The ACL pleas
43 Paragraphs 37 to 44 of the amended statement of claim alleged that St Joseph's had contravened ss 29(1)(b), 34 and 60 of the ACL. Again, the passages are lengthy but, again, there is merit in setting them out:
37 The Respondent is a supplier of educational and other services within the meaning of the Competition and Consumer Act 2010, Schedule 2, Chapter 1 (2)(1) ("the Consumer Act") and engages in trade or commerce within the meaning of Schedule 2 Chapter 1 (2)(1).
Particulars
In relation to engaging in "trade or commerce", the Applicants rely upon:
37.1 the definition of such terms in the Consumer Act being "trade or commerce within Australia or between Australia and places outside Australia" s4; and
37.2 the dictionary definition of the term "trade" and "commerce", both being the buying and/or selling of services.
38 The Respondent received monies from the First Applicant, a parent of the Second and Third Applicants, who were consumers within the meaning of the Consumer Act within the meaning of Schedule 2 Chapter 1 (3)(1), to provide educational services for the Second and Third Applicants.
39 The Respondent made numerous false and misleading representations in trade/commerce, as set out in paragraph 41 hereof, that its services were of a particular standard, quality, value and grade, in breach of s.29(1)(b) of Schedule 2 of the Consumer Act.
40 Alternatively, each of the representations constituted conduct that is liable to mislead the public as to the nature, the characteristics, and the suitability for their purpose being provided through trade/commerce, in breach of s.34 of Schedule 2 of the Consumer Act. Such misleading representations included that the Respondent:
40.1 works collaboratively with parents, students and other community members to ensure a safe school environment;
40.2 personalises learning through the development of SMART goals for each child based on their developmental needs and interests, through the Program Support Group;
40.3 builds a positive learning community where students feel valued and respected;
40.4 plans reasonable adjustments for the student to access the curriculum;
40.5 monitors and evaluates the progress of the student;
40.6 holds the care, safety and wellbeing of children and young people as a central and fundamental responsibility of the school;
40.7 acts in a partnership with parents where both parties seek to achieve a common goal;
40.8 views the role parents play in their child's schooling as vital to their school's mission to educate each child;
40.9 undertakes honest, open and regular communication with parents;
40.10 is committed to nurturing respectful relationships and active partnerships with parents;
40.11 communicates with parents regularly regarding their child's learning, development and wellbeing;
40.12 relates with and responds to parents in a respectful and professional manner;
40.13 ensures a timely response to any concerns raised by parents;
40.14 encourages parents to play an integral role in their children's education;
40.15 will always act to protect students from any kind of harm;
40.16 seeks to achieve academic development as an important component for students;
40.17 strive for resolutions and outcomes that are satisfactory to all parties;
40.18 provides a learning environment that promotes independence;
40.19 supports each child's social, emotional and intellectual growth in a caring yet stimulating environment;
40.20 provides an inclusive educational environment where every child feels important;
40.21 strives for the implementation of a curriculum that is student centred and personalised;
40.22 believes and therefore facilitates, the right of each child to learn and reach their full potential.
41 The misleading personal representations were made to Mrs Kerry Harvey:
41.1 in a meeting with then Principal of St Joseph's, Mr Martin Keogh, in or about October 2013 wherein Mr Keogh asserted that;
41.1.1 staff at St Joseph's would constructively communicate with Max's practitioners in order to obtain the best outcomes for Max;
41.1.2 staff at St Joseph's would constructively communicate with Mrs Harvey in order to obtain the best outcomes for Max;
41.1.3 staff at St Joseph's had the expertise to provide the special interventions that would be required to meet Max's individual needs and effectively educate him.
41.2 in a meeting on or around 22 November 2018, wherein Mr Martin Keogh asserted that:
41.2.1 Max would require a very structured learning pattern which they would provide; and
41.2.2 the school was planning on providing an evidence-based SRA program named Word Attack.
42 The misleading public representations were made throughout 2014 and 2018 to Max's family through the following means, Mrs Harvey being directed to the general policies by email from Principal Mr Ronan O'Mahony dated 9 July 2016, and accessing others independently at dates that cannot be recalled:
42.1 The St Joseph's School Website including in the sections entitled:
42.1.1 Overview of Teaching and Learning;
42.1.2 Administrative Information;
42.1.3 Parent School Relationships Code of Conduct;
42.1.4 Annual Report 2016 in the School Overview and Principals Report.
42.2 The Catholic Education Commission of Victoria Program Support Group Meeting Guidelines in the Introduction, Aims, Role And Responsibilities, Practices and Processes sections.
42.3 The Effective Practices Framework for Learning Support Officers first published in 2012 and updated in 2014 Catholic Education Commission of Victoria:
42.3.1 Pages 22, 22, 23, 24 in relation to ensuring outcomes are measurable;
42.3.2 Pages iii, 2, 4, 5, 9, 10, 12, 13, 17, 25 in relation to the importance of using evidence and research in relation to the provision of education;
42.3.3 Pages 8, 9,22 and 24 in relation to the importance of fidelity when it comes to educational practices;
42.3.4 Pages 2, 4, 6, 9,11, 13, 19, 21, 22, 24, 33 in relation to the importance of monitoring and evaluation in relation to education;
42.3.5 Pages p 2, 4, 6, 14, 15, 19, 20, 21, 22 in relation to the importance of education plans.
42.4 The Whole School Approaches to Supporting Positive Student Behaviour publication published in 2016:
42.4.1 Pages 8 and 10 in relation to ensuring outcomes are measurable;
42.4.2 Pages 7 and 8 in relation to the importance of monitoring and evaluation in relation to education;
42.4.3 Pages 2, 3, 4, 6, 8 and 9 in relation to the importance of using evidence and research in relation to the provision of education;
42.4.4 Pages 1, 7 and 9 in relation to the importance of education plans.
42.5 The CECV Intervention Framework 2015:
42.5.1 Page i stating that learning and teaching inclusive of all;
42.5.2 Page 1 in terms of the commitment to provide an effective education for all students and welcoming environments for families;
42.5.3 Pages 12, 13, 21, 22 and 23 in relation to ensuring outcomes and measurable;
42.5.4 Pages 12, 21 and 23 in relation to the importance of fidelity in education;
42.5.5 Pages 2, 4, 6, 8, 9, 12, 18, 13, 19, 20, 21, 23 and 27 in relation to the importance of evaluation and monitoring in education;
42.5.6 Pages i, 2, 3, 5, 7, 12 and 24 in relation to the importance of using evidence and research in relation to the provision of education;
42.5.7 Pages 2, 4, 9, 13, 17, 18, 19, 20, 21 and 24 in relation to the importance of education plans.
42.6 In the Parent Handbook for Primary Schools on the Catholic Education Commission of Victoria website:
42.6.1 in the Welcome section claiming that Catholic schools encourage parents to be involved in their child's learning;
42.6.2 in the Welcome section, implying that working together with parents, and timely communication are priorities;
42.6.3 in the Transition section stating that teachers and leaders aims to create safe and supportive environment for children;
42.6.4 in the Your Child's Learning section, claiming that high standards are maximised in all areas of the curriculum, particularly in literacy and numeracy;
42.6.5 in the Your Child's Learning section claiming that primary schools provide an environment which encourage children to be confident and excited about learning from the start of school life;
42.6.6 in the Your Child's Learning section claiming that teachers design learning experiences that are responsive to the different ways in which students achieve their best;
42.6.7 in the section on Additional Learning Needs, in relation to the importance of monitoring and evaluation;
42.6.8 in the Our Primary School Curriculum section which states that the curriculum is designed to prepare students to be lifelong learners;
42.6.9 in the English and Literacy section where claims that primary schools devote a high level of resources to literacy programs to improve learning, and monitor literacy achievement;
42.6.10 in the Mathematics section where it is claimed that primary schools developed numeracy capabilities that all students need in their personal and work lives;
42.6.11 in the Specialised Therapy in Schools section where it states that primary schools work in collaboration with specialised organisations in developing learning programs for students with special needs and these are tailored to meet the requirements of the St Joseph's School newsletter April 2018 which stated that " "The respectful individual student.
42.7 working relationship between the school staff and parents is another partnership that helps develop opportunities for our students, and it is a pleasure to observe the respectful interaction between staff and the parents of our students."
43 The representations misled the public because they were wrong.
43.1 The Program Support Group Guidelines are not followed by St Joseph's.
43.1.1 St Joseph's did not work in partnership or collaboration with Mrs Harvey to provide an excellent education and achieve positive outcomes for Max and Jack as set out in paragraphs 36.1 and 36.2;
43.1.2 there was no Program Support Group established for Jack;
43.1.3 there were no educational plans with SMART goals, that were monitored and evaluated for Max and Jack;
43.1.4 the most appropriate educational planning and reasonable adjustments were not provided to Max or Jack as set out in the First Allegation;
43.1.5 the relevant teachers for Max and Jack in each year the subject of the complaint did not provide evidence-based information regarding Max and Jack's progress to assist in evaluating the goals and adjustments;
43.1.6 sufficient time was not allowed to discuss the difficulties Max and Jack were having as Program Support Group meetings (to the extent they were provided) were limited to 20-30 minutes.
43.2 St Joseph's staff did not work collaboratively or positively with parents as set out in paragraphs 36.1 and 36.2;
43.3 St Joseph's did not provide a safe environment as evidenced by the deterioration in Max's mental health whilst attending referred to in paragraph 18 (h);
43.4 Mrs Harvey was not valued or respected and refers to paragraphs 36.1 and 36.2.
43.5 Max and Jack were not valued or respected as evidenced by the lack of concern expressed by St Joseph's staff of the ongoing difficulties they were experiencing at St Joseph's;
43.6 St Joseph's staff did not provide timely responses to Mrs Harvey as set out in paragraphs 36.1 and 36.2.
43.7 Max and Jack:
43.7.1 did not reach their academic potential;
Particulars
The Applicant will rely on the gains they have made since leaving St Joseph's.
43.7.2 found their school experiences distressing and anxiety provoking as set out in paragraph 18(h);
43.7.3 were not assisted to overcome their literacy and numeracy delays as set out in paragraphs 14.2-14.8 and 16.2-16.4;
43.7.4 were not provided with the educational skills they required as evidenced in paragraphs 14.2-14.8 and 16.2-16.4;
43.7.5 left St Joseph's years behind their peers in areas of literacy and numeracy as evidenced in paragraphs 14.2-14.8 and 16.2-16.4;
43.7.6 did not receive evidence based programs based on research applied with fidelity;
43.7.7 did not have data taken on their progress each term to allow monitoring and evaluation.
44 By reason of the foregoing, including the matters set out in the First to the Third Allegations hereof, the Respondent failed to render the services with due care and skill in breach of s.60 of Schedule 2 of the Consumer Act.
Particulars
The services would have been rendered with care and skill had Max and Jack's education received the benefits of the representations made by the Respondent as set out in paragraph 40 hereof.
44 Those paragraphs are self-evidently immune to any prospect of precise (or even reasonable) comprehension. It is apparent that paragraph 41 of the amended statement of claim attests to conversations in which things are alleged to have been said. Those things are identified and, in the chapeau to that plea, are described as "[t]he misleading personal representations". That description appears to hark back to paragraph 39, which describes the representations made throughout those conversations as false and misleading (and, thereby, apt to attract liability as contravening s 29(1)(b) of the ACL). It seems that the same representations are the subject of paragraph 40, which purports to constitute them also as misleading in a way that attracts the operation of s 34 of the ACL; but that paragraph then goes on to identify 22 further characteristics that the "misleading representations" are said to have "included". It is anything but clear how those characteristics marry with what is said in paragraph 41. To complicate matters further, paragraph 42 seems to introduce additional means by which "[t]he misleading public representations" are said to have been made. In combination, the passages are (or appear very much to me to be) unintelligible.
45 Paragraph 44 of the amended statement of claim alleged that St Joseph's had contravened s 60 of the ACL (which creates a statutory guarantee of due care and skill in respect of the provision of services in trade or commerce). It alleges that St Joseph's failed to educate the second and third respondents with due care and skill. That was said to be so "[b]y reason of the foregoing". The particulars subjoined to that paragraph suggested that "due care and skill" required that the second and third respondents should have "received the benefits of the representations…set out in paragraph 40".
46 The learned primary judge made the following observations about those impugned passages (Primary Judgment, [35]-[43]):
The courts have said time and time again that allegations of misleading or deceptive conduct must clearly identify the conduct that is said to be misleading or deceptive. See, by way of example only, Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance (2010) 241 CLR 357 at [5]. And, along similar lines, the courts have said that "it is imperative that the factual basis upon which [such claims are] alleged … must be stated with appropriate clarity" because that is "a fundamental principle of pleading". See Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1 at 3.
In my view, the whole of the pleading with respect to the ACL allegations fails to plead the material facts necessary to constitute a cause of action and must therefore be struck out. Apart from anything else, nowhere does the pleading identify representations or explain why what is alleged was false or misleading.
Again, the applicants have been on notice about the respondent's insistence that this statutory cause of action is improperly pleaded for a considerable period of time, but has done nothing to rectify it.
Similar criticisms apply to paragraph 40 of the ASOC, which pleads 22 instances of alleged misleading representations said to contravene s 34 of the ACL (which provided "[a] person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services").
In his submissions on the previous application, the respondent's counsel asked the following rhetorical questions about those pleaded instances of misleading claims, being: where were they made? When? By whom? To whom? And so on. The solicitors for the respondent have renewed their request for such detail and their insistence that the existing allegation in paragraph 40 is defective, but again, without success.
As to paragraphs 42 and 43, again as counsel for the respondent submitted, they suffer from similar deficiencies, not the least of which is that they are unintelligible.
Paragraph 44 alleges breaches of s 60 of the ACL, which provided "[i]f a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill".
This pleading is self-evidently defective because, as the respondent submitted:
(a) it does not identify which part of the first to third allegations are relied on;
(b) it does not explain why any of the first to third allegations amounted to a failure to render services with due care and skill; and
(c) the words "[b]y reason of the foregoing, including the matters set out in the [f]irst to [t]hird [a]llegations" suggest the applicants rely on other allegations in addition to the first to third allegations, without identifying what these additional allegations may be.
Again, these defects have been repeatedly pointed out to the applicants' solicitors, to no avail.
47 The applicants do not seek leave to appeal the orders of the primary judge by which paragraphs 39 to 43 of the amended statement of claim were struck out. Nor did they intend to seek, if the matter was to proceed to appeal and they were successful, to resuscitate their allegations of breach of s 29(1)(b) or 34 of the ACL. Instead, they wish to pursue only their allegation that St Joseph's contravened s 60 of the ACL.
48 The applicants maintain that the criticisms that the primary judge levelled against paragraph 44 of the amended statement of claim were unwarranted. In their written submissions, that suggestion was made as follows:
With respect to the matters that his Honour raised at 42 and (b), the First to Third Allegations are that the Respondent imposed certain requirements or conditions on the relevant Applicants, with the effect that they were indirectly discriminated under the DD Act. The allegation was that failure to implement educational support programs or individual learning plans, and the insistence on open classroom teaching for students regardless of disability, was a failure to use due care and skill.
With respect the matter raised by his Honour at paragraph 42 the particulars to ASOC [44] resolved any doubt. The 'other allegations' are the failure to deliver on the representations in [40].
49 The applicants submit that the ACL passages that his Honour struck out were clear to a point sufficient to enable a response. They point out that the passages were the subject of correspondence sent to St Joseph's, the effect of which was to eliminate any want of clarity. They submit that his Honour was wrong to strike them out and, at the least, was wrong not to permit leave to re-plead. The preferred course, they say, was to permit them to expand upon the "germ of a case" that was, at the least, apparent.
50 With respect, those submissions do not persuasively identify any error on the part of the primary judge. Much less do they disclose discretionary error. The criticisms that his Honour catalogued (above, [46]) appear to have been open to be made; as was (for the reasons already addressed) the course that his Honour preferred in consequence of them. It is not apparent that his Honour applied any wrong principle, or failed to (or did) take account of anything that he ought (or, as the case may be, ought not) to have considered. I consider it unlikely that an appeal court would be drawn to conclude differently.
51 Further - and for reasons equivalent to those already canvassed - such prejudice as the applicants are likely to suffer if precluded from agitating this aspect of their case is insufficient, in the circumstances, to warrant the grant of leave that is sought.