Brennand v Hartung and Best Practice Education Group Limited t/as Blue Gum Community School [2012] ACTSC 132

Re: withdrawing offer of enrolment for [the daughter]

Since we met last Monday 4 July, to discuss [the daughter's] enrolment, we have become aware of serious matters, which would make it impossible for your family to join the school community at Blue Gum. Consequently, the place offered to [your daughter] has been withdrawn. Our Accounts person was not here today, so we were unable to check whether you had paid a Deposit. However, any moneys paid will be returned to you in full.

1. The plaintiff and her partner wrote to the school on 14 July 2011 and again on 3 August 2011, and made a number of telephone calls to the school, asking for reasons for the withdrawal of the offer and an opportunity to address the problem. They received a reply on 12 August 2011 by telephone message to their home, saying that the first defendant would provide information about the withdrawal within the following week. They did not receive any information within that time frame. They engaged a professional mediation organisation, which sent letters to the school on 23 August 2011 and 6 September 2011 without response.
2. On 8 September 2011 the personal protection orders in the Magistrates Court were discharged. The plaintiff's partner and the other woman entered into mutual undertakings for twelve months, which included an undertaking that the plaintiff's partner not be on the premises of Blue Gum School except for the purposes of collecting his daughter in emergencies or attending school functions or events or meetings with teachers or staff.
3. During September 2011 the plaintiff and her partner made a complaint to the Human Rights Commission. On 7 October 2011 the first defendant wrote to the Children and Young People Commissioner referring to the Magistrates Court order "which effectively made [the daughter's] enrolment at Blue Gum unworkable". The letter went on to say that the school had since filled the vacancy originally offered to the plaintiff's family.
4. After further correspondence between the Commissioner and the school, the complaint to the Human Rights Commission was "officially closed". The plaintiff and her partner had correspondence during November with the Australian Capital Territory Government, and instructed solicitors who corresponded with the first defendant. The first defendant said in a letter of 28 November 2011 that the school had withdrawn the offer of enrolment on becoming aware of the Magistrates Court order, and the place was allocated to another family. In a letter of 28 December 2011 she said that the court order had made the enrolment arrangement proposed by the plaintiff's family unworkable, so that further meetings were pointless, and that the place had in any event been reallocated to another family.
5. During March 2012 the plaintiff and her partner submitted a freedom of information request to the ACT Government, and on 30 March 2012 received a response providing copies of some documents sought. The present proceedings were commenced two weeks later.
6. The principal relief sought by the plaintiff is review under the ADJR Act. That Act was first enacted in identical terms to the Commonwealth Act of 1977 having the same title. The Act provides for review by this court of decisions of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment (Dictionary to the ADJR Act, definition of "decision to which this Act applies"). The enactment on which the plaintiff relies is the Education Act 2004. Such a review is not of the merits of the decision but of its lawfulness, that is whether it is within the power conferred on the decision-maker, whether prescribed procedures were followed and whether general rules of law, such as conformity to the principles of natural justice, were observed. The powers of the court are set out in s 17 of the ADJR Act and include orders quashing or setting aside the decision, referring it to the decision-maker for further consideration subject to directions, granting declaratory relief, and directing parties to do or refrain from doing anything to achieve justice between them.
7. Section 5 of the Act provides that a person aggrieved by a decision to which the Act applies may apply to this court for an order of review on one or more of a number of listed grounds. There is no issue on the interlocutory applications before the court about the adequacy of the grounds.
8. Section 10 relevantly provides as follows:

10 Period in which application for order of review must be made

(1) An application to the Supreme Court for an order of review in relation to a decision that has been made . . . must be made within the period required by subsection (2) (or any further time allowed by the court) if the terms of the decision were -

• (a) recorded in writing; and
• (b) set out in a document that was given to the applicant.

(2) For subsection (1), the period within which an application for an order of review is required to be made is the period beginning on the day the decision is made and ending 28 days after the relevant day.

(3) [not relevant]

(4) [not relevant]

(5) [not relevant]

(6) In subsection (2):

(a) if the decision includes, or is accompanied by, a written statement of reasons for the decision - the day a document setting out the terms of the decision is given to the applicant; or

(b) if paragraph (a) does not apply and a written statement of reasons for the decision is given to the applicant . . . not later than 28 days after the day a document setting out the terms of the decision is given to the applicant - the day the statement is given to the applicant; or

(c) if paragraph (a) does not apply and the applicant requests the person who made the decision to give a statement under section 13(1) -

• (i) the day the statement is given to the applicant; or
• (ii) the day the applicant is told under section 13(3) that the applicant was not entitled to make the request; or
• (iii) the day the Supreme Court makes an order under section 13(6) declaring that the applicant was not entitled to make the request; or
• (iv) the day the applicant is told under section 14(3) or section 15(3) that the statement will not be given to the applicant.

(d) in any other case - the day a document setting out the terms of the decision.

1. Senior counsel for the defendants submits that on the facts of the present application, the decision was communicated by the letter of 12 July 2011. That letter was not accompanied by a written statement of reasons. There was no request by the plaintiff under s 13 for a written statement of reasons, and no written statement of reasons was ever provided. Accordingly, the "relevant day" for the purposes of s 10 was the day the terms of the decision, in writing, were given to the plaintiff. Senior counsel for the defendants concedes that the appropriate day was 14 July 2011, the day the plaintiff received the letter.
2. Section 10(6)(d) is patently missing some words. On the analogy of the words used in s 10(1)(b), and also the earlier paragraphs of s 10(6), senior counsel for the defendants submits that (d) should be read as though it was worded "in any other case - the day a document setting out the terms of the decision is given to the applicant". Counsel for the plaintiff did not submit to the contrary, and it seems to me that this is the interpretation which must be given to the paragraph. The equivalent subparagraph in the Commonwealth Act (s 11(3)(b)(iii)) reads "in any other case - the day on which a document setting out the terms of the decision is furnished to the applicant".
3. In addition to review of the decision conveyed in the letter of 12 July 2011, the plaintiff seeks relief under s 6 of the ADJR Act. That section provides that a person aggrieved by conduct may apply for an order of review in relation to the conduct, where a person has engaged, is engaging or proposes to engage in conduct for the purpose of making a decision to which the Act applies. Particulars of the conduct contained in the originating application are failure to participate in mediation, and reaffirming or failing to vary the original decision. Section 6 sets out a number of grounds upon which an application under the section can be brought. It is apparent from a consideration of the grounds set out that the section relates to a proposed decision, that is a decision which has not yet been made. The originating application and supporting affidavit do not identify any such proposed or unmade decision. I am satisfied that the plaintiff is not entitled to relief under s 6.
4. Counsel for the plaintiff during the hearing of the applications withdrew, on instructions, the claim for prerogative relief.
5. There remain two issues for determination. The first is whether the court should extend the time limit by the ADJR Act for the making of the application for review. The second, which is related to the first, is whether the court has, or would have, any jurisdiction in any event to review the decision.
6. Section 10(2) provides that the period within which an application for review may be made is 28 days after the relevant day. The relevant day, for the reasons I have explained, was 14 July 2011 and the 28-day period ended on 12 August 2011.
7. The court has a specific power under s 10 to extend the period, and also a general power to do so under s 151C of the Legislation Act 2001.
8. I have not been referred to any authority as to the considerations which should be taken into account on an application to extend time for an application for review under s 10 of the ADJR Act. However, there is considerable authority about such applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth). There is no reason for the adoption of any different principle to extending time under the Territory Act and I propose to follow the case law which has developed in relation to such applications under the Commonwealth Act.
9. A non-exhaustive list of principles to guide the exercise of the discretion was set out by Wilcox J in Hunter Valley Developments Pty Limited v Minister for Home Affairs and Environment (1984) 58 ALR 305. That decision has been followed in the Federal Court over the years since: see for example ActewAGL Distribution v the Australian Energy Regulator [2011] FCA 639 per Katzmann J.
10. The principles can be briefly summarised as follows:
    • (a) Although the applicant does not carry an onus of proof, the court will not grant an application unless positively satisfied that it is proper to do so. The 28-day period is not to be ignored. The prima facie rule is that an application commenced out of time will not be entertained. An acceptable explanation for the delay must be shown, and the court must be satisfied that it is fair and equitable in the circumstances to extend time.
    • (b) Other action taken by the applicant since the decision was made is relevant. An extension will more readily be granted where the applicant continued to make the decision-maker aware that the finality of the decision was contested, than where the decision-maker was allowed to believe that the matter was finally concluded.
    • (c) Any prejudice to the respondent occasioned by the delay, including any prejudice in defending the proceedings, is a material factor militating against the grant of an extension.
    • (d) The mere absence of prejudice is not enough to justify an extension. Public considerations may intrude, including the effect on other people or on established practices if the application is successful.
    • (e) The merits of the application for review are to be taken into account.
    • (f) Questions of fairness as between the applicant and other persons otherwise in a like position are relevant.
11. Decisions affecting only the immediate parties are to be distinguished from those involving public administration and the public generally, and probably even from those where a reversal of the original decision will affect others.
12. As to the relevance of the merits of the application for review, French J said in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83 at 98:

The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the discretion to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it.

If the relevant decision maker or others act upon a decision after the prescribed decision expires then the objective of efficient administration may be compromised if the decision can be challenged and set aside after that expiry. Time and resources may have been expended to no effect. Where it is clear that an applicant for review of an administrative decision has, at all times, pursued the reversal of that decision administratively then the statutory purpose is less likely to be jeopardised by a liberal approach to the grant of an extension of time.

1. Here, the plaintiff's evidence is that she and her partner wrote to the defendants on the day they received the letter conveying the decision, and again about two weeks later, and left a number of telephone messages at the school. The first defendant as decision-maker must have been immediately aware that they were unhappy with the decision and did not accept it. Although I think it most likely that neither the plaintiff nor the first defendant had any awareness that the decision might be susceptible to challenge under the ADJR Act, it was clear to the defendants that the plaintiff was doing all she could within her knowledge to challenge the decision. They must have been aware that she was continuing to do so at least until the end of 2011, the date of the first defendant's letter to the solicitors then acting for the plaintiff. There was nothing thereafter which might have led the defendants to believe that the plaintiff had accepted the decision or that she was going to do nothing more about it. There was admittedly a period of a little over three months between that letter and the commencement of proceedings, when the plaintiff was continuing with activity aimed at challenging the decision through the ACT Government, of which there is no evidence that the defendants were aware. This was nevertheless clearly not a case where the plaintiff had "rested on her rights" or led the decision-maker to believe that the matter was finally concluded.
2. This was not a decision which affected, or was capable of affecting, the wider community, nor was it a decision where there was any interest in correcting any error in the decision-making process for the benefit of others who might find themselves in a similar position to the plaintiff in the future, still less for the benefit of the wider community.
3. The present application for review is unusual in that the decision-maker is not a minister, a statutory authority or a public servant. Senior counsel for the defendants drew my attention to the second reading speech of the then Attorney-General, the Honourable RJ Ellicott QC, during the passage through the House of Representatives of the Commonwealth Act in April 1977. The Attorney described the purpose of the Act as "to reform the law relating to the review by the courts of administrative actions of Commonwealth ministers and officials". In a detailed speech, the Attorney made no reference to the possibility of the Act having any application to decision-makers in the private sector.
4. Senior counsel took me to a passage in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11 at 23 where his Honour described the purposes of the Commonwealth Act as to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes.
5. As against that, I was not taken to any decision where an application had been made for the review of a decision by a decision-maker outside the government sector. It is generally known that the Law Society of the ACT, a non-government body, has been found to be amenable to the Act, although unlike the present defendants, the Law Society was established by a Commonwealth Ordinance which is now a Territory Act. I have tried unsuccessfully to locate a report of the decision about the applicability of the legislation to the Law Society: it may be that the point has simply been accepted and has not required determination by a court.
6. The ADJR Act applies to decisions of an administrative character made under an enactment. I can find nothing in the Act to limit its application to decisions made by a decision-maker within the public sector, and can see no reason in principle why an Act could not confer the power to make a decision on a person who held no public office and was not a public servant. I am not persuaded that the application of the Act is limited by reference to the government or non-government status of the decision-maker.
7. Notwithstanding this, senior counsel for the defendants submits that the application for review cannot succeed because the decision sought to be reviewed was not a decision made under an enactment.
8. Counsel for the plaintiff argues that the decision was made pursuant to a power conferred on the decision-maker by s 105 of the Education Act 2004.
9. The Education Act is subtitled "an Act about the education of children in the ACT and for other purposes". Its general principles and objects are set out in s 7 of the Act. The section states as a principle that every child has the right to receive a high-quality education, based on stated principles.
10. The main objects of the Act are set out in s 8 as:

(a) to state the responsibilities of parents and the government in relation to education and the principles and values on which government and non-government school education and home education are based; and

(b) to promote compulsory education by ensuring that -

(ii) children participate in education until they are 17 years old or complete year 12 (whichever happens first) with the opportunity to participate in training or employment after year 10; and

(c) to state the circumstances in which school attendance is not required, including providing for suspension and exclusion from school; and

(d) to provide for the operation and governance of government schools; and

(e) to provide for the registration of non-government schools and home education.

1. The Act is divided into chapters. Chapter 2 deals with compulsory education, chapter 3 with government schools and chapter 4 with non-government schools. Section 75, in pt 4.1, sets out a number of principles on which chapter 4 is based. Section 105, on which the plaintiff relies, is contained in pt 4.3 (attendance at non-government schools). Pt 4.3 also contains provisions requiring non-government schools to keep registers of enrolments and attendance, and procedures to encourage attendance by students. Section 104 provides for suspension, transfer or exclusion of students at Catholic systemic schools. Section 105 deals with suspension or exclusion of students at other non-government schools.
2. The section is in the following terms:

105 Suspension or exclusion of students - other non-government schools

(1) This section applies if -

• (a) a student attending a non-government school (other than a Catholic systemic school) -
  • (i) is persistently and wilfully noncompliant; or
  • (ii) threatens to be violent or is violent to another student attending the school, a member of the staff of the school or anyone else involved in the school's operation; or
  • (iii) acts in a way that otherwise threatens the good order of the school or the safety or wellbeing of another student attending the school, a member of staff of the school or anyone else involved in the school's operation; or
  • (iv) displays behaviour that is disruptive to the student's learning or that of other students; and
• (b) the principal of the school is satisfied that action should be taken under this section.

(2) The principal may -

• (a) suspend the student from the school for a stated period of not longer than 20 days; or
• (b) exclude the student from the school.

(3) The principal may exclude the student only if -

• (a) the student's parents have been given an opportunity to be consulted, and told in writing, about the proposed exclusion of the student and the reasons for it; and
• (b) the student has been given a reasonable opportunity to attend counselling, undertake relevant educational programs or receive other appropriate assistance; and
• (c) as far as the student's maturity and capacity for understanding allow, the participation of the student has been sought, and any views of the student considered, in deciding whether to exclude the student; and
• (d) the student has been given sufficient information about the decision-making process, in a language and way that the student can understand, to allow the student to take part in the process; and
• (e) the student has been offered information about alternatives for continuing the student's education after the exclusion.

(4) The principal may suspend the student only if -

• (a) the student's parents have been given an opportunity to be consulted, and told in writing, about the proposed suspension of the student and the reasons for it; and
• (b) as far as the student's maturity and capacity for understanding allow, the participation of the student has been sought, and any views of the student considered, in deciding whether to suspend the student; and
• (c) the student has been given sufficient information about the decision-making process, in a language and way that the student can understand, to allow the student to take part in the process; and
• (d) the student has been given a reasonable opportunity to continue the student's education during the suspension.

(5) Despite subsection (4), the principal may immediately suspend a student for not longer than 5 days if, in the principal's opinion, the circumstances are of such urgency or seriousness to require the student's immediate suspension.

(6) However, before suspending a student under subsection (5), the principal must comply with the requirements of subsection (4) (a) to (d) to the extent that it is practicable and appropriate to do so.

(7) To remove any doubt, the principal may suspend the student under subsection (5) while deciding what other action (if any) should be taken in relation to the student under this section.

(8) If the student is suspended for 7 or more school days in a school term (whether or not consecutive school days), the principal must ensure that the student is given a reasonable opportunity to attend appropriate counselling.

(9) If the principal of the school excludes a student from the school, the principal must give the registrar written notice of the exclusion.

1. The submission by counsel for the plaintiff that the section applies in the circumstances of this case seems to me misconceived. Subsection 1 provides for the application of the section by reference to the behaviour of a student attending a non-government school. It is unnecessary for me to determine whether the plaintiff's daughter reached a point where she could properly have been described in that way. Whether or not she was a student attending the school operated by the defendants, there is no evidence that her behaviour fell within any of the categories listed in the subsection, nor is there any suggestion that any such evidence is likely to be available to and called by the plaintiff on the hearing of the substantive application. Quite plainly the first defendant as school principal did not exclude the plaintiff's daughter from the school by reason of the student's behaviour. It may be that the correct analysis is that the effect of the decision complained of is that she never became a student at the school. Whether she did or not, it seems clear to me that s 105 does not apply, and that the decision was not a decision to exclude her from the school under that section.
2. Counsel for the plaintiff conceded that there was no other section of the Education Act pursuant to which the decision might be argued to have been made.
3. I am accordingly satisfied that the decision was not a decision under an enactment, and hence was not a "decision to which this Act applies" as defined in the dictionary to the ADJR Act. It follows that this court has no jurisdiction to review the decision. The application for review is therefore doomed to failure. The application for extension should be refused and the substantive application dismissed.
4. It seems to me in any event that a decision by the principal of a non-government school to suspend or exclude a student under s 105 would not be reviewable under the ADJR Act. A decision to exclude a doctoral candidate from her course at a university in Queensland for academic misconduct was held by the High Court not to be reviewable under the Judicial Review Act 1991(QLD): Griffith University v Tang [2005] HCA 7; (2005) 79 ALJR 627. It was argued on behalf of the student that the decision to exclude her had been made under the Griffith University Act 1998 (QLD) and was hence a decision of an administrative character made under an enactment. The court held that whether a decision had been made under an enactment involved two criteria: first the decision had to be required or authorised by the enactment, and secondly the decision had to confer, alter or otherwise affect legal rights or obligations, and in that sense derive from the enactment. The decision made by the university had not affected legal rights or obligations, and had had no impact on matters to which the Griffith University Act gave legal force and effect.
5. In similar vein, Einstein J refused an application for certiorari in Bird v Campbelltown Anglican Schools Council [2007] NSWSC 1419 where a schoolboy had been excluded from a private school in Sydney.
6. Einstein J set out a number of principles which he regarded as appropriate to the case;
   • (a) The headmaster of a non-government school is a domestic decision-maker within a private institution.
   • (b) There is no principle of law to the effect that such a decision-maker acts in a judicial or quasi-judicial capacity or has an obligation to apply the principles of natural justice in making disciplinary decisions concerning students at the school.
   • (c) The headmaster's decision is not amenable to judicial review by way of the prerogative writs or, in New South Wales, their statutory replacements,
   • (d) As the headmaster does not act in a quasi-judicial capacity, and the functions he discharges are not public or governmental in nature, certiorari is not available and would not have been available under the common law.
   • (e) The fact that the defendant was incorporated under a New South Wales Act did not elevate the decision of the headmaster to the public or governmental level [not here relevant].
   • (f) The headmaster is not a statutory tribunal. The source of his powers vis a vis the parents of the expelled boy was the conditions of enrolment signed by the parents.
   • (g) Those terms were not given statutory force merely because the school was owned by a statutory corporation.
   • (h) A decision to exclude a student was not a decision amenable to judicial review.
   • (i) The school was essentially a private association with no statutory powers.
7. On the authority of Tang and Bird, it seems to me that a decision by a principal to suspend or exclude a student from a school under s 105 of the Education Act on the ground of behaviour triggering the application of that section would not be reviewable under the ADJR Act.
8. In summary, the application for review of the decision could not succeed because a decision to exclude a student under s 105 of the Education Act would not be a decision under an enactment and would hence not be amenable to judicial review under the ADJR Act; and on the facts of the present case, s 105 did not apply in any event. Hence the decision was not made under that section.
9. In the circumstances the appropriate course is to refuse the application for extension.
10. I mentioned earlier that the plaintiff had also attempted to bring claims against the defendants for breach of contract, breach of duty of care and defamation. So far those aspects of her claim have not gone beyond identifying those causes of action. It is inappropriate to include such causes of action in an originating application for judicial review, but I recognise that the plaintiff was unrepresented when the originating application was filed.
11. Senior counsel for the plaintiff does not wish to be heard against a proposition I put to him that if the application for extension of time were refused, I should make directions about the future course of the other claims. I propose to order that the proceeding continue as if it had been commenced by originating claim, and that the plaintiff's partner, and father of their daughter, Brian Jonathan Naughton be joined as a plaintiff.
12. The next step will be for the plaintiffs to file and serve a statement of claim. I direct that the statement of claim be filed and served within 28 days, that is by 7 September 2012, and that the matter be listed before me for further directions on Friday 14 September 2012.
13. I shall hear the parties about costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the defendants: Meyer Vandenberg Lawyers