Charles Phillip Bird by his tutor Vredê Jane Bird v Campbelltown Anglican Schools Council

Australian Football League v Carlton Football Club [1998] 2 VR 546 Australian Workers' Union v Bowen (No.2) (1948) 77 CLR 601 Balfour v Balfour [1919] 2 KB 571 Bornecrantz v Queensland Bridge Association Inc [1999] QSC 58 Cameron v Hogan (1934) 51 CLR 358 CF v State of New South Wales [2003] NSWSC 572 Dickason v Edwards (1910) 10 CLR 243 Edgar & Walker v Meade (1916) 23 CLR 29 D'Souza v Royal Australian and New Zealand College of Psychiatrists [2005] VSC 161 Ge v Taylors Institute of Advanced Studies Ltd [2003] VSC 354 Griffith University v Tang (2005) 79 ALJR 627 CASES CITED : Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 Maggacis, Re [1994] 1 Qd R 59 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 R v Criminal Injuries Compensation Board [1967] 2 QB 864 R v Fernhill Manor School ex parte A [1993] FLR 623 R v Governors of Haberdashers Aske's Hatcham College Trust ex parte T [1995] ELR 350 R v National Joint Council for the Craft of Dental Technicians Ex parte Neate [1953] 1 QB 704 Seymour v Swift & Shaw (1976) 10 ACTR 1 The Queen v Servite Houses; Ex parte Goldsmith (2000) 3 CCL Rep 325; (2000) WL 571362 Thorborn v All Nations Club [1975] 1 ACLR 127 Whitehead v Griffith University [2003] 1 Qd R 220

Charles Phillip Bird by his tutor Jane Bird (First Plaintiff) PARTIES : Vredê Jane Bird (Second Plaintiff) Phillip Gordon Bird (Third Plaintiff) Campbelltown Anglican Schools Council (Defendant)

COUNSEL : Mr I Davidson (Plaintiffs) Mr M White (Defendant)

SOLICITORS : Emil Ford & Co (Plaintiffs) Minter Ellison (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5105/07 Charles Phillip Bird by his tutor Vredê Jane Bird v Campbelltown Anglican Schools Council

JUDGMENT The proceedings 1 On 26 March 2007, Mr Ronald Webb, the then Headmaster of Broughton Anglican College ('the College') and an agent of the defendant, determined to exclude the first plaintiff, Charles Bird, from the College. 2 Charles Bird was born on 23 January 1992 and sues by his mother Mrs Vredê Jane Bird, acting as his tutor. Mrs Bird is the second plaintiff and the third plaintiff, Mr Bird, is the father of Charles Bird. The defendant is the Campbelltown Anglican Schools Council and at all material times, has been a body corporate constituted under the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW). At all material times, the defendant, trading as "Broughton Anglican College" has managed and conducted the College located in Campbelltown, Sydney. The College is registered as a non-government school under the Education Act 1990 (NSW) ('Education Act'). 3 By their further amended statement of claim, the plaintiffs seek:

i. judicial review of the decision and relief consequent on an alleged breach of contract;

iii. an order in the nature of certiorari setting the decision aside;

iv. what is in essence a mandatory injunction requiring the College to readmit the plaintiff as a student of the College. 4 The plaintiffs allege that:

i. the defendant was required to afford the plaintiff natural justice and procedural fairness;

ii. the defendant denied natural justice to the plaintiff in making the decision;

iii. the decision is affected by actual or apprehended bias. [Whilst there may be some close questions as to whether or not the measure of natural justice contended for was owed to the minor or to one or both of his parents as his guardians, there seems no need for present purposes to do otherwise than to refer to the moving parties in the proceedings as "the plaintiffs" and commonly to simply referred to Charles as the person to whom natural justice is said to have been owed. This accords with the need to treat with the substance of the issues.]

i. relief in the nature of certiorari is not available to the plaintiff;

ii. it had no obligation to accord the plaintiff natural justice in making the decision either at law or pursuant to the contract between it and Mr and Mrs Bird;

iii. the decision was not in any event affected by bias of any sort;

v. to the extent that the defendant had an obligation to afford the plaintiff natural justice, it did so to the standard required in the circumstances. 6 Charles was a student at the College, commencing in year 5 at the beginning of the school year in 2002. At all material times for the purpose of these proceedings, he was a student enrolled in year 10 at the College until 26 March 2007 when the decision was made by the defendant, acting by its agent Mr Webb, to expel Charles as a student of the College. Mr Webb was at all material times [until his retirement on 30 June 2007] the headmaster of the College. The material principles 7 The defendant carefully collected the authorities pertinent to the principled approach to determining questions of the type here raised. In the main those submissions are adopted as of substance in what follows. 8 It is however pertinent to immediately note the following pervasive observation by Lord Devlin in a published report about misconduct by students: "Contract is the foundation of most domestic or internal systems of disciplines…": cf Report on the Cambridge Sit-In 1973, paragraph 154. 9 It is convenient to commence by examining the nature of the Court's task and to proceed to examine whether or not the remedy of certiorari is available. Nature of the Court's task

10 An examination of the authorities yields the following propositions:

i. whether the claim is for judicial review or breach of contract, the Court is not hearing an appeal on the merits or conducting a hearing de novo;

ii. the Court is not required to review the decision-maker's findings of fact, assessments of credit and choices of sanction;

iv. the Court is concerned only to determine what procedural requirements bound the decision-maker, and if any did, whether they were complied with and if they were not, whether any non-compliance sufficiently affected the decision such that, as a matter of discretion, the Court should declare the decision invalid. Is certiorari available? 11 The following principles are appropriate to be noted:

i. the Headmaster of a non-government school is a domestic decision-maker within a private institution;

ii. 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: Seymour and Anor v Swift and Ors (1976) 10 ACTR 1 at 3, Ge v Taylors Institute of Advanced Studies Ltd [2003] VSC 354 at [40];

iii. the Headmaster's decision is not amenable to judicial review by way of the prerogative writs or their statutory replacements, such as section 69 of the Supreme Court Act 1970 (NSW);

iv. 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 under section 69 (and would not have been available under the common law): Whitehead v Griffith University [2003] 1 Qd R 220 at [15], [17] and [20]; Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107 at [144], [146] and [149]; D'Souza v Royal Australian and New Zealand College of Psychiatrists [2005] VSC 161 at [112] and [118].

v. the mere fact that the defendant is incorporated under the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) ("the Act") does not elevate the disciplinary decision of the Headmaster to the public or governmental level, or render his function a quasi-judicial one;

vi. the Headmaster is not a statutory tribunal. The source of his powers vis a vis the first plaintiff is the Conditions of Enrolment signed by Mrs Bird on 6 March 2007;

vii. those terms are not given statutory force merely because the College is owned by a corporation;

viii. the general power to enter into contracts may have been conferred on the defendant by the Act, however, a decision to exclude a student is not a decision under the Act amenable to judicial review: Griffith University v Tang (2005) 79 ALJR 627 at [11]-[13]. In that case Gleeson CJ said of a decision to terminate a professor's appointment (at [23]): "That termination occurred under the general law and under the terms of and conditions on which the appellant was willing to enter a relationship with the respondent. The power to formulate those terms and conditions, to decide to enter the relationship, and to decide to end it, was conferred in general terms by the Griffith University Act, but the decision to end the relationship was not given legal force or effect by that Act."

ix. the words of Thomas J in Re Maggacis [1994] 1 Qd R 59 (at 65) about the executive of the Queensland Netball Association Inc. apply equally to Broughton College and the Headmaster: "It has however no statutory powers, duties or recognition other than the fact that it is incorporated under the Associations Incorporation Act. It is essentially a private association with a public profile."

x. where the source of power is contractual, the decision is not subject to judicial review: Whitehead v Griffith University [2003] 1 Qd R 220 at [14]. At [15], Chesterman J said: "Applying this principle I cannot see that the respondent was in any way exercising any of the powers or functions of government in acting to censure the applicant and to revoke the earlier decision to constitute a Misconduct Panel. It was exercising powers conferred by the contract of employment between the parties. …" [cf R v Criminal Injuries Compensation Board [1967] 2 QB 864 at 882 in which Lord Parker CJ said:

"Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract…"]

xi. the same applies to the Headmaster's decision. The relevant institutions in the Ge , D'Souza , Whitehead and Hedges cases were all corporations, but certiorari was held not to be available;

xii. furthermore, the ground of apprehended bias is not, in any event, available to the first plaintiff in order to challenge the decision of the Headmaster: D'Souza at [123] and [124], Re Maggacis [1994] 1 Qd R 262 at [66], Bornecrantz v Queensland Bridge Association Inc [1999] QSC 58 at [33]. The reliance by the plaintiffs upon section 47(h) of the Education Act 1990 (NSW) 12 Section 47(h) of the Education Act 1990 (NSW), on which the plaintiffs rely, does not provide a statutory source for any obligation on the defendant to comply with the principles of natural justice, and for the decision to be subject to judicial review. 13 Even assuming the section could have that effect, at the time of the last registration of the defendant's College by the Department of Education in 2003, section 47 had not been amended to include the present form of section 47(h). That sub-section commenced on 1 May 2005 after amendment by the Education Amendment (Non-Government Schools Registration) Act 2004 (NSW). At the time of registration, what became section 47(h) on 1 May 2005 was section 47(f) which required: "(f) official school policies relating to student discipline that do not permit corporal punishment of students attending the school."

14 The College satisfied this criterion at the time of its registration by the Department on 1 January 2004 for a period of 6 years. 15 At the same time that section 47(f) was amended to become the present section 47(h), Parliament also introduced section 47A, which protects non-governments schools from any civil liability to parents of a student arising from a failure to comply with any part of section 47. Section 47A states:

"The operation of section 47 is not to be regarded as giving rise to any implication that it is a term of any contract (whether or not written) between the proprietor of a registered non-government school and a parent of any child enrolled at the school that the school comply with the requirements imposed by or under this Act for registration of non-government schools or that failure to comply with any such requirement in itself gives rise to any civil cause of action." 16 The position of the defendant is distinguishable from government schools, which are subject to detailed regulations concerning disciplinary procedures pursuant to section 35 of the Education Act: see CF v State of New South Wales [2003] NSWSC 572 at [7]-[15].

i. that assuming the rules of natural justice bound the College, nothing in section 47A of the Education Act operated to replace that obligation;

ii. that the rules by the Board of Studies constituted by the Act [made by dint of section 131], could be taken into account as somehow compelling the Court to accept that, notwithstanding the terms of section 47A, the rules of natural justice bound the College. 18 As to the first proposition immediately above, it may be accepted but eschews the simple fact that the rules of natural justice did not bind the College in the first instance, for the reasons earlier given in this Judgment. 19 The second proposition is rejected out of hand as entirely misconceived. The terms of section 131(1) expressly prevent the Board of Studies from making rules which inconsistent with the Education Act. Additionally section 131(1A) permits the rules to set out 'guidelines' with respect to the requirements for registration and accreditation. Clearly such guidelines would not be binding.

20 For these reasons the first plaintiff's claim for certiorari fails in limine. The suggested significance of the extent to which the College received public funding 21 Before moving on to deal with the contractual claim it seems appropriate to refer in a little more detail to a particular emphasis put by the plaintiffs in relation to public funding. The plaintiffs emphasised the significance of the extent to which the defendant received public funding in terms of the suggested proposition that this factor provided sufficient reasons for the Court to impose a public law obligation on the defendant: here the requirement to comply with the rules of natural justice. 22 Considerable guidance may be gleaned in relation to this proposition from the decision in The Queen v Servite Houses; Ex parte Goldsmith (2000) 3 CCL Rep 325; (2000) WL 571362 where Moses J had occasion to examine the underpinning of just such a proposition. His Honour made a number of significant observations: i. "In considering the susceptibility of a body to the imposition of public law standards, the court is concerned to decide where a case lies in the spectrum between, at one end, a body whose source of power is statutory and, at the other end, a body whose source of power is contractual. Thus, both ends of the spectrum require the courts to determine the issue of amenability by reference to the source of power, statutory on the one hand and contractual on the other. Between those two extremes lie many cases where the source of power test no longer provides an answer to the question of amenability." [ (2000) WL 571362 at page 18]

ii. Referring to the judgments given in R v Criminal Injuries Compensation Board; ex party Lain [1967] 2 QB 864 at 882 his Honour drew attention to the conclusion by Lloyd LJ which was in the following terms: "I do not agree that the source of the power is the sole test whether a body is subject to judicial review, of course the source of the power will often, perhaps usually be decisive. If the source of power is a statute, or subordinate legislation under a statute, the clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review: see R v National Joint Council for the Craft of Dental Technicians Ex parte Neate [1953] 1 QB 704.

But in between these extremes, there is an area in which it is helpful to look not just at the source of the power, but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may...be sufficient to bring the body within the reach of judicial review. It may be said that to refer to public law in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we referred, it between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other. (847A-D)." iii. His Honour also observed that the historic reliance by the courts upon the ultra vires doctrine as the justification for judicial intervention had led to a continuing search for statutory underpinning. He made the observation that it had also led courts to pose the question whether, if the organisation did not exist, or in terms of the instant case, the services were not provided by the private body, the State would have had to intervene, either to create such a body or to provide such services. iv. Importantly [at page 23] his Honour in treating with the decision in R v Governors of Haberdashers Aske's Hatcham College Trust ex parte T [1995] ELR 350, made the point that Dyson J had ruled that a city technology college was amenable to the jurisdiction of the court. As his Honour observed: "The college was set up pursuant to the exercise of the Secretary of States power under Section 105(1) of The Education & Reform Act 1988. Moreover, the provision of education by such colleges was the subject of detailed regulations made by statutory instrument. Their existence and the manner in which they provided education derived from the exercise of statutory power. The decision in that case concerned a refusal to admit a pupil. Dyson J. drew the contrast between CTCs and private schools where the source of power is not statute but consensual and the decisions were not made in the exercise of any public law duty or function (see page 357F). He pointed out that the mere fact that the Education Act 1944 provided machinery for complaints in relation to independent schools and conferred power upon the Secretary of State to strike such schools off the register, was insufficient to render private schools susceptible to judicial review (see Brooke J. in R v Fernhill Manor School ex parte A [1993] FLR 623 cited at 360-361). It must be pointed out that Haberdasher Askes owed its existence to the exercise of a statutory power. But Dyson J. subsequently made clear that that was not an essential factor for the exercise of judicial control." [Emphasis added.]

v. Later his Honour observed (at page 25) that "while Cobham demonstrates that it is not necessary to establish that the body owes its existence to the exercise of a statutory power, that case and Muntham House School are authorities for the proposition that a general regime of statutory control over the manner in which a service is provided, will not be sufficient to provide a basis for the courts intervention. Both Dyson J. and Richards J. sought to identify a statutory source for the provision of the service. Statutory underpinning or penetration meant more than statutory control over the manner of provision, it required statutory control over the circumstances in which the services were provided or withdrawn." [Emphasis added.] 23 These United Kingdom authorities serve to emphasise that merely because a non-government school has some public aspects or some funding or is registered under an Education Act does not make it a body carrying out a public function and therefore amenable to judicial review. Dealing with the contractual claims 24 It is convenient to deal with the claims in contract along two tranches:

i. the contention that it was an express or implied condition precedent of the contract between Mr and/or Mrs Bird and the defendant, that the defendant accord the first plaintiff procedural fairness;

ii. the contention that the defendant breached the terms of the material contract. What was the contract? The initial Conditions of Enrolment - late September 2001 25 It is common ground that an enrolment application was signed by Mr and Mrs Bird, presumably in a few days prior to 26 September 2001, which was the date on which the document is shown to be received by the College. Of present relevance this enrolment application included the following:

"I/we the undersigned, apply to have the above-mentioned pupil enrolled at the College and agree to be bound by the regulations contained in the current College Handbook, and the Conditions of Enrolment endorsed on the reverse of this form, both of which have been made available to me/us

Discipline methods used by the College will be determined by the Headmaster and may include : · withdrawal of privileges · Detention at lunchtime or after normal College hours (due notice having been given to parents regarding after hours detention) · Suspension

Failure to meet any of the conditions listed above may make it difficult for the College to fulfil its obligation to provide the opportunity for education and may necessitate the withdrawal or expulsion of the pupil at the discretion of the Headmaster, after consultation with the Chairman of the Schools Council

Should any changes to these conditions of enrolment be necessary, parents will be informed through official publications, eg Newsletter, Handbook". The second Conditions of Enrolment 26 The second Conditions of Enrolment document was signed only by Mrs Bird on 6 March 2007. These conditions were dated 14th February 2007. The initial portion of these conditions dealt inter alia with "Acceptance of Offer of Enrolment and Enrolment Fee". Relevantly clause 4 in this section, provided that "acceptance of the offer of enrolment is done through returning the offer signed by the parent or guardian and through the payment of the enrolment fee". 27 The section entitled "General Conditions of Enrolment" relevantly included the following:

7. Parent/guardians agree to support the Headmaster, or his delegate, in disciplinary actions undertaken by the College which are deemed as appropriate strategies to modify student behaviour. These actions may include: · withdrawal of privileges · detentions at lunchtime or after normal College hours where due notice has been given to parents · suspension …

10. Exclusion from the College (i) On the first occasion on which a student is suspended they will, with their parent or guardian, meet with the Headmaster, or his delegate, to discuss reasons why the student should not be asked to leave the College. The return of a student after a first suspension is at the discretion of the Headmaster, or his delegate, after this meeting. If a student is suspended on a second occasion the Headmaster has the discretion to declare the student's position at the College vacant if appropriate. (ii) If the Headmaster, or any person deputising for the Headmaster, considers a student is guilty of a serious breach of rules or has otherwise engaged in conduct which is prejudicial to the College or its students or staff, the Headmaster, or his delegate, may exclude the student permanently or temporarily from the College. (iii) If the headmaster believes that a mutually beneficial relationship of trust and cooperation between a parent or guardian and the College has broken down to the extent that it adversely impacts on that relationship the Headmaster, in consultation with the Chairman of Schools Council, may require the parent to remove the child from the College. … 28 Clearly the new Conditions of Enrolment constituted the relevant and applicable terms and replaced the previous Conditions of Enrolment. The March 2007 Conditions themselves stated that signature and return of the Conditions, signified acceptance of them. While some parts of the Conditions repeated the old conditions, they could not be read together. 29 The sole effective basis of the plaintiffs' claim that it was only the original Conditions of Enrolment which bound the parties is based upon the following propositions:

i. that the new conditions did not state that the signing by one only of the two parents, would signify the acceptance of both parents to the changed Conditions of Enrolment;

ii. that clause 1 of the new conditions expressly referred to "Completing and signing the Application and Enrolment Form";

iii. that neither the new conditions nor the letter sent to parents with them, stated that signature and return of the new Conditions of Enrolment signified acceptance of them, but only stated that the second plaintiff acknowledged that she had read them;

iv. that a contract cannot be unilaterally changed by one of the parties to it;

v. that given that the first plaintiff's schooling at the college in 2007 had already begun, there was no consideration for the alleged change of terms. 30 There is no substance in any of these submissions. Mrs Bird clearly acknowledged that she had read the new Conditions of Enrolment. Those conditions provided that acceptance of the offer of enrolment would be done through returning the offer signed by the parent or guardian and through the payment of the enrolment fee. No submission was advanced by the plaintiffs relying upon any outstanding fees as negating the new conditions' efficacy as a contract. The contract was not unilaterally changed by one of the parties only. The argument that there was no consideration for the alleged change of terms is rejected out of hand. The fact that the first plaintiff had already commenced schooling at the College in 2007 when his mother bound herself to the conditions as his parent, is not to the point where one is concerned with a clear offer and acceptance in circumstances such as then prevailed. Either parent was able to accept the College's offer. The rules of natural justice in their application to domestic tribunals 31 In McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470, Campbell J examined the circumstances in which rules of natural justice were not, in their application to domestic tribunals, rules which operated as a matter of public policy of a kind incapable of being varied or excluded by contract (at [102] and [109]). His Honour dealt at length with the natural justice concept and its derivation (at [81]). As his Honour observed at [84], a long line of judicial statements explains that the basis on which a court can prevent excessive power by domestic tribunals is by enforcing the contract under which the tribunals operate. 32 At [90]-[94] his Honour made the following observations:

[90] A basis additional to the protection of property rights, upon which a court could grant a declaration of the invalidity of an expulsion, and an injunction against giving effect to the invalid expulsion, was recognised in Edgar v Meade (1916) 23 CLR 29. One plaintiff had been wrongly expelled from an organisation registered under the Commonwealth Conciliation and Arbitration Act 1904 . Another plaintiff, representative of a branch concerning which a resolution had been passed to close the branch, challenged the validity of that decision. Isaacs J said, at 43-44: "In the case of a purely voluntary association, a Court of equity bases its jurisdiction on property, there being nothing else for it to act on. A Court of common law before the Judicature Act regarded the invalid expulsion as void, and gave no damages. So between the two jurisdictions the plaintiff could rely only on property as the basis for jurisdiction. But here the situation, in my opinion, calls for another view.

This organisation is a creature of the federal parliament for a special reason, and as incidental to a specific power in the Constitution. The incorporation of employees in such an organisation is a matter of public policy, and to effectuate the object of the Act. For this purpose rules are required to be registered, and in my opinion a member or a group of members forming a branch recognised by the rules have a locus standi to assert in a competent Court their legal rights to remain members of the organisation, notwithstanding an invalid resolution to expel him or them, and so exclude him or them from the status and benefits which the Act intended them to have.

As to Edgar [the first plaintiff] he has a proprietary right; but, as to both him and the plaintiffs in the second action, I hold their rights to sue do not in such a case as this depend on the question of property affected. The very object of the legislative provisions in incorporating such associations and facilitating the settlement of industrial disputes might be defeated if members and branches could be excluded by a governing body, contrary to rules, unless property was involved. The organisation is therefore not in the same position as a voluntary club."

(The first three sentences of this quotation were quoted with approval by Rich, Dixon, Evatt and McTiernan JJ in Cameron v Hogan (1934) 51 CLR 358, at 372.) [91] In relation to some voluntary unincorporated associations, the rules are not intended to be contractual, and the members have no interest in the property of the association. Concerning such organisations, courts have declined to intervene by way of declaration and injunction when it is alleged an expulsion has occurred contrary to the rules. Thus in Cameron v Hogan (1934) 51 CLR 358, at 376 which Dixon, Evatt and McTiernan JJ said: "Hitherto rules made by a political or like organisation for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or member. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction." cf Balfour v Balfour [1919] 2 KB 571 . [92] It is always a matter of construction of the rules of the individual organisation whether they are intended to create contractual relations, whether they confer on members a sufficient right of property to give the member standing to seek a declaration and injunction, or whether there is some other circumstance (such as occurred in Edgar v Meade ) which gives the member standing to seek those remedies. [Emphasis added.]

[93] The difference between the basis upon which the court acts in keeping within proper bounds public decision-makers, and private or domestic tribunals continues to be recognised. In R v Criminal Injuries Compensation Board; ex parte Lain [1967] 2 QB 864 at 882 Lord Parker CJ said: "The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have been varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari, since their authority is derived solely from contract, that is, from the agreement of the parties concerned." (His Honour's emphasis.) [94] Diplock LJ said, at 884: "The jurisdiction of the High Court as successor of the Court of Queens Bench to supervise the exercise of their jurisdiction by inferior tribunals has not in the past been dependant upon the source of the tribunal's authority to decide issues submitted to its determination, except where such authority is derived solely from agreement of the parties to the determination. The latter case falls within the field of private contract and thus within the ordinary civil jurisdiction of the High Court supplemented where appropriate by its statutory jurisdiction under the Arbitration Act ." 33 His Honour observed at [97]:

In Australia, the preferable view is that natural justice comes to operate in private clubs and associations by the rules of those private organisations being construed on the basis that fair procedures are intended, but recognising the possibility that express words or necessary implication in the rules could exclude natural justice in whole or part. The judgments in Dickason v Edwards support that view. Further, in Australian Workers' Union v Bowen (No.2) (1948) 77 CLR 601 the statement of O'Connor J in Dickason v Edwards to that effect (set out in paragraph 84 above) was approved by Latham CJ at 617, and also by Dixon J (with whom Starke J agreed) at 631. Williams J, at 638 said:

"But the principles of natural justice cannot override the express provisions of the rules, and it could not be "contrary to the essence of justice" for the executive council honestly and bona fide to exercise all its powers and duties under the rules." 34 At [109] his Honour said:

As well, section 11(2) has an effect which cuts two ways concerning an expulsion from the Club. So far as a member is concerned, he or she has the benefit of a deemed covenant with each other member to observe all the provisions of the rules, which has as a consequence a contractual obligation on each member not to expel any other member save in accordance with the rules. As well, though, that covenant has the consequence that someone in the position of [the plaintiff] covenants with the other members that, if the procedures of the rules are followed for an expulsion, he will be bound to treat that expulsion as an effective one. These mutual contractual obligations are ones which would be cut down or varied only to the extent to which there was some contrary public policy (meaning thereby a public policy of the type which can override contractual obligations), or if there was some equity which precluded the parties to the contract from relying on their strict contractual rights. As I have earlier held, the rules of natural justice are not, in their application to domestic tribunals, rules which operate as a matter of public policy of a kind incapable of being varied by contract . No equity to prevent the provisions of the deemed contract between the members being relied upon has been asserted in the present proceedings. [Emphasis added.] 35 I adopt in its entirety the approach taken by Campbell J in terms of the careful analysis of the principles which operate where one is dealing with a domestic tribunal. Neither by an express term, nor by necessary implication, does the constituent contract presently before the Court yield to the relevant power being subject to the rules of natural justice. 36 The short answer to the plaintiffs' present claim is that properly construed, the terms of condition 10(ii) does not yield to the necessary implication that the power given to the Headmaster is subject to the rules of natural justice. The contractual obligations are such as would be cut down or varied only to the extent to which there was some contrary public policy of a type which could override contractual obligations, or if there was some equity which precluded the parties to the contract from relying on their strict contractual rights. There was neither in the present circumstances. As earlier observed, the rules of natural justice are not, in their application to domestic tribunals, rules which operate as a matter of public policy of a kind incapable of being varied by contract. Dealing with the claim in contract - implied conditions precedent 37 Mr and Mrs Bird allege that it was an "implied condition precedent" of the contract between themselves and the defendant, that the latter accord the first plaintiff procedural fairness in decisions concerning disciplinary action. The reasons given for this implication are said to appear in the particulars to paragraph 33 of the further amended statement of claim.

i. there is an allegation in paragraph 33(e) that there was an express term requiring compliance with the principles of natural justice or procedural fairness.

[No such term is identified. The finding is that there is no such term. In fairness to the plaintiffs this contention was withdrawn in final address.]

ii. another of the reasons given is the existence of section 47(f) of the Education Act 1990 as amended from 1 May 2005 to be section 47(h). [As already mentioned, that cannot be correct because section 47A introduced in the amended Education Act expressly provides that section 47 does not give rise to implied terms in the any contract between a school and parents of a student. Section 47A is a clear statement of Parliamentary intention that non-government schools retain their protection at common law from contractual and any other civil liability and confirms their status in law in relation to disciplinary matters as purely private tribunals not subject to an obligation to observe the principles of natural justice in decision-making]. 38 As the defendant has submitted, because the Headmaster is not a statutory tribunal exercising governmental or quasi-judicial functions and is not amenable to certiorari, paragraphs 33(a) and (b) of the pleading are in essence limited in substance to further allegations of implied terms of contract. 39 The defendant submits and I accept that there is no basis on which such a term would be implied at common law.

40 Nor is the "seriousness" of the exclusion of the first plaintiff a ground for imposing the requirements of natural justice on a private association or institution recognised by any authority. Notably the exclusion of Charles from the College has not prevented him attending another private school since April 2007, obtaining his School Certificate, or embarking on the HSC. 41 This is not a case of a breach of contractual terms on which an institution held and used trust property. Nor is it a "restraint of trade" case in which a member or employee of an association, incorporated or otherwise, is deprived through disciplinary action of a registration or licence awarded by the association which is necessary for their livelihood or employment. Such cases require the plaintiff to demonstrate a direct impact on the plaintiff's ability to earn income: see for example Bornecrantz v Queensland Bridge Association Inc [1999] QSC 58 at [41]. In the present case the first plaintiff is not engaged in a trade or profession and is not prevented from attending school or obtaining the usual school qualifications.

42 In the result any requirement for natural justice must be found in the terms of the contract. The Conditions of Enrolment signed by Mrs Bird on 6 March 2007 make no reference to procedural fairness or natural justice. Legitimate expectation 43 The circumstances of the case do not, and could not, give rise to any "legitimate expectation" that the rules of natural justice apply. 44 The doctrine of "legitimate expectation" has been developed in public law in relation to the exercise of statutory powers, judicial or administrative, which affect the public rights of property or person of an individual: see Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 508-510; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291-292. 45 Moreover the "legitimate expectation" is not an expectation that procedural fairness will be extended to a plaintiff, but that before some benefit [which the plaintiff has a legitimate expectation of receiving] is denied to him, he will have an opportunity to be heard. 46 The plaintiffs have not identified what benefit the first plaintiff had an expectation of. In any event in the circumstances where the first plaintiff had been placed on probation, and accepted that condition, and had been warned that any further inappropriate behaviour was likely to result in exclusion without a further interview, no expectation as pleaded could have arisen. 47 Importantly a contract may effectively exclude the operation of the rules of natural justice when dealing with matters that do not affect property or livelihood: Thorborn v All Nations Club [1975] 1 ACLR 127, McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470. 48 Even if the Court had found that there was a requirement of procedural fairness, the content of that requirement varies according to the circumstances of the case. 49 A domestic decision-maker acting under consensual rules with no requirement to apply rules of evidence can inform itself how it chooses, may act on hearsay or its own knowledge if it is satisfied as to the facts and has afforded the person affected an opportunity of answering the charge and putting his version of events: Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 at 628 per Dixon J. Finding

50 The defendant complied with these requirements. The first plaintiff and Mrs Bird were informed of the nature of the allegation of misconduct and their response was heard by Mrs Murdoch, the Deputy Head of Pastoral Care. They put the first plaintiff's version of events to Mrs Murdoch. Mr Webb was aware of the version put by the plaintiffs, and because he was made so aware, required Mrs Murdoch to check the facts with Mr Burns. Mr Webb was satisfied of the facts before he excluded the first plaintiff. 51 Mr Webb's evidence, which is accepted as reliable, was that it was his practice for what was probably the last 10 years to have the deputy heads or head of school undertake investigations regarding serious disciplinary incidents and expulsions. This was so that he would not be placed in the position of being both investigator and judge in the process of deciding what would be the appropriate disciplinary action for a student, including decisions to expel. The claim in contract - breach 52 The evidence demonstrates that the College and Mr Webb followed the Conditions of Enrolment procedures. 53 There is no dispute but that the first plaintiff had reached the stage where he had been suspended twice by the Headmaster, the second time on 14 March 2007. Pursuant to clause 10(i) of the Conditions of Enrolment the Headmaster had a discretion to exclude the first plaintiff if appropriate. He exercised his discretion at that stage by permitting the return of the first plaintiff, despite a second suspension in order to give the first plaintiff a further opportunity to exhibit a change in behaviour. The re-entry of the first plaintiff was probationary. He and Mrs Bird were told this, and that any further incidents of inappropriate behaviour could result in the exclusion of the first plaintiff from the College without further interview. These terms were accepted by Mrs Bird and there is no dispute that the Headmaster was entitled to impose the condition in his discretion. 54 The probationary nature of the first plaintiff's enrolment was a consequence of the second suspension. In other words the second suspension remained a relevant factor in any future consideration of the first plaintiff's conduct. Upon the first plaintiff engaging in further inappropriate behaviour on 22 March 2007, the Headmaster exercised his discretion as foreshadowed and excluded the first plaintiff. Given the probationary condition of re-entry and the breach of that condition, and the fact that the probation followed upon a second suspension, the Headmaster's exclusion of Charles was contemplated within the discretion given to him under clause 10(i). 55 Additionally, the Headmaster was entitled to exclude the first plaintiff under clause 10(ii). He considered that the conduct of the first plaintiff was a serious breach of school rules and his conduct was prejudicial to the College. 56 Clause 10(iii) of the Conditions of Enrolment is addressed to the relationship between parents and the school and did not apply on 26 March 2007. There was no requirement to consult with the Chairman of the Council before excluding the first plaintiff. The provisions of clause 10 of the Conditions of Enrolment are not cumulative: had that been the proper construction for example, it would mean that the College could not exclude a student unless the relationship with the parents had broken down in addition to breach of the rules by a student. Such a construction of the conditions under which an exclusion can occur is impractical and unreasonable, and would be a significant fetter on the ability of the defendant to function as a school. The evidentiary matrix

Both counsel accepted that different approaches were appropriate to be taken in terms of the extensive evidence placed before the Court on affidavit by a number of witnesses and then cross-examined upon. The transcript records that agreement at page 66. An appropriate limiting order under section 136 of the Evidence Act 1995 was made. The short position which obtained was as follows. There was a time-line divide as between: i. The earlier events; The evidence given concerning the events which took place up to and including the incident which occurred on 22 March 2007, where the teacher, Mr Burns, made a diary note of Charles' alleged "inappropriate gestures of masturbation in class" and gave him a lunchtime detention. ii. The subsequent events a) The evidence given following that occasion generally relating to the whole of the investigations into whether Charles had or had not, and if so in what fashion, behaved on that day, this evidence leading to the expulsion of Charles from the College by Mr Webb, the headmaster.

b) As to the earlier events, the order made was that none of the evidence was to be regarded as proving the truth of what was said either in affidavits or in the witness box and an appropriate limiting order was made accordingly.

c) As to the subsequent events, the position was otherwise such that the evidence was not similarly limited but was before the Court in the usual way for such findings of fact to be made as may or may not be appropriate, depending on the Court's decision as to whether or not the plaintiffs' case was misconceived as a matter of law. [As for example would be the case were the Court to hold that because the source of the power was contractual, the decision of the college was not subject to judicial review, and to hold that there was neither an express nor an implied term in the material contract importing the rules of natural justice].

d) However, notwithstanding (c), it was put that the Court would require to determine whether any particular procedural requirements required by the contract was complied with, and if they were not, whether any non compliance required the Court to declare the decision invalid. 57 For that reason the principal requirement is to treat with the earlier events in the broad with a somewhat closer analysis of the subsequent events. The earlier events 58 These essentially involved only some general matters of background including the following:

i. 26 September 2001 Mr and Mrs Bird sign Enrolment Application to enrol Charles Bird at the College;

ii. 6 March 2007 Mrs Bird signs the Conditions of Enrolment dated 14 February 2007;

iii. 20 March 2007 Mr Webb and Mrs Murdoch attend a re-entry interview with Mrs Bird and Charles Bird following Charles Bird's second suspension on 14 March 2007 for being in the girls' room at 3am at the Canberra excursion;

iv. 20 March 2007 Letter from Mr Webb to Mr and Mrs Bird confirming that Charles Bird is being allowed to return to the College on probation; v. 21 March 2007 Mr Webb meets with Charles Bird about his return to College on probation; vi. 21 March 2007 Mrs Murdoch meets with Charles Bird about his return to College on probation, following his second suspension; vii. 22 March 2007 Charles Bird and Kyle Muller allegedly make gestures of masturbation during Mr Burns' Personal Development/Health/Physical Education ('PDHPE') class. 59 Being only a little more detailed in relation to the 22 March 2007 incident one may make the following observations:

i. During a PDHPE class taught by Mr Burns, the evidence was that students brought in CDs that they felt were relevant to the study of resilience [understood to be a class about helping students cope with adversity].

ii. The evidence was that the first song chosen by a student other than the first plaintiff was by the artist known as Akon, and featured explicit language and adult themes admitted later by the teacher to have been inappropriate for the Year 10 class.

iii. During the second song, again chosen by a student other than the first plaintiff, the first plaintiff and another male student, Kyle Muller, were issued a lunchtime detention by Mr Burns for alleged "gestures of masturbation" during the playing of the second song. [There was some dispute over which precise song was being played, but this does not require to be decided.]

60 Arguably outside of the suggested significance of the 22 March 2007 class incident, as already observed the only salient matter that is appropriate to be noted concerns the fact that Charles had received two earlier suspensions which gives a suggestion of some history of apparent misbehaviour. The subsequent events 61 There was so much evidence from a number of witnesses concerning these events that the simplest way forward is to simply use the defendant's chronology, identify the dates, the events in contention, some content of the Plaintiffs affidavits, some content of the defendant's affidavits, and some content of the Plaintiffs affidavits in reply, to canvass the flow of events. I proceed accordingly:

i. Charles Bird and Kyle Muller leave the PDHPE class on 22 March 2007 to go to the front office to see Mrs Barry as a result of the detention being issued. After Charles told her he thought it unfair that he had been given a detention, Charles' evidence was that Mrs Barry's advice to him was to go to talk to Mr Burns about it, and if nothing changed, to talk to the head teacher, and then Mrs Kennedy, the Head of Middle School.

[Mr Burns was also the head teacher for the PDHPE Department.] ii. At the end of the class Charles went to speak with Mr Burns about the detention. Charles denied 'grabbing his crotch' and later was joined by Kyle Muller who also said to Mr Burns that Charles did not misbehave in that class. Ultimately, Mr Burns did not accept what the students said and the lunchtime detention still stood. iii. Mr Burns then advised Mrs Murdoch that he had given Charles a lunchtime detention for inappropriate gestures of masturbation during class. Mr Burns described and demonstrated to Mrs Murdoch what he said he saw Charles do during his class.

iv. On the same day, Mrs Murdoch then went to advise Mr Webb of the incident in Mr Burns' class and that Charles had been given a lunchtime detention for inappropriate gestures of masturbation. [Mr Webb gave evidence during the proceedings that he recalled being informed by Mrs Murdoch that Charles had denied making the gestures to Mr Burns after class. Mr Webb's evidence in that regard is accepted as reliable.] Mr Webb instructed Mrs Murdoch to speak to Charles.

v. The following day, on 23 March 2007, Mrs Murdoch met with Charles in her office about the incident in Mr Burns' class. He was asked by Mrs Murdoch to demonstrate what he was doing. Mrs Murdoch's evidence was that she did not look at his groin area as she thought it inappropriate to do so, but that the other hand gestures and facial expressions were the same as what Mr Burns had demonstrated to her the day before, which reflected inappropriate gestures of masturbation. There is some dispute about what was said and also about what Charles demonstrated to Mrs Murdoch he did.

vi. On the same day, Mrs Murdoch phoned Mrs Bird about Charles' behaviour during Mr Burns' class the day before. There was some dispute between the parties as to what exactly was said. Mrs Murdoch deposed that she thought that Mr Webb would probably not allow Charles to stay at the College, whereas Mrs Bird's evidence was that Mrs Murdoch told her that Charles had "admitted to it" to which Mrs Bird thought that for Charles to be expelled following Mr Webb's earlier words regarding his probation, it had to be for "something serious". Mrs Bird's evidence was the Mrs Murdoch's reply to this was "no anything…you should look for another school".

vii. Mrs Bird came into the school and met with Charles in the school foyer. It was Charles' and Mrs Birds' evidence that Charles denied to his mother that he had done anything wrong, and that he was 'just impersonating an opera singer' (Charles Bird affidavit of 7 November 2007 at [19]) or 'copying a music video' (evidence of Mrs Bird in her affidavit of 7 November 2007 at [27]). Mrs Murdoch then met Mrs Bird and Charles in the foyer, and invited them into the privacy of her office where they could discuss the matter.

viii. The conversations during this meeting in Mrs Murdoch's office were in dispute between the parties. It is common ground however that Charles demonstrated to Mrs Bird what he said he was doing during Mr Burns' class, although there was some dispute about what was demonstrated, it involved (approximately) one hand in the air and one hand on his chest, and did not involve any sexual or otherwise inappropriate gestures. Mrs Murdoch's evidence was that this demonstration in front of his mother was different to the earlier demonstration Charles had given when she met with him. Mrs Bird's request to speak with Mr Burns that afternoon could not be accommodated.

ix. On or about 23 or 26 March 2007, Mrs Murdoch advised Mr Webb about her meeting with Charles as well as her meeting with Charles and his mother. Mr Webb told Mrs Murdoch to check again with Mr Burns to confirm what he saw Charles was doing. On or about the same date, she confirmed with Mr Burns what he observed Charles doing during the PDHPE class.

x. On 26 March 2007, Mrs Murdoch met with Mr Webb to report back that Mr Burns had confirmed with her what he saw Charles was inappropriately doing. Mr Webb then made the decision to expel Charles on 26 March 2007, on behalf of the defendant as a result of that incident. Mr Webb did not directly speak with Charles or Mr and Mrs Bird about the incident.

xi. On the same day, Mrs Murdoch phoned Mrs Bird to inform her of Charles' expulsion from the College. What to make of all this evidence? 62 As I have reached the conclusions:

i. that the rules of natural justice were neither imported into the subject contract by any route at general law, nor by any express or implied term; and

ii. that no particular procedural requirements required by the contract were not complied with;

the plaintiffs' case must fail in limine. 63 For that reason, save only in one respect, none of the material evidence adduced from the parties concerning what I have called the subsequent events, really falls for findings. 64 The particular respect to which I refer that may require to be decided [as to which see Australian Football League v Carlton Football Club [1998] 2 VR 546] concerns whether or not in particular clause 10(ii) of the second Conditions of Enrolment were satisfied. It will be recalled that the integers provided for in that sub-clause were twofold. The headmaster had to consider a student either:

b) was to have otherwise been engaged in conduct which was prejudicial to the college or its students or staff, before deciding to exclude the student permanently or temporarily from the College. 65 The evidence given by Mr Webb which is accepted as reliable was that:

i. In the afternoon on 22 March 2007, Mrs Murdoch reported to him that there had been an incident in Mr Burn's PDHPE class that day in words to the following effect: Mrs Murdoch: "Charles Bird and Kyle Muller have been given detentions by Paul Burns, in his PDHPE class today for inappropriate gestures of masturbation in class. Mr Burns demonstrated Charles' actions to me."

Mr Webb : "Well, you will need to interview Charles and clarify exactly what happened. If it was clear misbehaviour, I'm not prepared to have him in the school anymore. You will have to contact Mrs Bird to let her know."

ii. In the late afternoon on Friday 23 March 2007, he had a further meeting with Mrs Murdoch about Charles Bird. During this meeting he had a conversation in words to the following effect: Mrs Murdoch: "I spoke to Charles before his mother arrived and he demonstrated to me what he did in class. His actions were similar to those demonstrated and described by Paul Burns - the same grabbing of the crotch, rubbing nipples and facial gestures. Charles admitted to me he was copying Kyle Muller. When I subsequently spoke to Charles with his mother he demonstrated a very sanitised version of what he had done in class. He denied making gestures of masturbation and Mrs Bird said he was imitating her opera singing."

Mr Webb: "Can you go and check again with Paul Burns on Monday to confirm what he saw."

iii. After Mr Webb returned from a morning appointment on Monday 26 March 2007, he had a further conversation with Mrs Murdoch in words to the following effect: Mrs Murdoch: "I have interviewed Paul Burns and he indicated he clearly saw Charles grabbing his crotch, rubbing his nipples and rolling his eyes."

Mr Webb: "It is clear that he has misbehaved and you should contact Mrs Bird and tell her that he will have to leave."

I then left the School at lunchtime to attend a meeting in Sydney city. 66 The factors that Mr Webb took into account in making his decision to expel are:

i. the actions attributed to Charles Bird had been witnessed by Mr Burns and demonstrated to Mrs Murdoch by Mr Burns. The same actions were then separately demonstrated by Charles Bird to Mrs Murdoch;

ii. Charles Bird had not initially denied the behaviour to Mrs Murdoch and his story only changed at a later time when his mother became involved. Kyle Muller had admitted to making gestures of masturbation and Charles Bird had agreed that he had copied Kyle Muller. Mr Webb took this into account in accepting that Charles Bird had made the gestures;

iii. this incident of misbehaviour occurred within about 24 hours of his discussion with Charles Bird about his return to the College on 21 March 2007. As Headmaster, he could not allow the misbehaviour of a student on probation who had just returned from suspension, to go by without taking action, as it would reflect poorly on the College and raise concerns amongst the staff that inappropriate behaviour was tolerated. He needed to balance the need to maintain appropriate standards of behaviour at the College with what was best for Charles Bird;

iv. given Charles Bird's history of misbehaviour when influenced by his peers it seemed more likely to him that Charles Bird was 'showing off' in front of his mates than imitating Mrs Bird's 'opera singing' as asserted by Mrs Bird;

v. he thought it in Charles Bird's best interest to make a new start at another school. At the then early stage in Year 10, he considered that the long term benefits of a move to another school outweighed any short term disadvantages of changing schools. In this way Charles Bird could make a break from the people who influenced him in a negative way.

vi. He had in mind suggesting that Charles Bird apply to return to the College for Years' 11 and 12 (subject to his good conduct and the new Headmaster agreeing to do so) as a way forward in Charles' interest. In Year 11 after some of the students who were in Year 10 leave the College, friendships at the College undergo a rearrangement and this had the potential in his mind to assist Charles form new relationships in a more senior and mature environment. 67 This evidence is accepted as reliable. It demonstrates that no particular procedural requirements required by the contract were not complied with. 68 For this reason it seems strictly unnecessary to treat with the authorities concerning the limited circumstances in which a domestic tribunal, having been given the task of applying a particular criterion to the facts that it found, a court of law remains entitled to substitute its own opinion for that of the tribunals. Suffice it to note that in Australian Football League v Carlton Football Club supra, Tadgell JA examined the issue holding (at 557 et seq) that in such circumstances it was only if the tribunal's decision was aberrant that it could not be classed as rational that the Court was entitled to substitute its opinion for that of the tribunal. As his Honour observed, the distinction was between on the one hand a recognition that there was no information available to the tribunal on which reasonable and honest minds could possibly reach the conclusion reached and, on the other, reviewing the material in order to decide whether the tribunals properly appreciated or treated it - that is to say whether the tribunals reached the right result. 69 In relation to the present set of proceedings, this principle furnishes a further reason why the approach taken by the plaintiffs to the question of law is misconceived. It could not be said that Mr Webb's decision was so aberrant that it could not be classed as rational. 70 Finally even had the terms of the contract been breached, the remedy would in the present case, sound only in damages as opposed to relief setting aside the decision to expel.

The case alleging actual or apprehended bias 71 There was absolutely no substance in the submissions addressed in support of the proposition that the plaintiffs have established either actual or ostensible bias. It is unnecessary to further examine the issue. Indeed it is fair to observe that during final address counsel for the plaintiffs observed that some of the authorities raised an issue as to whether apprehended bias could be found in a case such as the present. Ultimate finding 72 For these reasons, the proceedings are to be dismissed. The parties are to bring in short minutes of order on which occasion costs may be argued.

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