LH v Al Faisal College Limited

Supreme Court of NSW|2022-10-18|Before: Henry J

JUDGMENT

These reasons deal with an application for interlocutory relief seeking to restrain a private school from enforcing a notice of termination of enrolment in relation to the plaintiff's son, with the intent of allowing the student to return to the school and complete Term 4 of the 2022 school year, pending the final determination of the proceedings on an expedited basis.
On 12 September 2022, and again on 16 September 2022, the plaintiff was notified by the defendant that, due to behavioural issues, her son would not be offered enrolment beyond the end of Term 3 and that his last day at the school would be 29 September 2022.
The student is a six-year-old boy who had been attending Year 1 at Al Faisal College, a private Islamic School in Sydney run by the defendant. In these reasons, I refer to the plaintiff as the "Mother", her son as the "Student" and the defendant as the "College".
The Mother claims to be entitled to interlocutory relief as she says that, in breach of contract, the College did not provide her with details of the conduct on which the decision to exclude the Student was to be made, nor a reasonable opportunity to respond, and that she is unable to arrange for the Student to attend an alternative Islamic private school for Term 4. In support of her application, the Mother relies on two affidavits she swore on 7 and 17 October 2022.
The College opposes the application. It says the Mother has not discharged her onus of establishing a prima facie case and the balance of convenience does not favour the grant of interlocutory relief. The College relies on affidavits from Mrs Nouha Ghannoum, the Deputy Principal of the College, affirmed on 14 October 2022, Miss Noreen Safdar, the Student's class teacher in 2022, sworn on 14 October 2022, Mrs Safia Khan Hassanein, the Executive Principal of the College, affirmed on 14 October 2022 and two affidavits from Mr Timothy Unsworth (the solicitor for the College in these proceedings) sworn on 11 and 17 October 2022.

Factual background and summary of evidence

The following is a summary of the factual matters based on the parties' affidavits and documents relied on, including a report extracted from the College's electronic management system, known as Sentral, relating to the Student's well-being and conduct during the period 24 February 2022 to 15 September 2022 (Sentral Report).
Mrs Ghannoum deposes that the Sentral Report includes records regarding the Student's behaviour that were entered into the Sentral system by herself, Miss Safdar (who also gives evidence that the Sentral Report contains notes that she typed into the system about events relating to the Student), Ms Emily O'Keeffe (the College Counsellor) and other teachers at the College, including Ms Patriciana Elizabeth (a classroom teacher), Mrs Nahla Al Atwi (an Arabic teacher) and Mrs Wissal Abdul Rahman Mawas (the Arabic coordinator).
The evidence relied on by the parties is, in some respects, conflicting. It is not possible to resolve the various disputed factual matters on this application. They will need to be tested and determined at a final hearing. The following identifies where the key facts contended for by the parties are in dispute. I note that the summary of events set out below is not a complete record of the incidents of behaviour involving the Student, as recorded in the Sentral Report during 2022. I have confined the history to the specific matters for which the Court's attention was drawn in submissions and during argument and that was the subject of the evidence.
The plaintiff and her husband have five children, including the Student. Two children (aged 15 years and 12 years) attend the College, one child (aged 14 years) attends a school for children with disabilities and the youngest (aged 4 years) attends an advanced early learning centre.
By letter dated 5 August 2020, the College accepted the Student into the Kindergarten class for 2021, the parents having submitted an Expression of Interest form on 19 June 2020. The offer of a place for the Student was subject to, amongst other things, completion of an official Enrolment Form and payment in advance of Term 1 fees, both of which were done. The 5 August 2020 letter relevantly provided: "Please note: • Students enrolled at [the College] and their parents are expected to abide by all school policies. A copy of all policies and terms and conditions can be found on our school website. The school reserves the right to offer your child's place to a child on the waiting list if you do not formally accept this offer by the due date. If you do not wish to accept this enrolment offer, it would be appreciated if you could notify the school. …"

Terms and Conditions of Enrolment

The official Enrolment Form for the Student, which is dated 21 August 2020, attaches Terms and Conditions of enrolment (Enrolment Terms). The Enrolment Terms relevantly provide: 3. Obligations of the student …. 3.2 Students are required to have high standards of behaviour and: (a) abide by the School Rules / Policies and Codes of Conduct; (b) behave courteously and considerately to each other and to staff at all times, …. 4. Obligations of parents 4.1 The Parents: a) must accept and abide by the requirements and directions of the School Board and the Executive Principal/Head of College relating to the student or students generally and not interfere in any way with conduct, management and administration of the school, b) are required to support the goals, values and activities of the school, and c) are both required to view the school's website on a regular basis and read the Newsletter. … 9. Probation of Enrolment, Exclusion, Suspension or Termination of Enrolment 9.1 The School may place a student on Probation Enrolment or exclude a student, either temporarily or permanently at any time for reasons which may include, but are not limited to: a) a serious breach of the School's rules or Code of Conduct b) conduct prejudicial to the reputation of the School or the well-being of its students or staff, and; c) where the Executive Principal/Head of College or School Board believes that a mutually beneficial relationship of co-operation and trust between the School and the Parents has broken. down to the extent that it adversely impacts on that relationship. 9.2 The School will only exercise its powers under this clause to exclude a student permanently if it has provided the student and the parents or guardians of the student with details of the conduct which may result in a decision to exclude the student and provided them with a reasonable opportunity to respond. …

College Policies

At the time of signing the official Enrolment Form, it was the College's usual practice to direct parents to the College's website to review materials, including its Policies and Codes of Conduct.
Relevantly, the College had a Behaviour Management Policy (BMP) and a Grievance Policy and Procedures (Grievance Policy) in place.
The BMP (as at January 2022) provides, amongst other things: 1. Clause 2.1(7) which stipulates: Procedural Fairness: The College will implement Procedural fairness when investigating allegations in accordance to the 'hearing rule' and the right of the student to have 'an unbiased decision'. Where the offending behaviour is of such a nature that it may result in probation / suspension or expulsion, the student will be: - informed of the alleged infringement and any other information that will be taken into consideration in reaching a decision - informed as to who will make the decision on the penalty - informed of the procedures to be followed which will include an opportunity to respond to the allegations - afforded a right of appeal In all such cases, the school will endeavour to act impartially and without bias in reaching an "unbiased decision". 1. Clause 3.1, which sets out a flow chart for disciplinary action which requires there to be a meeting with parents, followed by counselling, probation, the provision of an individual behavioural support plan, suspension, and then expulsion. Clause 3.1 also includes the following stipulation: "If a student commits a particularly serious offence, he/she can be suspended or expelled from school immediately at the discretion of the Executive Principle of the Executive Principal's delegate without going through the above process." 1. Clause 4.4, which states the following: Students will be given every opportunity to meet school expectations and behave in a correct and appropriate manner according to school policies. At every stage they will be counselled by teachers, Grade Coordinators (primary), Deputy Principal (primary), Welfare Advisors (secondary) and the Head of Welfare (secondary). Expulsion from the school is undertaken in accordance with the Management and Discipline Procedures outlined in this document. Students may only be expelled by the Executive Principal or the Executive Principal's delegate. When expulsion is being considered students will be informed of alleged infringements and be given the right to respond. Students expelled by the Executive Principal have the right of appeal to the School Board or their delegate. Once expelled, a student is no longer a member of the of the College community and cannot be re-enrolled at a future date. The decision made by the Executive Principal will be final.
The Grievance Policy (as at January 2022) relevantly provides that: 1. the College will strive to address complaints with Procedural Fairness (cl 6), as defined by reference to the NSW Education Teaching Standards and described as the "hearing rule", and the "right to an unbiased decision", consistent with cl 2.1(7) of the BMP; and 2. the Grievance Procedure will consist of a six-step process that will involve at stage one, the acknowledgement and assessment of the grievance (complaint); at stage two, an informal discussion; at stage three, a formal complaint (escalation of informal discussion); at stage four, a mediation; at stage five, an arbitration; and at stage six, an appeal.

Events in 2022

On 28 January 2022, the Student commenced year 1, having completed kindergarten in 2021.
The Sentral Report records that on 8, 10 and 17 March 2022, the Student engaged in disruptive behaviour in class and refused to listen to the teacher, which led to Ms O'Keeffe spending time with the Student on 17 March 2022.
Miss Safdar deposes (and the Sentral Report records) that on 17 March 2022, Miss Safdar called the Mother to organise a meeting to discuss the Student's behaviour that day and was told by the Mother that she was not available to come in and meet Miss Safdar. The Mother disputes that she or her husband were called for a parent-teacher meeting on this occasion.
The Sentral Report records that: 1. on 22 March 2022, the Student was disruptive in class, had thrown objects around the room, had run out of the classroom and Ms O'Keeffe was called to settle him; 2. also on 22 March 2022, the Student pushed another child to the ground and pulled that child's tie off him, stepped on the child's work and ripped out a page of the child's workbook. The Mother says that prior to these proceedings, she was not notified that the Student had pushed another child to the ground on 22 March 2022; and 3. on 30 March 2022, the Student ran out of the classroom and resisted coming back in at first, but returned to the classroom when Miss Safdar told him to; and 4. on 31 March 2022, Ms O'Keeffe spoke with the Mother and informed her that the Student was to be issued with an after-school detention the next day. According to the Sentral Report (which the Mother's evidence does not dispute), the Mother indicated that they were "busy" and Ms O'Keeffe advised that the detention may need to be made up at a later date.
Mrs Ghannoum gives evidence that, on 31 March 2022, she was advised of an incident involving the Student and another child who ran out of the classroom without permission and that after school detentions were issued to both students on 1 April 2022 (to be completed on 5 April 2022.
Mrs Ghannoum says (and the Sentral Report records) that on 1 April 2022, she was called to the Student's class as he had run out of the classroom, that Miss Safdar had to leave the room to collect him and when he came back in he refused to complete his work and was distracting others. Mrs Ghannoum deposes that the Mother was asked to come and collect the Student from school and, when she did, that Mrs Ghannoum and Miss Safdar had a discussion with her during which the Mother was advised that the Student had been very disruptive in class, refusing to follow instructions and ran out of the classroom which is a safety concern. Ms Ghannoum deposes that the Mother said that the Student did not show this behaviour at home or at Arabic school, that Ms O'Keeffe indicated that she was focusing on strategies to support the Student, which included checking in with him and using regulation techniques to track his mood in class, and it was recommended to the Mother that she discuss the Student's behaviours with her GP or external psychologist to rule out medical/emotional factors that may be impacting the Student's progress. Mrs Ghannoum also deposes that the Mother was advised that the Student needed to be taken home that day and that his detention would be put on hold.
On or about 1 April 2022, Ms O'Keeffe prepared an Individual Learning Plan (ILP) for the Student in consultation with Mrs Ghannoum and Miss Safdar. The ILP records the "Barriers" in relation to the Student as including defiant behaviour in class, not following instructions, distracting or interfering with other students, leaving the classroom without permission/accompaniment, regulation and impulse control, that the Student can be rough in the playground and not reading other student's reactions. The ILP notes that the Student is "struggling in the classroom beyond strategies Ms Safdar can implement at the time". In a section marked "For school use only", a box marked "Social/Emotional" is filled in under a heading "Category of Disability". The Mother says she was not notified about an ILP for the Student nor is she aware of what it is. She also says that it was of concern to her that the school had categorised the Student's behaviour to be attributed to a social/emotional disability as it was never raised with her and she would have immediately sought professional advice on ways to support the Student.
According to the Sentral report, on 4 and 5 April 2022, the Mother spoke to Ms O'Keeffe to check the Student's progress following the meeting on 1 April 2022.
The Sentral Report records that the Student was asked to leave school early on 2 June 2022 and was suspended on 3 June 2022.
Mrs Ghannoum deposes that the class roll indicates that the Student was sent home on 1 June and suspended on 2 June 2022. Mrs Ghannoum explains that she was called to the Student's class following an incident in which it was reported that the Student had refused to follow instructions, was running with scissors, threw the scissors and then left the classroom. According to Mrs Ghannoum's evidence, when she arrived the Student was on the floor, ran behind a chair, refused to come with her after being presented with options, after they left together he ran away from her (shouting he was going back to the classroom) and, after further refusing to leave, he agreed to leave and return to her office but tried to pull away and was upset.
Mrs Ghannoum gives evidence that the Mother was called to come and collect the Student from school, when she arrived the Student had settled down, and she and the Mother had a discussion during which the Mother was advised that there had been a few incidents with the Student where he was refusing to follow instructions and do his work, that he disrupts other students or grabs their things and runs out of the classroom and that, the day before, he had refused to complete his work and became very disruptive. Mrs Ghannoum says that the Mother was told that the main concern was that the Student had grabbed a pair of scissors and ran out of the classroom, threw them after being asked to return them and then grabbed them again and ran to the playground, which raised a concern for his safety and the safety of others and, after the Mother said that "nobody got hurt", Mrs Ghannoum informed the Mother that the College will not wait for someone to get hurt and they needed to be proactive. Mrs Ghannoum also deposes that the Mother was advised that the Student had refused to come with Mrs Ghannoum when she came to the class and ran away screaming, and while he had now settled, he could not continue at school that day and needed to kept home the next day, which amounted to a verbal suspension and the College would need to complete a risk assessment before the Student could return to class and they would call to organise a meeting when the risk assessment was completed.
In her first affidavit, the Mother deposes that a discussion took place regarding the Student running around with scissors during a telephone call on or about 22 July 2022.
On 1 June 2022, Ms O'Keeffe prepared a risk assessment in relation to the Student's behaviour. The risk assessment identifies a risk as running away from staff, which was rated as catastrophic and potentially life threatening if the Student went missing within school grounds, unsupervised and because he had the potential to run off. The other risk identified was the Student not listening to instructions, which was rated as a minor risk or degree of physical harm which was very likely if he did not listen to instructions.
Mrs Ghannoum deposes that on 3 June 2022, the College arranged a meeting with the Mother on 6 June 2022 to discuss the Student's return to school and risk assessment plan.
On 6 June 2022, the Mother attended a meeting with Mrs Ghannoum and Ms O'Keeffe. There is a conflict on the evidence as to whether the meeting occurred on 6 or 7 June, whether the Student's father was present at the meeting and what was said.
The Mother says that she attended a meeting at the request of the College with her husband on 7 June 2022, they met with Mrs Ghannoum and received a "Probationary Enrolment Notice" in relation to the Student (described at [34] below). According to the Mother, Mrs Ghannoum said that the meeting was called to discuss the Student's behaviour in class, noting that he had walked out of class and been disruptive, because of that, the College had decided to put him on Probation, and if he does anything else, "we will expel him". The Mother says she took issue with the prospect of the Student being expelled for walking out of class and being disruptive as he was six-years-old, responded that it was unfair, and asked for the Student to be given the "opportunity to transition to … school". She says that Mrs Ghannoum said that the decision was final and was told to speak to the Student about the Probationary Enrolment Notice and the Mother asked if there was school counsellor that could assist with the Student. According to the Mother, no school counsellor contacted her to discuss the Student's enrolment or behaviour. As noted above, Ms O'Keeffe is the College Counsellor.
According to Mrs Ghannoum, the Mother (and not the father) was present at the meeting. She says that the only occasion she met with the father was on 4 August 2022. Mrs Ghannoum says that, at the meeting, the Mother was advised that a risk assessment had needed to be developed to support the Student and ensure his safety and the safety of others at school, that Ms O'Keeffe would be working with the Student to manage behaviour, the College was trying to focus on his positive behaviour so minor incidents would not be reported, however, unsafe behaviour will result in either after school detention or suspension, depending on the incident. Mrs Ghannoum deposes that the Mother was advised that due to the Student's continuous disruption to his and other's learning and his unsafe behaviour, the Student was to be placed on probation for the remainder of the year, to which the Mother asked what probation meant, and that it was explained to her that the Student's behaviour would be monitored and if there is no improvement, it will lead to further consequences as they discussed.
Mrs Ghannoum deposes that at the end of the meeting, the Mother was handed a letter from the College dated 6 June 2022 (and signed by Mrs Ghannoum), that was titled "Probationary Enrolment Notice" (Probationary Enrolment Notice) which states: "Due to [the Student's] academic behaviour so far this year, he will be placed on probationary enrolment during the 2022 academic year. As a result, his continued enrolment in 2022 and his progression to next year are not guaranteed. [The Student's] place at the school will be dependent on his behaviour and application to his studies during the probationary period. The following criteria will be taken into consideration at the end of the semester: Must display thoughtful, courteous and respectful behaviour towards teachers and fellow students at all times. Must abide by College regulations and expectations concerning behaviour, attendance and academic progress. Must complete all classwork, assignments and other homework as well as attaining a satisfactory level in tests, assessment and examinations. If [Student] does not meet any of the above mentioned criteria during the probation period, his continued enrolment at [the College] will be placed under review.
Mrs Ghannoum gives evidence (and the Sentral Report records), that on 9 June 2022, there was an incident at the College about which it was alleged that the Student had hurt other students, and that when the Student was asked about it, he said that the girl was hitting him. Mrs Ghannoum deposes that she checked the CCTV footage, confirmed that the Student had jumped on another student and as another student was going past, the Student tackled him to the ground and punched him in the nose (his nose began to bleed) and threw the boy's bottle away. On 10 June 2022, a detention notice was issued to the Student for "Unsafe behaviour in the playground: hitting, punching other students", with a detention date of 14 June 2022. According to Mrs Ghannoum's evidence, the Student did not attend the 14 June detention.
The Mother says that she does not recall receiving the 10 June detention notice nor was she aware of the grounds which gave rise to it. She also gives evidence that, in or about 9 June 2022, she contacted the College Counsellor (without identifying who) to discuss the Student's behaviour and was advised that the Student was a very intelligent young boy and that all she needed to do was to speak to him nicely.
The Sentral Report records that, on 15 June, the Student refused to go to class, was disruptive to the students, ran out of the classroom and Mrs Ghannoum had to be called and had to take him out of class.
Mrs Ghannoum gives evidence that on 15 June 2022, she attended the classroom and called the Mother to inform her of the incidents that had occurred that week, which included the Student refusing to follow instructions, refusing to go to maths group, not completing work, grabbing another student's item, running out of the room, and the detention the day before for unsafe behaviour in the playground that he failed to attend. Mrs Ghannoum says that she told the Mother the following: that the Student could make up the detention the following week, failing which it may lead to suspension; the Student was on probation; while he was making some progress, unsafe behaviour would not be tolerated; and if his behaviour did not improve, it would lead to a contravention of probation. The Mother does not dispute this evidence.
Miss Safdar deposes (and the Sentral Report records) that, on 16 June 2022, she called the Mother and told her that the Student was not completing his work, was not listening to teacher instructions and was disrupting other students. According to Miss Safdar, the Mother put her husband on the phone who advised Miss Safdar to be responsible for dealing with what happens and also indicated that they did not know why it was happening as they had two other children at the school about which they had never had complaints. Miss Safdar deposes that she responded that not all children were the same, noting that the College had a strong academic focus, and that their other children might thrive in the environment but for the Student it could be challenging.
On or about 22 July 2022, a further detention notice was issued to the Student for "Inappropriate behaviour: hurting other students in the class".
The Mother gives evidence that, sometime around 22 to 25 July 2022, she spoke to Mrs Ghannoum regarding the 22 July detention notice and she was advised that the Student was too active in class, was disrupting other students and was walking around holding "kid friendly scissors" but didn't hurt anyone. She also deposes that Mrs Ghannoum stated that the decision to issue the detention notice was made, the Mother said she would sign it but wanted it to be known that she did not accept it and asked why the counsellor hadn't contacted her, to which she was told that Mrs Ghannoum would "follow it up". Mrs Ghannoum denies having a discussion with the Mother in those terms or that the 22 July detention notice was issued in relation to an incident involving scissors.
The Sentral Report refers to a telephone discussion between Ms O'Keeffe and the Mother on 25 July 2022. The Report records that the Mother enquired why Ms O'Keeffe had not been in contact with her in relation to the Student's behaviour since the end of last term and was confused when the detention notice came through as she thought his behaviour was getting better. It also records that Ms O'Keeffe apologised and told the Mother that the Student seemed to be better, although a little rough in the playground, and that the issue with his behaviour seemed to be during Arabic class. The Sentral Report includes an entry on 21 July 2022 by the Arabic teacher, Mrs Mawas, that refers to the Student not following class rules during the Arabic session, not listening to the teacher's instructions, throwing his bag to other students, hiding under the table to grab students' feet and make them fall on the floor, and running around in class. According to the notes in the Sentral Report, the Mother was understanding when Ms O'Keeffe informed her that they want to work with the Student to support him and help him settle back into routine and maintain good behaviours but the College would have to draw the line when it comes to hurting other students.
The Sentral Report records that: 1. on 1 August 2022, Ms O'Keeffe was called to the Student's classroom twice that day, the first time because he had been unsettled and disruptive, the second time because he was acting out again, he had climbed on a chair and was jumping up and down and making noises, that Ms O'Keeffe talked to the Student about his behaviour and would call the Mother to let her know how his behaviour was; 2. on 2 August 2022, the Student did not complete any work that day, refused to follow instructions and distracted students in class, and that Ms O'Keeffe had to come and take him outside twice and talk to him about behaviour and expectations; 3. on 4 August 2022, Ms O'Keeffe spoke to the Student following an incident where he had hit another student and had been taken out of class, that they had spent some time together and the Student called the Mother from Ms O'Keeffe's office (the Mother having been called by the College office to say that the Student would need to go home).
It is common ground that, on 4 August 2022, the Mother and her husband met with Mrs Ghannoum, Ms O'Keeffe and Miss Safdar to discuss the Student's behaviour. There is a dispute about some aspects of that meeting.
Mrs Ghannoum deposes that they had a conversation during which she advised that the purpose of the meeting was to discuss the Student's behaviour at the College and concerns they have, said that Ms O'Keeffe had been working with the Student, focusing on strategies to self-regulate feelings and emotions, but that he continues to disrupt the teacher, other students and behave in an unsafe manner and, unfortunately, that there had been other incidents which had resulted in a contravention of probation. Mrs Ghannoum says that she then provided them with a letter from her on behalf of the College dated 4 August 2022, titled "Contravention of Probation- Behaviour" (Contravention of Probation letter) . The Contravention of Probation letter states: "[The Student] has contravened the conditions of his previous "Probationary Enrolment Offer". Should [the Student] demonstrate any further instances of misbehaviour, his position at the school will be reviewed. It should be noted that the following criteria will also be taken into consideration should his position at the College come under review for any other reason. - Must display thoughtful, courteous and respectful behaviour at all times. - Must abide by College regulations and expectations concerning satisfactory completion of set studies, uniform, behaviour, appearance and attendance. If [the Student] does not meet any of the above mentioned criteria during the probation period, his continued enrolment at the school may be discontinued."
According to Miss Safdar's evidence, Miss Safdar told the Mother and her husband that the Student is not completing his school work and is engaging in unsafe behaviour towards other children in the classroom and in the playground, that it was happening on a daily basis and he doesn't seem to be getting better, that she had tried a number of strategies, such as giving him more responsibility, and that Ms O'Keeffe had been putting in a lot of effort and had tried various strategies. Ms O'Keeffe outlined the strategies that had been implemented with the Student during the year. Miss Safdar gives evidence that Mrs Ghannoum handed the Student's parents the Contravention of Probation letter and told them that "if [the College doesn't] see any improvement in [the Student's] behaviour or there are any major incidents from now on it could lead to termination of enrolment".
Mrs Ghannoum says that, at the meeting, the Mother suggested that the Student needed a change of teacher, someone stricter, and that Mrs Ghannoum indicated that moving class may not be the best solution and recommended that they contact their GP to discuss his behaviours and seek a referral to a psychologist for a behaviour assessment. Mrs Ghannoum deposes that the Mother's husband indicated that they did not want the Student to leave the school and that they would not put him in a public school, and would take him back to Lebanon. Mrs Ghannoum said that they did not want him to leave but he needed to follow rules and keep himself and others safe, and they would continue to support the Student.
The Mother gives evidence that she did not see the Contravention of Probation letter until 16 September 2022, when the College forwarded records to her. As noted above, this is disputed by Mrs Ghannoum and Miss Safdar. The entry in the Sentral Report completed by Miss Safdar on 4 August 2022 also records that a "letter of contravention [was] issued" during the meeting.
Miss Safdar deposes that the Student's parents did not accept an invitation made to the whole class to schedule parent-teacher interviews in early August, and they were the only parents who did not contact her or the school for that interview.
The Sentral Report records that Ms O'Keeffe and the Mother spoke on 8 August 2022 and, during the discussion, the Mother asked Ms O'Keeffe to check on the Student and asked her for recommendations for a psychologist. Ms O'Keeffe recommended "Flying High, PsychCentral and asking family GP/paediatrician if they have any psychologists/organisations they have worked with".
According to Miss Safdar, the Student's in class behaviour improved slightly after the 4 August 2022 interview. She deposes that when she saw the Student doing something good, she would give him positive reinforcement and also make comments to him during and in front of the class. During the period 9 to 23 August 2022, positive feedback about the Student was included in the handwritten daily logs (Daily Logs) that the Mother was able to access, as follows: "been trying hard this week" and did "great writing today" (9 August 2022); "been working well today" (11 August 2022); "better week at school" and "remind him to keep trying his best and working well" (12 August 2022); "he was listening to the teacher during [his] Arabic lesson" (17 August 2022); he was "very good today" and was "listening to the teacher and completed all his work" (22 August 2022).
Mrs Ghannoum deposes that, due to incidents on 7 and 8 September, the decision was made to suspend the Student from school for one day on 9 September 2022.
On 7 September 2022, an entry is recorded in the Sentral Report by Mrs Al Atwi that the Student was not sitting in his spot, was disobeying the teacher's instructions, not doing his work, distracting other students, taking student's stationery, throwing pencils onto the smartboard and suddenly became angry and violent. It also records that the teacher was told that the Student had attacked another child and slapped them near their private area, and that the Student stole a child's lunch which he threw on the wall and then ran out of the classroom and did not come back to class. Mrs Ghannoum deposes that she spoke to the teacher who informed her that she was very distressed, was leaving early because the Student's behaviour was triggering the rest of the class and she could not continue the class without him interrupting.
On 8 September 2022, Mrs Ghannoum observed the Student's behaviour in the playground. She deposes that she saw him jumping on a student and wrestling/tackling him down to the floor, she moved towards the Student and asked him to stop, to which the Student responded to the effect that he was playing, and she took the Student to Ms O'Keeffe's office where they had a discussion with him about the importance of keeping hands and feet to themselves.
Mrs Ghannoum gives evidence that she had a discussion with the Mother on 8 September 2022 (the Mother deposes to a conversation with Mrs Ghannoum on 7 September 2022) during which Mrs Ghannoum informed the Mother of two incidents that the Student was involved in, namely the incidents during Arabic class and at the playground that day. According to Mrs Ghannoum, the Mother said that the Student had got angry in class because the other boy threw the pencil and the Student was blamed. Mrs Ghannoum says she told the Mother that she had checked the CCTV footage which confirmed that the Student had thrown the pencil and was also harassing and tackling/wrestling other students, and the Mother was informed that the Student was suspended for a day, that the letter would be sent home with the Student that day, and the Mother said she would not accept the suspension and wanted to speak to the Principal.
The Mother deposes that she received a call from Mrs Ghannoum on 7 September (not 8 September), was informed that the Student was caught wrestling in the playground with his friend, that the behaviour would not be tolerated, that the College would suspend the Student, that the Mother asked whether they were "fighting or just playing around", and Mrs Ghannoum said they weren't fighting and no one was hurt but "the behaviour cannot be tolerated". The Mother also gives evidence that she was not previously notified of the event that is said to have occurred on 7 September 2022 and has also not been provided with the video footage.
The College issued a letter, headed "Suspension Letter", that is dated 8 September 2022 and signed by Mrs Ghannoum (Suspension Letter), which states: "The decision to suspend [the Student] was made after careful consideration of the following incident: - Physically hurting other students - Throwing a student's lunch on the floor out of anger - Leaving classroom without permission Continued enrolment at Al-Faisal College for next term will be reviewed. Behaviour of this type is totally unacceptable at Al-Faisal College. I ask you to discuss this matter with [the Student] and make it clear to him that he must take responsibility for his own behaviour and action."
On 8 September 2022, at 4.03pm, the Mother sent an email to the College, addressed to the "principal or whoever is in charge at this school", that referred to a call from Mrs Ghannoum about the Student "playing wrestling at lunchtime" for which he received a suspension. The email refers to the Student acting out for a few months, having been doing very well for the past month with no incidents, and that she all of a sudden received a call that day to advise her of the suspension the next day, which she said was unfair as she had not been given a "heads up that he had been playing up". The email indicated that the Mother would like to arrange a meeting with the teacher, principal, head teacher and the children to investigate the matter, that it was unfair that the Student would be punished for playing whereas other kids get off without repercussions, that she would be taking the matter further to the Education Ombudsman in New South Wales and that Mrs Ghannoum had the Student at "the top of her wanted list" even though he had improved tremendously. The email also refers to the parents never receiving any complaints from the Islamic school which the child goes to for three hours straight after College and that he is getting good marks.
The Mother sent a further email at 5.00pm that day, which referred to the Student advising her that another student had thrown a pencil for which the Student was blamed and was very upset.
According to Mrs Hassanein, she became directly involved on 8 September, although she became aware of issues regarding the Student's behaviour in March 2022 and had received intermittent briefings from Mrs Ghannoum, including about the more serious incidents that had led to his suspensions. She says that a meeting was scheduled with the Mother at 9.00am on 12 September and that, prior to the meeting, she had spoken to Mrs Ghannoum, Miss Safdar and Ms O'Keeffe to obtain a history of the incidents and had reviewed the Sentral Record and documents relating to the Student.
On 9 September 2022, the Student attended the College with his siblings and delivered the Suspension Letter back to the College with a handwritten notation from the Mother (the version with the handwritten notation is not in evidence). The Mother was informed that the Student was suspended that day, and she came to the College to collect him as he was not allowed at school until 12 September.
On 12 September 2022, the Mother attended a meeting at the College with Mrs Hassanein and Miss Safdar. There is a dispute on the evidence as to whether the father was also present at the meeting, whether a "Suspension" letter was issued and what was said at the meeting.
The Mother gives evidence that the father also attended the meeting, that she was presented with a "Suspension Letter" of which the grounds did not match the Suspension Letter dated 8 September 2022 (described at [57] above) but she does not have a copy of the document she was presented with. The Mother gives evidence that she asked "exactly what happened" and was told that they saw the Student in the "playground wrestling with another student" and he had thrown a pencil in class and left the classroom without permission, to which the Mother responded that the Student had told her that another student held a pencil to his neck and threw it on the floor which had scared and upset him. The Mother deposes that Mrs Hassanein replied that they were told a different story by the teacher, and the Mother had asked why a proper investigation wasn't made and whether it was because the Student was on probation. The Mother gives evidence that she stated that "[they were] stitching him up", that she wanted to see the recording of the playground incident and was told she could not see it for privacy reasons.
Mrs Hassanein does not agree that the father was present at the meeting and says that she did not provide a "Suspension Letter" in any form to the Mother during the meeting.
According to Mrs Hassanein's evidence, at the meeting, the Mother indicated that she did not accept the Student's suspension as he had improved and achieved better results so she thought that "everything was good". Mrs Hassanein says she informed the Mother of the following: that the meeting was about his behaviour rather than his academic progress; that, from March 2022, there had been ongoing communications between the College and the Mother to inform her of major incidents; that there had been discussions on multiple occasions, one of which was on 4 August 2022; that the Student had received detentions and had displayed unsafe physical behaviours which had resulted in other students being hurt and "the Probation letter" had explained this; and that the Mother had been advised that a Contravention notice would be issued if there were other incidents of repeated behaviour and, if that occurred, it would lead to a termination enrolment.
Mrs Hassanein gives evidence that, during the discussion, the Mother disputed that the Student threw the pencil and Mrs Hassanein told the Mother she had investigated the incident and had seen the CCTV footage which indicated that the Student did throw it. Mrs Hassanein deposes that she told the Mother that the College had been trying to take a positive approach to the Student, with the College Counsellor having had three or more check-in sessions with him on a weekly basis and had recommended that he be taken to a paediatrician or psychologist for assessments, the Mother said that they would be taking him to see a paediatrician or psychologist in Term 4 and the Mother took issue with the assertion that the College had supported the Student. Mrs Hassanein also deposes that she told the Mother that she had received the notification of suspension the previous Thursday as the Student's behaviour had not improved. She also deposes that she told the Mother that they had followed due processes and policies, and said that "Unfortunately, [the Student] has accumulated all these detentions, probation, contravention and he has continued to physically hurt other students. I'm sorry but based on his safety and the safety of other children as well, we will not be able to offer [the Student] enrolment beyond this term".
Mrs Hassanein says that she then handed the Mother a letter dated 12 September 2022 from her on behalf of the College that was addressed to the Mother (and the father) and informed them that the Student's last day of school would be 29 September 2022 (12 September Termination letter), which states: "As discussed with Mrs Ghannoum on the 8th September, your son [the Student] has not abided by the conditions of his probation issued on 6th June and contravention of probation on the 4th August. In the meeting on the 4th August, you were advised that any further instances of misbehaviour would result in [the Student's] position at the school being reviewed. This review has now taken place and the school has decided not to offer [the Student] enrolment beyond the end of this term. In the meantime, [the Student] may continue his studies at the College. He will be issued with a Term 3 report, providing he meets the requirements of his ongoing probation as listed below: Must display thoughtful, courteous and respectful behaviour towards his teachers and fellow students at all times. Must abide by College regulations and expectations concerning uniform, punctuality, honesty, appearance and attendance. Must complete all classwork, assignments and other homework as well as attaining a satisfactory level in tests, assessments and examinations. [The Student's] last day of school will be on Thursday 29th September. Should [the Student] not meet any of the above mentioned criteria during the remainder of this term, his enrolment at the College will be immediately discontinued."
According to Mrs Hassanein's evidence, at the meeting, the Mother asked that the College leave the Student until the end of the year and they be "patient', and that Mrs Hassanein said she was sorry, but they could not do that because the Student's continued behaviour put other children at risk, referring to behaviours that the Mother agreed she would not accept of "hurting your child, putting them in a head lock, throwing things at them or pushing them". Mrs Hassanein says that she confirmed that she did not have issues with the Mother's other children at the College and indicated that now that the Mother understood the decision, they would support the Student until the end of the term, however, if there were any other incidents of physical violence towards other children or other serious incidents, his position would be terminated earlier, and that the Mother said she did not accept what Mrs Hassanein said and would be taking it further and getting legal advice.
Miss Safdar also gives evidence about the 12 September meeting, including that the Mother was advised that the Student's probation and suspension while on probation led Mrs Hassanein to review his enrolment and that she had decided to terminate his enrolment at the end of the term. Miss Safdar says that the Mother said she didn't know about the condition that if the Student did anything wrong his enrolment could be terminated and hadn't been informed of anything. Miss Safdar also deposes that Mrs Hassanein referred the Mother to his involvement in a "major incident last week", the video of the Student's behaviour (which could not be shown to the Mother for child protection reasons as other students were present), and the Mother asserted that "it's just your word against mine then", the "school hasn't done anything for [the Student]", and that she was "going to take this matter further".
Miss Safdar deposes that the Student made it difficult for her to teach her whole class and that his behaviour has affected her mental health and well-being and made her question her ability as a teacher.
The Mother deposes that, on 12 September, she received the 12 September Termination letter but does not say whether she received it at the 12 September meeting or not and says that, upon reading it, she became concerned for the Student's wellbeing and it was a surprise because of the contents of the Daily Logs (described at [51] above).
At 1:41pm on 12 September 2022, the Mother sent an email to the College in relation to the 12 September Termination letter. The email (which seems to have been written with the benefit of legal advice) asserts that the Mother was yet to be provided with the particulars as to the purported review which took place and what considerations were applied by the College in making the adverse determination to the effect that the Student would not be offered enrolment beyond the end of the term, the correspondence does not particularise the rationale which the College had applied in making its determination to expel the Student at a time when he was unable to secure alternative enrolment at another private Islamic school, and requested that the Mother be provided with copies of all policies and procedures, teachers reports and incident reports, and that she looked forward to a response.
At 9.05am the next morning, the College sent an email to the Mother indicating that a meeting had been held and a response to her email would be sent soon. Shortly after, the Mother sent an email asking for a prompt response, noting that it was denied and disputed that the Student's last day would be on 29 September 2022 and otherwise reserved the Student's rights.
Mrs Hassanein deposes that due to pre-existing commitments, she was not available to meet with the father on 13 September, as the Mother had requested in her 12 September email, and that when an alternative date was suggested, the Mother indicated that the father was leaving to go to Lebanon.
On 16 September 2022, the College sent a letter of that date headed "Termination of Enrolment for [the Student]" to the Mother and the father by email (16 September Termination letter) that was signed by Mrs Hassanein and attached, amongst other things, the notices and letters referred to at [34], [35], [40], [45], [57] and [67] and the College's Behaviour Management and Grievance policies (referred to at [15] and [16]). The 16 September Termination Letter relevantly states: I write with regards to [the Student's] ongoing enrolment as a student at Al-Faisal College. In preparing this response, I have referred in particular to your emails from 12 September 2022 and 13 September 2022. By way of background/context to this matter: 1. There has been regular communication with you since March 2022 regarding [the Student's] behaviour. There have also been meetings with you to discuss concerns regarding his behaviour. It is noted that you were also consulted with in the development of the Individual Learning Plan (ILP) which commenced in April 2022 and then the new ILP for Term 3. 2. For each disciplinary matter, communication has been sent to you. These include when [the Student] had afternoon detentions, was suspended, and placed on probation. During the meeting with the Deputy Principal, Mrs Ghannoum on 4/8/22, you were provided with a contravention of probation letter and informed that any further incidents will result in [the Student's] enrolment being reviewed. The letters for these instances are included in this letter for you. There have also been re-entry meetings with you when [the Student] returned to the College following his suspensions. 3. [The Student's] behaviour has been handled in a procedurally fair manner consistent with the College's Behaviour Management Policy (attached). The College has followed all elements of the policy. Section 4.3 outlines the reasons for suspending or expelling students. 4. [The Student] continued disobedience and disruption to his own learning and the learning of the other students, his accumulated afternoon detentions, physical violence where he has held students in a headlock, and his other aggressive behaviour has resulted in [the Student's] behaviour presenting as an unacceptable risk to the students and staff at the College. [The Student] has been supported and given every opportunity to meet school expectations and to behave in an acceptable and appropriate manner. The College never makes these decisions lightly. However, the health and safety of the students and the staff is of paramount importance and the creation of a safe and supportive learning environment is essential. [The Student's] continued behaviour has resulted in this decision. It should also be noted that under no circumstances does the College condone any form of corporal punishment, even by parents. It is prohibited under the law in NSW and is also clearly indicated as such in all of our policies and procedures and, for example, on page 5 of the Behavioural Management Policy and Procedures. The decision for [the Student's] enrolment to conclude on 29 September 2022 is final. We will refund [the Student's] Term 4 fees paid $480.
Mrs Hassanein deposes that, in accordance with cl 4.4 of the BMP, she made the decision to terminate the Student's enrolment for the following reasons: "(a) [The Student] had accumulated a number of after school detentions and suspensions, had been placed on probation and contravened that probation; (b) I was concerned that [the Student] was a safety risk to himself and to others because of his displayed conduct and his refusal to follow instructions; and (c) [The Student] was continually disrupting the learning of other students and causing distress to his teachers."
In response to the 16 September Termination letter, the Mother says: 1. in response to paragraph 1, the Student's behaviour was never discussed with her since March 2022, nor did she attend any meetings at the College concerning the Student until 6 June 2022 when she was presented with the Probationary Enrolment Notice; 2. in response to paragraph 2, says that the Student was placed on probation on 6 June and then suspended on 9 September (although I note that there is evidence that the Student was verbally suspended on 2 June 2022, before the Probation, as referred to at [26] above); 3. in response to paragraph 3, she asserts, by reference to the flow chart for disciplinary procedures, that the Student has never been the subject of a time out in the classroom, a diary note nor a lunch detention; and 4. in response to paragraph 4, disputes the allegation that the Student placed another student in a headlock and says that the first time she learned about this was through the 16 September Termination letter.
The Mother gives evidence that, between 16 September and 30 September 2022, she and her husband were in Lebanon and, upon her return, she attended to reading the correspondence received from the College on 16 September 2022 and then she engaged her legal representative for the purposes of commencing these proceedings, which she did on 7 October 2022.
Term 4 at the College commenced on 10 October and finishes on 2 December 2022 (according to the College) or 10 December 2022 (according to the Mother).
The Mother deposes that she has difficulties in making alternative arrangements for the Student's schooling. She says that the Student is unable to secure alternative enrolment at another Islamic private school so late in the school year, that it is the strong preference of her and her husband that the Student attend a school that will teach him Arabic and Islamic values, that she is unsure whether she is able to enrol him in a public school this late in the school year and even so, based on their religious views, they would not do so.
The Mother also deposes that even if she was to place the Student in a public school temporarily, she is concerned about the impact this may have on his well-being as, within the span of less than six months, he will have to attend three different schools, that she expects it will be difficult for him to adjust to the different learning environment and to explain why he is changing schools, is concerned about the stigma associated with being expelled at such a young age, and that if he is unable to attend the College, it may hold back his development which might create difficulties for him academically in 2023. She also deposes to difficulties that she and her husband would have in making arrangements for the Student to travel to and from another school and, if the Student does not return to the College in Term 4, the Mother will be forced to stay at home with him on a full time basis, noting that she has been employed by Modern Design Wardrobes for approximately 13 years and there would be a real risk that her ongoing employment would be in jeopardy if she has to stay home and supervise him.

The plaintiff's claim for interlocutory relief

On 7 October 2022, the Mother commenced this proceeding on an urgent, ex parte basis, seeking orders for short service, urgent interlocutory and final relief.
On 11 October 2022, I made orders for the College to file and serve its evidence, for the Mother to serve any evidence in reply and for both parties to file and serve written submissions, and listed the Mother's application for interlocutory relief before me, sitting as Duty Judge, on 18 October 2022.
By way of final relief, as set out in her Further Amended Summons filed on 11 October 2022 (Summons), the Mother seeks: 1. declarations that the Probationary Enrolment Notice, the Suspension Letter and the 12 and 16 September Termination Notices were not issued in accordance with the terms of the agreement evidenced by the Enrolment Terms (Contract): at [1], [1A], [2] and [3] of the Summons; 2. declarations that the College had breached the Contract by not applying the Behavioural Management Policy by never considering an Individual Support Plan or Behaviour Modification Strategy before issuing the Probationary Enrolment Notice, the Suspension Letter and the 12 and 16 September Termination Notices, by not applying cl 7 ("Procedural Fairness") in issuing the Notices and making the expulsion decisions and by not giving the mother any right to appeal the termination decisions of 12 and 16 September 2022 (Termination Decisions): at [4], [5] and [6] of the Summons; 3. an order that the Contract be specifically performed: at [7] of the Summons; 4. an order that the Student be enrolled at the College for the duration of the 2022 school year: at [8] of the Summons; 5. or, alternatively, an order that in performing the Contract, the Student be entitled to appeal the enrolment Termination Decisions: at [9] of the Summons.
By her notice of motion filed on 7 October 2022 (Motion), the Mother seeks the following interlocutory relief: 1. the College be restrained, until further order, from implementing, enforcing and treating as valid the termination of [the Student's] enrolment with the College; at [5] of the Motion. 2. the College is to permit, until further order, [the Student] attending the school operated by the College: at [6] of the Motion. 3. the matter be expedited: at [7] of the Motion 4. further and in the alternative, pursuant to Part 28 rule 2 of the Uniform Civil Procedure Rules 2005 (NSW) there be a separate hearing of prayers 6 and 9 of the Summons, or alternatively, the question, "is the plaintiff entitled to appeal the decision of the defendant to terminate the enrolment of [the Student] with the defendant before an unbiased tribunal?": at [8] of the Motion.
On 11 October 2022, prior to the interlocutory hearing, the College made an open offer to the Mother, on a without admissions basis, to provide her with an opportunity to appeal the College's decision not to offer enrolment to the Student for Term 4. The offer set out how the College proposed the appeal be conducted which relevantly included, an appeal panel constituted by three members of the school board (other than Dr Khan, who I understand is the Principal's father), the provision of documents to the Mother by Friday, 14 October 2022, a timetable for submissions by the Mother and a decision by the appeal panel by Wednesday, 19 October 2022. The Mother did not accept this offer.
At the start of the hearing, Mr Corsaro SC submitted that the Mother's claim was a challenge to the enrolment termination decision(s) on contractual principles and that the interlocutory relief claimed is to allow the Student to go back to school and complete this school year. He submitted that a sensible way forward would be for a teacher's aide to be put in for the remaining weeks of Term 4 and that he had instructions to make an open offer to pay for that aide so that there was a person in the classroom to specifically monitor the Student, which he said should "do away with the proposition about safety". That offer was not accepted by the College for reasons that I will come to.
Mr Corsaro SC confirmed that the Mother accepts that the Student would not return to the school next year and that the dispute relates to the balance of Term 4. During oral submissions, he clarified that the Mother's claim for interlocutory relief was not by way of challenge to the probation notices and Suspension Letter, that "what is intended is an injunction to restrain the school from acting in respect of the current termination but not to restrain the school if there is another incident" and he did not need to the court to "supervise the student's education" (T45.35-41). He also clarified that the Mother does not press her claim (at [16] of the Mother's written submissions) that alleges that the College breached cl 3.1 of the Behaviour Management Policy (BMP) in failing to follow the prescribed steps for disciplinary action, namely failing to implement a Behaviour Modification Strategy before the Probationary Enrolment Notice was issued and failing to implement an Individual Support Plan for the Student (reflecting the final relief sought at [4] of the Summons), or that the College breached the Contact by not giving the Mother any right of appeal (reflecting the final relief sought at [6] of the Summons). While he accepted that the College's offer of an opportunity to appeal may be a relevant discretionary matter, as was put, the Mother's claim to be entitled to an appeal is "no longer operative" because to suggest that the enrolment termination can be rectified by an appeal "ignores the fundamental proposition that [the Mother did not get] what was bargained for" under the Contract (T40.5-13).
Thus, the Mother's claim for interlocutory relief is limited to seeking an order restraining the College from implementing the enrolment termination decision (as sought at [5] of Motion) and is based on her claim for final relief that the College breached the Contract when it issued the enrolment Termination letters on 12 and 16 September 2022. She does not press for an interlocutory order that the Student be permitted to attend the school until further order (at [6] of the Motion). Nor does she seek the final relief at [4], [6], [8] and [9] of the Summons.

Legal principles - interlocutory relief

The legal principles applicable to whether interlocutory relief should be granted were not in dispute. There are two main inquiries.
The first inquiry is whether the Mother has a prima facie case in the sense of a sufficient likelihood of success to justify the granting of interlocutory relief that is sought, although this does not mean that she needs to establish that it is more probable than not that she will succeed at trial. The second is whether the balance of convenience and related factors warrant the grant of an interlocutory injunction. On that question, the Court considers the injury and inconvenience that would be suffered if the injunctions were refused compared to the loss and inconvenience to the College if they are: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-82; [2006] HCA 46 at [65]-[72] (ABC v O'Neill) (Gummow and Hayne JJ); Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3; [1968] HCA 1 at [4]-[5] (Beecham v Bristol Laboratories); Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 and 155; [1986] HCA 58 at [11] and [17] (Castlemaine Tooheys v South Australia).
These first and second inquiries overlap to an extent. The stronger the case for final relief, the less may be required to tip the balance of convenience, whereas the greater the balance of convenience, the less strong a case for final relief may be required: ABC v O'Neill at 81-84. The extent to which the Court will consider the strength of the prima facie case, and how strong it must be depends, in particular, upon the nature of the rights asserted and the practical consequences likely to flow from the orders sought: Beecham v Bristol Laboratories at 622; Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 (Shercliff v Engadine Acceptance Corporation) at 736G; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536.
In this case, it is common ground that the grant of interlocutory relief would likely have the effect of finally resolving the controversy between the parties, as there is a high likelihood that Term 4 will be over before a final hearing (of 1 - 2 days) could be finally determined.
It follows that an assessment of the evidence as a whole must be undertaken to determine the strength of the prima facie case and the Mother may need to establish a "a relatively strong case" for relief. That said, in the context of interlocutory relief, it is not the Court's function to conduct a preliminary trial or (at least generally) to resolve conflicts between the parties' evidence. The Court does not undertake a preliminary trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [55], [74] and [87]; Beecham v Bristol Laboratories at 622; Shercliff v Engadine Acceptance Corporation at 734D.

Serious question to be tried

As to whether the Mother has established a prima facie case for final relief that the College has breached the Contract by purporting to terminate the Student's enrolment with effect from 29 September 2022 (as notified in 12 and 16 September Termination letters), the Mother submits that the terms of the Contract gave rise to a contractual obligation on the College to provide details of the Student's conduct that might result in a decision to exclude him and a reasonable opportunity to consider them and respond in advance of making the decision.
It is common ground that cl 9.2 of the Enrolment Terms provides for notice to be given about conduct and an opportunity to respond. The Enrolment Terms are framed as obligations and expressed as the terms and conditions on which the Contract between the College and the parents is governed. The dispute between the parties is whether the Mother has established a prima facie case that sufficient notice and an opportunity to respond were not given to her, having regard to the evidence before the Court.
There is also a question as to whether the BMP has contractual force, as a policy that is incorporated into the Contract.
The Mother contended, and the College accepted, that the College's decision to terminate the Student's enrolment and exclude him from the school was a discretionary decision that was subject to an implied duty of good faith (referring to Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 263-268 (Renard Constructions v Minister for Public Works)), an obligation for the discretion to be exercised reasonably and for a proper purpose (referring to Renard Constructions v Minister for Public Works at 255; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 368-9) and a duty to make proper enquiries in relation to the subject matter under consideration (referring to Renard Constructions v Minister for Public Works at 234).
Mr Corsaro SC does not make a submission that there was a lack of good faith by the College in making the decision to terminate the Student's enrolment (T17.40-43). Nor was it said that the College's discretion was exercised unreasonably or for an improper purpose.
Rather, the case that is put on behalf of the Mother is that the College was obliged (at the minimum) to effectively issue a "show cause notice" to the Mother (which Mr Corsaro SC accepted did not have to be in writing) before it exercised any discretion to permanently exclude the Student and to provide her with a reasonable opportunity to respond, neither of which (the Mother submits) was done in breach of cl 9.2 of the Enrolment Terms and cll 2.1(7) and 4.4 of the BMP.
The Mother submits that irrespective of whether the BMP was incorporated into the Contract or not (she says that it likely was), there is a serious question to be tried that she was not given adequate notice or an opportunity to respond, particularly as there is a dispute on the evidence as to whether the Mother received the detention notice issued to the Student on 10 June 2022 and the Contravention of Probation letter on 4 August 2022.
It was submitted that the contractual requirement for notice obliged the College to provide the Mother with sufficient details for her to understand those things that were bearing on the decision to be made by the College. The Mother argues that the "unchallenged evidence" is that she did not receive any relevant notice from the College prior to the "expulsion". In particular, it is said that the Mother did not receive any notification that the College was actively considering terminating the Student's enrolment, that she did not receive any outline of the matters which the College's delegate was considering in order to determine whether to exclude the Student permanently, and that her evidence establishes that much was unknown to her. It was submitted that, consequentially, the Mother was denied the opportunity to understand the basis upon which the College was considering whether to terminate the Student's enrolment and the opportunity to address the College's concerns.
The College takes issue with this submission and contends that the Court would not be satisfied that there is a prima facie case to answer that the College did not provide the Mother with sufficient details or an opportunity to respond in breach of either cl 9.2 of the Enrolment Terms or the BMP if it forms part of the Contract, which the College contends it does not.
As to the BMP, Mr Corsaro SC submitted that, while it is not certain, the BMP may and probably is incorporated into the Contract, referring to the term in the 5 August letter of offer (described at [11] above) and Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481 at [153] - [154] (Snaden J).
The College argues that the Court would not be satisfied that the Mother has discharged her onus of proving there is a prima facie case that the BMP forms part of the Contract. In support of this, the College pointed to the fact that the BMP in evidence is dated January 2022, and described it as evidently having been provided to the Mother at the time the Student was enrolled and the Contract formed. It also argues that the BMP is not expressly incorporated into the Enrolment Terms, that it is expressed (for the most part) in aspirational language, and that the policies in the BMP were unilaterally adopted by the College, which it is free to review and amend at any time.
The issue of whether the BMP has contractual force and is incorporated into the Contract will depend on the parties intentions as objectively ascertained with reference to the facts and circumstances surrounding the formation of the Contract and the contents of the document alleged to be incorporated: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179; [2004] HCA 52 at [40]-[41]; McKeith v Royal Bank of Scotland Group PLC (2016) 92 NSWLR 326 at 350-360; [2016] NSWCA 36 at [79]-[127]; Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481 at [153]-[154].
The BMP is a school policy that is expressed in large part, in aspirational and advisory language referring, for example, to the "Purpose" of the BMP to provide "strategies for rewarding good behaviour and to celebrate achievement" and "strategies for dealing with unacceptable behaviour" (at page 1), and the "aims" of the College, such as "to provide and maintain a positive, safe and secure environment" (page 5, Section 2). It is also correct that there is no express reference to the BMP in the Enrolment Terms and, while there is a provision that expects students (and parents) to comply, there is no stated corresponding obligation on the College to do so.
However, there are other parts of the BMP that could be said to be couched more in terms of obligation, such as that Students are "required to abide by the School's Expectations", failing which they may be subject to disciplinary action (cl 2.1(1)), and there are a set of procedures that the BMP states that the School "will implement" and "be applied throughout all investigations and decisions made regarding incidents/allegations" (cll 2.1(7) and 3), a procedure of benefit to students and their parents.
There is also the term in the 5 August letter of offer, which states that Students and parents are expected to abide by all school policies which can be found on our website, which arguably suggests that it was intended for there to be an offer and acceptance of obligations in accordance with the policies on the website, such that the Student and his parents were obliged to comply with their obligations under the terms of the BMP which provided corresponding "benefits" with which the College would comply: Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889 at [107] (North J) and [150] (Mansfield J).
While this question is not free from doubt and although I would not assess the Mother's claim on this issue to be strong, in my view, it is arguable that a reasonable person in the circumstances of the Mother would have understood that the College intended to be contractually bound to observe the BMP that it had implemented (unless varied or withdrawn) such that there is a serious question to be tried that the BMP is incorporated into the Contract.
However, having considered the evidence as a whole, I am not persuaded that the Mother has established an arguable case that she was not given notice of the details of the Student's conduct on which the decision to terminate his enrolment was to be made, nor given a reasonable opportunity to respond at the time the 12 September Termination letter was issued.
On the issue of notice, I am unconvinced by the Mother's submission that there is "unchallenged evidence" that she did not receive any relevant notice from the College prior to the "expulsion". Even accepting that there are some factual disputes about certain events, in my view, the evidence outlined above makes clear that the Mother was contacted by the College following major incidents involving the Student, was given details about the Student's conduct and was informed (usually in writing) about the consequences that would follow if there were further serious incidents, including that the Student's enrolment at the College would be reviewed and he may be asked to leave, particularly where the College considered the Student's conduct to involve unsafe behaviour.
Relevantly, the Mother's evidence does not challenge Mrs Ghannoum's evidence about their meeting on 1 April or that she was informed on 2 June that the Student had been given a verbal suspension for unsafe behaviour.
More significantly, the Mother accepts that she was provided with the Probationary Enrolment Notice in the context of her meeting with Mrs Ghannoum in the first week of June at which the Student's misbehaviour was discussed. This notice expressly states that the Student's continual enrolment at the College would be placed "under review" if the Student did not meet any of the criteria in the notice and identified the requirements for the Student to be courteous and respectful of teachers and students and abide by regulations and expectations concerning behaviour. Irrespective of whether the Mother believes that it occurred at a later time, she also acknowledges being told about the "scissors" incident and that the College considered that this conduct raised a concern for the safety of the Student and others and was not acceptable, notwithstanding that no one was hurt.
The Mother may not have received the 10 June detention notice, but the evidence identifies that on 15 June 2022, she was informed of further incidents and given details about the Student's misbehaviour and was on notice that if the Student did not improve, "it would lead to a contravention of probation".
At the meeting on 4 August 2022, Mrs Ghannoum informed the Mother (and father) that the Student continued to disrupt the teacher and other students and behave in an unsafe manner. Even accepting that the Mother disputes having received the Contravention of Probation letter at that time, an assessment of the evidence overall indicates that the Mother (and the father) was informed and aware by that time that any further serious incidents or unsafe behaviour would not be tolerated, would result in the Student's enrolment being reviewed and that the Student might be asked to leave the school.
The Mother's contention that she was not informed of the Student's behaviour prior to the 12 September 2022 meeting is also not supported by her own evidence, given she accepts that she had a discussion with Mrs Ghannoum on 7 September 2022 about the Student's unsafe conduct in the playground, the contents of her 8 September 2022 email (that refers to her call with Mrs Ghannoum about the Student "wrestling"), and the terms of the Suspension Letter, which she acknowledges that she received that day. Relevantly, the Suspension Letter set out details of the Student's conduct in writing, including that the Student had physically hurt other students and left the classroom without permission, and confirmed that his continued enrolment at the College for the next term would be reviewed.
It was after this suspension, and in accordance with the Mother's request, that the matter was escalated to the College's Executive Principal, Mrs Hassanein. I accept the College's submission that the Mother has not established a prima facie case that she was not afforded a reasonable opportunity to respond, in accordance with cl 9.2 of the Enrolment Terms or the "procedural fairness" obligation under the BMP. The Mother, Mrs Hassanein and Miss Safdar each give evidence of the conversation that occurred on 12 September 2022. Again, while there is a dispute as to precisely what was said at that meeting, an assessment of the evidence overall indicates that the Mother was informed about Mrs Hassanein's investigations, which included the review of the CCTV footage, and her consideration of the Student's conduct since March 2022, which included detentions, probation, contravention of probation, suspensions and unsafe behaviour, which led to the Suspension Letter and the subsequent decision by the College not to offer enrolment to the Student beyond the end of that term.
What will amount to a reasonable opportunity to respond under cl 9.2 and/or an opportunity to respond to the allegations in accordance with the "hearing rule" under cl 2.1(7) of the BMP will, of course, depend on the circumstances of the case, noting that there is no contractual requirement that a particular period would be provided to the Mother to respond to the College. But the assessment of whether it is reasonably arguable as to whether the College followed its procedures and provided the Mother with details and a reasonable opportunity to be heard, is to be assessed in the context of the whole of evidence, which I have outlined above.
This Court does not undertake a preliminary trial and seek to resolve conflict between the evidence of the parties. However, whether a prima facie case has been made out is to be assessed on the evidence as it presently stands. While not at all determinative, in undertaking that assessment, it is significant, in my view, that the Mother's evidence about her receipt of the Contravention of Probation letter and other evidence about what she was told and received is not supported by the contemporaneous records contained in the Sentral Report, or the evidence from Mrs Ghannoum, Miss Safdar and Mrs Hassanein.
The Mother may have believed that the Student was a good boy and that his behaviour had improved during August. However, the receipt of positive comments in the Daily Logs in August and the contents of the Student's Academic reports (at the end of Terms 1 and 2) do not, to my mind, negate the Mother's own evidence. The effect of that evidence is that the College provided the Mother with details (verbally and in writing) about the Student's conduct and infringing behaviour over many months and again in early September. Relevantly, the Mother's evidence also indicates that she was informed that unsafe behaviour by the Student may (and did) result in the decision to suspend the Student and review his enrolment (a decision with which the Mother took issue), and that she was given an opportunity to address Mrs Hassanein, the relevant decision maker, about the allegations concerning the Student's conduct and the decision to terminate his enrolment and exclude him from the College, and did, in fact, do so in person at the 12 September meeting.
The College also submitted that the principle referred to in DEF v Trappett [2017] NSWCA 163 at [41] was applicable to the present case, that principle being that it is well recognised that the availability of an appeal or review process may answer any deficiency in procedural fairness that occurred at the initial hearing or decision-making stage. While I do not accept that this principle is directly applicable to whether the College is in breach of the Contract, the availability of an appeal process is a relevant matter in the exercise of the Court's discretion whether to grant interlocutory relief in this case, as referred to below.
The College also submits, and I accept, that even if I were to find that the Mother had demonstrated a prima facie case for declaratory relief (in the terms at [5] of the Summons), the Student's continuing enrolment at the College is subject to the College's discretion (noting that the College may decide to exclude the Student for reasons that include, but are not limited to where the Executive Principal believes that a mutually beneficial relationship of co-operation and trust between the School and the Parents had broken down: Enrolment Terms, cl 9.1(c)). The Mother accepts that any relief cannot fetter the College's decision-making under the Contract, such that the Student (and the Mother) is not contractually entitled to be enrolled and attend school for the duration of Term 4. In that context, I accept the College's submission that the Court could not decree the College to specifically perform an obligation to keep the Student enrolled and it is unclear what is sought or the basis for final relief requiring the College to "specifically perform the Contract" (at [7] of the Summons).
In conclusion, based on the evidence before the Court, I am satisfied there is a serious question to be tried that the BMP is incorporated into the Contract. However, I am not satisfied that the various claims made by the Mother in relation to the procedures adopted the College establish that there is a serious question to be tried and the Mother has a prima facie case for final declaratory relief that the College did not provide her with details of the Student's conduct that may result in a decision to exclude him nor an opportunity to respond, in breach of cl 9.2 of the Enrolment Terms or cll 2.1(7) or 4.4 of the BMP, or for specific performance of the Contract. I am also unpersuaded that it is seriously arguable that the College failed to comply with the flowchart for disciplinary action (as set out at cl 3.1 of the BMP), as the Mother contends.
It follows that I decline to grant the Mother's claim for interlocutory relief. However, if I am wrong about that conclusion, I have considered the balance of convenience and other discretionary factors. I do so on the basis that, for the reasons set out above, the Mother's claim for final relief based on a breach of Contract is not strong.

Balance of convenience and other discretionary factors

On the balance of convenience, the Mother submits that the Student, at six-years-old, is in the midst of "an undoubtedly crucial age for his ongoing development" and she is concerned about the impact to his educational progress and emotional well-being if he is not able to return to the College for Term 4.
The College does not dispute, appropriately in my view, that its decision to terminate the Student's enrolment at the end of Term 3 and exclusion from the College will have an impact on the Student. What those impacts are, in my view, is not easy to assess.
I accept that there may be some prejudice and detriment to the Student given the Mother's (and father's) strong desire for him to continue to be educated in a school that teaches Arabic and Islamic faith values and she may be unable to obtain enrolment at another Islamic school this late in the school year.
I also accept the Mother's submission that, in the absence of injunctive relief and if the Student cannot be placed in an alternative school, she (and the father) may be inconvenienced and incur potential cost as arrangements would need to be made for someone to home-school and look after the Student for the remainder of the term. That said, based on the Mother's open offer to fund a teacher's aide at the College for the balance of the term and the fact that she (and the father) travelled overseas for 2 weeks without the Student, I am also inclined to the view that other options might be available to the Mother (albeit at a cost) if she chooses not to send the Student to a public school, apart from the Mother ceasing to engage in paid employment and stay home with the Student until the end of Term 4.
I am also not persuaded by the Mother's submission that there would be any difficulty in placing the Student in a public school for the remainder of the term. Nor am I satisfied that sending the Student to a public school for a short period would necessarily lead to an adverse impact to the Student, in a pedagogical sense, nor to any real issues for the Mother in arranging transport for him to do so, noting the presence of two public schools within 13 minutes walking distance of the Student's home and the Student being able to continue with his Arabic education at the other "Arabic school" he attends (outside of the College) on a daily basis.
The inconvenience and impact to the Student and the Mother also needs to be weighed against the impact of the Student's return (if injunctive relief was granted in the Mother's favour) on other students at the College and his classroom teachers, noting the evidence given by Miss Safdar above. As the College submits, it has a duty to ensure that its teaching staff are supported and that the quality of the education its other students receive is not compromised, and it could be exposed to a civil liability risk if the Student were to return to the College, having regard to the evidence that the Student frequently fled the classroom and refused to return when asked and has been reported as being involved in conduct which hurt other students.
It is also relevant and tends against the balance of convenience favouring the Mother that I assess her claim for final relief not to be strong.
Nor am I satisfied that the Student's development and well-being would be significantly and adversely compromised if the injunctive relief is not granted. Experience suggests that young children cope with missing school for a variety of reasons, such as illness, travel and other eventualities. Even if I were to accept that the Student suffers from a social or emotional disability that adversely impacts his behaviour, the non-attendance at a school of one's choice for a period of one term is, to my mind, unlikely to be critical to the Student's future prospects and well-being, noting his young age and academic abilities (as evidenced by his Term 1 and 2 school reports) and the Mother's evidence that she had made an appointment for the Student to see a psychologist in Term 4.
While not determinative, there are three other matters that are relevant to my decision whether to exercise my discretion whether to grant an interlocutory injunction in favour of the Mother in this case.
First, and in relation to the Mother's offer to fund a teacher's aide for the Student (which offer was refused during the course of the hearing), I was initially attracted to that offer as a possible solution to the issues raised by both sides. However, there is a practical issue as the offer is dependent on the College finding and training a new staff member. I was not persuaded that such an arrangement would be timely enough to be effective for much or any of Term 4 (noting Mr Grace's instructions that the College was presently finding it difficult to find and employ teacher aides for other students for other purposes). Nor was it a complete and sufficient answer to neutralise, in the balance of convenience, the potential impact to the other students and staff at the College (who are innocent third parties) if the Student returned to the College.
Second, and as to the College's offer of an appeal procedure, I accept that the offer would not cure a decision made by the College in breach of Contract. But, it provided the Mother with the chance to obtain all the details she claims were missing, an opportunity to make written submissions about the decision to exclude the Student, and for the matter to be considered afresh on the merits by a three member appeal panel by 19 October 2022. I do not accept the Mother's submission that the offer involved an impartial appeal panel of which concern was raised at the hearing, noting that the Principal's father (the Chairman of the school board) had been excluded.
This Court may have jurisdiction to grant a private law remedy to the Mother, such as a declaration or injunction, to enforce or protect an underlying contractual entitlement of which she may have the benefit: Agricultural Societies Council of NSW v Christie [2016] NSWCA 331 at [35]. However, the offer of an alternative expediated review process was, in my view, a factor that went some way to tipping the scales away from the grant of relief in the Mother's favour in the context where her main complaint was the lack of fairness that occurred in the first instance.
Finally, there was question in my mind as to the futility of the relief sought in circumstances where (as was accepted by the Mother) the College would not be restrained from taking steps to terminate the Student's enrolment in the event that another incident occurred or, as Mr Grace submitted, from perhaps providing the information sought by the Mother and making the decision again in accordance with the Contract.
Weighing up all of these matters, and while somewhat finely balanced, if I had been satisfied that the Mother had established a prima facie case for final relief, I would have concluded that the balance of convenience and discretionary factors did not strongly weigh in favour of granting the interlocutory relief sought.

Conclusion, costs and orders

For the above reasons, I refuse to grant the Mother's application for interlocutory relief. It follows that the balance of her Motion should be dismissed.
Given the outcome, I see no reason why the usual order that costs follow the event should not apply and propose to make an order that the Mother pay the College's costs of her interlocutory application. However, as the parties have not addressed the Court on costs, I have deferred entry of the proposed costs order for 14 days to enable any party to make an application if they consider that a different costs order should be made. In that event, the party seeking a different costs order should confer with the other party and, before the orders take effect, notify my Associate by email of the costs order sought together with a short outline of submissions (of no more than 2 pages) and an agreed date for submissions in response, with a view to the issue of costs being determined on the papers.
Accordingly, I make the following orders: 1. The plaintiff's claim for interlocutory relief, as claimed in prayers 5, 6, 7 and 8 of her notice of motion filed on 7 October 2022, be dismissed. 2. Unless a party makes an application for a different costs order within 14 days, the plaintiff is to pay the defendant's costs of the interlocutory application on the ordinary basis as agreed or assessed. 3. List the proceedings in the Expedition List at 9:30am on Friday, 4 November 2022.

Amendments 01 November 2022 - Correction of minor typographical errors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2022

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