CF v The State of New South Wales

RELEVANT CODES 7 Under the Education Act 1990 the Minister is empowered to control and regulate student discipline in government schools (s35(1)), and to prepare guidelines for adoption by government schools of codes that provide for the control and regulation of student discipline in such schools (s35(2)). The Director-General is empowered to suspend any student from a government school (s35(3)). By instrument dated 8 January 1999, the Director-General delegated to officers of the Department of Education and Training, who were acting in or holding the position of principal, the functions conferred on the Director-General by or under ss 35(3) of the Education Act 1990, in so far as they relate to the suspension of any student from the school in which they are principal. The power of a principal to discipline students by long or short term suspensions or by expulsion and the rights or expectations of students in relation to such matters are the subject of detailed procedures, the current statement of which was adopted so as to come into operation as from the first term of 1999. 8 Under the general heading "Good Discipline and Effective Learning", the document is described as "Procedures for the Suspension and Expulsion of School Students (hereinafter referred to as the Procedures). It consists of a set of general principles, specific provisions in relation to short suspension, long suspension and expulsion and provides for review and appeal processes. 9 The General Principles include the following: "1. All students and teachers have the right to be treated fairly and with dignity in an environment free from disruption, intimidation, harassment and discrimination. To achieve this, all schools will maintain high standards of student behaviour . (Italics added) 2. There will be cases of unacceptable behaviour where it will be in the best interests of the school community and/or the student involved, for the student to be removed from the school for a period of time or completely. Suspension and expulsion are the options available to the principal in these situations … 4. Suspension is only one strategy within a school's student welfare policy and discipline code. It is most effective when it highlights the parents' or caregiver's responsibility for taking an active role, in partnership with the school, to change the behaviour of their child. The school and the government school system will work with parents or caregivers with a view to assisting a suspended student to rejoin the school community as quickly as possible. 5. Suspension allows students time to reflect on their behaviour, to acknowledge and accept responsibility for the behaviours which led to the suspension and to accept responsibility for changing their behaviour to meet the school's expectations in the future. It is also allows time for school personnel to assist with re-entry. 6. Principals have authority, consistent with the provisions of these procedures and associated documents, to suspend a student from a particular school … They will exercise this authority having regard to their responsibilities to the whole school community and the principles of procedural fairness. (italics added) … 8. The principal must also ensure that the implementation of these procedures takes into account factors such as the age, individual needs and developmental level of students. 9. The principles of procedural fairness are fundamental to the implementation of these procedures. Detailed information on these principles is set out in appendix 1. 10. While a number of policies may apply to the circumstances or behaviour being considered in the context of a suspension or expulsion, if serious disciplinary action against a student is contemplated these procedures take precedence. (italics added)" 10 The General Principles state that the procedures contained in the document should be interpreted in the context of a nominated Ministerial Statement and a policy of the Department, neither of which is in evidence. The form of the Procedures is such as to indicate that the provisions of Appendix 1 are not exclusive. Wider concepts of procedural fairness or natural justice have a place. These concepts include the matters dealt with by the High Court in Kioa v West, (1985) 159 CLR 550, where it was said: " ... recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it" (at 587 per Mason J);

and the need to avoid nit-picking or excessive technicality. [See also Acuthan v Coates (1986) 6 NSWLR 472 at 479 per Kirby P; O'Hare v DPP [2000] NSWSC 430 at para 70].

As Brennan J pointed out in Kioa v West (supra): "A person whose interests are likely to be affected by the exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance… Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fiully observed. As Lord Diplock observed in Bushell v Environment Secretary (1981) AC 75: "To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers are competent to operate effectively in the interests of their clients would not be fair" (at 97). Nevertheless, in the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it." (at 629) 11 Appendix 1 is headed "Procedural Fairness". In the introduction to the appendix it is provided that: "Procedural fairness is a basic right of all individuals dealing with authorities. All communities have a legitimate expectation that Department of Education and Training officers will follow these principles in all circumstances, including when dealing with suspensions and expulsions." 12 Procedural fairness is then said to be "generally recognised as having two essential elements namely, the right to be heard and the right to an impartial decision". The Procedures state that the right to be heard includes: · the right to know why the action is happening · the right to know the way in which the issues will be determined · the right to know the allegations in the matter and any other information which will be taken into account · the right of the person against whom the allegations have been made to respond to the allegations, and · the right to an appeal.

The right to an impartial decision requires an absence of bias in the decision maker as well as impartiality in the investigative and decision making phases involved in a particular matter. This requires the investigator and decision maker to be reasonable and objective, to act justly and be seen to act justly. (Appendix 1) 13 Where appropriate, copies of relevant statements should be provided to the student and parent of the student. This is not a universal requirement, either under the Procedures or the general law, since there may be questions of fear of intimidation, peer pressure or other negative factors that may make the giving of statements and the revealing of the names of witnesses inappropriate. Appendix 1 to the Procedures also includes a reference to the availability of a support person or observer at formal interviews. This re-enforces an earlier provision in the section of the Procedures that deals with Long Suspension (cl. 4) 14 Part of the Procedures deals with both Short Suspension and Long Suspension. A Short Suspension is one up to and including four school days. A Long Suspension may be up to and including 20 school days. A Long Suspension is treated in the Procedures as appropriate to a case of misbehaviour which is sufficiently serious to warrant such an imposition. The Procedures indicate that illegal drug infringements at school are very serious. The School Community Expectation Code also makes express reference to not bringing illegal drugs to school (cl. 6). 15 In determining whether to impose a Long Suspension "the gravity of the circumstances requires that particular emphasis be given to procedural fairness" (cl 2) and a formal disciplinary interview is required to be held before any decision to suspend is made (cl. 3). For the purposes of such an interview: "Principals should ensure that the student is given explicit information about the nature of the allegation (s) and is given the opportunity to consider and respond to the allegation (s). The student should also be able to have an appropriate observer of their choosing at the interview. The key features of the interview should be taken down in writing." (cl 3, italics added) 16 The Procedures also contain detailed provisions concerning Reviews and Appeals. The Reviews may be undertaken by a District Superintendent or Assisting Director-General, whilst Appeals may be made to a District Superintendent, or in some cases to an Assistant Director-General, about the imposition of a suspension. An Appeal also lies to an Assistant Director-General from the decision of a District Superintendent to decline an Appeal relating to a suspension (cl 4). The District Superintendent or Assistant Director-General, as the case may be, must deal with any appeal within 28 days of its lodgement, ensure that communication is maintained with the appellant and that the appellant is kept aware of the progress of the Appeal, review all relevant material, ensure that appropriate material has been made available to the student or those supporting the student, discuss relevant issues with the appellant and other parties as appropriate and advise all parties of the decision arrived at and the reason for such decision. (cl 5) There is thus a process provided within the Procedures for testing and, if appropriate, reversing or altering any decision by a principal to suspend a student. 17 All of the Plaintiffs have lodged appeals in respect of the suspensions imposed on them. These appeals were lodged on 6 June 2003. This has the effect that under the Procedures decisions must be made in relation to all the cases by 4 July 2003 at the latest, ie. 22 days from the present time. 18 From the foregoing it can be seen that the object of the procedures is to ensure fair and proper treatment of both students and teachers and to assist in maintaining high standards of student behaviour. Suspension is to be seen not only as a disciplinary imposition on a student but also as providing a beneficial time for reflection by the student, and by the student's parents or step-parents or carers, and an opportunity to accept responsibility for wrong doing and consider behavioural change. The role of parents, step-parents or carers in such a circumstance is treated as important in the General Principles and elsewhere in the Procedures. Fundamental to the application of the principles embodied in the document is the concept of fairness, procedural and otherwise. 19 The provisions of the Procedures concerning suspension indicate that in determining whether misbehaviour by a student is of sufficient gravity to warrant suspension the Principal has to consider not only the interests of the particular student but also the interests of the staff and of the other students in the particular class and in the school generally. The safety and welfare of the individual on the one hand and of the school community on the other may be in tension in a given case and a judgment as to the balance between the competing interests will then be necessary in such a case. 20 Clause 4 of the Procedures relating to suspension mandates the immediate suspension of any student who is in possession of a suspected illegal drug. This is a reflection of an explicit government policy namely: "The Government firmly believes that schools must be places which are absolutely free of illegal drugs."

The mandated immediate suspension is to occur even "if the substance is being represented by the student as an illegal drug", making it clear that in the interests of discipline and the welfare of the student community, the representation that a substance that is being used is illegal is treated as being as significant as the fact that it is an illegal drug. This provision is a recognition that perceptions may have a powerful influence. It is a reflection of a principle that is well known to the law, for example, in the maxim that justice must not only be done but must be seen to be done. 21 The School has adopted a School Community Expectations Code. It is signed by each student and witnessed by the parent or guardian of the student. That, according to the evidence in the present case, occurred in relation to each of the plaintiffs. By signing such Code, each student agrees to pursue the School Community Expectations Code while enrolled at the School. The Code includes a provision as follows: "6. Do not bring illegal drugs, alcohol, tobacco or weapons to school." 22 The use of a suspected illegal drug, or of a substance that is represented as an illegal drug, is treated in the Procedures in the same manner as violence or threats of serious physical violence and the possession of a prohibited weapon. It is thus clear that the Procedures treat drugs in the school milieu as antithetical to the maintenance of high standards of student behaviour and to the best interests of the school community and/or of the student involved. 23 In considering whether an interlocutory injunction should be granted or continued, since the Court cannot at such stage of the proceedings decide on the issues that are for trial, it must be guided by the probabilities and the balance of convenience. [Jordan, Selected Legal Papers (Chapters in Equity) pp 146-147.] Similarly it is not possible at such a stage of the proceedings to know what the evidence at the trial may ultimately be. It is for this reason that the courts have said that the plaintiff must make out a prima facie case in the sense that, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be entitled to relief. [Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 per Mason ACJ; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1 at 5 per Gleeson CJ; Beecham Group Pty Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 per Kitto, Taylor, Menzies and Owen JJ; Shercliff v Engadine Acceptance Corporation Pty Ltd (1978) 1 NSWLR 729 at 735 per Mahoney JA.] This means that the present case must be judged on the evidence as it presently stands. A decision in relation to it is is not a final decision nor, is it to be treated, as it were, as a preliminary trial of the issues. [Shercliff v Engadine Acceptance Corporation Pty Ltd supra at 734]

THE FACTS 24 The Principal has sworn two affidavits. One is an open affidavit; the other a confidential affidavit. The confidential affidavit contains the names of those students who were interviewed by the Principal and/or Deputy Principal concerning the involvement of each of the plaintiffs in the events that gave rise to their suspensions. It also includes the notes taken by the Principal of the various interviews undertaken by him with those students who were informants, and with other students, including the plaintiffs, who were involved in the events that gave rise to the suspension of the plaintiffs. That affidavit was made available to the legal representatives of the plaintiffs on the basis that it was for their information and use in the proceedings and was not to be made available to other persons. 25 In his open affidavit the Principal sets out in some detail the extent of the investigations undertaken by him in relation to the allegations levelled against the plaintiffs. From this it emerges that on 30 May 2003 a member of the school staff was informed by a named student that certain students had been smoking cannabis during school hours on 28 May 2003 in an area that constituted part of the site of the school farm, which in turn formed part of the school grounds and facilities (the site). As a consequence of this information, the Principal and Deputy Principal visited the site and found clear evidence of recent occupation and of a bong (i.e. a plastic container with a hose attached commonly used for smoking cannabis). 26 On the same day the Principal and Deputy Principal interviewed three more students who had been identified as being present when cannabis was smoked. On 2, 3 and 4 June 2003 a substantial number of other students, who were identified as having been at the site at the relevant time, were interviewed. A number of the students so interviewed identified the plaintiffs as being at the site and "smoking dope". 27 Each of the plaintiffs was interviewed. Each interview lasted approximately half an hour. Each was commenced in a standard way that included a statement to the effect that the school authorities had information about smoking of illegal substances on 28 May 2003 at the site which was delineated in express terms. Each plaintiff was asked if he or she was happy to answer questions about the matter. All the plaintiffs indicated that they were prepared to answer questions. Each was informed that a number of students had identified the particular plaintiff as someone who was smoking the illegal substance on the day in question and was asked if they wished to tell the Principal and the Deputy Principal about their role. All plaintiffs denied having used any illegal substance, although two, perhaps three, indicated that they were present at the site. The first plaintiff not only denied using any illegal substance on the day in question but claimed to have been absent from the School on 28 May 2003 and the date preceding that date. Her name does not appear in the school roll-call for 27, 28 or 29 May, 2003. However, there was substantial independent evidence from a number of students that she was present at School on each of those days. I find for the purpose of the present hearing that she was so present. 28 No drugs were found on any of the plaintiffs. However, the only search carried out was related to the school bag of the first plaintiff. This was carried out without objection and because she had her bag with her since her class was about to end at the time she was called in to the interview. 29 There are two aspects of the interviews on which it is appropriate to comment. The first is that none of the plaintiffs was informed of their right to have an independent person of their choosing present at the interview (as envisaged by cl 3 of the Procedures Relating to Long Suspensions that are included in the Procedures). In addition, in the introductory portion of each interview the following was included: "Are you happy to answer questions about that? It would be easier to answer questions here than have the matter referred to the police." 30 The reference to the police in the context of the statement referred to above could be regarded as intimidatory. It should not have been included in the introductory statement. Since it was made to a student by a person in authority, it could well render any inculpatory responses inadmissible, on the basis that any such responses may be regarded as having been unfairly obtained. Whether this would be so in a given case would depend on the circumstances, one of which would be the way in which the interview was conducted in general; another of which would be the responses by the student in question. 31 The right of students who may be subject to the penalty of Long Suspension to have an independent person of choice present at interview is clearly intended as a safeguard for the student. By having an independent person present the students may be able to obtain advice that would prevent them from making admissions that may be detrimental to their interests. Furthermore, the presence of such a person would be an aid to ensuring that the will of the students was not overborne by aggressive or other inappropriate forms of interviewing. It could also operate to give a sense of comfort to them so that they would not feel overawed by the circumstances and perhaps, as a consequence, make admissions or statements that may be detrimental to them. It is thus a valuable right. However, unless the students are aware of the right they will not be able to exercise it. The existence and nature of the right in my opinion bespeaks an obligation on the part of the relevant school authority to inform a student who is to be interviewed in connection with his or her involvement in a matter that may sound in Long Suspension of the existence of this right. This was not done in the case of any of the plaintiffs. 32 The combination of the reference to the police and the failure to inform any of the plaintiffs of their right to have an independent person present on interview did not, however, result in any admissions or detrimental statements being made by any of the plaintiffs. Thus, the departures from the appropriate procedures, ie. the procedures that should have been resorted to, and should in the ordinary case always be resorted to, did not give rise to any detriment to any of the plaintiffs. This may have been, at least in part, a consequence of the fact that each of the interviews was conducted in a tone and manner that was non-intimidatory. The Principal gave express evidence of this. It is uncontradicted. Furthermore, there is no suggestion in the evidence, nor was there any cross-examination to the effect, of intimidation or overbearing or that any of the plaintiffs was overawed by the circumstances of the interview. I accept the Principal's evidence in this regard and am satisfied that the breaches referred to above had no effect and were not such as to give rise to an entitlement to the discretionary relief of injunction. 33 For the reasons set out below I am not satisfied that the various claims made by the plaintiffs in relation to the procedure adopted by the Principal and his Deputy, are established on the evidence before me on this interlocutory application:

As to paragraph 3 above 34 The decision by the Principal was made on the basis of an investigation that produced evidence from a number of students inculpating each of the plaintiffs in the use of an illegal substance on school premises, on a school day, during school hours and at times when each of the plaintiffs should have been in class or otherwise attending to their studies. As is clear from the Procedures the possession of a suspected illegal drug and the use of such a drug is properly regarded as unacceptable behaviour and contrary to the best interests of the school community as a whole. The Procedures make it clear that it is a state-wide policy that "schools must be places that are absolutely free of illegal drugs" (Suspension: cl 4). This policy is well founded and reasonable, and the due enforcement of such a policy cannot, in my opinion, be regarded as an abuse of power. The Principal did not take into account any extraneous considerations, did not fail to take into account any relevant considerations and his decisions were not "manifestly unreasonable" as alleged. I shall deal with hardship separately but I am not satisfied that any of the grounds referred to in paragraph 3 above is made out.

As to paragraph 4 above 35 All of the plaintiffs were adequately apprised of the allegations made against them. All were given an opportunity to respond to those allegations. All of them did so. Their responses involved denials. Furthermore, I am satisfied that the Principal conscientiously, and in a fair and unbiased manner, considered their denials, but rejected them in the light of the substantial body of evidence to the contrary. The suggestion that the first plaintiff was caused to believe "that her suspension was in relation to 'wagging'" is not substantiated by any evidence from such plaintiff. The basis for this allegation is to be found in a letter from her solicitors dated 6 June 2003. It may well be that "wagging" was referred to in the course of her interview, since the first plaintiff was absent from the roll-calls on 27, 28 and 29 May 2003, the alleged use of the illegal substance by her being on one of the days on which the plaintiff was absent from her classes. I accept the evidence of the Principal, which evidence is undenied, and was not the subject of cross-examination to the contrary, to the effect that the first plaintiff was accurately and adequately informed of the nature of the allegations against her. 36 The fact that none of the plaintiffs was found to be in possession of an illegal substance or observed by the Principal or any other person in authority at the School to consume an illegal substance (see paragraph 4(d)), does not render the finding by the Principal that this occurred a nullity or an abuse of power or otherwise inappropriate. If only cases that involved direct observation by a Principal or other person in authority at a school could result in disciplinary action, the effectiveness of discipline would be significantly reduced and the interests of the school community prejudiced. There are occasions when complaints are made about the behaviour of students by a person who is not on the school staff or a student at the school. There are occasions when the relevant material is made available by another student or students. Bullying is but one example of an area of breach of discipline to which this may apply. The use of drugs is another. It could hardly be expected that a student would take illegal drugs whilst the Principal or other school authority was watching. The submission to the contrary is, in my opinion, not well founded. This basis of attack on the actions of the Principal therefore fails. 37 The claim that the decision by the Principal is "manifestly unreasonable" in the circumstances, that he failed to explore any alternatives to a Long Suspension and that the suspension imposed was unnecessary and of disproportionate length also fails. The Principal has given evidence that he gave due consideration to all the matters relevant to the decision at which he arrived. It is clear that having obtained relevant material on various dates, he deferred making his decision while he gave consideration to the material before him. I believe he did so conscientiously. There is nothing to suggest to the contrary and he has sworn to that effect. 38 The taking of illegal drugs in the school grounds during school hours in the presence of other adolescent students, including some who are not involved in actual drug taking, is a very serious matter. It is serious for the students who take the drugs in that it may adversely affect their health. Indeed, one of the plaintiffs was seen to be vomiting after having ingested some of the illegal substance. Whilst he ascribed this to the excessive consumption of alcohol (albeit that he was only a minor) a responsible observer could reasonably form the view that it was the ingestion of drugs that caused him to be sick. Furthermore the ingestion of illegal drugs in the circumstances described above is antithetical to the maintenance of proper discipline and standards of conduct in a school. For a Principal not to act in relation to behaviour of such a kind, would in my opinion, be a departure from those standards that citizens are entitled to expect in the schools to which they send their children. [Carson v Minister for Education (Qld) (1989) 25 FCR 326 at 332 per Spender J] 39 The Procedures clearly envisage that possession of a suspected illegal drug calls for immediate suspension. The determination of the duration of the suspension will involve the exercise of a discretion; that will, in turn, involve questions of degree. The function of this court in the exercise of its supervisory jurisdiction is not to substitute its own opinion for that of the person or body to whom the making of the decision is committed. It is not enough to invoke the jurisdiction of this court in a case such as the present to say that had the court been in the position of the Principal, it would have taken a different course, or imposed a suspension that was shorter in duration. For the court to exercise its jurisdiction in relation to this aspect of the Principal's decisions, it must appear that he has fallen into error in exercising his discretion. If he acted on a wrong principle; if he allowed extraneous or irrelevant matters to guide or affect him; if he failed to take into account some material consideration, then the court is empowered to intervene. Such intervention is not because the court disagrees with his decision, but because he has fallen into error. In my opinion the Principal did not fall into error, did not act on a wrong principle, did not allow extraneous or irrelevant matters to guide or affect him and did not fail to take into account material considerations favourable to the plaintiffs. 40 In some cases a court exercising supervisory jurisdiction may not be able to determine the precise manner in which the primary decision maker reached the result that has been called into question. However, if on the facts, that decision is "unreasonable or plainly unjust", the court exercising supervisory jurisdiction may infer that in some way there has been a failure properly to exercise the discretion or power which the law has conferred on the primary decision maker. In such a case the exercise of the discretion or power is reviewed on the ground that a substantial wrong has in fact occurred. This is the residual category referred to by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505. 41 In my opinion the conclusion reached by the Principal in the present case was supported by adequate evidence. The period of suspension imposed does not on its face present as unreasonable or plainly unjust. It falls within the parameters for decision that were open to him. Short suspensions are up to four days. Long Suspensions commence thereafter and may be as long as twenty days. Thus, the period of suspension imposed in the present case is in the lower range of Long Suspensions. In my opinion there is no proper ground for intervening in relation to this aspect of the Principal's decisions. It was argued on behalf of the plaintiffs that the penalty or suspension imposed on each of the plaintiffs was the same although there was evidence before the Principal as to a previous infringement in 2001 by the first plaintiff, who had been suspended for a drug offence at that time. The Principal has sworn that he did not take this into account. I accept his evidence. Moreover, there was an equivalence of behaviour by each of the plaintiffs and on a principle well known to the law, ie. the principle of parity, in a case such as the present, it would not be inappropriate to impose the same suspension in respect of each of the plaintiffs, notwithstanding that the record of one of them was less favourable than the records of the others. 42 Counsel for the plaintiffs has postulated a two-stage process in the decision making function of the Principal. The first stage is argued to relate to the determination as to whether or not the allegation against the particular student is made out; the second as to the consequences of such a finding once it has been made. The submission would involve at least two interviews, but in my opinion this is not a requirement, or a necessary part, of the Procedures. For these reasons I am of the opinion that this submission fails. 43 In my opinion, on the evidence before the court in the present hearing, the Principal conducted a thorough and impartial investigation of the circumstances in which the plaintiffs were involved on 28 May 2003. He afforded each of the plaintiffs an opportunity to be heard. Each was advised as to the reason for their interview. Each was informed of the allegation made against them. Each was informed of the findings and as to their rights of appeal. In reaching his decision, I am satisfied that the Principal acted fairly and without bias. The contrary has not been suggested to him, either in cross examination or by express evidence to the contrary. He considered the interests of the plaintiffs and the wider interests of the general student body at the School. Although there were two technical matters (see paragraphs 29 to 32 above) in which there was a departure from Procedures, they had no adverse result to the plaintiffs or any of them and were causally unrelated to the conclusions reached by the Principal in relation to the actions of the plaintiffs and the outcome in each of their cases. In the circumstances I am not satisfied that the discretionary remedy of injunction should be extended to the plaintiffs or any of them because of these departures. 44 There is a further reason for my conclusion in this regard. In cases such as the present, namely for the protection of common law of rights by the grant of an interlocutory injunction, a plaintiff must satisfy the court on the basis that, if the evidence remains at the ultimate hearing as it is in this interlocutory hearing, there is a probability that the plaintiffs will be held entitled to relief. [Beecham Group Limited v Bristol Laboratories Pty Ltd (supra at 622); Shercliff v Engardine Acceptance Corporation Pty Ltd (supra at 735)] and that: (1) he or she has a legal right; (2) that the defendant has committed and intends to continue to commit, a course of conduct that has and will infringe such right; (3) that such course of conduct will cause irreparable harm or injury;

then a plaintiff may succeed in obtaining an interlocutory injunction. [Jordan, Selected Legal Papers (Chapters in Equity), p 146; Kerr on Injunctions (1981) 6th ed. p 17-18; Meagher, Lehane and Gummow, "Equity, Doctrines and Remedies" (2002) 4th ed. para 21-040 pp 712-713; McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210 at 214-215 per Harvey CJ in Eq (referred to with approval by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra at 5)] 45 The application for interlocutory injunction made on behalf of the plaintiffs asserted that irreparable harm would accrue to them because: (1) they would not be able to sit for the student assessment examinations for year 10 in the school week commencing 10 June 2003 and that they would not be given the opportunity to sit for those examinations if they did not attend school in such week. This, it was said, would cause a "not insignificant detriment to the plaintiffs"; (2) the plaintiffs who were in year 10 were said to be scheduled to begin work experience in the week commencing 10 June 2003 and as a consequence of their suspension they would be "now unable to complete their work experience opportunities'; (3) the suspension would create undue hardship and have "the potential to seriously affect the educational… opportunities of such plaintiffs." 46 The Principal has given evidence that has not been contradicted nor made the subject of cross-examination to the contrary that even if the first, second and fourth plaintiffs did not sit for their examinations in the current week they would still be able to present for the School Certificate Examination later in the year. The examinations that are presently underway are internal examinations set by the school. Their purpose, in part, is to give students experience in presenting for examinations; in part to provide a basis for assessment. However, these examinations are not the only basis on which an assessment can be made. There are several other options available. These include the rescheduling of the examinations, the sending home of the current examinations for completion by the plaintiffs during their period of suspension and, as well, internal class-based assessments. The Principal deposed to the fact that it is not uncommon for students to miss such examinations for a variety of reasons, two of which were illness and sport. Furthermore he gave a specific instance of a student who would voluntarily miss sitting for the examinations so that she could attend a Students' Representative Council meeting or meetings. I accept his evidence and am satisfied that even if the plaintiffs were to be unable to sit for the current examinations, this would not cause them any real detriment. In any event the injunction granted on 6 June 2003 has meant that it has been open to the plaintiffs to sit for their pre School Certificate assessment examinations at school with their fellow students. 47 As far as the work experience is concerned only the first, second and fourth plaintiffs are of an age and in a class eligible for work experience during 2003. Of these, only the second plaintiff has, at the date of commencement of proceedings, completed the paperwork necessary to ensure eligibility to commence work experience in the week commencing 16 June 2003. The evidence indicates that two of the other plaintiffs in the relevant category were going to lodge their papers with the School during the current week. As at the commencement of the hearing today and prior to giving this judgment, there was no evidence or indication that such documentations had been lodged. Furthermore, the evidence of the Principal, which I accept, is that work experience can be had at another time during the academic year or even during school vacations. If that work were undertaken during school vacation, it would mean that no school time would be lost by the relevant plaintiff. If it were undertaken at another time then it would mean that the same period of time would be lost from school as would have been lost were the work to be undertaken in the current week. Whilst there may be some differences in the quality or extent of tuition during such substituted week and the present week, there is no evidence on which I can quantify that and nothing to suggest that the loss of such later week would, in any way, be detrimental to the academic future of any of the plaintiffs. It is not uncommon that students undertake their work experience at times other than the present. This option is open to all of the plaintiffs including, but not limited to, the second plaintiff. For this additional reason I am of the opinion that there is no irreparable harm or injury or indeed any harm or injury that will be sustained by the plaintiffs as a result of their not undertaking work experience in the forthcoming week. 48 The third plaintiff has advanced a separate basis of irreparable harm or injury, namely, that he wishes to play in a football grand final during the period of suspension and that he will not be able to do so should his suspension stand. Even on the most liberal approach to the concept of irreparable harm or injury, I do not think that this submission can be seriously entertained. For a non-professional schoolboy footballer of 14 years of age not to be able to play in a football match, even a grand final, does not give rise to the type of harm or injury that would justify the intervention of this court by way of injunction. 49 None of the plaintiffs therefore in my view has made out the third element necessary for the grant of an injunction in a category of case such as the present. 50 Two matters have been raised to which specific attention should be given. The first is the contents of paragraph 23 of the open affidavit of the Principal of 11 June 2003. In that paragraph, the Principal deposes to the fact that the first plaintiff had been suspended in 2001 for the use of an illegal substance. This paragraph was objected to on behalf of the plaintiffs on the basis that it was irrelevant. However it is a matter that could, in my view, be relevant within the meaning of section 55 of the Evidence Act 1995 in relation to the question of the action taken or period of suspension to be imposed on that plaintiff. The principal has deposed to the fact that he did not take this fact into account adversely to the plaintiff in fixing the period of suspension. I accept that evidence and state that I do not take that matter into account in any way in my decision either. The second matter relates to the suspension of one of the other plaintiffs for a period of four days commencing on 11 June 2003, for bringing into the school a device, known as a bong, which could be used for the purposes of smoking cannabis. That is a matter that occurred subsequent to the decisions that are the subject of challenge. It is a matter which, in my opinion, stands on its own and was not taken account of by the Principal in relation to the matters the subject of challenge at the present time. Again I state that I do not take it into account in any way whatsoever in reaching my conclusion in this case.

Balance of Convenience 51 As I have already said, in considering whether an interlocutory injunction should be granted or continued, since the Court cannot, at this stage of the proceedings, finally decide on the issues that are for trial, it must be guided by the probabilities and the balance of convenience. 52 In so far as the plaintiffs are concerned the detriments on which they rely are not, in my opinion, major. I have already dealt with the claim that they will be prevented from sitting for their pre School Certificate examinations. In this regard it should be remembered that not only would they be able to sit such examinations at a later stage, or be otherwise assessed, but in addition they have been afforded the opportunity to sit such examinations with the other students at the school because of the existence of the injunction granted on 6 June 2003. I have also dealt with the alleged detriment relating to the work experience of the first, second and fourth plaintiffs. As I have already indicated there would not, in my opinion, be any detriment of any significant kind, indeed perhaps not of any kind, suffered in this regard in consequence of the suspensions remaining on foot. In so far as general reputational matters are concerned there is an issue as to damage but since the claim to relief by the plaintiffs as at the present time is based on procedural considerations, an injunction would not, per se, have the effect of restoring the reputations of the plaintiffs as innocents, rather it would, in my opinion, be more likely to be regarded as a success based on a technicality. Thus, whilst reputational damage is relevant it is not in my opinion of great weight in the present case and is certainly not decisive. In so far as the educational futures of the plaintiffs are concerned, there is no evidence that informs the court as to their wishes in this regard and nothing to suggest that their suspensions will impair their educational progress. 53 I should advert to the fact that there is evidence before the court in relation to the first plaintiff that she has been signed out of school as from 11 June 2003 and according to her mother, will not be coming back to school until the Principal "stops playing his silly games". When regard is had to the totality of what the plaintiff's mother is recorded as having said on 11 June 2003, it is clear that she in intending to make a statement that she does not accept the decision of the Principal and that, whilst ever there are proceedings on foot, her child will not return to school. That means that once this interlocutory application is concluded it may well be that this plaintiff will not return to school until the final proceedings are determined. Furthermore, her very statement contains an indication that there is an element of desire to publicise both the suspension of her daughter and the fact that she is to be defiant in relation to the subject matters of discipline and return to school. I do not think it possible to read the statement that she wants the rest of the school to know that she was keeping the first plaintiff home until the Principal and the teachers "stopped playing their games," otherwise. Protection of privacy and prevention of impingement on the reputation of the first plaintiff, seem to be undermined by the actions taken by her mother. This is not, however, a matter which, in my opinion, should be taken into account adversely to the plaintiff, since she may not be privy to what her mother has said. What it does is to underline that whereas the procedures contemplate and express the hope that the parents of any student suspended will co-operate in causing the student to recognise the relevant misbehaviour and seek to amend that behaviour, the present indications are that the mother of the first plaintiff is acting inconsistently with the contemplation and hopes inherent in the Procedures. That is unfortunate. It is unfortunate for the parent; it is unfortunate for the first plaintiff; and it is unfortunate for the system which has been set up to protect the rights of the school community as well as the rights of the individual student. 54 I have already dealt with the alleged detriment relating to work experience of the first, second and fourth plaintiffs. As I have indicated, there would not, in my opinion, be any detriment suffered in this regard in consequence of the suspensions remaining on foot. 55 There is one other factor to consider in relation to the balance of convenience and that is the shortness of the time within which the appellate proceedings may be resolved. That period may be as short as four days; at longest it will be 22 days. That means that even were the suspensions to stand, the period of time that the plaintiffs would be awaiting a decision would not be long, and such decision is likely, one way or the other, to resolve the issues that underlie the suspension fairly soon. 56 The balance of convenience involves a consideration of the consequences to the defendant, as well as the consequences to the plaintiffs. An injunction may hold the matter in statu quo, at least until the appellate procedures are resolved. There is a question as to what the status quo is. On behalf of the defendants it was submitted that the status quo is the suspensions. That submission was not expressly contradicted by counsel for the plaintiffs. However, the tenor of his submissions, I think, must be taken as being inconsistent with, and not accepting of, such a submission. It is not necessary, however, to resolve this matter in order to resolve the present application. If the appellate procedures were to be resolved in favour of the plaintiffs then there would, depending on the basis of the decisions, be a, or a degree of, vindication of the reputations of the plaintiffs. That would be more effective than an injunction granted because of a technical procedural defect. If, on the other hand the appellate procedures were to result in the Principal's decision being upheld, then the injunction would be likely to be dissolved. The grant of an injunction would be likely to have an adverse effect on future disciplinary action by the particular Principal and perhaps other principals as well. Furthermore, it would be likely to have the effect of deterring right-thinking members of a school community from reporting actions of the kind reported in the instant case. Such factors are likely to have an adverse effect on school discipline and reverberate beyond the Maclean High School. Since the object of the Procedures is to maintain high standards of student behaviour and ensure fair treatment and the maintenance of the dignity of students and teachers and the best interests of the school community, a reaction adverse to good discipline would run counter to the purposes of the Procedures and would, in my view, be a significant detriment for the purposes of considering balance of convenience. Moreover, delay in implementation of the suspensions would effect, on the evidence I accept, a significant downgrading for other students of the deterrent value of the suspensions. This could also be associated with a sense of grievance on the part of other students on whom like suspensions have been imposed for like conduct to that which, on the evidence to date, was engaged in by the plaintiffs. 57 Having considered all the factors that have been advanced on behalf of the parties in the present case I am of opinion that the balance of convenience lies in favour of refusing interlocutory injunctive relief. To take such a course relevantly carries a lower risk of injustice than would be the case if an injunction were to be granted. [See for example, Business World Computers v Telecom (1988) 82 ALR 499 at 503 per Gummow J; Albarran v Envirostar Energy Ltd [2002] NSWSC 108 at para 29 per Barrett J; Films Rover International Limited v Canon Film Sales Ltd (1986) 3 All ER 772 at 780-781] 58 In my opinion the interlocutory injunction granted on 6 June 2003 and continued thereafter should be dissolved and I so order as from 4pm today.

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