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

Charles Phillip Bird by his tutor Vredê Jane Bird v Campbelltown Anglican Schools Council - [2007] NSWSC 1419 - NSWSC 2007 case summary — Zoe

[44]

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.]

[66]

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.

[71]

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

[72]

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

[111]

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.

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