Ge v Taylors Institute of Advanced Studies Limited [2003] VSC 354

[2003] VSC 354

INJUNCTION - Education - School - Pupil - Criminal charges laid against plaintiff pupil in relation to dispute with another pupil - Suspension of pupil by Principal - Contract to educate - Implied terms - Alleged wrongful expulsion - Natural justice - Deprivation of school facilities - Responsibility of school to maintain order - Balance of convenience.

2. Rong Weslay Ge ("the plaintiff") who is aged 20 years and is a citizen of China, commenced his Victorian Certificate of Education ("VCE") studies at the educational college conducted by Taylors College of Advanced Studies Limited ("the college") in February 2003.

5. On 3 September 2003, the principal of the college, Ms Faye Patterson, informed the plaintiff that he was to be suspended from attending classes at the college for the rest of the 2003 academic year.

8. The plaintiff, by summons issued 5 September 2003, makes application for interlocutory injunctive relief restraining the college from so suspending him.

12. The statement of claim endorsed on the writ alleges that the plaintiff agreed with the college to provide him with Year 12 tuition for the 2003 academic year.

15. The statement of claim further alleges that it was an implied term of the agreement that the college would not suspend the plaintiff from attending classes:

"(a) Without any unfounded or unsubstantiated ground; and

(b) without first giving the plaintiff an opportunity to show cause."

20. The plaintiff's claim on the statement of claim is for a declaration that the college has no power under the agreement to suspend the plaintiff from attending classes at the college and for interlocutory and permanent injunction restraining the college from so doing.

23. The matter came on before me in the Practice Court on the afternoon of 5 September 2003. It commenced as an ex parte application but very soon after the commencement of the hearing, Mr Booth of counsel appeared before me on behalf of the college. After hearing brief argument I adjourned the matter to enable the college to file affidavit material in response to the affidavit of the plaintiff. Mr Booth informed me that the college would tape all lectures which the plaintiff would miss by reason of the suspension and provide them to him. In addition it would make teaching staff available by telephone and e-mail to the plaintiff to assist him in his preparation for VCE examinations.

26. The matter came on before me again on 9 September 2003 but was adjourned at the plaintiff's request until 10 September 2003.

30. The plaintiff, by affidavit sworn 5 September 2003, states that in early August he stayed overnight at a house in Preston at which one Ke Song lives with others. The plaintiff left his mobile phone in Mr Song's room. Mr Song, who is aged 18, is also a student at the college and on the following Monday the plaintiff saw him at the college and requested the return of the phone. The plaintiff asserts that despite several requests the phone was not returned and that on 21 August 2003, after a further request of Mr Song was made, Mr Song said he would give the plaintiff some money rather than return the phone.

33. The plaintiff asserts that during this conversation Mr Song was aggressive and that another person, Mr Wayne Gao, became involved in the discussion and "pushed" Mr Song.

36. The plaintiff further states that on 22 August 2003 he and four other students, including Mr Gao, were at Taylors College when they were approached by Mr Song who offered to give him his mobile phone and MP3 player "as security" until the return of the plaintiff's mobile phone. The plaintiff states "At Mr Gao's advice, I decided to retain the MP3 player as security with the intention of returning it once I had my mobile phone returned".

39. Subsequently, the plaintiff was informed that Mr Song had reported the matter to police.

42. The plaintiff states that on 29 August 2003 he met with Taylors College Student Adviser, Ms Helen Hammersley, at his initiative, to discuss his concerns about the missing telephone.

45. Ms Hammersley has sworn an affidavit dated 8 September 2003. She confirms that the plaintiff, in company with Mr Gao, attended upon her on 29 August 2003 and discussed the loss of the phone with her. The plaintiff and Mr Gao told her that they had come to see her because they believed that Mr Song had been in touch with the police. She deposes that she endeavoured to establish with the plaintiff why Mr Song might have been in touch with the police. The plaintiff and Mr Gao then told her of the meeting some days earlier when Mr Gao had pushed Mr Song but did not at that time advise her that the plaintiff had taken possession of Mr Song's MP3 player "as security" for the mobile phone.

48. Subsequently, on the afternoon of 29 August 2003, two members of the Victoria Police Asian Squad attended at the premises of the college and spoke to the plaintiff and Mr Gao in the presence of Ms Hammersley. It was in the course of this meeting that Ms Hammersley was first advised by the plaintiff of his possession of Mr Song's MP3 player. During the meeting, the police told the plaintiff that there was no evidence that Mr Song had the plaintiff's phone and that he should "drop the matter" completely. Ms Hammersley states that the plaintiff was told by police that they would do what they could to retrieve the phone, but that this should be left to them. After the police left, Ms Hammersley states that she reiterated to the plaintiff and to Mr Gao that the matter must be left to police.

51. Mr Song has sworn an affidavit dated 9 September 2003, whereby he states that on 1 September 2003, Wayne Gao made threats against him. Mr Song states that when he left the premises of the college that afternoon he saw the plaintiff and a number of the plaintiff's friends standing outside the college. Mr Song states that he returned to the premises because he was afraid. He states that he informed a college security officer of this and telephoned the Asian Squad of the Victoria Police. The security officer, Ms Jane Hansun, has sworn an affidavit dated 9 September 2003 which confirms that she spoke to Mr Song after she saw him attempt to enter the college through an emergency exit at about 4.45 p.m. Mr Song then told her that the plaintiff and others were waiting at the front of the college and that he was fearful they were going to "bash him". Mr Song told her that he had telephoned the Asian Squad. Mr Song deposes in his affidavit that he spoke to a member of the Asian Squad by telephone. The member suggested he should leave the college and walk down Little Bourke Street where police would be waiting. Ms Hansun confirmed that this is what Mr Song told her at the time. It should be noted that Ms Hansun, by her affidavit, confirms that Mr Song's mobile telephone kept ringing and that Mr Song told her that it was the plaintiff and his friends calling. Ms Hansun states that she telephoned the Principal of the college, Ms Patterson, at approximately 5.10 p.m. to advise her of the circumstances. Ms Patterson requested Ms Hansun to call police but Ms Hansun did not do so because she had been advised by Mr Song that he had spoken to the Asian Squad himself and received instructions to leave the building and walk towards Elizabeth Street.

54. Mr Song then left the premises and states that when he did so the plaintiff and "about eight of his friends came over". Mr Song states he told them he wanted no trouble and said he was going to the Commonwealth Bank to withdraw some money to give to them. He states that he went to a Commonwealth Bank ATM but could not get any money. A number of those present started to punch him, upon which members of the Asian Squad arrived. The Asian Squad later telephoned Ms Hansun to advise that Mr Song was "safe".

57. The plaintiff's version of what took place in the late afternoon is somewhat different from that of Mr Song. He states -

"At or about 5.30 p.m. on 1 September 2003, I telephoned Mr Song because the entire incident had escalated to a degree I was uncomfortable with. I intended to tell Mr Song that I wished to resolve the problem without conflict by telling him that we should forget this incident altogether. As soon as I had said hello, however, the line cut out. I attempted to call Mr Song again, but was unable to get through to him."

61. The affidavit sworn by the plaintiff fails to state why the plaintiff decided to be in touch with Mr Song after having been told by police some days earlier to leave the matter to them. It also fails to explain why he chose to call the plaintiff from outside the college premises at a time when he was in company with a group of others. Nevertheless, his version of events as set out in his affidavit continues -

"At or about 6.00 p.m. on 1 September 2003 Mr Song arrived at the main entrance to Taylors College where I was standing with my school mates, Mr Qi Qi Li, Mr David Chen and Mr Zhang (Wayne) Gao and friends of Mr Gao, Mr Zhan Yi and Garry, whose surname I do not recall. Mr Song then invited us to dinner, but stated that he did not have any money to pay for dinner on him and said that he would withdraw some money from an ATM to pay for our dinner. He further invited us to accompany him to withdraw the cash. Mr Song then went to Coles Express on Elizabeth Street in Melbourne near Flinders Street to withdraw some money. We accompanied him to Coles Express, but waited for him outside the store. Mr Song advised that he was unable to withdraw any money and suggested we then proceed to the Commonwealth Bank nearby on Elizabeth Street. We accompanied him to the Commonwealth Bank on Elizabeth Street. He proceeded to attempt to withdraw money from an ATM while we waited nearby. Mr Song shortly returned to us and stated that he did not have any money in his account."

65. The plaintiff asserts that an exchange of words then took place between Mr Gao, Mr Song and Mr Yi following which the plaintiff then observed Mr Yi strike Mr Song followed by "Mr Garry". The plaintiff states that he stood back from the group and did not push or touch Mr Song at this time or at any time thereafter. Significantly, he states that "immediately" after Mr Song was hit by the others, police arrived.

68. The plaintiff, together with Mr Gao and three others, were charged by the Victoria Police Asian Squad with blackmail, attempted robbery, assault and false imprisonment shortly thereafter.

71. On 3 September 2003, Ms Patterson decided it was appropriate in the circumstances of such charges having been laid to suspend the plaintiff from attendance at classes at the college. By her affidavit she states that she did so by reason of the seriousness of the charges and the fact that the alleged offences were perpetrated by the plaintiff who is aged 20 and in Year 12 upon Mr Song who is aged 18 and in Year 11. She said that she was concerned to ensure the safety of the students at the college of whom approximately 50% are under the age of 18 years. She states, "Specifically I was concerned as to the safety of Mr Song, the alleged victim. Mr Song's timetable requires him to attend classes on floors five, six and eight. If the plaintiff were to be allowed to attend Taylors, he would be in classes on the same floors. The police have told Taylors that there should be absolutely no contact between the plaintiff and Mr Song. However, it would not be possible for Taylors to ensure no incidental contact between the two students. I am particularly concerned about this given that the plaintiff refused to comply with a previous police instruction that he have no further contact with Mr Song on this matter."

74. The plaintiff, through his counsel Mr Corrigan, submits that his suspension is in breach of an implied term of his agreement with Taylors College and that he was not accorded procedural fairness by the college.

78. An interlocutory injunction is merely provisional in its nature and does not conclude or determine any rights. Its object is to preserve the position which is in dispute and status quo until the hearing and determination of the dispute or further order. Five general issues require to be considered. First, it is necessary for the party claiming the injunction to establish that he or she has a right which is recognised as legal or equitable and that there is an infringement or threatened infringement of that right by some unlawful act. That is, the plaintiff has to establish that he or she has a cause of action. Secondly, the applicant has to prove that there is a serious issue to be tried. The third matter to be considered is the question of whether damages would be an adequate remedy if the plaintiff were to succeed at trial. The fourth matter which has to be addressed is the balance of convenience, which means the plaintiff must establish that if the injunction was refused the plaintiff would suffer a greater injury than the defendant would suffer if the injunction was granted. Finally, discretionary factors that may be applicable in a particular case, for example, delay causing prejudice, or failure by the plaintiff to disclose all relevant matters, are relevant to the determination of the question of whether it is just to make the order sought by the plaintiff.

81. In most cases where the plaintiff seeks to preserve the status quo or, alternatively, to restore him or her to the position he or she was in prior to the dispute arising, the issue of whether or not there is a serious question to be decided is the applicable test. Where, however, as here, the plaintiff is in effect seeking either a mandatory injunction or, alternatively, the effect of a successful application would be to grant the whole or most of the relief sought, the plaintiff assumes a heavier burden. In those circumstances the plaintiff has to establish a higher degree of assurance that he would succeed at the trial. Where the question is to be determined on the basis that there is a serious question to be decided, the balance of convenience is of importance. If the court is of the view that the serious question to be decided shows a weak plaintiff's case, the strength of its case on the balance of convenience may tilt the balance in favour of granting the relief and the opposite situation also applies.[1]

84. Most applications, and this case is no exception, are heard on affidavit material, untested in any way. The court is not in a position to resolve disputed questions of fact and often time constraints make it difficult for the court to resolve complex and difficult questions of law. However, the court should, where possible, make an attempt to form some view of the strength of the plaintiff's case. That, of course, is not an invitation to the court to speculate but in some cases it is possible to make some assessment of the strength or otherwise of the competing cases.

87. In the case before me there is a clear factual dispute as to the circumstances in which the plaintiff "took security" over Mr Song's MP3 player. There is a clear factual dispute as to what took place outside the college premises on 1 September 2003. It will be for a criminal court to decide some of those issues and it would be inappropriate for me to express any view of those matters upon the untested affidavit before me, other than to observe that taking into account the observations of Ms Hansen, and the background of disputation between the plaintiff and Mr Song, there are some improbabilities about the plaintiff's assertion that he attempted to telephone Mr Song in the late afternoon of 1 September in order to advise him that he intended to, in effect, "let bygones be bygones" and that soon thereafter Mr Song offered to buy him and his friends dinner.

90. With regard to the plaintiff's claim to be entitled to rely upon an implied term of the agreement that the college shall not suspend the plaintiff "without any unfounded or substantiated ground", Mr Booth of counsel who appears for the college submits that there is no basis upon which a term may be implied to the effect that the laying of criminal charges against a student , in the circumstances of this case, should not result in suspension.

93. It is submitted by him that to do so would contradict an express term of the contract between the parties.

97. There is evidence before me that the plaintiff signed a contract of enrolment on 3 December 2002 whereby he agreed that he understood and agreed to be bound by the terms and conditions as stated in the document and he agreed that on acceptance of the application by the college the application for admission form would become the contract of enrolment. The contract of enrolment includes a term as follows:

"I agree that I am required to use my best endeavours to meet the requirements of the College program selected and to abide by the rules and regulations of the College. I understand that if I breach any of the College's rules or my behaviour is deemed unacceptable by the College, my enrolment may be cancelled and I may not be entitled to any refund of tuition fees or other charges paid to the College under the Contract."

101. A code of conduct is reproduced in the student diary which is given to all students upon arrival at the College and the evidence is that one was given to the plaintiff in this case. The code of conduct states that:

"(i) we expect students to ... behave in a reasonable manner"

(i) show courtesy and be considerate and cooperative with staff and other students

(iv) respect the authority of staff and follow their directions."

110. The diary states the consequences of breaching any such code of conduct as follows:

"If you breach any of the College's rules or your behaviour is deemed unacceptable your enrolment may be cancelled and you will not be entitled to any refund of the annual tuition fee or other charges paid to the school under the contract of enrolment."

114. The goals of the college are said to be achieved through a variety of policies, programs and services including a "bullying policy". The bullying policy states that:

"Every student at Taylors College has the right to experience positive and respectful relationships with all members of the school community. Our codes of conduct require students and staff to show courtesy consideration and respect to each other. Bullying behaviour is not acceptable at Taylors College."

118. On this basis the college submits that the contract of enrolment contains express terms that it may cancel enrolment in the event that the college's rules are breached or behaviour of any student is unacceptable. It submits that the plaintiff has breached its rules and behaved unacceptably and it is thereby entitled, under the terms of the contract, to suspend him.

121. As to the claim by the plaintiff that there was an implied term that suspension would not occur without the plaintiff being first given "an opportunity to show cause", the college submits that such a term should not be implied. It relies upon the nature of the charges made by police and contends that in circumstances where the charges relate to a fellow student involving activity on or near to its premises, the granting of an opportunity to show cause may well render the college liable for breach of its duty of care to other students. The college, it is submitted, has an obligation to ensure the safety of other students.

124. In my view the position of the college in relation to the claim of the plaintiff that there were implied terms of the enrolment agreement which were breached by the college is a position of some strength.

128. However, Mr Corrigan further submits that the plaintiff was not accorded natural justice by the college in suspending him without giving him the opportunity to "show cause". The college does not concede that it has any obligation of natural justice in circumstances such as these. There are obvious difficulties in determining whether the college should have had some hearing process in circumstances where criminal charges had been laid by police against one of its students. The plaintiff, of course, would be able to rely upon his right to silence and perhaps even obtain a stay of such process pending a resolution of his criminal proceeding. The practicable utility of such a process would be limited.

131. In the course of the proceedings I asked Mr Corrigan of counsel, who appeared for the plaintiff, to articulate what he submitted should have been done by way of enabling the plaintiff to show cause as to why he should not be suspended. Apart from submitting that the college should not have accepted the version of Mr Song in preference to that of the plaintiff, and that the plaintiff was entitled to be heard, Mr Corrigan was unable to submit what process should have been implemented in all the circumstances. It is, in my view, overstating the case to say that the college accepted the version of Mr Song in preference to that of the plaintiff without any foundation. Ms Patterson had the evidence of the discussions had between Ms Hammersley, the police and the plaintiff on 29 August before her. She had before her the evidence of the security officer, Ms Hansun, which in many ways corroborates the evidence of Mr Song, and she had before her the fact that the Victoria Police Asian Squad were actually at the scene and intervened in the events which were taking place in the street outside the college on 1 September. Furthermore, of course, she had the evidence that the police had, on the evidence before them, seen fit on 2 September 2003 to lay serious charges against the plaintiff and others. In my view, there was ample material before Ms Patterson sufficient, at the least, to cause her serious concern as to whether the continued attendance of the plaintiff at the college was consistent with the maintenance of good order there.

134. In all the circumstances, I consider that there is considerable doubt as to whether the plaintiff has demonstrated that he has a legal right which has been infringed by the defendant. Furthermore, there are grave doubts in my mind as to whether a school principal is required to act in a quasi-judicial capacity and has to apply "rules of natural justice" in circumstances such as these. Blackburn J in Seymour v Swift[2] said in the circumstances of that case -

"There is no rule or principle of law, in my opinion, from which it could possibly be made out that the headmistress of a private school has to act in a quasi-judicial, or acts in a quasi-judicial capacity, and therefore has to apply rules of natural justice."

138. My opinion is that a similar approach in the circumstances of this case is applicable. It is, of course, necessary that the school or college act reasonably. Whether that goes so far as to require compliance with the rules of natural justice in circumstances where an exigency, such as in this case, faces a principal in the conduct of a large school is another matter altogether. On the other hand, Starke J in Dage v Baptist Union[3] considered several English authorities[4] to the contrary view, and formed the opinion (in circumstances that differ somewhat from the case before me) that the matter was far from free of doubt.

142. In such circumstances, I accept that the question of whether a student is entitled to rely on the principles of natural justice or procedural fairness, to challenge a decision to suspend or expel him or her from a school, is not the subject of clear and consistent authority in Australia.

146. However, even assuming on the most favourable view to the plaintiff that a serious issue does exist to be tried and accepting as I do, that damages would not be an adequate remedy for the plaintiff, it appears to me that the balance of convenience does not lie in favour of the plaintiff. True it is that the opportunity to sit his VCE examinations is of paramount importance to him. Further, I readily accept that a restriction on attending lectures will be at the least, significantly inconvenient to the plaintiff.

149. However, that said, the college has commenced taping the plaintiff's lectures in all subjects and has undertaken to do so for the rest of the year in the event that the court does not order the plaintiff's reinstatement to the college. Term 3 finishes next week. This is followed by a two week term break and a further three weeks of term 4 before the commencement of a one week exam preparation. The period between now and examinations is spent mainly on revision. The college has agreed to arrange for the plaintiff to complete school assessed course work under supervised conditions, but not within the general college population. The same arrangements will be made by the college to enable the plaintiff to sit for his final examinations. There is no remaining practical work to be completed in any of his subjects. It should be noted that the plaintiff has not attended tutorials thus far in the academic year which tutorials have been held at least three times per subject per week. The loss of this opportunity does not appear to be of great significance to him. Taylors College will make copies of the trial and examination papers and solutions in each subject available to him to work at home. Furthermore, and although the plaintiff has not availed himself thus far of the opportunity to seek feedback from teaching staff during the year, the college has undertaken to make arrangements for him to access staff at the college by e-mail from home. To the extent that school counselling regarding university entrance requirements is needed by the plaintiff, the college is prepared to provide that by telephone. In the event that the plaintiff is unsuccessful in his VCE examinations which the defendant appears to think is likely judging by his performance to date, he will still be able to enrol in a university foundation program in Australia next year.

152. In this regard it should be noted that the concern raised by the plaintiff in paragraph 19 of his further affidavit dated 9 September 2003, that he will not have completed 50 hours of class time if he is suspended has no basis. The college has undertaken not to assign a fail (or an N) under clause 7.3.5 of the Victoria Curriculum Assessment Authority rules in the event that the plaintiff sits the examinations. If he sits the examinations the college will award him S (or satisfactory) for his attendance in all the circumstances. Furthermore, the effect of any suspension in relation to migration requirements relied upon by the plaintiff is entirely speculative in my view.

155. On the other hand, the return of the plaintiff to the premises may have significant consequences for the college. I accept that his return to the college would undermine the authority of the college. The nature of the charges which have been laid against the plaintiff, particularly in circumstances where the college and police have previously told the plaintiff to leave any issue between Mr Song and himself to the police, is properly of significant concern to the college. I accept that this is an important matter given the significant number of students at the college who are under 18 years. I accept that if the plaintiff were permitted to attend Taylors College he would be in classes in the same building and possibly on the same floors as the alleged victim and certainly in common areas where separation of the plaintiff, his friends and Mr Song would be virtually impossible. Furthermore, the evidence is sufficient for me to accept, on the probabilities, that the alleged victim is in fear of the plaintiff.

158. In addition, it is not without significance in terms of the exercise of discretion, that the performance of the plaintiff as a student, has left something to be desired, particularly in circumstances where he claims before this court a right to attend classes, tutorials and to have access to the availability of college premises such as the library. The evidence before me is that he has not attended a tutorial or borrowed a book from the library this year.

161. Finally, whilst it is true that the plaintiff remains innocent until proven guilty of the criminal charges, the fact is that the activities with which he is charged relate to a fellow student, and are related in a geographical and contextual sense to the college premises and its operations. The college, through Ms Hammersley, reinforced the advice of the Victoria Police Asian Squad given to the plaintiff on 29 August 2003 to leave any issue between Mr Song and the plaintiff to police. However, on his own evidence, the plaintiff states that he telephoned Mr Song on 1 September 2003. On the plaintiff's own evidence, the plaintiff and a group of at least four others met up with Mr Song outside the main entrance to Taylors College and accompanied him to an ATM where on the plaintiff's own evidence the Asian Squad intervened immediately after others in the plaintiff's company assaulted Mr Song. In terms of balance of convenience it appears to me that the duty of the college to maintain order in and around its premises is a significant matter in all the circumstances in this case. Taking into account the fact that the college is prepared to assist the plaintiff with preparation for his VCE examination, to provide tapes of lectures for him, and to provide e-mail and telephone assistance to him, the balance of convenience does not, in my view, favour the plaintiff.

164. The plaintiff's summons is accordingly dismissed.

168. The college seeks an order for costs. The plaintiff submits that his costs of 9 September 2003 should be paid by the college.

171. When this matter came before me on Friday 5 September 2003 I ordered that the matter be adjourned to 2.15 p.m. on Tuesday 9 September 2003. I ordered that the college serve any affidavits upon which it wished to rely by 2.00 p.m. on Monday 8 September and the plaintiff serve any affidavit in response before 1.00 p.m. on Tuesday 9 September 2003. This tight time frame was designed by me to assist the plaintiff in the matter being heard and determined as soon as possible. In the event, three affidavits sworn on behalf of the college were faxed to the plaintiff's solicitors at 2.15 p.m. on Monday 8 September 2003 and forwarded by courier shortly thereafter. Further affidavits were forwarded to them by courier later in the afternoon at 5.15 p.m. An affidavit of Song Ke was faxed the next day. When the matter came on for hearing before me at 2.15 p.m on Tuesday 9 September. the plaintiff's counsel sought an adjournment until the next day to enable the preparation of a further affidavit in response. The plaintiff submits that the failure of the defendant to comply with the service time of 2.00 p.m. on 8 September which had been ordered by me entitles him to the costs of the adjournment. Having read the affidavits which were filed on behalf of the college I am satisfied that every endeavour was made to comply with the timetable set by me in the plaintiff's interests and which timetable in all the circumstances, and with the benefit of hindsight, was perhaps too ambitious.

174. The plaintiff did not seek an adjournment by consent of the defendant on the morning of 9 September but rather appeared at 2.15 p.m. seeking an adjournment before me. In all the circumstances, I consider that the costs of the hearing on 9 September should fall where they lie and each party should pay its own costs of that day. Otherwise, the defendant's costs of the plaintiff's summons should be paid by the plaintiff.

[1] Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd [1979] VicRp 13; (1979) VR 107 at 110 per Lush J, quoted with approval by the Full Court in Magna Alloys and Research Pty Ltd v Coffey [1981] VicRp 3; (1981) VR 23 at 28.

[3] [1985] VicRp 23; [1985] VR 270.

[4] Hutt v The Governors of Haileybury College (1887) 4 TLR 623; Fitzgerald v Northcote [1865] EngR 16; (1865) 4 F&F 656; 176 ER 734; and Wood v Prestwych (1911) 104 LT 388; 27 TLR 268.