T7).
36. She went on to say that she was enrolled in the 1999 faculty year and that there were two semesters in each year.
37. The plaintiff kept a diary and she said that she had been keeping one for twenty years. Her reason was “so I don’t forget” (T7). “It wasn’t copious notes it would be something perhaps in shorthand or a name or a phone number or a situation or a department”. Shorthand wasn’t in the recognised form it was just notes for herself.
38. The plaintiff referred to her 1999 diary, the flagged entries of which were subsequently tendered into evidence and became ExP2. This diary had some fourteen entries flagged by small pink plastic flags. In addition, there were some further large yellow paper flags inserted, some of which have fallen out.
39. Pursuant to section 12 of the Small Claims Act I am “not bound by the rules of evidence and may inform (my)self in any manner (I) think fit”. Accordingly, I have perused the whole of the diary commencing from the start of second semester, in order to inform myself. I have found this diary helpful, not only for what it does contain, but also for what it does not. I have gone through the various diary entries in order to identify all those in the second semester that appear to have anything to do with the defendant. I will set each out in turn.
40. Before doing so I will make some general observations in relation to the entries in the diary during this period. In her diary the plaintiff has ticked some entries but not others. The ticks may indicate that she has done what the entry was to remind her to do. On some entries there is a “cross” next to an entry and this may indicate that something has not been done, or has been cancelled. Where the plaintiff gave evidence in relation to any diary entries I will refer directly to that evidence. There were a number of entries which may have had some relevance that the plaintiff gave no evidence about. I therefore assume that the plaintiff was unable to give any evidence about these entries that may have assisted her case.
41. Further, the diary would suggest that the plaintiff may have had a lot on her plate during this period (and this is confirmed by other evidence herein, including ExP3 and ExD2), including matters with the Ombudsman; matters with QUT; legal matters with Comcare; matters involving the Commonwealth DPP; matters involving solicitors Hunt and Hunt; taxation matters which appear to have involved court proceedings; some court proceedings in the Tasmanian Supreme Court; matters in the AAT; and appeals to the Federal Court. Some of these matters may have been rolled up together. In addition, the plaintiff appears to have had ongoing medical and dental matters.
42. The first entry in ExP2 that the plaintiff referred to was one for 15 July 1999 which read:
“Ring NTU – Equity and Student Svc re: exam times – need longer and atn questionnaire”
43. When asked to explain this entry she said “that would have been after I sat the exams and I realised that I was having problems with the short – the 10 minute break each hour. So that would have been after the exams and letting them know in July about the next exams ” (T9). I was not told what exams she had sat at the end of first semester, nor how far apart these were. But it appears from her evidence taken as a whole that she did not encounter any problem with the time between examinations prior to the second semester in 1999. Accordingly, it seems more likely than not that any problems she was raising at this stage had nothing to do with the time gap between exams. Hence, she was not seeking any special examination at this time.
44. The next entry was on 19 July 1999. It reads “call Rebekkah re: Uni timetable”. The plaintiff gave no evidence in relation to this entry. There was no tick next to this entry.
45. The next entry was 20 July 1999 and states “Get w/d & equity sorted out Law Faculty”. The plaintiff gave no evidence about this entry. There was no tick next to this entry.
46. The next entry was for 22 July 1999 and reads “get NTU sorted out – ring”. The plaintiff gave no evidence in relation to this entry. There was no tick next to this entry.
47. The next entry was for 28 July 1999 and reads:
“ Tyrone Lynch
Student Rights Officer
Ph: 1800 066 917
Mob: 0413 – 756 223
Fax: 08 – 89467733
Email – ”
The plaintiff gave no evidence in relation to this entry. There is no tick next to this entry. There are other entries on the same page relating to Queensland University of Technology Student Union phone numbers and education officers in Queensland as well.
48. The next entry was for 29 July 1999 and that relates to a Danelle Dobinson “equity officer” and Sandy Evans “disability officer “ both with Queensland telephone numbers”.
49. The next entry was for Friday 30 July 1999 and is next to the time “3.00” and says “ 3 – 5 Adv Crim Law”. I take this to be a reference to the lecture time for that day.
50. At T36 the plaintiff referred to a document headed “Advanced Criminal Law LWA004 semester 2 1999”. This became ExP11. She said that this was a handout she got from the lecturer at the first lecture. ExP11 made it clear that the lecture times were “Fridays 3-5pm (subject to the agreement of the class, there may, in the alternative, be some weekend lectures)”. There was no evidence to suggest that the lectures were altered from Fridays at any time during the semester. There was hand-written notes forming part of ExP11, and the plaintiff said that she wrote those on. These notes indicate that she had the choice of doing only an exam (for 100% of the mark) or doing an assignment plus an exam (with each accounting for 50%). Further, her writing would indicate that if she chose to do an assessment then she had “to tell Ned if doing essay & what topic” by Friday 27 August 1999, and the essay would then be due by midday on Wednesday 20 October 1999.
51. The next entry was for Saturday 31 July 1999 and says “Advocacy 9am – 3pm”. I take that to be a reference to course times for that day.
52. The next entry was on 3 August 1999 and is as follows:
“NT Defamation
Bail Act
Sentencing Act
NTCC
Justices Act”

This is presumably a reference to various legislation needed for the criminal law course.

53. The next entry was on Thursday 5 August 1999 and reads “3pm → 5pm Intl law”. I take this to be a lecture time for International Law.
54. The next entry was on Friday 6th of August and there are three relevant entries on that day. The first entry is “Equity people @ NTU”. The second entry says “do advocacy stuff”. The third entry has a line with an arrow at each end going between the times “3.00” and “5.30” and says “Adv Crim Law”.
In relation to the first of these entries only the plaintiff gave the following evidence at T9 & T10:
“Are you able to say what that relates to?---No.
Are you able to say whether you made any contact with the equity people at NTU on or about that date?---I would imagine, because I had written it then that I did.
Are you able to say what the subject matter of that contact was?---It probably would have been following up about ---.
His Worship: don’t guess - don’t guess?---Looking at the time frame and seeing in my note back in July I think it would be checking about what I need to supply for the next lot of exams from my doctor.
Is there anything in that entry to indicate the subject matter of the contact with equity?---No, there’s not.”
55. Again, on the evidence before me I’m not satisfied that this related to her ability (or otherwise) to sit two exams in a 24 hour period. On her evidence (T8) “it would have been a couple of months to a month before – whenever the exam timetable came out……..I realised that – I think there was going to be a problem between two units….” Therefore, I find that whatever her concerns were at this stage they did not relate to the subject matter of this claim.
56. The next entry was for Saturday 7 August 1999 and says “Advocacy 9-5pm assign”. The plaintiff gave no evidence about this.
57. The next entry was on Wednesday 11 August 1999 next to “12.00” and says “12 noon advocacy meeting – Robert office”.
58. There is nothing from the entry on Thursday 12 August 1999 to indicate that the plaintiff attended any lecture for International Law between three and five on that day.
59. There is nothing in the entry for Friday 13 August 1999 to indicate that the plaintiff attended any lecture for Advanced Criminal Law on that day.
60. The next entry was for Saturday 14 August 1999 and says “9 - 5pm Advocacy” and under that “dress up”.
61. The next entry was on Wednesday 18 August 1999 and in one colour pen says “3 – 5 Uni” and then in a darker pen it says immediately after that “X – Property”. In relation to a later entry the plaintiff indicated that an “X” indicated that something had been cancelled. I do not know what this entry refers to but it appears to be irrelevant to the issues herein.
62. The next entries are on Thursday 19 August 1999 where she has recorded:
“2-3 Intl law (+)
3-5 Intl law (L)”

In addition, above these entries she has also recorded in black pen “Ring NTU disability re: exam”. A “tick” appears in blue biro next to this entry. In relation to that entry the following evidence was given at page 10 of the transcript:

“And what examination would that relate to?---Probably – well, chasing up about exam arrangements for November .”
Do you have any recollection having looked at the entry, who you contacted, or what was said between you?--- No.”
63. The plaintiff’s evidence was similarly vague throughout. The next entry was on Friday 20 August 1999. The plaintiff has drawn a line across the whole of that day diagonally and written in quotes “study for exam / essay”. I am not told in the evidence what subject this related to, or whether she did actually do some study, and if so, how much. In addition, she has also written in further down on the page (adjacent to the time “4.00”) “3 – 5 Adv Criminal Law”.
64. For the entries on Saturday 21 August and Sunday 22 August 1999 she has again written a line diagonally across the pages and written in the words “study for exam / essay”. Again, I am not told in the evidence what subject this related to, or whether she did actually do some study, and if so, how much.
65. The next entry was on Monday 23 August 1999 with the entry
“9.00am media law exam
essay due”
This entry is written in black biro and then after that there is a large “tick” in light blue biro, which may or may not indicate that this has been completed. Given this entry, and in the absence of any evidence to the contrary, I would assume that the references to “study for exam/essay” on the proceeding pages of the diary related to “media law”. I note that no similar diary entries exist in relation to the period leading up to the Advanced Criminal Law examination on 18 November 1999.

66. The next entry was on 24 August 1999 next to the time 10.30 which reads
“essay – media”.
67. There is no entry on Thursday 26 August 1999 to indicate whether the plaintiff did or did not attend any International Law lecture.
68. There is no entry on Friday 27 August 1999 to indicate whether the plaintiff did or did not attend any Advanced Criminal Law lecture.
69. The next entry was on Thursday 2 September 1999, and there are a number of entries as follows:
Next to 8.00 am is “essay media law –“
Next to 9.00 am is “get all notes etc and get up to date for NTU?”
This entry would indicate that she was not up to date at that stage for something at NTU.
There was a further entry next to the time 1.30 stating:
“Rodney Wolff – 1421- msg.
update – equity / Dean of Law”.
70. There was an arrow connecting the two lines of message. The plaintiff gave no evidence in relation to these entries. There is no entry on this date to indicate whether the plaintiff did or did not attend any International Law lecture.
71. For Friday 3 September 1999 there is no note to indicate whether the plaintiff did or did not attend any Advanced Criminal Law lecture. Next to the time “1.30” she has recorded “3 pm cleaners – Poppy 89275104” and next to the time “4.30” she had “6.15 Dr Marinovich – get script.”
72. Dr Chong Wah identified a report dated 8 September 1999 as a report that he prepared, and went on to confirm that the contents were correct. This report became ExP15. It is addressed to “Queensland Anti-Discrimination Tribunal, Brisbane Queensland”. Accordingly, it clearly was not prepared for the defendant. A copy of the document does appear as item 1.16 in ExD4. Accordingly, it was given to the defendant at some time, but I was not told when or by whom. I do not know whether it was before 18 November 1999 or not. The plaintiff gave no evidence in relation to ExP15, and the document was not shown to her during her evidence.
73. On it’s face ExP15 sets out the plaintiff’s general medical and associated history and problems. It does not address her ability (or otherwise) to sit two exams within a short period of time.
74. There is no entry for Thursday 9 September 1999 indicating that she attended lectures for International Law. It is unlikely that she did as she has an entry “2.30pm 2 hrs/dentist/Cos”.
75. There is no entry for Friday 10 September 1999 to indicate that she attended any Advanced Criminal Law lecture.
76. The next entry was for Monday 13 September 1999:
“Darwin Me Court
Criminal – 89996380 ph:
Fax No. 89
Sharon@ Crim ct Registry”

77. The next entries were on Wednesday 15 September 1999:
Next to 8.00am is “Ct Me CSJ”
Next to 9.30 is “ left msg Ned Aughterson”
Next to 10.30 is “ msg- Law Faculty – attn: Sue Vos. re: supp exam”.
78. The next entry was on Thursday 16 September 1999:
“2 – 3 tutorial
3-5pm international law”

79. There was no entry for Friday 17 September 1999 relating to any Advanced Criminal Law lecture.
80. The next entry was on Sunday 19 September 1999 next to the time “1.00” is “pm – Trust and Property”.
81. The next entry was on Tuesday 21 September 1999 on the line with the time “3.30” where it is noted “ James – essay”.
82. The next entry was for Thursday 23 September 1999 next to the time “8.30” is “James over for essay”. There was no entry relating to attending any lectures on that day.
83. The next entry was for Friday 24 September 1999 next to the time “5.00” and reads:
“ sort out adv crim
corpn
media essay”

There is no entry on that day about attending any Advanced Criminal Law lecture on that day.
84. The next entry was for Thursday 30 September 1999 which reads:
“9.30 am anti-discrimination hearing”
A diagonal line has been drawn through the whole of that day and there is no entry relating to attending any International Law lecture on that day.
85. The next entry is on Friday 1 October 1999 and reads:
“89466288 – equity and Danielle”
The evidence in relation to this entry (T10-11) is as follows:
“And does that – seeing that entry refresh your memory at all, as to what the contact was about, or who Danielle was?---There wasn’t a Danielle there was Di- I had her name wrong. I think- when I rang up I got corrected.
And do you know what you rang up about?---Exam arrangements for November.
Do you know now what the discussion was?---Mm, I’d spoken to my doctor I said I couldn’t- I needed a longer hourly break in my exams and I needed a 24 hour break between exams as my pain levels got quite high without the break and taking pain killers impeded my performance.
…
Yes. And can you recall when it was you provided a medical certificate, in particular, relating to the break between examinations?--- No, actually I can’t. I know I went and saw the doctor between June and, I think, November and he gave me a medical certificate and I put it in.
And what doctor was that?--- Doctor Chong Wah.
Yes. He provided you with a medical certificate, did he?---Yes.
And did you provide that to the NTU?---Yes.
And can you recall when it was you provided that to NTU?---No, not exactly.
Can you recall who you gave it to?---No.” (emphasis added)
86. The “Di” referred to was the witness Bensley. On the evidence I find that it was probably around this time (late September or early October 1999) that the plaintiff became aware that she had two exams upcoming on 18 and 19 November 1999. The plaintiff’s evidence would seem to suggest that this alleged conversation with Ms Bensley may have been over the telephone rather than in person, as she only referred to “when I rang up”. She did not go on to suggest that she then attended at Equity and spoke to Ms Bensley in person.
87. I further note from this evidence that there is no facts put forward to support the assertion that she provided a particular medical report to the defendant. She did not say whether she gave it to someone at Equity, someone at the Law School, or someone anywhere on the campus. Accordingly, this evidence alone would not be sufficient to enable me to be satisfied on the balance of probabilities that she gave a medical certificate (relating to the matter at issue in this case) to the defendant.
88. Ms Bensley had no recollection of any discussion with the plaintiff in relation to these matters, and went on to say at T104:
“I don’t ever recall Deborah coming into my office and sitting down and saying, this is what I need. I met a lot of students who did that, but I don’t ever recall Deborah coming into my office, I remember Deborah often standing at the front counter, usually handing in applications or certificates but often at the counter, but she might have met with Jeremy, but I’ve never – I don’t recall her ever coming into my office and saying I need.”
89. The matter was pursued further in cross-examination at T105 and the following further evidence was given by Ms Bensley:
“You’re not saying you didn’t ever deal with her, but just that she dealt with whoever was available?---I think so, I don’t ever recall her in my office, that’s…
You wouldn’t say would you that she was never – or she had never made any application or variation through you?---No, because I remember her seeing Jeremy and at the desk – the front desk in the reception often. But I don’t remember talking to her in my office as a student.
Let me suggest to you that there was at least one occasion possibly more in the period between August and November 1999 where Deborah made an application to or through Equity and Access for a special or an extra consideration in the sense of trying to adjust the times between examinations that occurred in November?---You’re suggesting that she did that?
Yes?---I don’t recall her doing that, sorry.
You don’t recall?---No, I don’t.
You’re not suggesting that your recall is such that you could say affirmatively she didn’t though, are you?---No, but I don’t recall her doing that.”
90. On the plaintiff’s evidence she does not positively assert that she ever attended upon the Equity offices and spoke to Ms Bensley in person. Hence it would not be surprising that Ms Bensley would have little or no memory of seeing or speaking to the plaintiff. On the evidence I find that at no time on or before 18 November did the plaintiff have any face to face discussion with Ms Bensley about any matter.
91. As noted above, the plaintiff said that exam notices would have been put up on the noticeboards at University and usually a couple of months to a month before. She said that when she looked at one of these notices:
“I realised that – I think there was going to be a problem between two units and one unit was a core unit which means I have to have it and the other unit was an elective. And I went to the Student Equity and Access and said there’s going to be a problem here because the exams are quite close together, I’m not going to be able to sit them” (T8).
92. She wasn’t sure who she spoke to at Equity but it was “probably Di Bensley”.
93. ExD1 (Faculty of Law Handbook 1999) refers to this situation at pages 15 to 16 as follows:
“Special Examinations
Note: refer to Faculty of Law Policy 2.14.7
Requests for Special Examinations (where the student is unable to sit an examination on the prescribed date) may be made on the appropriate form and submitted to the Executive Officer. Students should ensure that they, or someone on their behalf, contacts the Law Faculty Office prior to the examination notifying their inability to sit the examination. Should the inability arise from illness, students should obtain a medical certificate for the day of the examination specifically stating that they are unable to sit the examination by reason of a special condition. The medical evidence and the application should indicate why they were unable to sit the examination. General statements such as “a medical condition” will not be sufficient. Should a student be unable to sit more than one examination, these procedures should be repeated for each examination.
Students should note that if they choose to sit the examination, when they feel their performance may be affected by illness or some other disability, they are not entitled to sit a special examination, although they may be entitled to special consideration.
Special examinations will be held on the first working day after the centrally administered NTU examination period.”
94. Accordingly, there appears to have been an “appropriate form” for such an application. At T50 the plaintiff gave the following evidence in cross-examination:
“So effectively, what – when you went to the Equity & Student Access in 1999 and you allege you provided a medical certificate. What you were seeking was a variation to the special arrangements that were already in place?---The medical certificate had been provided months earlier.
In support of your special arrangements?---To extend or change the special arrangements so that I didn’t have an exam within 24 hours of each other.
And you say you went to Equity & Student Access and you made an application and provided a medical certificate for a variation of your special arrangements?---After the first semester exams in June, I realised that I was having a problem – I had exams close together and I wasn’t – I didn’t do well because I couldn’t handle the pace. So I went and discussed it with my doctor and he said, “Well, the most commonsense way to approach this, is to make sure you’ve got a good break between each exam”. So he provided me with a certificate which I took back to the Uni, back in July.
And you provided that medical certificate to?---Equity & Student Access.” (emphasis added)
95. The plaintiff’s doctor (Dr Chong Wah) gave evidence and it was no part of his evidence that he had ever given any such certificate to the plaintiff in or about July of 1999. He was asked nothing about any such certificate. The plaintiff did not suggest that she received such certificate from any other doctor. No such certificate was produced in evidence, and there was no evidence to suggest that it was on the Equity file or in the defendant’s possession at any time. I am unable to accept this evidence from the plaintiff. I am not satisfied on the balance of probabilities that the plaintiff obtained any medical certificate relating to the need for a break between exams in or about July of 1999. It therefore follows that I am not satisfied that any relevant certificate was given to the defendant in or about July of 1999.
96. The plaintiff did not fully answer the questions (supra), and avoided that aspect concerning whether she made an application or not. Ms Hill pursued this further at T54-55 as follows:
“So I keep going back but I just want to be clear in my own mind. You applied for a variation to your special arrangements that were already in place for you, these permanent special arrangements. And that variation was refused by Matthew Story?---No, the variation wasn’t refused. I put a medical certificate in after the first semester exams stating that I couldn’t sit two exams within 24 hours of each other. It wasn’t accompanied by an application or anything. The medical certificate got put in so that there was a record of it---
So you didn’t actually---?---A new application wasn’t put in at that time.
But did you then make an application?---No.”
97. It therefore appears that the plaintiff did not sign or complete any application for “special arrangements” or for “special examinations” as required in ExD1. She should have. This was confirmed by Mr Muir at T87 as follows:
“Now if a student with special arrangements in place wanted to vary these special arrangements how did they go about doing that?---It would depend on the amount of variance that the student wanted. If it was something that was minimal due to their disability and something that wasn’t perhaps working, for example a student may need a different type of chair while sitting an examination that would be something that we could change quite quickly without further documentation, but if it was a major change as in a student needed say a full week between examinations due to the disability then usually we would need further documentary evidence to say why they would need such a major change and then a student would make an application with that documentary evidence supported by a medical certificate or further information from a doctor or allied health professional then they would fill out another application and we would submit that to the faculty or the school.
When a student first applies for these special arrangements have they provided medical evidence at that time of the disability?---Any student that applies for special arrangements we need documentary evidence to state why those needs are required and we would submit that to the school or facility.
So when a student was then requesting a variance of their special arrangements they would need to supplement---?---The evidence we already have, yeah, again depending on how much the change was, yes.
If a student wanted to make special arrangements to ensure that they did not sit back to back exams and this was not an arrangement that was previously in place, what would that be considered a major change or minor change?---That would be considered closer to a major change because we would have to get approval from the law school or any particular faculty to – to get that approved. We wouldn’t be able to just say this is going to happen they would require evidence on why.
Now when a student makes an application for special arrangements or other special considerations are these – how are these applications made, are they---?---We have a standard form so we would have a standard form that the student would fill out. It would usually be signed by myself or someone else in the Equity Student Access Branch, that form with the documentary evidence would go to the relevant school or faculty, usually to the Dean or the Associate Dean and then they would decide whether it was approved or not.”
98. This evidence is consistent with the evidence of Ms Bensley, and I accept it. Neither Mr Muir (T88) or Ms Bensley (T100) had any recollection of the plaintiff applying for a special exam in 1999.
99. On the evidence I am not satisfied that the plaintiff made any written application for a special examination at any time on or before 18 November 1999. On the contrary, on the evidence I am satisfied on the balance of probabilities that she did not. I further find that she should have.
100. The plaintiff says that she gave a medical certificate to “Equity”. At no stage in her evidence did she identify or even suggest to whom at Equity this was. The plaintiff (on her own evidence) alleges to have been familiar with Bensley and had dealings with her. Yet, she did not suggest that she might have given it to her. In fact she said (T11) that she didn’t give it to her. On the evidence of Muir and Bensley it also appears that the plaintiff was familiar with Muir and had dealings with him as well. The plaintiff did not suggest that she might have given the alleged certificate to Muir. Nor did she exclude him. The plaintiff did not say in her evidence who else she had dealings with (if anyone) at Equity. She did not say whether the person she supposedly gave the certificate to was male or female. She gave no evidence to expand upon the supposed delivery of the alleged certificate.
101. No such medical certificate has been produced in evidence before me. As noted earlier I am not satisfied that Equity were at any relevant time the agent of the defendant. Clearly, unless the plaintiff can satisfy me on the balance of probabilities that a medical certificate was delivered to an appropriate person in the employ of the defendant (and not somebody from Equity), and what that certificate actually said then it is irrelevant.
102. Mr Muir stated (T88) that “in the normal events of the procedure records from any student with information that provide should be kept on file in the Student and Equity Access file which is a different file to the faculty files……..we would keep a copy and the originals would go to the school or faculty”. Ms Bensley, who was the relevant “Student Facilitator Disabilities” from August 1999 (T98) until December 2000 (T102) said in relation to Equity files at T106:
“And would you agree that as a general proposition at least some time things do get mis-filed?---I guess in general they do, but we were being meticulous about filing because we had to have so many students and we had so many applications and if you didn’t file things immediately you know, they could possibly.
Did you do all the filing yourself?---No.
How many people to your knowledge did the filing in that office---?---Well, I did.
---when you were there?---I did my immediate filing and Jeremy probably did his immediate filing. But there was a receptionist that often did the filing.”
103. The name of the receptionist was not asked or given. Nor were there any questions directed to the availability of this receptionist to give evidence. I did not hear from any receptionist. I was not invited to draw any inference from the failure of the receptionist to give evidence, and accordingly don’t do so.
104. Accordingly, if a medical certificate were given to Equity then a copy of the same should, in the ordinary course of events, be on the Equity file. Bensley said at T105-6:
“Who kept the files of application through Equity and Access for special dispensations?---Who kept them?
Yes?---They were kept in Jeremy’s office in a filing cabinet.
All of them?---Yes.
Including the ones that you attended to?---No, they overflowed into my office. But they were within the two rooms, most of them because they were existing students and been there for many years they were in Jeremy’s office.”
105. I accept this evidence from Muir and Bensley. It appears from all the evidence that no medical certificate relating to the plaintiff needing more than 24 hours between exams is on the plaintiff’s file in Equity. Nor is there any such certificate in the possession of the defendant (see ExD4).
106. There is no entry on Friday 1 October 1999 relating to any attendance at any Advanced Criminal Law lecture on that day.
107. Dr Chong Wah gave no evidence of seeing the plaintiff or speaking to her on or just before 1 October 1999. He did have a note (T79) of 3 October 1999 and gave the following evidence in relation to that:
“30 October or 3 October?---Three. The exam should be spaced out because she had – had trouble – trouble writing and she was in a bit of pain and I gave injections on the 16th---
Of what month?---Of November. I probably also would have given her more than this by calling on her at home which I may not have made a note of. These were given in the surgery.
And when you said you recommended the exam be spaced out, do you have any either note or recollection of what you suggested about the interval or spacing period?---I remember writing that she should a day between exams because she was not able to write for long periods and I think at a later date suggested someone she have a scribe in the exams.” (emphasis added)
He went on to say (T80) that he “gave her a certificate on 3 October and…..on 15 November I made a note here she had a pain injection and note of her exams coming up on 18 November”.(emphasis added).
108. The plaintiff’s diary does not refer to seeing Dr Chong Wah on 3 October 1999.
109. Dr Chong Wah did not produce a copy of any such certificate that he says he issued. I do not know whether it was his usual practice to keep copies as he was not asked. I was not given the opportunity to view his notes, and no specific reference to a certificate in his notes was alluded to. If there had been a reference to a certificate in his notes then I would have expected this note to have been tendered. Such a note would have been highly relevant. On the evidence it appears that his evidence therefore was more likely to have been a reconstruction. Given that it was a reconstruction from four years previously, and without any apparent note or certificate to refresh his memory, I am unable to give this much weight. However, the existence of a certificate in about early October 1999 comes from two sources (the plaintiff and Dr Chong Wah). So looking at their evidence together I would be satisfied on the balance of probabilities that a medical certificate (relating to the need for at least a 24 hour gap between exams) did come into existence in early October 1999. The next question is what happened to that certificate.
110. The next entry was for Monday 4 October 1999 next to the time “8.30” and reads:
“exam- ring up and chk Di go equity”
In relation to that entry the following evidence was given at T11:
“Does that jog your memory at all, about the conversation that you had, or whether you did, in fact ring up Di at equity?---Yes, I put a medical certificate in to change my exam arrangements or to further – to change the – and if – I think I didn’t give the exam directly to Di I gave it to someone else. I wanted to check that she’d got it.
Did you supply any sort of written request or form at that stage?---No, I didn’t.
Just a medical certificate was it?---That’s right.” (emphasis added)
111. Accordingly, the plaintiff is not alleging that she ever gave any medical certificate to Ms Bensley, but rather to some unspecified person. She did not go on to say that she did actually speak to Ms Bensley on this occasion, and if so, what was said. I am therefore unable to find on the balance of probabilities that the plaintiff spoke to Ms Bensley on 4 October about a medical certificate at all.
112. At this stage ExP1 was tendered without objection from Ms Hill. The exhibit was pages 18 and 19 from a document entitled “Policy for Students with disabilities – implementation manual”. This document was apparently available in the defendant’s library (T12). After the documents were tendered the plaintiff gave the following evidence at page 13 of the transcript:
“Now were you aware of those requirements contained in the book- the document you’ve just referred His Worship to, at the time of your enrolment?---No.
When did you become aware of them?---Last-this-this year.
Without knowing specifically that particular policy document, or the existence of it, were you aware or led to understand there was any specific requirement for students to disclose special disabilities?---Yes.
And as far as you were able did you attempt to disclose whatever disabilities you had, either if they were long going or as they arose?---Yes.”
113. Therefore the plaintiff did not know of the existence or contents of ExP1 until well after the examination for Advanced Criminal Law on 18 November 1999. The evidence didn’t help to enable me to decide whether ExP1 formed a part of any contract between the parties, and if so, how. In those circumstances, it is unclear as to how the plaintiff seeks to rely upon this document.
114. The next entry of relevance was on Wednesday 6 October 1999 and noted “9.00am Supreme Court-”. I do not know what this relates to.
115. The next entry was next to the times “8.30, 9.00 and 9.30” on Thursday 7 October 1999 and reads:
“chase up Adv Crim Law
media.
enrolment.”

In relation to this the plaintiff gave the following evidence at pages 14 and
15 of the transcript :
“Is advanced criminal – or the paper that was the subject of your present complaint?---Yes.
A complaint against the University I should say?---Yes.
And having looked at that, can you recall anything further about what that was related to, or who you spoke to?---Exam arrangements.
Do you know whether that was the equity and access people or whether it was the Dean or whether it was---?---At some stage I went and checked at the Law School to see if they had a copy of arrangements because pieces of paper kept getting lost.
Perhaps we can come back to that in a moment. But are you able to –from looking at that note, say who it was you spoke to?---No.”
The plaintiff’s evidence was regularly vague in this way. Mr Cantrill did not “come back” to this topic. Again I am unable on the evidence to find that the plaintiff did anything concerning the defendant in relation to this diary entry. The plaintiff’s evidence is too vague to lead to any factual conclusions.
116. For the entry on Friday 8 October 1999 there is no reference to her attending any Advanced Criminal Law lecture.
117. There was no entry on Thursday 14 October 1999 relating to attending any lectures on that day. There was no entry on Friday 15 October 1999 relating to attending any lectures on that day.
118. The next entry of relevance is On Wednesday 20 October 1999 and is “3-6 pm Uni”. However, the evidence is again silent, so I do not know what this refers to.
119. Likewise for Thursday 21 October 1999 there is an entry “3-5pm Uni”. Again I do not know whether this relates to attending for a lecture, or what it refers to. There is no entry on Friday 22 October 1999 relating to attending any lectures at University on that day. There is an entry next to the time “3.30” which simply says “3”.
120. For Saturday 23 October 1999 there is a diagonal line drawn across the morning part of that entry with the letters “uni” written above the line and the letters “h & m” written below the line. I am not told the relevance, if any of this.
121. For Thursday 28 October 1999 there is no entry in relation to attending University or any lectures on that afternoon. In fact from the time “1.00” there is a diagonal line and arrow with the entry “1.00pm dentist 5hrs”.
122. For Friday 29 October 1999 next to the time “11.30” is the entry “sort out uni”. However, there is no entry of actually attending Uni on that day or attending any lectures on that day. There are a number of other entries on that same day and five of those entries all have “ticks” against them, which may indicate that they have been attended to. There is no tick against the entry above referred to.
123. For the entries on Monday 1 November and Tuesday 2 November 1999 there are a number of entries relating to “Federal Court paperwork” and referring to a “Notice of Appeal” and “Appeal Book”. There is also reference to the AAT.
124. There is no entry on either Thursday 4 November 1999 or Friday 5 November 1999 in relation to the plaintiff attending University or any lectures on those days. The entry for Friday 5 November 1999 would indicate that it was the plaintiff’s birthday “41 years” and that at 1.00pm she attended studio 1 for a facial and at 2.00pm she had a wax etc at Studio One”.
125. There are further notations in relation to “Federal Ct stuff” for Tuesday 9 November 1999, as well as matters involving the Commonwealth DPP.
126. There are no entries on Thursday 11 November 1999 indicating any attendance at the University or at any lectures. Between what would presumably have been the usual lecture time is recorded
“3pm-Tony”
4.15 Waxing –Studio One”.

127. For Friday 12 November 1999 there is a notation next to the time “11.30” stating “12.30 uni (notes)”. There is no other notation in relation to attending any lecture for Advanced Criminal Law on that day. In addition, there is a notation next to the time “4.30” stating “3.00pm meet MPG/ Casuarina”.
128. The next entry of relevance is on Sunday 14 November 1999 which reads “Dianne” – Equity and Student Access ph 89466288”. In relation to this entry the plaintiff gave evidence at page 15 of the transcript as follows:
“Having looked at that can you recall whether you made a call and whether you spoke to Dianne---?---Exam arrangements.
And was that with Dianne Bensley?---Bensley.”
That was the extent of the evidence from the plaintiff on that entry. Given the proximity of this entry to the actual examination, I would have expected this note to have had some special significance, but none was forthcoming in evidence. I was not told what if anything was allegedly said between the plaintiff and Ms Bensley on this occasion. I am unable to find that anything of relevance was said. Further, I am unable to be satisfied on the balance of probabilities that the plaintiff spoke to Ms Bensley on 14 November 1999. I do not know the operating hours of Equity, and therefore I do not know if they were open on Sundays at all. I do not know if Ms Bensley ever worked on a Sunday during this period in 1999.
129. The next entry was for Monday 15 November 1999 and next to “1.00” in pink pen is written “ring student disabilities,” and in the line below it next to “1.30” in black pen in written “Diane”. In relation to that entry the following evidence was given at page 15 of the transcript:
“And can you recall anything further from that shorthand note?---Oh I saw the doctor. I’d been on pain injections that day. That was exam arrangements, I was getting close to the exam – the exam problem.
Alright. What were the pain injections you were seeing the doctor for at that stage?--- Toradol –oh for my spine.
For your spine. Where was the pain referred---?---In my neck and hands.”
130. Dr Chong Wah also have evidence about injections at T80 and 82. His evidence was as follows:
“On 15 November I made a note here she had a pain injection…..
It was a pain killing injection.
I would have given her one injection for pain, one for nausea at the same time.
I gave her another one on the 16th and…..I did actually call on her a couple of days as well, but I made no note of that. That’s around the same time.
She got two injections in the surgery and then I did call on her, I think on two occasions.
………….
It would be Pethidine, 100 milligrams and Maxolon 10 milligrams.
……As far as Deborah’s concerned really each injection would have made her sick for at least a couple of days after.
Nausea, light-headedness.”
131. Again, in relation to the plaintiff’s evidence about the entry of 15 November I was not initially told whether she alleged that she actually spoke to Ms Bensley at all on this occasion. However, the plaintiff did expand on this evidence when she gave evidence about entries on 18 November 1999, which entries were as follows:
“8.30am Adv Crim Law
open book”

This was a reference to the time for this exam. This page starts off with the entry at the very top “feed horses”. There are in addition the following entries next to the various time entries:
10.00 -
11.00 8.50am vet – “Percy”
11.30 Paul p/up
12.30 Studio One
1.00 dentist
1.30 Rest.
2.30 *Annette’s b’day present*
4.00 Student Disabilities
5.30 pay telephone
evening money

The plaintiff was asked questions in relation to those entries and gave the following evidence at pages 15 and 16:
“Can you – having read that, recall anything further about the reason for the entry, or what happened?--- I had spoken to Di on the 15th and – which is the previous entry on November, and she’d said that Matthew Story had refused to give me special consideration for the Advanced Criminal Law exam. He didn’t accept the medical certificate. He was going to make me sit it and if I didn’t sit it he’d give me a fail.
And did you---
His Worship: Is that what she told you? Or was that what you assume- you thought---? --- That’s what she’d told me.
Did you make any contact with Mr Story after that?---The next day I had the other exam which was 19 November so I didn’t contact anyone.
Right, I just pause – now going back to the day before. Did you sit that exam?---I didn’t sit the Advanced Criminal.
All right. Thats the – what date was the advanced criminal then?---18th.
18th. The next entry is the 19th is it?--- the property exam.
And did you sit that exam?---Yes.
And did you pass that exam?---Yes.
What’s the next entry?---oh actually, no, I didn’t pass that exam, sorry”.
132. It is interesting to note that when the plaintiff was taken to the entry of 15 November none of this evidence came out.
133. Ms Bensley’s evidence in relation to this was at T105, where she said:
“And I suggest to you that in a period before the date of the examination you rand Deborah Brackenreg and told her Matthew Story had refused her application to either defer of postpone one of the examinations?---I rang Deborah and said that to her? No, I don’t recall – I don’t recall that.
You don’t recall that?---No.
Do you recall Mr Story ever telling you that he was refusing an application from Deborah Brackenreg in November of 1999?---No.
134. It was clear from the evidence of Mr Muir and Ms Bensley that a refusal of this type would usually be in writing, and placed on the student’s file. Ms Bensley (T107) could not recall any occasion when a refusal was not in writing. Mr Muir further explained that if a refusal were by e-mail he would print the e-mail off and place it on file.
135. Mr Story also gave evidence before me. He said (T112) that it would not be common to refuse a student’s application for special arrangements. He estimated that between five and thirty such applications would be received a semester. He went on to say at T113:
“Do you recall in semester 2 1999 Deborah Brackenreg applying for a variation of her special – permanent special arrangements?---No, I’m sorry. I don’t. I must admit I have no recollection of Ms Brackenreg having ongoing special arrangements, I’m not saying she didn’t, I don’t have any recollection.
Do you recall her applying for a special exam?---No.
Do you recall refusing an application for variation of her special arrangements by Deborah Brackenreg?---Not recalling the application I certainly can’t recall refusing it.
Do you recall seeing a medical certificate in relation to Deborah Brackenreg stating that she could not sit two back to back exams?---No, I don’t.
Do you recall having a conversation with Dianne Bensley in the Equity and Student Access office in relation to Deborah Brackenreg and her special arrangements?---In relation to Deborah, no. It certainly would be uncommon that I’d have conversations with Dianne regarding students that Access and Equity were supporting. But I have no specific recollection in relation to Deborah.”
136. At T114 Mr Story gave the following further evidence in answer to some questions from myself:
“If you’d been asked by Deborah Brackenreg to change an exam so that she could sit an exam at a different time, and you’d refused that, would you remember the refusal?---Not necessarily, Your Worship.
Where would you record it?---Well, it – if the request was in writing, as I’ve already said it would be on the file. There would be a written response. It might have been an oral response prior to that, but it would be confirmed in writing.
Is there any occasion you can remember any time when you Associate Dean where you did not receive any written request for such as a deferral an exam or to sit a special exam and that you considered it orally and answered it orally and nothing was ever put in writing?---No, even if didn’t happen immediately it would be put in writing. I say that it may be that a student would phone in some dreadful circumstance on the afternoon and I’d indicate that provided documentation would be provided eventually we’d arrange a special exam. But it required some documentation. We’re talking about the centrally organised exams here, as well, Your Worship, lecturers have a certain greater degree of discretion when it comes to, for instance a student begging an extension on an essay but for centrally organised exams it was a more strict protocol.”
137. I find on the balance of probabilities that the plaintiff did speak to Ms Bensley on the telephone on one occasion, that being on 1 October 1999. The content of this conversation is difficult to decide on the evidence as it is. I consider that the most likely scenario is that on or shortly before 1 October 1999 the plaintiff became aware that she would have two examinations on consecutive days. She rang up Equity to make a general inquiry about what she could do. She probably spoke to Ms Bensley who advised her of the need for medical evidence to support any requested change. I do not know (because no witness suggested any such conversation) whether she was told anything else. This conversation was likely to have been brief, such that Ms Bensley now has no recollection of it.
138. It appears that this was not the only issue that the plaintiff was pursuing with Equity in 1999, and it would therefore not be surprising for her to get attendances confused. The poor memory and vague evidence of the plaintiff has made it very difficult to find what occurred, or when.
139. A number of matters seem to flow from the evidence thus far:
• The plaintiff had special arrangements in place for examinations with the defendant;
• Those special arrangements did not include any arrangement concerning the time to be allowed between sitting examinations;
• Any request to alter the time for sitting a centrally organised exam was a major matter and the defendant’s protocols needed to be followed;
• The defendants protocols (ExD1) required any such requests to be in writing and supported by medical evidence;
• The plaintiff did not submit any request in writing as required at any time on or before the exam on 18 November 1999;
• In cases of urgency (such as an accident on the way to the exam) a request might be oral, but would need to be confirmed in writing and supported by appropriate evidence later in order to be considered;
• The plaintiff’s request was not urgent, as she was aware of the alleged problem at least by 1 October 1999, which was seven weeks before the examination;
• Neither of the two relevant persons at Equity (namely Muir or Bensley) had any memory of the plaintiff ever requesting a change to her special arrangement so that she could sit a special exam in second semester 1999;
• The only evidence to suggest that this did occur comes from the plaintiff;
• The relevant person at Equity (Bensley) who supposedly spoke to Mr Story about this issue and told the plaintiff her request had been refused had no memory of this occurring;
• The only evidence of this comes from the plaintiff;
• The relevant person at the Law School (Story) who supposedly rejected the request has no memory of it;
• If any such request were refused (whether the request was initially oral or not) the refusal would (in the ordinary course of events) have been reduced to writing;
• No such written refusal exists in either the Law School records or the Equity records;
• The plaintiff gave no evidence of ever seeing or receiving any refusal in writing;
• The plaintiff and Dr Chong Wah say in evidence that a medical certificate was prepared and given to the plaintiff stating that she needed at least a 24 hour break between exams;
• The plaintiff says that she gave the medical certificate not to Bensley but “to someone else”;
• If the plaintiff did give a certificate to someone at Equity then in breach of normal Equity procedures no copy of such a certificate was placed on the plaintiff’s file;
• There is no evidence from anyone at Equity to suggest they ever saw or received any such certificate;
• No copy of such a certificate exists in the defendant’s documents, and there is nothing to suggest it was ever received or seen by the defendant;
• Neither the plaintiff or Dr Chong Wah have a copy of such a certificate;
• No certificate or copy thereof was placed into evidence.
140. Mr Herd also gave evidence in the plaintiff’s case. He was a senior lecturer in Law and had been with the University since it started out as the University College of the Northern Territory in 1988. He knew the plaintiff. He gave evidence generally of problems that he had had with student files. He noted (T70) that “I have found a student has said that they have submitted the form and I’ve been unable to track it down”. He correctly pointed out that “it could of course mean that the student didn’t put the form in at all”. He went on to explain that the defendant initially did not have a central administration for all records. This has apparently now been put in place. His evidence was unchallenged and he was asked no questions in cross-examination. I therefore accept his evidence and find that in 1999 the defendant did not have adequate or appropriate procedures in place, such that a student’s file may not be accurate or complete. Accordingly, the fact that the defendant was unable to locate a particular document did not necessarily mean that it had not been given to the defendant.
141. I accept that the defendant’s filing and administrative procedures were of an unacceptable standard in 1999, but I do not make the same finding with respect to Equity.
142. In order for the plaintiff’s evidence to be accepted on the balance of probabilities it would follow that each of the following facts would need to have occurred. I have set out each alleged fact in the plaintiff’s case in ordinary type, my comments in italics, and any findings in bold type:
• The plaintiff spoke to Bensley about the need for a gap between exams and asked what was needed to obtain this (Bensley has no recollection of this). I find on the balance of probabilities that the plaintiff did speak to Ms Bensley about this briefly on I October 1999 and was told that medical evidence to support any such change would be needed. Beyond that I am unable to find what else was said.
• The plaintiff was not told of the need for any written application (this was in breach of the requirements and contrary to what Bensley understood would have been needed, and accordingly, this fact would have involved Bensley giving knowingly incorrect advice). I find on the balance of probabilities that given the brief conversation that I have found took place between Bensley and the plaintiff that this is possible. If the plaintiff attended with appropriate evidence that would be the appropriate time to take the matter further.
• The plaintiff attended upon Dr Chong Wah and obtained a medical certificate stating that she needed at least a 24 hour gap between exams (this is in accordance with the evidence of both Dr Chong Wah and the plaintiff). I accept this evidence and find that this occurred on 3 October 1999.
• The plaintiff attended upon the offices of Equity and gave the certificate to someone there (neither Muir or Bensley have any memory of seeing such a certificate. If a certificate was given to Equity it was their procedure to take a copy and place it on the student’s file. No such copy certificate exists upon the plaintiff’s file). I find this is unlikely. I am therefore unable to find on the balance of probabilities that the plaintiff gave any medical certificate to Muir or Bensley. It is possible that she may have given a certificate to someone else (unspecified, such as the unnamed receptionist) at Equity, but I am not satisfied of this on the balance of probabilities. Even if I had found that she did deliver a relevant certificate to Equity, which I don’t, I am not satisfied that Equity was at any material time the servant or agent of the defendant, or capable of receiving documents on it’s behalf. I am unable to find what the plaintiff did with any such certificate. Specifically I am not satisfied on the balance of probabilities that the plaintiff gave any such certificate to any servant or agent of the defendant.
• Somebody from Equity forwarded this certificate to Story. (there is no evidence from Muir or Bensley that they did this or even that they might have done this and forgotten. Further, if a certificate were sent on to Story I would have expected something in writing to accompany it and explain what was being requested. No such document presumably exists in the plaintiff’s file in Equity as it did not make it’s way into evidence). I am not satisfied on the balance of probabilities that any relevant medical certificate was sent to the Law School (either by Equity or the plaintiff) at any material time.
• Story received and considered the certificate (there is no evidence to suggest that Story has any memory of ever seeing or considering such a document. No such certificate exists on the defendant’s files. No accompanying letter, memo or request exists on the defendant’s files). Given the poor administrative procedures of the defendant this is possible, but I am unable to find that it did occur on the balance of probabilities.
• Bensley had a discussion with Story about the changing of the exam times and Story refused (neither Bensley or Story have any memory of any such conversation. If such a conversation occurred Story would have in the ordinary course of events have confirmed the refusal in writing. There is nothing in the defendant’s possession or on the plaintiff’s Equity file to suggest that this was done). I am unable to find on the balance of probabilities that any such conversation occurred.
• Bensley then had a conversation with the plaintiff (on or about 15 November 1999) in which she advised the plaintiff of the conversation with Story (Bensley has no memory of such a conversation. There is nothing to indicate that Equity ever confirmed these details in writing, and I would have expected them to do so. The plaintiff did not suggest that she then went on to have any discussion with Bensley about what her options were. I would have expected her to do so. The plaintiff gave the impression in her evidence that she simply accepted the decision. My impression of the plaintiff was that she would have been unlikely to have taken such an approach). I am unable to find on the balance of probabilities that any such conversation occurred. I do not accept the plaintiff’s evidence in this regard.
143. I am not satisfied on the balance of probabilities that the plaintiff gave any relevant medical report/certificate (relevant to her need for a 24 hour break between exams) to Equity at any time on or before 18 November 1999. I do not accept that a medical report/certificate would be lost by both the defendant and Equity, with no record of it ever having existed. I do not accept that the evidence of the plaintiff in this regard is sufficient to establish the requisite facts on the balance of probabilities. Her evidence was generally vague and unconvincing.
144. On all of the evidence I am not satisfied that any oral application (as I have already found that there was no written one, as there should have been) for a special examination was ever made to the defendant (through Equity on behalf of the plaintiff) on or before 18 November 1999. It therefore follows that I am not satisfied on the balance of probabilities that a special examination (or later examination) was refused by the defendant in relation to Advanced Criminal Law on or before 18 November 1999. If there was no request, then there was nothing to refuse. If there was no refusal, then the alleged breach of contract has not been established.
145. It follows from these findings that the plaintiff’s claim must fail. In the event that I am wrong on these findings I will consider the other issues in the case further.
146. At T34 the plaintiff explained that Property was a “core unit” whereas Advanced Criminal Law was an “elective” and that was why she chose to sit the Property exam. It was only in cross-examination that she gave the following explanation (T52):
“And so knowing that you faced, essentially, a fail mark by not attending the exam, you chose not to attend the exam?---I wasn’t fit to sit the exam.
HIS WORSHIP: How weren’t you fit?---I’d been having injections every day in the week proceeding it for pain.”
147. It does not appear that this information was ever conveyed to the defendant at any time prior to the examination date of 18 November 1999. The only medical evidence to support this evidence was a letter from Dr Chong Wah dated 3/2/03 (some thirty nine months later) which became ExP18, and the oral evidence of Dr Chong Wah himself. This letter also belatedly asserted that “she should have at least 24 hours between each exam because of this”.
148. The entry for Friday 19 November 1999 does record in blue pen “1.00pm property” and under that in black biro “rm17 bldg 24”. It is to be noted that the plaintiff did not note where the lecture for Advanced Criminal Law was to be held on 18 November. I take it from this that she had decided not to undertake this examination well before the due date.
149. It is interesting to note that at no stage in her evidence did the plaintiff say that she had done any preparation or study for the Advanced Criminal Law exam prior to 18 November 1999. Her diary would suggest that she may have attended very few Advanced Criminal Law lectures, and hardly any in the latter part of the semester. She did no essay for this subject, and did not suggest in her evidence that she had even considered a possible topic. On the evidence I would therefore be unable to find that the plaintiff did any work or study in preparation for an examination in Advanced Criminal Law at any time on or before 18 November 1999.
150. In my view, it would have been a necessary part of the plaintiff’s case in damages (if a breach of contract had been found to have occurred) to establish that the plaintiff suffered some loss by not having her examination date moved. The plaintiff did not say at any time in her evidence that she was ready to sit the Advanced Criminal Law exam at any time provided there was at least 24 hours between her other exams. She did not say in evidence that she could have “crammed” for such an exam, and if so how long she would have needed for this. I note that she alleges she spent some 160 to 180 hours preparation for the Advanced Criminal Law exam when she finally sat it in 2001, but there is no evidence that even one hour of preparation was done leading up to 18 November 1999.
151. As noted above the plaintiff asserts in her evidence that it was not until 15 November 1999 that she was finally told that she would have to sit two exams in two days, and no deferral would be granted. Surprisingly, the plaintiff gave no evidence that leading up to the examination of 18 November 1999 for Advanced Criminal Law she had:
• Attended any lecture, and if so, when;
• Attended any tutorial, and if so, when;
• Taken or obtained any lecture notes, and if so, when;
• Done any, and what, preparation for any exam;
• Taken any, and what, steps to be ready for the exam;
• Prepared and was ready to sit any exam.
152. The plaintiff was the only person who could have given this evidence, and in the absence of this evidence I am unable to find that any of these matters have been established on the balance of probabilities. Therefore, even if I had found that a breach of contract as alleged had occurred (which I have found that it didn’t) I would not be able to find that the plaintiff would have been ready or able to sit any Advanced Criminal Law exam within any reasonable time before or after 18 November 1999. I am therefore unable to find that she might have passed any such exam, or that she might have been able to have even achieved a mark that might have warranted a supplementary exam. On the evidence before me I would be unable to find that the plaintiff therefore suffered any loss.
153. In my view, unless the plaintiff could establish that if her examination had been rescheduled she had at least a reasonable possibility of passing, then there would in fact be no loss. The plaintiff’s evidence is totally silent in this regard. The fact that in 2001 she finally sat the Advanced Criminal Law examination and apparently passed does not assist me in finding what may or may not have occurred in 1999. The factual scenario was totally different. In 2001 she attended a one week intensive of lectures. There was no evidence to suggest that any such arrangement would or might have been available to her in 1999. Accordingly, based on the lack of evidence on this topic I would be unable to find that the plaintiff had any real possibility (let alone probability) of passing Advanced Criminal Law if a further examination had been arranged in 1999. It would be a matter of pure conjecture, and the plaintiff has not given any evidence to lay the framework for doing so. If I am wrong on this aspect I will consider the plaintiff’s claim for damages further later in these reasons.
154. The plaintiff’s claim relates to a breach of contract directed to her being required to sit two exams on 17 and 18 November 1999. Accordingly, in my view, it is only matters that occurred on or before 18 November 1999 that can be relevant to the decision as to whether a breach has occurred. Events after this may shed some light on what happened before, or may go to damages if a breach is found to have occurred. Accordingly, I will proceed to consider events after 18 November 1999, but only for those restricted purposes.
155. The next entry is for Monday 22 November 1999 which reads in blue pen “1pm property” and thereafter in black pen “rm17 Bldg 24”.
156. The next entry is for Tuesday 23 November 1999 and reads “call uni- VC and Disability Svc’s –Di”. In relation to that entry the plaintiff gave evidence at page 16 of the transcript as follows:
“Do you know from looking at that entry what-or did you call? And if so, to whom you spoke and what was said?---I complained to the Vice Chancellor’s office.
Do you recall any response to that complaint?---None.
Either in the telephone conversation or at any other stage?---They were-they were going to get back to me.”
157. There are a number of entries for Wednesday 24 November but none of them related to the University.
158. The next entries were on Thursday 25 November1999 and started next to the time “12.30” as follows:
“Uni- re exam: Adv Crim L
& Di - Disability Svcs. Corpn
essay: Media
& next semester”

In relation to these entries the plaintiff gave evidence at pages16 and 17 of the transcript as follows:

“Having looked at that, can you recall anything further about that call now?---I was complaining.

Can you recall the nature of the complaint?---That-and I- that I was going to get given a fail and that it had all - had affected me and it had affected my other units.

And can you recall anything further being the subject matter of that discussion or what was said?---What could I do about it?.

Yes. Did you do anything about it? Well, perhaps I should say, what did you understand you could do about it, having that conversation?---Not a lot.

Are there any avenues that you were aware of, to appeal or have a reconsideration of your situation?---With the set procedures in place, no. At- I was still waiting for a response from the Vice Chancellor’s office.

And did you get a response from the Vice chancellor’s office at some stage? ---No, not until much later.

And when you say, “much later” how much later was that?---The next year.

Of 2000?---Yes. And I was trying to also harass the Law School.”

159. The next entry is for Friday 26th November 1999 and reads:
“89466833-Sue Voss / Reception.
left msg Law Faculty

Matthew Storey – 89467115 –
Assoc Dean of Law”

Both of those entries have a “tick” against them, presumably indicating that they were actually done.
160. It appears from the diary entries and the plaintiff’s own evidence that she made far more effort (to raise the issues with the Department of Law) after 18 November than she did leading up to it. The diary goes on to record further entries but it is unnecessary to go through them all as, in my view, if there was any breach of contract it was complete by 18 November 1999.
161. The plaintiff was not a witness who was a good historian. Her recollection of events, even with the aid of her diary, was poor. She tended to use expressions such as “would have been”, “probably”, “possibly” or “I think” in a lot of her answers, giving me little faith in the accuracy of her memory. At T20 she advised that “my memory is such that I usually need a diary”. It appears that even with a diary her memory is very poor.
162. The next entry is for 1 December 1999, and reads:
“fill in form at NTU-
18th Nov
special exam –
certificate
89466833 – Sue Voss”
163. In relation to this entry the plaintiff said in re-examination:
“I think they wanted me to fill in another form because they’d lost the other one.
What form was it they wanted you to fill in, can you recall?---Looking at this I remember them asking me to make another application or to make an application for a special exam because the 18th relates to when the exam is, in the diary here.
Yes. Did you fill in a form?---If I was told to fill in a form I filled in the form.
You’ve---?---That was directly at the Law School though, that wasn’t through Equity & Access.
……perhaps I should ask you, when did you submit the form, can you recall?---18th – I fill it in at the Law School right there with Sue Voss.”(emphasis added)
164. There is a big difference between making another application and making an application. The first starts on the premise that a prior application had been made. I have earlier found that the plaintiff did not make any written application for a special examination for Advanced Criminal Law at any time relevant to these proceedings.
165. On or about 7 January 2000 the plaintiff dropped off a letter to the School of Law reception. It apparently was a letter that she prepared but she did not sign it. Her explanation for this was (T20) “because sometimes I forget”. This letter became ExP3. It comprised some four pages. A number of the matters therein are irrelevant to the current case, but generally indicate that the plaintiff was seeking special consideration in relation to Corporations Law (semester 1) and Media Law (intensive July 1999) as well. The relevant portions state:
“In May of semester 1 I had applied to QUT (early) so there could be no problems with tardiness with my application. Before the academic appeals committee met at QUT they needed any supporting documentation that I could provide to prove my case warranted re-entry. Along with my application a letter from my GP and treating specialist regarding treatments and new diagnosis what was also needed was my NTU results. The problems started when the results from NTU were three weeks late in getting out and then they were incorrect in my case as 1 unit had been left off and it also showed that I had failed a unit that I had previously withdrawn from. This was not helpful to my case with the QUT academic appeals committee I had explained that our marks were late and incorrect. The acting Dean of Law (Matthew Storey) sent an explanatory letter about the confusion but they had already reconsidered and rejected me.
I then lodged a complaint with the Queensland Anti-Discrimination Commission and sought an urgent injunction from the Queensland Anti-Discrimination Tribunal to allow me to finish my degree at QUT as I am quite close.
With the help of two other law students and the NTUSU we ran and argued the case externally. This involved a significant amount of time effort and research and my closing arguments were on at the same time as the Media Law exam. I sat this exam but did not submit my essay. At the same time I had received a letter from Matthew Storey as the Acting Dean of Law saying that because of my exclusion from QUT I could not continue my studies at NTU without a payment to cover the cost of semester 2 courses. This also interfered with my ongoing court and study problems. To date there has been no resolution to any of these issues. I sat Trusts Property and International Law exams and did not sit Advanced Criminal Law as I had three exams in row and did not feel that I could manage, I was also test running the new arthritis treatment (celebrix) and it was not suiting me. I spoke to Di at Equity and told her and she then spoke to Matthew Storey and he would not approve it. I spoke to Matthew after the exams and briefly canvassed these issued and he said that it wasn’t his problem and to put it in writing.”
166. No reply to this letter made it’s way into evidence. Nor do I know whether the assertions about the supposed conversations with Bensley and Story were made known to them prior to giving evidence in court. ExP3 was not shown to either Bensley or Story during their evidence.
167. There is no reference to any medical evidence (certificate) having been provided in this letter. Further, her evidence only concerned a problem with the two exams on 18 and 19 November, but the letter has asserted that there was a problem because of three exams. This is not in accordance with her evidence. The reference to a “new arthritis treatment” would also appear irrelevant as the Further Particulars rely only upon her “spinal condition”. In addition, her evidence did not suggest that this was ever raised with Equity or the defendant prior to the exam on 18 November 1999.
168. Dr Chong Wah identified a hand-written report dated 25 January 2000, as one that he prepared in relation to the plaintiff. This report became ExP17. This said in part:
“And in November she was additional stress with the departure of her psychiatrist. She was put onto new medication for pain which upset her. All these factors would have affected her work performance during this period.”
Again, this report was well after 18 November 1999, and therefore irrelevant to any decision as to whether any breach of contract occurred on or before that date.
169. On 1 February 2000 the plaintiff also “wrote” a letter to “Professor Ned Aughterson, Acting Dean Faculty LBA”. As to whether she actually wrote this letter or not the following evidence was given at T52:
“Now, this was a letter that you wrote on 1 February 2000 given – what appeared to be---?---Actually I didn’t write the letter.
Sorry, you didn’t write it---?---I didn’t write the letter, it was written by Jeremy Muir at Student Equity & Access. He faxed it to me, I approved it, and I signed it and sent it back.
So---?---He wrote it on my behalf.”
This further confirms that Equity was the agent of the plaintiff, and not the defendant. Mr Muir in his evidence stated that the factual material in the letter was provide by the plaintiff (T89).
170. In this letter (ExD2) the plaintiff asked for “special consideration” in respect to a number of the subjects (Corporations Law, Media Law and Advanced Criminal Law) that she had been doing. Specifically in relation to Advanced Criminal Law she said:
“I would also like to advise you that my essay for the unit LWA004 – Advanced Criminal Law could be completed within two weeks. I believe I have given the opportunity to sit a Supplementary Examination for this unit. If I pass both pieces of assessment then that should finalise this unit.”
171. It is not clear as to how the plaintiff believed that she would be able to do an essay in the year after she had done the subject. Further, the issue of the essay appears to be irrelevant to my deliberations as it is not referred to at all in the plaintiff’s Statement of Claim or either of her Further Particulars of Claim (as set out in full, supra).
172. On 2 February 2000 the plaintiff signed an application form (ExD3) requesting “special consideration” for the units “LWA018, LWA207 and LWA303”. She was asked about this at T62-64 and her evidence was not helpful. She didn’t even know what the subjects were. I note that she did not include LWA004 which was the Advanced Criminal Law course.
173. In early 2000 the plaintiff commenced work with the Department of Defence at the RAAF base in Darwin. She said (T24) that she was in charge of signals, secure signals for the joint logistic unit, north. She apparently left that employment at the end of 2001.
174. On 31 May 2000 Matthew Storey wrote a letter to the plaintiff (ExP4). This letter sought to address the plaintiff’s numerous requests in ExD2. In respect to “extension of essay deadlines LWA033 and LWA004” Mr Storey said:
“Law School rules provide that late submission of assignments attract a 10% penalty per day. Application of this rule would result in your failing these units. You may have information not included in your letter of February which is relevant to the issue of why I should not apply this rule in your case. If you do have such information please advise me of it within seven days of receipt of this letter. I will not finally determine your request for extensions in these subjects until after the expiration of this period.”
175. The plaintiff does not appear to have responded to Mr Storey within the seven days stipulated, or at all. No response to Mr Storey was tendered in evidence. Rather, it appears that on 28 June 2000 the plaintiff wrote to “Vice Chancellor, Professor Ron McKay” (ExP5). The relevant parts of this letter were:
“Advanced Criminal Law LWA004 – there was an option of an essay and an exam I had intended to do the former but again the court action was actually in hearings at the time. When it came time to do the exam I realised that the exam was the day before another long exam and I asked and supplied a medical certificate stating that I could not do both in a short time frame this was done through Equity and Student Access (Di) and Matthew Storey – my application for this was refused though I was given a mark incomplete for this unit.
The enrolment issue aside there is acceptable and fair results that can be achieved for these units if these issues are dealt with fairly and properly. To date this has not occurred.
I would like to make suggest some ways to deal with these issues:
LWA004 – I think that due to the time factor that it would be unfair for me to sit this exam what I would suggest is that I do an essay of approx 8,000 words that would cover the entire unit the topic to be negotiated between myself and the relevant lecturer.”
176. It is clear from this that the plaintiff’s failure to do an essay in 1999 had nothing to do with any disability that she asserts she had at the time. Rather her priorities were directed elsewhere.
177. Mr McKay responded to ExP5 by letter dated 10 July 2000 (ExP6). The effect of this letter was that he agreed with Mr Storey’s response (ExP4), and did not believe there were sufficient grounds for his intervention. He also indicated that “I have now had an opportunity to discuss the issues you raise with the Associate Dean and with Mr Muir in Equity and Student Access”.
178. However, it subsequently transpired that in 2001 the plaintiff did complete Advanced Criminal Law. At T24 she gave the following evidence regarding this:
“Now were you permitted, at any stage, to complete LWA004, Advanced Criminal Law?---No.”
I find this answer to be untrue, given the responses that followed immediately thereafter, namely:
“Have you, at any time since, either re-sat the examination or a similar examination on that topic?---I resat the unit and the topic. Sorry, I resat the unit and I sat the exam.
And when was that?---2001.
And under what circumstances did you resit the unit? Was that---?---I took a week off work because it was run as an intensive which means, instead of running as a semester unit, the entire unit is taught all day every day for five days.
Yes. And is there an examination at the end of that?---Yes.
Were you able to cope with teaching, or being taught, all day and every day for five days?---Oh I missed half of it.
Did you receive any results of that examination?---Yes.
And what was the result of that examination, as you understand it?---A credit.”
179. As to whether this was a special arrangement put in place for the plaintiff, or how this occurred I do not know.
180. Through Dr Chong Wah a final medical report dated 3 February 2003 was tendered and became ExP18. This document stated:
“Between June and November 1999 I certify that in my opinion Ms Deborah Brackenreg needed a longer hourly break in her exams because of her neck pain and right arm weakness and she should not have exams on two consecutive days. She should have at least 24 hours between each exam because of this. I also recommended that she take at least a ten minute break for every hour of her exams to change her position and rest her neck.
I would confirm that on the 15/11/99 she was given an intramuscular injection for pain, and this was repeated on the 16/11 and 17/11 this would have adversely affected her ability to sit her exam on the 18/11/99.”
It appears likely that this report was prepared specifically for this court case. I note that there is no suggestion in ExP18 that Dr Chong Wah had provided any prior certificate or written documentation to the plaintiff on this issue.
181. The plaintiff is claiming for the time off work, which she calculates as “40 hours contact (lectures) based on a day 9am – 5pm” (particulars of financial claim, supra). I would find it difficult to accept that students were expected to sit through eight hours of lectures without any breaks, including no lunch break. The plaintiff gave no evidence to suggest that this was the case. Accordingly, in terms of contact hours it would appear that at least one hour per day for lunch would need to be deducted, making the “contact hours” 35 and not 40 as a starting point. Then she has chosen to multiply this by $33 “based as my employment as a tutor at Fatsis”. Assuming for the moment that the plaintiff is entitled to anything, there are a number of problems with this aspect of the claim. Firstly, during this week she was working for Defence and not tutoring. Secondly, she said that her hourly rate of pay with Defence was 16.863793 per hour (T27), so a claim for $33 an hour is without merit. Thirdly, even if she were entitled to claim her tutorial rate (which I find she was not) her evidence was that (T26) “tutoring is $30 a hour that was the rate in 2001”. Fourthly, it transpired that she did not lose any wages during the time she took off from Defence for the intensive as she took “flex-time” (T26). It then appeared that she was claiming this lost time on the basis that if she hadn’t had to go to university she would have been able to use that flex-time for other things (T26). Fifthly, after an adjournment on 1 September 2003 the plaintiff finally gave this evidence at T30:
“Was it your understanding at the time that if you obtained a recoup of the time – the flexitime you took you would get a credit?---That’s correct.
But is the situation now, that, in fact, you’ve left that employment?---That’s correct.
And you wouldn’t get any further credits for any recoup?---Well, actually I’m not sure.
Well, as far as you’re aware you wouldn’t is that the situation? So in effect, so far as the defence organisation is concerned, you’re not out of pocket. Is that the situation?---Correct.”
182. I therefore take it that this aspect of the claim has been abandoned. If it hasn’t been I would find that it has no merit, and I would have rejected it in any event. This still leaves her “study times”.
183. The plaintiff also claimed that “while times vary I would estimate that I studied for 4 hours per 1 contact hour” (particulars of financial claim). At T29 I asked the plaintiff some questions on this and the following was said:
“…….Now you have to sort out exactly what hours you say, and what money you lost?---The 220 hours that I claimed isn’t in relation to that 40-hour week that I did the unit.”
I find this to be untrue. Clearly from the “particulars of financial claim” this is a part of the 220 hours. The discussion continued:
“Well, you explain it, it’s your claim---?---That relates to – in university for one contact hour, and this is a standard rate that the university works on, for one contact hour---
I don’t care about the standard rate, I’m only interested in the truth?---Righto then.
I only want to know what happened?---220 hours was the amount of time I put in to getting ready and sitting an exam.
When? What hours?---Over the whole period, but we’re not talking about 1999 we’re only talking about 2001.
Well, that’s what I don’t understand. You’re claiming 220 hours and then – when did you actually spend those hours. You tell me the days, dates that you spent those hours. Over what period are we talking about?---We’re talking about a period from 24 May up until 18 August.
So – but that study time – how much of that study time was during time that you would have earned an income and couldn’t?---A fair amount of it.”
184. It therefore appears that the four hours per contact unit is based upon some formula that the plaintiff believed existed. The existence of such a formula was not proved in evidence, nor was the basis of any such a formula. I am therefore unable to give this method of calculation any weight. Even if I accepted the formula (which I don’t) the plaintiff’s method of calculation is flawed in any event. She bases it on contact hours as a starting point. As noted above the actual maximum contact hours are more likely to be 35 as a starting point rather than 40. Further, on her own evidence she “missed half” of the contact hours in any event. Therefore her actual contact hours for the week of the intensive were more likely to be in the range of 15 to 20 hours. If this were capable of simply being multiplied by four (which I am unable to accept that it is) then this would come to a figure of between 60 and 80 hours, and not 160 hours.
185. Further, she gave no evidence as to what happened in relation to the other half of the contact hours that she missed. I do not know, for example, whether she obtained notes of these missed contact hours from other sources, or whether she just did nothing. I was not told anything about this and therefore I cannot speculate.
186. Further, the plaintiff said that the hours she was claiming were for the period from 24 May 2001 up until 18 August 2001. I do not understand how she has arrived at these dates as being the start and end of the relevant period. The plaintiff’s diary for 2001 was tendered before me and became ExP13. By reference to this the plaintiff was able to identify (T43) that the Advanced Criminal Law intensive took place from Monday 16 July 2001 until Friday 20 July inclusive. Her evidence did not explain how she allegedly was studying for some two months before she did the lectures. In the absence of any evidentiary explanation this makes no sense, and I therefore reject it. Further, at T44 the plaintiff identified 31 August 2001 as the date of the examination. On this evidence she therefore apparently stopped preparation almost two weeks before the exam.
187. At T56-57 the plaintiff said in cross-examination:
“And in this six week period that you say that you were unable to be employed as a tutor, how many hours do you say that you’re effectively saying you knocked back?---Yes, I did.
220 hours?---Approximately, yes.
That’s 7.4 hours a day?---Yes, and it – if you look in my diary I was doing longer hours than that some days tutoring.
……….
Were you still working for RAAF during this period?---Yes.
How many hours a week?---Flexible.
Well how flexible?---Very flexible depending upon what my students needed and depending on what was happening in the defence force at the particular time.”
188. On my calculations 220 hours divided by 6 weeks, divided by 7 days equals 5.2 hours per day, and not 7.4. But the point that Ms Hill sought to make is still, in my view, well made. I reject the plaintiff’s evidence that she could have done 220 hours tutoring in six weeks as being untrue. No documents have been produced to establish that she has ever done this much tutoring at any time, or anything approaching it. In addition, she was still working for Defence at this time and getting paid for that. This employment must have impacted upon her ability to do extra tutoring, especially taking into account her alleged disabilities, alleged pain and medication. On the evidence before me I am satisfied that this claim was deliberately and knowingly exaggerated.
189. The plaintiff produced only two pay advices relating to FATSIS. She should have had pay advices, group certificates and income tax returns for each of the 1999, 2000, 2001 and 2002 years, but they were not produced in evidence. No good explanation for failing to do so was put forward by the plaintiff. The first pay advice that she produced purported to be for the “period end: 05-Dec-2001” and became ExP8. This exhibit disclosed the following:
Salary,allowances and overtime Job units Rate Amount Salary YTD
23 May 2001 07 5.00 19.2320 96.16
6 June 2001 07 9.00 19.2333 173.10 269.26 945.76
190. This would indicate that over these two fortnights (four weeks) she earned $269.26 for tutoring. This would average out at $67.31 per week. The second one purported to be for the “period end: 07-Nov-2001” and became ExP9. This exhibit disclosed the following:
Salary,allowances and overtime Job units Rate Amount Salary YTD
12 Sep 2001 08 8.00 33.0000 264.00
26 Sep 2001 08 9.00 33.0000 264.00
10 Oct 2001 08 4.50 33.0000 148.50 676.50 676.50
191. This would indicate that over a three fortnight period (six weeks) she earned $676.50 in tutoring. This would average out at $112.75 per week. Combining the two exhibits (which covered periods before the “intensive” and after the exam) would indicate that for the ten weeks shown she averaged $94.57 a week in tutoring. I consider this to be a more appropriate method of calculation than that used by the plaintiff. Accordingly, as the intensive started on 16 July 2001 and the examination was on 31 August 2001, this is a period of some six and a half weeks. She said in her evidence (T44) that she “kept the tutoring out until, yeah, the weekend after the exam”. Assuming that she didn’t take any tutoring work in this period (and assuming for the moment that her claim had some merit) then I would have allowed $94.57 times seven, which totals $661.99. Her claim for $7260 is, in my view, without merit and bordering on exploitation.
192. The plaintiff’s evidence generally was unsatisfactory. It lacked any real precision. Her diary was of little use in refreshing her memory. I formed the impression that she guessed a lot of her evidence, and I therefore treat it with some scepticism.
193. As to the part of her claim that related to HECS, ExP12 was relied upon. This was a “notice of liability” for “higher education contribution scheme”. It indicates that for semester 2 of 1999 the plaintiff was enrolled for six units (including LWA 004), with five of them attracting “10” credit points and one (LWS 012) attracting “5” credit points. The total HECS debt is shown as $1,760. At T38 the plaintiff was asked:
“And what proportion of that $1760 related to the LWA 004 course?---It was one of five.”
Given that there were in fact six courses, this evidence does not make sense. I made it clear to the plaintiff’s counsel at T38 that he “don’t assume I know anything about HECS”. Despite this, the way in which HECS is calculated was not explained in evidence. I do not know whether the plaintiff’s method, of dividing the total by five, is or is not correct. This aspect of the claim has not been established on the balance of probabilities, and I ignore it.
194. The plaintiff also claims $95 for a text-book. Her evidence in relation to this is at T39-40, as follows:
“Well, did you have a text book in 1999 for this particular topic, Advanced Criminal Law?---I think I did get a text book.
And did you use the same text book in 2001?---No, I bought a new one.
Any reason for that?---It was more up to date.
……………
And can you recall how much you paid for the new edition?---Oh about $100.
You’ve claimed $95?---That would be more correct then.”
195. Hence, her evidence changed from “thinking” she got a text book in 1999 to asserting she bought a “new one” in 2001. Neither of the two alleged purchases were presented in court. She did not assert that she had sold any of them or that they were unavailable for any other reason. It may be that opposing counsel didn’t require them to be produced, but if this was the case then I should have been informed of this. I wasn’t so I am unwilling to speculate. I am not satisfied on the balance of probabilities that the plaintiff purchased any textbook in 1999 for which she should be entitled to a refund. I reject this portion of her claim.
196. The next portion of her claim relates to sundries of $200. She said (T40) that a lot of research these days in law is done on the internet. In addition she was claiming for photocopying. When asked to quantify how the $200 was calculated, she said:
“And how did you manage to arrive at a figure of $200 as being the cost of the sundries?---That's just an average on how much I normally spend per unit on those sort of things, like internet, photocopying, buying books, paper.
When you say it’s an average, have you kept some record or some sort of---?---No, I haven’t.”
197. Accordingly, there is no evidentiary basis for this portion of the claim. On the evidence before me I am unable to be satisfied that she did in fact spend any money for sundries in relation to this unit either in 1999 or in 2001, and if so, how much in either year. It is not surprising that a person would not keep records of minor expenditure, but she should have had access to records that she could have referred to for the internet (given that she “put an extra phone line in at home and connected up to the internet at home” (T40)). No such records were produced and no explanation was offered as to why they weren’t. I do not consider this aspect of the claim has been fully established, but I would have allowed her $50.
198. The plaintiff has also claimed $50 for travel, which is apparently based upon her working at the RAAF base and going to University to study. However, it appears that she was living at Tiwi at the relevant times, which would not have been too far away from the university. I reject this aspect of the claim.
199. If I had found that a breach of contract had occurred (which I have found that it didn’t) then I would have allowed the plaintiff $661.99 plus $50, making a total of $711.99.
200. The result of all this is that I find that the plaintiff has not established any breach of contract by the defendant. It accordingly follows that the plaintiff’s claim must be dismissed. There is no counterclaim. Since the claim herein was for an amount in excess of $5000, I will hear from the defendant as to whether it seeks an order for costs under section 29(1) of the Small Claims Act.
201. I will publish these reasons in court on 22 June 2004, at which time I will hear argument as to costs and any consequential orders. I will then make final orders herein.

Dated this 22nd day of June 2004.

_________________________
D TRIGG
STIPENDIARY MAGISTRATE