Klewer v The Trustees of the Roman Catholic Church for the Diocese of Lismore

[2005] NSWSC 773

CITATION:	KLEWER v. THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF LISMORE [2005] NSWSC 773
HEARING DATE(S):	28 and 29 April 2005, 2 and 3 May 2005
JUDGMENT DATE :	3 August 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Verdict and judgment in favour of the defendant. Plaintiff to pay the defendant's costs.

CASES CITED:	BP Refinery (Westernport) Pty. Limited v. Shire of Hastings (1977) 180 CLR 266 Codelfa Construction Pty. Limited v. State Rail Authority of New South Wales (1981-82) 149 CLR 337
PARTIES:	KLEWER, Lucy v. THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF LISMORE
FILE NUMBER(S):	SC 20543 of 2001
COUNSEL:	Plaintiff: In person Defendant: P. See
SOLICITORS:	Plaintiff: In person Defendant: Hannigans

LOWER COURT JURISDICTION:

OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

WEDNESDAY 3 AUGUST 2005

No. 20543 of 2001

LUCY KLEWER v. THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF LISMORE

JUDGMENT

1 HIS HONOUR: These proceedings are brought and are entitled as proceedings by Lucy Klewer on behalf of her children, Robert Klewer, Laura Klewer and Ryan Klewer, against the Trustees of the Roman Catholic Church for the Diocese of Lismore. I will refer to Lucy Klewer as “the plaintiff”, notwithstanding that the proceedings are said to be brought on behalf of the three children An issue was raised at the outset of the hearing as to whether the proceedings were properly constituted and, in particular, whether the plaintiff sued in her own right and/or as tutor to the three children. Ultimately, no issue was taken by the defendant on this aspect.. She proceeds by way of an amended statement of claim filed on 2 July 2002 and is self-represented in these proceedings.

2 The plaintiff is the mother of seven children. The claim is brought by the plaintiff on the basis of a breach of a contract by the defendant in respect of contracts that applied to the school enrolment of Robert, Laura and Ryan Klewer. The contracts the subject of the claim, are that said to be evidenced by a document entitled “Year 2001 School Fee Payment Terms and Conditions” issued by the Parish Schools Board in Coffs Harbour. The Parish Schools Board administers school fees for four Catholic schools in Coffs Harbour and Sawtell. The plaintiff claims that the contract was breached by the defendant when it terminated the enrolment of her children Robert and Laura from John Paul College in Coffs Harbour and her son Ryan from St. Augustine’s Primary School in Coffs Harbour. The plaintiff claims that, as a result of the alleged breaches of contract, her children have suffered loss and damage. During the proceedings the plaintiff sought to amend her statement of claim on the basis that there was also a breach of duty of care under the general law.

3 The terms of the proposed amendment are set out in a document marked MFI 4. That document records, in essence, the following:-

• That the defendant was under a duty to the plaintiff and/or the plaintiff’s children not to terminate their enrolment in their respective schools without prior notice or arbitrarily and that the defendant breached that duty in terminating their enrolment in 2001.

• That the defendant’s reason for terminating the contracts relating to Laura and Ryan was as a result of another issue (being a dispute which developed from serious events involving assault matters and police charges and court processes, civil and criminal which continue arising from the incident of 7 March 2001 ) .

4 I granted leave to the plaintiff to rely upon the additional ground based upon a general duty at common law.

Schooling of the Children

5 Laura Klewer was aged 14 at the time these proceedings commenced. She attended St. Augustine’s Primary School in Coffs Harbour from 1991 to 1998. She attended John Paul College from about February 1999 to April 2001. After her enrolment was cancelled at John Paul College, Laura attended Coffs Harbour High School from Term 2, 2001. She was in Year 9 when she commenced at Coffs Harbour High School. Laura was unhappy at the school and had many absences from school. She changed schools to Coffs Harbour Senior College to complete Years 11 and 12. After completing high school, she did not undertake any further study. She is currently working part time (at night time) at a restaurant.

6 Robert Klewer was aged 13 at the time these proceedings commenced. He was enrolled at St. Augustine’s from 1993 to 1999. He was enrolled at John Paul College from about February 2000 to March 2001. At the age of four years, Robert was diagnosed with a brain tumour. He was a special needs child at school. He received assistance from two teachers at John Paul College to assist him with his learning because of his disabilities resulting from the brain tumour. These disabilities include visual difficulties, problems with language and weakness on his right side. After his enrolment was cancelled at John Paul College, he spent eight months at home and studied by distance education. He resumed his schooling at Coffs Harbour High School. He is currently at that school.

7 Ryan Klewer was aged nine at the time these proceedings commenced. He was enrolled as a student at St. Augustine’s from about February 1996 to April 2001. After his enrolment was cancelled at St. Augustine’s, he completed Primary School at Korora Public School. He is currently in Year 8 at Coffs Harbour High School.

8 The plaintiff’s four other children are pursuing valuable careers. James Klewer has been working for a pharmaceutical company for four years. Susan Klewer works as a manager at McDonalds. Andrew Klewer is an aeronautical engineer with the RAAF. Lisa Klewer is studying psychology at University.

9 I will segment the substantial issues in the proceedings into discrete parts for the purpose of analysis as follows:-

PART A - THE INCIDENT AT JOHN PAUL COLLEGE ON 7 MARCH 2001

PART B – SCHOOL FEE PAYMENT HISTORY AND THE DECISION TO TERMINATE SCHOOL ENROLMENTS


PART C – THE BASIS OF THE PLAINTIFF’S CHALLENGE TO THE DECISION TO TERMINATE ENROLMENTS

PART D – THE CONTRACTUAL PROVISIONS GOVERNING THE SCHOOL ENROLMENTS

PART E – CONCLUSIONS ON THE INCIDENT OF 7 MARCH 2001 AND LEGAL CONSEQUENCES

PART F – CONCLUSIONS ON THE TERMINATION OF THE ENROLMENT OF LAURA AND RYAN KLEWER

PART A - THE INCIDENT AT JOHN PAUL COLLEGE ON 7 MARCH 2001

10 On 7 March 2001, Robert Klewer was struck on the head at John Paul College by another student at the school. Two staff members at the school cared for Robert after the incident. The plaintiff was informed of the incident and she attended John Paul College. She was very concerned for Robert because part of his skull is missing and he is prone to haematomas due to surgical procedures in the past to remove his brain tumour. If he sustains any head injury there could be very serious consequences. When the plaintiff arrived at the school she had discussions with the principal of the school, Ian Walton, and the Deputy Principal, Leon Walsh.

11 The plaintiff states in her evidence that she asked the principal to call the police and he refused to do so. When the principal refused, she attempted to use a school telephone to call the police herself. The plaintiff claims that the principal removed the phone from her hand, grabbed her by the arm and physically removed her from the premises. The plaintiff states in her evidence that she said to Mr. Walton words to the effect, “Robert won’t be coming back to the school until you apologise to him” and added other words saying, “until you can assure me of his safety at the school”.

12 The defendants deny the plaintiff’s version of events. Mr. Ian Walton stated in evidence that he offered to call the police. He stated in cross-examination that the plaintiff shouted abuse towards himself, Mr. Walsh or anyone within earshot. This is consistent with the evidence by Mr. Walton given in proceedings on 10 December 2001 at the Coffs Harbour Local Court arising from the same incident at the school. The transcript of the hearing before the Local Court was admitted in evidence in the current proceedings. Mr. Walton stated in evidence in those proceedings, “She then became abusive and used language such as ‘morons’ and ‘idiots’”. He asked the plaintiff to leave the school premises. Mr. Walton told the plaintiff that Robert had instigated the attack. The plaintiff disagreed with this. Two members of staff who were present at the time of the incident confirmed that Robert had instigated the attack. The plaintiff said to Mr. Walton that he was calling Robert a liar in saying that he instigated the attack. She then demanded that Mr. Walton apologise to her son. She told him that Robert would not return to school until he received the apology.

13 Mr. Walton had a conversation with Sergeant Levy from Coffs Harbour Police on the day of the incident. Sergeant Levy indicated that the matter should be dealt with by the school and not the police.

14 The evidence of Mr. Walton is contained in his witness statement filed on 13 May 2003 (Exhibit 10), in reply to the plaintiff’s statement filed 14 April 2003 (Exhibit 9). He also gave oral evidence. Mr. Walton had been principal of John Paul College, Coffs Harbour for approximately two years as at 7 March 2001.

15 In cross-examination, Mr. Walton described how the plaintiff, on 7 March 2001, made a number of threats in a raised voice. He maintained, based on investigations by other staff, that Robert had been responsible for precipitating the incident with the other boy. Mr. Walton said in evidence:-

“No, you said to me that I needed to apologise to Robert, you had an idea that the other boy instigated the attack, which was false, you had that impression and Robert and I had a discussion about that and you were involved as well in some discussion, now, and I told you that Robert had instigated the attack, you would not wear that, you would not agree with that and you said to me that I was calling Robert a liar and that he would not return to the school until you got a big fat apology from me. As I explained to you at the time, I had nothing to apologise for, there would be no apology.”

16 Mr. Walton stated that after the incident, Robert was cared for by staff to ensure that he was “safe”. He stated that the discipline policy procedure had been applied in relation to the incident.

17 He stated that, following accusations made by the plaintiff to police, he attended at the police station on 5 April and was interviewed.

18 Mr. Walton’s described in evidence how the plaintiff, on 7 March 2001, “stormed” through to the students’ counter where she removed a blue phone from several students, who were trying to make a phone call. The phone was out of order and she then stormed back into the office area. She picked up a phone from the desk and started to make a call at which time Mr. Walton said he took the phone from her and asked her to leave the premises.

19 Mr. Walton provided a statement to police on 19 April 2001 (Exhibit V). He records in it that he had attended Coffs Harbour Police Station on 5 April 2001 and participated in an interview.

20 He denied Mrs. Klewer’s allegations. In particular, he denied touching her or dragging her through the office area. He provided a history of attempts to resolve issues with Mrs. Klewer at three subsequent meetings. He referred to her aggressive and abusive manner towards him at each meeting which continued in subsequent correspondence. Mr. Walton provided police with a detailed account of the incident involving Robert on 7 March 2001 and of the incident in which Mrs. Klewer demanded the use of a phone to call police and the events surrounding that incident.

21 In relation to these unhappy events, having heard and seen Mr. Walton give evidence, I accept his evidence that the plaintiff did, on 7 and, subsequently, 8 March 2001, act in a highly abusive manner, a fact which, in any event, is reflected in the correspondence that soon thereafter came into existence. Mr. Walton’s statement to the police dated 19 April 2001 (Exhibit V) is consistent with his evidence in relation to the plaintiff’s allegations of assault. I accept his account of the events that unfolded after Mrs. Klewer demanded access to a phone to call police and reject her version of events. In particular, although it is not strictly an issue in these proceedings, the events of 7 March generally are relevant to the principal issues arising on the pleadings. The allegations of assault are peripheral to those issues. I do not accept, on the evidence before me, the allegations of assault made against Mr. Walton.

22 It is a fortunate fact that the evidence indicates that Robert did not suffer any significant injury or ongoing disability consequent upon the incident of 7 March 2001. The hospital notes from Coffs Harbour Base Hospital dated 7 March 2001 indicate that he was examined and observations made of what appeared to have been superficial injuries to his head but that there were no neurological signs apparent. The attending doctor explained that it was not considered necessary for Robert to undergo any investigations by way of CT scan or otherwise.

23 A report from Dr. Ian Andrews, paediatric neurologist, dated 23 April 2001 contains a history which includes:-

“There have been some issues at home. He has not attended school for the last 2 months. This is related to a punching incident. I understand his mum and the headmaster are not getting on well and there is no immediate plan to get him back to school. He spends most of the day hanging around at home watching television.”

24 There is no suggestion in that report that Dr. Andrews considered that there was any ongoing sequelae as a result of the incident of 7 March 2001. I note that Dr. Andrews wrote the report to Dr. Laurence E. Budd of Coffs Harbour on 23 April 2001. There is no evidence from Dr. Budd, the general practitioner, indicating any significant injury disability arose as a result of the incident of 7 March 2001.

Meetings and correspondence between the plaintiff and members of staff following the incident at John Paul College

25 The parties adduced evidence by way of written statement and oral evidence and a large amount of documentation was tendered, in particular by the plaintiff, in support of the claim.

26 The plaintiff relied upon a statement by her filed on 20 October 2002 (Exhibit A) and written submissions which were tendered and marked as Exhibit 2. In those submissions (paragraph 3), the plaintiff asserted that her decision as conveyed on 7 March 2001 to hold Robert back from school was done on a temporary basis to permit him to “recover” and also “to allow time to the principal to become familiar with the full facts of the event and apologise to Robert for wrongly accusing him of being the catalyst of the incident resulting in Robert being attacked and injured”.

27 In Exhibit 2, the plaintiff asserts that the later decision to terminate the enrolment of Laura and Ryan on the basis of non-payment of school fees was motivated by matters set out in paragraph 7 of the statement including the plaintiff’s complaint to police of an alleged assault upon her in that incident of 7 March 2001.

28 The plaintiff’s attendance on 8 March 2001 at John Paul College was for the purposes of discussing the incident of the previous day with the principal, Mr. Walton. The meeting failed entirely to resolve the matter. It concluded with the plaintiff again indicating to the principal that her son would not be returning to school until she received an apology and received an assurance that he would be safe.

29 On 13 March 2001 a meeting took place between the plaintiff, Robert Klewer, Mr. Walton and Mr. Walsh. At the meeting the plaintiff had a discussion with the principal about which child initiated the incident on the 7 March 2001. Mr. Walton states that the plaintiff became upset and called him “a liar”. He states that she also said words to the effect, “you have got a bad attitude”. He asserts that the plaintiff then said to Robert, “sorry Robert, you can’t come back to this school”.

30 On 13 March 2001, Mr. Walton sent a letter to the plaintiff referring to the previous meetings with her on the 7, 8 and 13 March. He wrote as follows:-

“Last Wednesday, 7 March, at a meeting here at John Paul College with Mr. Walsh and myself, you indicated you would be withdrawing Robert from the College. At a further meeting with you on the morning of Thursday, 8 March, you again said Robert would not remain a student at John Paul College. Mr. Walsh and I agreed that was your decision as the parent. Again, today Tuesday 13 March, in discussions with you, you indicated Robert would not be returning. Robert is welcome at our College, however, for Robert to return to John Paul College, you must re-enrol him and indicate your willingness to accept the values and practices of the College.”

31 The plaintiff responded that same day by facsimile:-

“Robert Klewer wishes to continue to attend JPC as do his sisters Lisa and Laura. I have not formally withdrawn any of them so they do not need any re-enrolment. Last week I reported your irresponsible behaviour to the Catholic Education Department in Lismore. You continue to behave in an irresponsible manner whereby you have lied to me and to police about Robert. You lied to me about how you represented the incident of last week to police. I spoke to Senior Sergeant Thompson about your behaviour today and he was not impressed. He suggested that an investigation should go ahead and I told him not to worry about it. I instead told him that my current concern is that when Robert arrives at the school tomorrow you may turn him away. You refuse to apologise to Robert and you refuse to accept that you need to change your current behaviour because you are behaving like a little boy. Grow up.
K.P. Klewer
13/03/01”

32 On 14 March 2001, Robert Klewer arrived at John Paul College ready for school. Mr. Walton wrote a letter to the plaintiff. In it he confirmed that Robert had arrived at school. He indicated that the boy’s enrolment had been cancelled on the basis of the plaintiff’s advice given on three previous occasions. Mr. Walton advised that the school would accept Robert back into the College, providing that he was re-enrolled and providing that the plaintiff would indicate her willingness to support the school in Robert’s education. The plaintiff replied by facsimile on the same day indicating that she would not re-enrol Robert as he had not formally left the school.

33 On 15 March 2001 there was a conference between the plaintiff, Mr. Walton, Mr. David Condon, Mr. John Reilly from the Catholic Education Office at Lismore, Mrs. Conroy who was the Special Education Teacher at the time, Mr. Walsh and Father Reinhard who was the Parish Priest at the time. The meeting did not resolve the issues between the parties. Mr. Walton did not offer an apology to Robert. There was no agreement about re-enrolling Robert at the school. Father Reinhard stated in his evidence that it was explained to the plaintiff that if she wished to re-enrol Robert, she would be required to abide by the school’s rules. The plaintiff denies this was raised at the meeting. At the meeting the plaintiff claimed that the principal was dishonest and had lied to the police by telling them there was no need for the police to attend the school after the incident and that he had lied about the facts of the attack. There was discussion over which child had initiated the attack on 7 March.

34 A letter was sent by Mr. Walton to the plaintiff on 15 March after the meeting. The letter referred to the fact that on three previous occasions and at the meeting of 15 March, the plaintiff indicated that she did not wish Robert to attend school at John Paul College. The letter confirmed that Robert was no longer a student at John Paul College.

35 After receiving the letter of 15 March, the plaintiff sent a facsimile in reply. In it she stated her position that she was holding Robert back from school until he received an apology. She also made the following comments, “He [Robert] is not a liar but you are. If anything you do not deserve to run a Catholic School if you yourself are acting so dishonest and irresponsible”.

36 Following the letter of 13 March 2001 from Mr. Walton in which he stipulated the requirement for Robert’s re-enrolment if he were to return to the College and the need for an expression of willingness by the plaintiff to accept the values and practices of the College, Mrs. Klewer wrote on the same date to Mr. Walton, the substance of which is set out in paragraph [31] above. The letter is of significance for three reasons:-

(a) It disputed that there had been any formal withdrawing of Robert and took issue with the stipulation of a need to re-enrol Robert if he were to be considered as a student of the College.

(b) It evidences the poor state of the relationship between Mrs. Klewer and the school principal.

(c) The intemperate and abusive language that was directed at the principal by the plaintiff.

37 The plaintiff’s conduct as disclosed by this letter is the antithesis of a relationship built on co-operation and trust, which the plaintiff accepted in evidence was fundamental in the relationship between parent and school authorities. The letter also demonstrates unreasonable refusal by the plaintiff to accept the conditions stipulated for re-enrolment which were re-stated as a requirement in Mr. Walton’s letter of 14 March 2001 to the plaintiff. The correspondence evidences personal animosity by the plaintiff of a high order as well as a constructive, if not an actual, refusal to comply with the procedure to re-enrol Robert. Such refusal compounded the lack of co-operation that by then was clearly manifest.

38 The plaintiff wrote again to Mr. Walton on 14 March 2001. The letter commences:-

“Your behaviour is getting increasingly intolerable. I will re-iterate to you that I will not re-enrol Robert or his sisters as they have not formally left your school.”

39 The letter again contains abusive comments and manifests a complete unwillingness in the plaintiff to co-operate or to conciliate. Indeed, the original matter that had precipitated events on 7 March 2001 (the incident between Robert and another school boy) had, through the plaintiff’s conduct, snowballed into a major dispute with the plaintiff charging the principal with allegations of inappropriate or improper conduct.

40 The unhappy history of events in March 2001 led to Mr. Walton, by letter to the plaintiff dated 15 March 2001, stating that the parties were unable to agree on a process to re-enrol Robert at the College and Mr. Walton stating:-

“You have indicated on three previous occasions and again today, you do not wish Robert to attend school here at John Paul College.
Your decision to withdraw Robert from the College has been accepted by Father Reinhard, the Parish Priest, and myself. Robert is no longer a student at John Paul College.”

41 A copy of the original of that letter has a handwritten note written on it by the plaintiff which stated:-

“Dear Sir
As I told you on several occasions, and as I informed your associates today, I hold Robert back from school until such time you apologise to him. He is not a liar but you are. If anything, you do not deserve to run a Catholic school if you yourself are acting so dishonest (sic) and irresponsible . I will fight you on this one.”

42 If it were not apparent before this letter that the relationship between the plaintiff and the school principal had completely broken down, this handwritten note by the plaintiff puts it beyond any doubt.

43 On 27 March 2001, Mr. Walton sent the plaintiff a new enrolment form for Robert. He advised that there was a waiting list for enrolment into the school and they would be placed on the waiting list. On 4 April 2001, Mr. Walton sent the plaintiff a letter (Exhibit H) advising that they had been unable to place Robert for 2001 due to the large number of applications and asked the plaintiff to complete an attached form for him to be placed on the waiting list.

44 It is clear, on the evidence, that the plaintiff, Mrs. Klewer, made an unqualified statement to Mr. Walton on more than one occasion to the effect that “Robert won’t be coming back to school until you apologise to him”. Indeed, that statement is specifically recorded by the plaintiff herself in paragraph 10 of the amended statement of claim.

45 However, in the written submissions made by the plaintiff, it is contended that her decision to hold Robert back from school “was without doubt on temporary basis for the purpose to have son Robert recover from the shock of the assault, the injury itself and to allow time to the principal to become familiar with the full facts of the event and apologise to Robert for wrongly accusing him of being the catalyst of the incident resulting in Robert being attacked and injured”.

46 This statement does not sit comfortably with the facts as disclosed by the medical evidence. There is no suggestion whatsoever in the clinical notes of the Coffs Harbour Base Hospital, nor in the report of Dr. Andrews, paediatric neurologist, to which I have earlier referred that Robert had suffered any significant injury requiring him to take absence from school. Indeed, in his report of 23 April 2001, Dr. Andrews expressed concerned that Robert was being kept at home and that there was “and there is no immediate plan to get him back to school” (p.1). Later in the same report, Dr. Andrews expressed his opinion, in effect, that it was in Robert’s interests that he return to school, “it seems to me that it would be great if he could go back to school. He clearly misses his friends. I wonder if this is a contributing factor to his fatigue …” (p.2).

47 I accordingly reject the submission made by Mrs. Klewer to the effect that she had indicated that she was only withdrawing Robert on a temporary basis. Her statements were unqualified and I have already referred to the stand that she had taken in that respect. Robert’s removal from the school, accordingly, was, on the facts as I have found them to be, the direct result of the plaintiff’s own actions.

48 The history of school fees in relation to the plaintiff’s children, the subject of these proceedings, is detailed and lengthy. In order to understand the evidence, the principal issues are:-

(a) The plaintiff’s failure to pay school fees and elective fees.

(b) Arrangements made by the school authorities to reduce fees and the failure of the plaintiff to pay such fees.

(c) The question of the extent to which the plaintiff kept the school authorities informed and properly advised as to her ability to pay school fees and elective fees.

PART B - SCHOOL FEE PAYMENT HISTORY AND THE DECISION TO TERMINATE SCHOOL ENROLMENTS

49 Between 1996 and 1999 there were many letters sent between the Bursar of the Parish Schools Board, Mr. Tom Guz, and the plaintiff regarding the payment of school fees. From 1997 onwards, the plaintiff’s ex-husband ceased making contributions to the payment of school fees. The plaintiff became solely responsible for the payment of fees. On 28 March 1997 the plaintiff sent a letter to the Bursar informing him that she was unable to make payments for the school fees at that stage. She indicated that payments from her ex-husband towards child maintenance had been discontinued. She also stated, “If you insist on school fees for my children I shall have to place them in public schools”.

50 The plaintiff experienced difficulties in meeting the payments. On 9 April 1997, Mr. Guz wrote to the plaintiff requesting that she meet with him to discuss her financial position. Once it had been assessed, the Parish Schools Board would come to some agreement with the plaintiff about the fee that could be afforded. In August 1997 the plaintiff offered to pay $5 per week in school fees until January 1998. The Parish Schools Board indicated they would accept this method of payment until January 1998. After that time there would be a review of the plaintiff’s situation based on details provided by her, including evidence of low income, evidence of benefits and other relevant records, which would support her application for a discount in school fees.

51 On 15 December 1997, the Bursar wrote to the plaintiff to inform her that there would be an annual review of concessions for school fees conducted between 2 January 1998 and 14 January 1998. The plaintiff was requested to contact the Bursar for a suitable interview time between the allotted dates. She was requested to bring documents showing evidence of low income, evidence of benefits and any other relevant documents. The letter indicated that if the plaintiff did not attend the interview, full fees for 1998 would be charged. The plaintiff did not make contact with the Bursar to arrange the interview. The Bursar sent two letters to the plaintiff warning her that full fees would be applicable if she did not attend the meeting. The plaintiff sent a letter to the Bursar, informing him that her fortnightly income was $980, her fortnightly mortgage payments were $310 and her household debts and expenses were $660 per fortnight. She advised that her ex-husband was unemployed and unable to pay child maintenance. She also indicated that she was unable to increase her current monthly contribution to the school fees. On 19 January 1998, the Bursar again wrote to the plaintiff indicating that she had not provided the Board with the information or evidence required by parents who seek fee reductions.

52 On 1 September 1998, the plaintiff faxed to the Bursar a letter from Centrelink indicating that she was entitled to receive $489.80 per fortnight as Family Allowance Payments. On 3 September, the plaintiff faxed a letter to the Bursar advising that she also received a sole parent income of about $350 per fortnight. The plaintiff received this sole parent pension until the year 2000.

53 The plaintiff had numerous discussions with the Bursar of the Parish Schools Board, about the payment of unpaid school fees by her between 1999 and 2001. On 14 May 1999, the Bursar wrote to the plaintiff advising that the Board had not received school fee payments for January 1999, February 1999 and April 1999. The Bursar asked that the plaintiff explain why these fees had not been paid. On 20 May 1999, the Bursar wrote to the plaintiff asking her to attend her unpaid fees. On 5 July 1999, the Bursar again wrote to the plaintiff advising of her overdue fees and requesting that if she was claiming financial hardship to contact the Board and discuss this with the Board. On 20 July 1999, the Bursar wrote to the plaintiff in relation to the three letters sent on 14 May 1999, 20 May 1999 and 5 July 1999. He expressed the Board’s disappointment that there had been no response from the plaintiff and that the fees remained unpaid. He indicated that if there was not a settlement of unpaid fees or if there was no payment programme by 28 January 2000, the Board may seek recovery of the money through proceedings in the Local Court.

54 In December 1999, the Bursar sent a letter to the plaintiff. He indicated that the school fees for 1999 and 2000, which amounted to $4,597.10, would be reduced by $4,117.10 (a Family Fee reduction) to a total amount of $480. The plaintiff would pay the $480 by instalments of $40 per month for 12 months. Following this agreement the plaintiff authorised the Banana Coast Credit Union to make periodic payments of $40 to the Parish Schools Board.

School fee reductions: summary

55 The correspondence between Mr. Guz and the Parish Schools Board confirms the following:-

• On 14 January 1998, arrears of $3,815 were outstanding. The Board offered, by facsimile of that date, to reduce these arrears to $520 and accept periodical payments of $2 per week.

• Mrs. Klewer responded in a handwritten facsimile dated 16 January 1998 acknowledging receipt of the letter of 14 January and stating “you seem to ignore my financial situation … I am not in a position to increase my currently monthly payment until my income increases. I find your recent fax intimidating” .

• On 19 January 1998, Mr. Guz wrote to the plaintiff advising that Mrs. Klewer had not provided information/evidence of inability to service school fees and confirming that the Board had waived $3,297 in arrears in accordance with the facsimile of 14 January 1998.

• Following correspondence in 1999 between Mr. Guz and Mrs. Klewer in relation to her failure to pay fees, on 10 December 1999 the Board offered to accept for 1999 and 2000, totalling $4,597.10, the amount of $480 payable at $40 per month for 12 months to commence 1 January 2000 (ie., a reduction of $4,117.10 for the year 2000).

56 The Parish Schools Board wrote a series of letters to the plaintiff (in February, March, August and September 2000) advising that they had not received all of the monthly instalments. On 10 May 2000, the plaintiff telephoned the Bursar and advised that there had been an error at her credit union, which prevented the transfer of the monthly payments. The error was that the computer recorded the year as “20” at the start of 2000, which their computer read as the year 2020. On 12 May 2000, the Bursar wrote to the plaintiff. He suggested a new method of payment of fees whereby the plaintiff would pay $120 every three months. The plaintiff did not pay the first instalment and was sent a letter on 24 August 2000 advising of this. On 12 September 2000, the plaintiff wrote a letter to the Bursar advising that she had not paid her overdue amounts because the Child Support Agency had reduced the monthly Child Support payments of her ex-husband. By the end of the year 2000, the plaintiff still had $339 owing in unpaid arrears.

57 On 11 January 2001, the Parish Schools Board sent a letter to the plaintiff advising that the amount owing for unpaid fees was $339 and that the fees for the school year of 2001 would be $2,441.70. This total amount represented $2,780.70.

58 On 15 February 2001, the Bursar for the Parish Schools Board wrote to the plaintiff advising that the amount of $1,152.90 for school fees (Term 1, 2001 fees) was due by 12 April 2001. If the plaintiff did not pay this amount, the Parish Schools Board would take action described in item 4 of the Parish Schools Board General Requirements. Item 4 provided:-

“Continuation of an existing enrolment is subject to review by the Principal and is not automatic. Such a review will take into consideration a family’s fee servicing history where there is a proven record of non-co-operation or non-communication with the Principal or Bursar.”

59 The plaintiff states that she never received the letter.

60 On 13 March 2001, John Paul College sent a letter to the plaintiff seeking the payment of $610 for elective fees.

61 On 29 March 2001, the plaintiff completed a new enrolment form for Robert. The plaintiff put a line through the following words on the enrolment form, thereby crossing them out:-

“APPLICATION, ACKNOWLEDGEMENT AND STATEMENT OF INTENT

Application is hereby made for enrolment of the above student. I/We acknowledge receiving a copy of the current Schedule of Standard School Fees and accept the terms and conditions of enrolment, in particular my/our joint responsibility to pay school fees, to keep payments up to date in the manner I/we elect as advised below, to clear promptly any arrears resulting from termination of enrolment for any reason and to service, upon request, any support fees associated with student activities. I/we undertake to notify the school in advance (and advise forwarding address if necessary) in the event that termination of enrolment is required.

62 In early 2001, the plaintiff prepared an affidavit for other purposes setting out her income, expenses, assets and liabilities. This affidavit indicated that the plaintiff’s total income was $2,590 per fortnight and her total expenses were $2,540 per fortnight. She owned her residential home in Korora and an investment home in Boambee. Both homes had mortgages on them.

The decision to terminate enrolments: Laura and Ryan

63 Prior to the 17 April 2001, there was a meeting of the Executive of the Parish Schools Board. There were no minutes kept of the meeting. The persons present were Mr. Brennan (the Chairman of the Parish Schools Board for Coffs Harbour), Father Colin Reinhard, Mr. Tom Guz, Mr. Hogan (Principal of St. Augustine’s Primary School), Ian Walton and Timothy Allsopp. The meeting took place in the boardroom of the Curran Centre in Coffs Harbour. The issue discussed and considered by the Executive was the fee payment history of the plaintiff, going back to 1996. As can bee seen from the history of this matter, there had been many letters sent to the plaintiff from 1996 seeking the payment of school fees, seeking the plaintiff’s cooperation in coming to an agreement and in seeking payments using a variety of methods. The Executive considered that the history indicated a long period of non-co-operation by the plaintiff. It was decided that she was not making any genuine attempt to pay school fees, and she had been unco-operative and had not been communicating properly with the school on the matter of fees. Accordingly, the decision was made to cancel the enrolments of Laura and Ryan. There was plainly a solid body of material upon which such a decision could be made.

64 The evidence indicated that, apart from outstanding school fees, the plaintiff had also been in breach of her obligation to pay what are described as “elective fees”. Exhibit 4, a letter from Mr. Walton to the plaintiff dated 15 August 2000, pointed out that elective fees had been outstanding for some time in respect of her daughter Lisa (Year 9 Wood Tech Elective fees of $45 from 1998, Year 10 Wood Tech Elective fees of $35, balance of Year 10 retreat $55 from 1999, Elective fees of $205 from first semester in the year 2000 and the balance of Year 11 retreat fees of $70). That letter referred to an earlier letter of 28 March 2000 with which was sent an account requesting payment. That letter warned that if no contact had been made before 28 August 2000, then Lisa would have to be withdrawn from her chosen elective subjects. On an earlier date (31 July 2000), an account had been sent to the plaintiff for overdue elective fees totalling $425 (Exhibit 5).

65 On 17 April 2001, the Chairman of the Parish Schools Board for Coffs Harbour, Mr. Brennan, wrote to the plaintiff regarding outstanding fees for her children at St. Augustine’s Primary School and John Paul College. He wrote:-

“The Bursar for the Parish Schools Board wrote to you on 15 February 2001 regarding the outstanding fees and advising that payment of $1,152.90 was required by 12 April 2001. In view of the fact that no payment has been received I am now forced to advise you that the enrolment of Laura and Ryan is cancelled from Term 2, 30 April 2001 in line with Board policy advised to you on the School Fees Terms and Conditions sent to you on 15 February. In consideration of the fact that Lisa is in Year 12 it has been decided to continue her enrolment until the end of this year.”

66 The plaintiff sent a letter to Mr. Brennan in reply on 18 April 2001. She indicated that she had not received the letter from the Bursar on 15 February 2001. She explained that all along she had been seeking a letter from the Bursar, which she could present to the Child Support Agency Review Office for the purpose of deducting extra funds from her husband to cover the costs of Catholic education. In paragraph 4 of the plaintiff’s letter she stated:-

“I am not aware of correspondence of the 15/02, however had the Bursar provided me with such threatening letter in the past, the CSA would have ordered for Mr. Klewer to pay for such fees as per one of the 10 special grounds under the CSA laws.”

67 This point was the matter which the plaintiff insisted the Bursar had responsibility for – to provide a letter she could use. However, that matter in no way provides either excuse or justification for the plaintiff’s prolonged lack of co-operation in relation to the payment of school fees. In the plaintiff’s written submissions (Exhibit 2, paragraph 5), it is contended that the plaintiff had sought from Mr. Guz a letter stating that if arrears are not paid her children’s enrolment would be cancelled. Had such a letter been provided, the plaintiff contended additional funds via the Child Support Agency from the father, Thomas Klewer, towards educational costs would have been paid, but that no such letter was provided.

68 There is no evidence that such a letter would have produced the result contended for, but even if it could be said that it would have, the failure by the defendant to provide such a letter could in no way be seen as a breach of their duty as alleged.

69 On the question of the arrears in school fees, the plaintiff agreed that the school authorities had, in late 1999 or in 2000, reduced the school fees by some $4,000. That had been preceded by lengthy discussions including communications with Mr. Guz. When put to her, the plaintiff did not directly dispute the proposition that she had not paid any fees for over a year prior to her children being excluded from the school. Although the plaintiff disputed receiving the letter of 15 February 2001 written by Mr. Guz, there was other correspondence on the problem of fees in arrears. Mr. Guz gave sworn evidence that the letter of 15 February 2001 was sent by him to the plaintiff. An earlier letter concerning unpaid fees had been sent to the plaintiff dated 11 January 2001. The letter, written again by Mr. Guz, requested telephone contact by the plaintiff by 19 January 2001 in relation to the fees and any alternative plan proposed in relation to them. Mr. Guz confirmed in oral evidence that no response was received from the plaintiff in relation to that letter. It had been preceded by an earlier communication on the question of outstanding arrears (letter dated 24 August 2000). The plaintiff responded to that letter by fax memorandum dated 12 September 2000 (Exhibit 13, page 94). However, she failed to put before the school authorities the type of financial information that had been requested.

70 In relation to the onus of establishing inability to pay, the plaintiff accepted that if she wished ordinary school fees to be reduced, then the onus was on her to put material to the school in support of the reduction. She, however, sought to add a gloss, saying that the onus was on her “when I was asked to”. That was plainly an untenable position for her to take. It was she who had sought and been granted indulgences on the matter of fees. If she was having difficulty in paying the much reduced fees there remained a continuing obligation to co-operate and keep the school authorities properly informed. This she failed to do.

71 In the plaintiff’s written submissions (Exhibit 2), it is contended that it was an implied term of the contract that the Principals of the respective schools would make an enquiry about the ability to pay fees from the Coffs Harbour or Sawtell Parishes before determining to refuse or cancel an enrolment. Similarly, it was contended that Mr. Walton, as principal of John Paul College, and Mr. Michael Hogan, principal of St. Augustine were bound by such a term. The plaintiff contends that she would have been willing to comply in that regard.

72 I do not consider that there was a proper basis, as a matter of law, for the implication of such a term. In particular, there is no basis for the submission that the principals referred to in the plaintiff’s submissions, as it were, undertook the obligation of constantly making enquiry about the family’s ability to pay fees.

73 There was considerable documentary and oral evidence concerning the plaintiff’s income and expenses. An affidavit sworn by her dated 17 April 2001 (included in Exhibit 13 at pp.139-140) set out particulars. She had acquired a property in 2000 or 2001 at 30 Coachmans Close, Korora which was heavily mortgaged and which she, in due course, occupied as a home. She also acquired an investment property at Avonleigh Drive, Boambee which was heavily mortgaged and which generated rental income. Documentary evidence establishes that the property at Boambee was purchased on 1 August 2000 for the sum of $134,900. The affidavit disclosed benefits and income amounting, on an annual basis, to approximately $65,000 (although that amount sis partly based upon a salary from Novotel at $250 per fortnight, which employment only lasted for a short time). The plaintiff’s decision to acquire the abovementioned properties resulted in mortgage repayments on a fortnightly basis of $1,340.

74 The evidence indicates that correspondence concerning overdue school fees reach back until beyond 1999 and that a significant reduction of fees had been granted for the year 2000. There is not in evidence material provided by the plaintiff either to the school authorities or to the Court which would demonstrate or evidence an inability in the plaintiff to pay the much reduced fees in 2000. I do not accept the plaintiff’s evidence that it was up to the school authorities to pursue her constantly for information regarding her financial position. This particularly applies to the period between the letter of 11 January 2001 (see paragraph 51) and the letter of 17 April 2001 terminating the enrolments.

75 Although the plaintiff succeeded in securing a substantial reduction of fees in late 1999, she failed to demonstrate, by cogent material, an inability to pay the very low level of fees agreed to by the school or any genuine attempt by her to keep the school authorities advised as to any difficulties she was encountering in paying them. In cross-examination it was put to the plaintiff in relation to the 1999 agreement to pay reduced fees:-

“Q. But the fact was, you didn’t stick to that agreement did you? A. I don’t know.
Q. Well, you didn’t pay $480 for the following year, did you? A. I don’t keep any records of what I paid.” (transcript 53)

76 The plaintiff’s evasiveness in giving evidence reinforced the evidence of a consistent picture of a non-co-operative parent.

77 Mr. Guz, who had been the Bursar of the Parish Schools Board in the Coffs Harbour Diocese of the Catholic Church for some 12 years, provided a statement with relevant documentation attached concerning the non-payment of fees. His main duties were to ensure that fees were collected as agreed.

78 He said that he was well acquainted with the plaintiff, having dealt with her for a number of years. It is unnecessary to detail the lengthy history of unpaid school fees. They are summarised in a document entitled “Defendant’s chronology of unpaid school fees” which is based largely upon documents contained within Exhibit 13, in relation to the history of fees owing from 1999 to 2001. Mr. Guz prepared an invoice/statement for school fees Term 1 dated 15 March 2001, which set out the position concerning outstanding fees, which were considered by the executive meeting held on 17 April 2001. A copy of that document, Mr. Guz stated, was posted to the plaintiff.

79 Mr. Guz confirmed that the arrangements that had been made with the plaintiff whereby she would pay school fees by instalments of $40 per month were not complied with by her. He confirmed that the plaintiff had contacted him on 10 May 2000 in relation to the failure by the credit union to make a payment. At that time, in a letter of 12 May 2000, he confirmed the fee reduction of $4,117.10 had been approved by the Board in January 2000. Mr. Guz stated that the reduction was based on hardship. He confirmed that subsequently a full fee reduction was allowed for the year 2000 and that arrears of some $339 referred to in a letter to the plaintiff dated 15 February 2001 were outstanding.

80 As noted earlier, following the letter advising that the enrolments of Laura and Ryan were cancelled by reason of non-payment of fees, the plaintiff replied by letter dated 18 April 2001 (Exhibit 13, pp.145-146). In it she responded to, what she termed, Mr. Brennan’s “disgusting letter of yesterday” and sets out a number of matters asserted by way of explanation or justification and stated that the decision taken was “illegal” and “has to do with the maniac Ian Wilson who declined to allow my son Robert back …”. This was further evidence of repeated conduct by the plaintiff which led to the destruction of the essential trust, confidence and co-operation that must exist between school and parent.

81 On 20 April 2001, Mr. Paul Batley, solicitor, wrote to the director of the Catholic Education Office in Lismore in relation to the decision taken to cancel the enrolment of Laura and Ryan. That letter states that the plaintiff had raised the issue of school fees with the Child Support Registrar, who had refused an order to increase her child support benefit. What is noteworthy about the letter is that it does not dispute the history of non-payment of fees (even the much reduced fees for 2000) nor does it offer any explanation or material evidencing an inability in Mrs. Klewer to pay school fees. Had there been evidence to substantiate such an inability, one would have expected that it would have been raised or referred to (even belatedly) in Mr. Batley’s letter of 20 April 2001.

82 In relation to Laura and Ryan, Mr. Walton confirmed that the children’s enrolment was terminated as a result of non-payment of fees, lack of communication and lack of co-operation on the plaintiff’s part (paragraph 22, Exhibit 9). There was an abundance of evidence to support and justify such a decision.

83 Mr. Allsopp’s statement annexed a table in respect of the fee history. The total amount of fees reduced due to the plaintiff’s financial situation was $7,414.10, the total amount paid by the plaintiff was $498 and the balance of $3,049.45 remained outstanding as at the date of his statement (31 March 2003).

PART C - THE BASIS OF THE PLAINTIFF’S CHALLENGE TO THE DECISION TO TERMINATE ENROLMENTS

84 Mr. Timothy Allsopp, Parish Business Manager to Coffs Harbour Parish, outlined the relevant events concerning the termination of the enrolment of Laura and Ryan in his statement filed 8 April 2003 (Exhibit 12). He had held that position for approximately five years and confirmed that he attended an executive meeting which decided to cancel the enrolments of the Klewer children (he stated that Lisa Klewer, a student of John Paul College was allowed to continue her enrolment, notwithstanding the non-payment of fees, as she was studying for her Higher School Certificate). Mr. Allsopp confirmed that at the meeting, it was decided that the plaintiff was not making any genuine attempt to pay school fees and that she was being unco-operative and was not communicating. He explained in his statement that the process of cancelling enrolments was a lengthy one. He confirmed that at the meeting of the executive he was unaware of the private prosecution of Mr. Ian Walton that had, by that time, been initiated by the plaintiff. He said that the prosecution had absolutely no bearing upon the decision as far as he was concerned to cancel the enrolments of the two Klewer children. He confirmed:-

“The only issues discussed by the executive were the fee payment history of Mrs. Klewer that goes back to 1996 where many, many letters had been sent to her over the period from 1996 to 2001 asking for payment, seeking her co-operation in coming to an agreement, seeking payments using a variety of methods from cheque to direct deposit. We had previously given fee reductions in view of her personal circumstances and came to what was considered a reasonable agreement for fee payment, and that was the only issue that was discussed, and the fact that there was a long term history of non-co-operation and we had finally reached the point where there was no other options but to cancel the enrolments …” (paragraph 15)

85 Mr. Walton’s evidence as to what transpired at the executive meeting was consistent with the statement of Mr. Allsopp. He stated that the meeting examined the plaintiff’s finances, communications with her and fee reduction given in 1999. When it was put to him in cross-examination that the decision to cancel Laura’s and Ryan’s enrolment had nothing to do with fees whatsoever, Mr. Walton replied, “Not true. It had still (sic) be outstanding – elective fees going back to 1998 are still outstanding that we have spoken to you about”. When it was put to him that there had been a mistake by the credit union in the year 2000, Mr. Walton repeated that there had been a very long history of non-payment of fees including, in particular, elective fees.

86 The matters considered at the executive meeting were also confirmed by Mr. Michael Hogan, principal of St. Augustine’s Primary School, Coffs Harbour. He said that he attended the meeting in which the plaintiff’s failure to pay school fees was discussed. That included reference to the fact that there had been many attempts to contact the plaintiff, many opportunities given to her to come to some arrangement concerning the payment of fees and her lack of communication and co-operation. It was upon that basis, he said, that the decision was made to send a letter terminating the enrolments of Laura and Ryan Klewer from term two on 30 April 2001. He stated that the decision made by the Board was a unanimous one. He was aware that a private prosecution had been instituted by the plaintiff but asserted that his decision to support the “withdrawal” of the enrolments was a direct result of the non-payment of school fees and the failure to provide any adequate explanation by the plaintiff as to why the fees had remained unpaid. He said the decision was “in no way influenced by the issue of private prosecution at all”.

87 Father Colin Reinhard, in his statement of 14 April 2003 (Exhibit 7), dealt with two matters. He stated that he met with the plaintiff on 15 March 2001 and with Mr. Walton, Mr. Condon and Mr. Riley from the Catholic Education Office at Lismore. He stated that the plaintiff disputed the interpretation of events that occurred on 7 March 2001 and that Robert had been withdrawn. He stated that Mr. David Condon asked the plaintiff if she wished to re-enrol Robert and, if so, whether she would agree to abide by the rules. Father Reinhard records:-

“… Mrs. Klewer would not respond to the issues raised and called for an apology from Mr. Ian Walton. Mrs. Klewer abruptly left the meeting saying words to the effect:-
‘There is no prospect of any agreement here.’”

88 Father Reinhard also confirmed events associated with the meeting held on 15 April 2001 leading to the decision to terminate the enrolment of Laura and Ryan. He was asked in cross-examination:-

“Q. And what information were you told which caused that particular decision? A. Basically the failure of yourself to negotiate with us in relation to the payment of school fees.
…
Q. What evidence was brought to that meeting so far as documentary evidence? A. The letters and correspondence to yourself and your history in relation to paying school fees was presented.
Q. Did you sight those documents yourself? A. Yes.”

89 In the plaintiff’s written submissions (Exhibit 2, paragraph 7), it is contended that the Court ought find that the real reason behind the termination of the enrolments is to be found in the matters therein referred to including, in particular, the allegation of Mr. Walton’s “dissatisfaction with the plaintiff for wishing to involve the local police after the assault on her son”, the plaintiff’s complaint to police for the alleged assault by him on the plaintiff on 7 March 2001 and other matters therein referred to.

90 The evidence is wholly against the plaintiff’s contentions in these respects. The evidence objectively established that there was a valid basis for the action taken to terminate the enrolments associated with the very poor history of payment of fees and lack of co-operation by the plaintiff herself in relation to that problem.

91 However, aside from that matter, the evidence of Mr. Allsopp, Mr. Hogan and Father Reinhard, all of which I accept, uniformly established that the history of unpaid fees and the plaintiff’s lack of co-operation were, in fact, the, and the only, issues considered at the meeting held on 15 April 2001 at which the decision was taken to terminate the enrolments.

92 The submission made by the plaintiff in paragraph 7 of the written submissions is rejected.

93 The plaintiff failed to establish any impropriety or breach by the school authorities in relation to the decision to terminate the enrolments of Laura and Ryan. There substantial evidence of the plaintiff’s continued failure to co-operate in paying school fees and in failing to provide cogent material to support her claims of an inability to pay even the much reduced fees provided the defendants with a proper basis for exercising the contractual right to terminate the enrolments.

Educational Report on the Children

94 Robert, Laura and Ryan were assessed in May 2004 by Judith Burley of Kip McGrath Education Centre, Coffs Harbour, to assess their performance in English and Mathematics and to determine whether they needed extra tuition in these areas. Ryan’s performance in English and Reading was reported as “reasonably satisfactory”. It was reported that he needed immediate attention in mathematics and required tuition. Robert was reported as needing assistance with aspects of his reading and English work. Laura was reported as having a “sound” knowledge in English. She was said to be “seriously lacking the skills and knowledge needed for her course” in Mathematics. She required tuition in Mathematics.

PART D - THE CONTRACTUAL PROVISIONS GOVERNING THE SCHOOL ENROLMENTS

(a) The contractual terms

95 The contract consists of an information form entitled “Year 2001 School Fee Payment Terms and Conditions” from the Parish Schools Board advising of school fee payment terms and conditions. The terms of the contract which are relevant to the proceedings are items 1, 4 and 5 of the Parish School Board’s General Requirements. These state as follows:-

“1. All families using our schools are expected to pay the fees, which are payable in advance.
4. Continuation of an existing enrolment is subject to review by the Principal and is not automatic. Such a review will take into consideration a family’s fee servicing history where there is a proven record of non-co-operation or non-communication with the Principal or Bursar.
5. Genuine inability to pay the school fees on the part of a Catholic family from Coffs Harbour or Sawtell Parishes, will not be the cause of an enrolment being refused or discontinued.”

(b) Implied Term of the Contract

96 The plaintiff also alleged that the defendant breached an implied term of the contract. The plaintiff argues that it was an implied term of the contract that the Principals of the respective schools would make inquiry about the ability to pay fees of a Catholic Family from the Coffs Harbour or Sawtell Parishes before determining to refuse or cancel an enrolment. I do not believe that such an implied term can be said to have existed as a matter of law. Before a term can be implied into a contract certain conditions must be satisfied. These conditions are described in the case of BP Refinery (Westernport) Pty. Limited v. Shire of Hastings (1977) 180 CLR 266 at 282-283:-

(a) It must be reasonable and equitable;

(b) It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it;

(c) It must be so obvious that “it goes without saying” ;

(d) It must be capable of clear expression;

(e) It must not contradict any express term of the contract;

97 See also Codelfa Construction Pty. Limited v. State Rail Authority of New South Wales (1981-1982) 149 CLR 337, 347 per Mason, J. The implied term alleged by the plaintiff is not necessary to give business efficacy to the contract. Item 5 of the Contract refers to a “Genuine inability to pay school fees” and indicates this will not be the cause of an enrolment being refused or discontinued. The phrase “genuine inability” indicates that the school would need to be satisfied that there were genuine and cogent grounds for a finding a family could not pay the school fees before cancelling an enrolment for non-payment. The plaintiff failed to establish such grounds in 2000-2001.

98 The implied term alleged by the plaintiff is inconsistent with an express term of the contract. The term alleged by the plaintiff imposes a requirement on the principal to inquire about a family’s ability to pay school fees before refusing or cancelling an enrolment. Item 4 of the school fee terms and conditions indicates that continuation of an existing enrolment is not automatic. An existing enrolment would be subject to a review of a family’s fee servicing history. Non-co-operation or non-communication with the Bursar is a relevant factor in the review. Item 4 of the contract puts parents on notice that they are expected to communicate and cooperate with the Bursar or Principal about the payment of school fees. If parents do not communicate with the Bursar or Principal about their failure or inability to pay fees then the school authorities are entitled to consider that in a review of the enrolment of a student.

(c) Expectations of Parents

37 John Paul College requires that students and their parents sign a form entitled “Student Agreement Form” as part of the enrolment process. The form sets out a statement of expectations for students and parents. The following are expectations of parents listed on the form:-

“Students and parents are expected to accept the aims and goals of John Paul College as a Catholic School.

Parents take on a commitment to help educate their son/daughter. Part of this commitment is fulfilled by the agreement to meet the cost of education by paying the school fees, plus any levies, by the due date.

Students and parents are expected to accept the policies and procedures of the College as outlined in the College Handbook”.

99 The bottom of the form states:-

“We have read the above expectations of John Paul College and by signing this form, make a commitment to upholding the standards set out in these expectations.”.

100 The form requires students and their parents to sign the form.

101 The information booklet of John Paul College sets out the policies and procedures of the school. The policies and procedures, which are particularly relevant to the present proceedings, are those relating to co-operation between home and school, absence from school, late arrival for school, leaving the school premises during school hours and withdrawal of a student from the school. These policies and procedures are as follows:-

“HOME-SCHOOL CO-OPERATION

The utmost co-operation between home and school is in the interests of each individual student. It is expected that every family associated with the school is bonded in trust to it. Misunderstandings and shortcomings will inevitably occur. When they do, they should by faced calmly. There is little use in winning an argument at the cost of losing tempers and good relationships. When we do not see eye-to-eye, let us begin by asking questions, not laying charges.

ABSENCE FROM SCHOOL
1. Parents are required to phone the school office (6653 3155) between 8.45 am and 9.45 am to leave a message on the first day the student is absent.
2. This must be followed by a written note when the student returns to school. The note must be dated, signed by a parent, state clearly the reason for absence and be given to the homeroom teacher.

EXIT PASS
Students may not leave the college premises during school hours without obtaining an Exit Pass from the general office. This pass will be issued only on production of a note signed by the parent.

LATE ARRIVAL FOR SCHOOL
Students who arrive late must report to the student foyer of the general office before proceeding to class. A Late Pass will be issued.

CLEARANCE FORM
Parents are asked to inform the Principal in writing as soon as possible when withdrawing a student from enrolment. At least three days before the final day of attendance, the student should obtain a Clearance Form from the office. When it is completed, it is to be returned to the office.”

(d) The defence to the proceedings

102 The defendants rely upon the amended defence dated 14 May 2004. It denies the breach of contract alleged in the amended statement of claim and pleads specific defences including the following:-

“11. That the plaintiff withdrew Robert Klewer from attendance at the school and advised the principal that he would not attend school until the principal apologised to him.
16. That the defendant, through its agent, the Chairman of the Parish Schools’ Board for the Coffs Harbour and Sawtell Parishes, were entitled to cancel the enrolments of Laura and Ryan Klewer from 30 April 2002.
17. That the plaintiff has not paid the sum of $1,592.90 to the defendant and remains in default of her obligation to pay that amount in respect of her children’s enrolment at the schools.
18. That in respect of the enrolment of Robert Klewer, that by withdrawing him from attendance at the school and by refusing to return him to the school until and unless the principal of the school apologised, the plaintiff wrongfully repudiated her obligations under the contract in that she evinced an intention to not be bound by and did fail to perform an essential condition of the contract.”

103 The legal issues arising on the pleadings include the following:-

(a) The express and implied terms of the contract regulating the enrolment of Robert, Laura and Ryan Klewer.

(b) The alleged breach or breaches of contract sued upon arising:-

(i) with respect to the events on and immediately associated with the events of 7 March 2001 concerning Robert Klewer;

(ii) with respect to the non-payment of school fees by the plaintiff and the decision taken on 18 April 2001 to terminate the enrolment of Laura and Ryan Klewer.

(c) Issues as to causation in relation to:-

(i) the termination of the enrolments of Robert, Laura and Ryan Klewer;

(ii) loss or damage resulting from one or more of the enrolment terminations.

(d) Issues concerning damages claimed including damages for alleged mental distress and economic loss.

PART E – CONCLUSIONS ON THE INCIDENT OF 7 MARCH 2001 AND LEGAL CONSEQUENCES

104 The defendants submit that the plaintiff manifested an unwillingness to perform an essential part of the contract for the education of Robert Klewer that went to the heart of the contract such that the plaintiff repudiated the contract.

105 The information booklet of John Paul College (Exhibit 1 in these proceedings) makes clear to parents that attendance at school is mandatory. The school has procedures which come into operation when a student is absent from school, late to school or when a student wishes to leave the school premises during school hours.

106 The information booklet also sets out the procedure to be followed when a parent is withdrawing a student from the school. Parents are requested to inform the Principal in writing and the student is to obtain a clearance form from the school office. This procedure is for the benefit of the school and allows the school to formally record the withdrawal of a student.

107 Following the incident at John Paul College, the plaintiff advised the Principal of the school that her son, Robert, would not return to school until the Principal apologised to Robert. The evidence does not establish that the plaintiff was justified in insisting that the principal was required to apologise to Robert. On the evidence, which I accept, the school authorities acted appropriately in its investigation of the incident. Contact was promptly made with the plaintiff. Two members of staff who were trained in First Aid examined Robert, cared for Robert and observed him after the attack. On the evidence, the plaintiff, in acting by withdrawing Robert from school until the principal apologised to Robert, was acting without a proper factual basis for doing so. Even if that were not so, it was the plaintiff’s decision and actions which operated to prevent Robert from attending school as required by the terms of his enrolment. The plaintiff took the risk that if her actions were in breach of contract (by refusing to allow Robert to attend unless she received an apology), such conduct provided the defendants in law with a basis whereby they were entitled to treat and accept her repudiatory conduct and thereby terminate the contract relating to Robert’s enrolment

108 The plaintiff did not withdraw Robert pursuant to or in accordance with the procedures set out in the school information booklet. The plaintiff’s submission that she was temporarily holding Robert back from school is without foundation and indeed is quite contrary to the evidence. She indicated in the plainest terms that she was in fact withdrawing her son from the school and he would not return unless and until he obtained an apology. Contrary to the plaintiff’s contention, there was no basis or justification for the plaintiff withdrawing Robert and insisting on an apology.

109 In order to establish repudiation, the defendants must establish that the absence of readiness or willingness to perform the contract constituted a serious breach of the contract. To satisfy the requirement of seriousness, “the promisee must prove either that the absence of readiness or willingness relied on extends to all the promisor’s obligations or that it clearly indicates that the promisor will breach the contract in a way which gives rise to a right to terminate for breach” Carter J W and Harland D J, ‘Contract Law in Australia’, 4th Edition, Butterworths, Sydney, 2002 at page 705 . In this case I consider that the breach by the plaintiff was sufficiently serious to entitle the school to terminate the contract. The refusal to allow Robert to attend school was a serious matter indeed.

110 It is necessary that there be acceptance of a repudiation in order for there to be termination of the contract Note 1 at page 719. On 13 March 2001, Mr. Walton sent a letter to the plaintiff indicating that if she wished for Robert to return to school, she would need to re-enrol him. The school had cancelled his enrolment as it was entitled to do, given the plaintiff’s refusal to allow Robert to return other than on her conditions. The letter of 13 March 2001 constituted an acceptance of the repudiation. On 14 March, Robert attended his school. This attempt to perform the contract was too late, as the repudiation had been accepted.

PART F – CONCLUSIONS ON THE TERMINATION OF THE ENROLMENTS OF LAURA AND RYAN KLEWER

111 The plaintiff alleges that the defendant breached the contract by cancelling the enrolments of Laura and Ryan. Item 5 of the contract states: “Genuine inability to pay school fees on the part of a Catholic family from Coffs Harbour or Sawtell Parishes will not be the cause of an enrolment being refused or cancelled”. The plaintiff claims that the cancellation of the enrolment was in breach of this term.

112 It is important to note that Item 4 of the School Fee Payment Terms and Conditions emphasises the importance of communicating and co-operating with the Bursar or Principal in relation to the payment of school fees. The “genuine inability” described in Item 5 would be ascertained through communication and co-operation with the Principal or Bursar. The plaintiff under that provision had the onus of proving genuine inability to pay school fees. This she failed to do especially with respect to the much reduced fees offered by the defendant in December 1999.

113 The Bursar of the Parish Schools Board was aware that the plaintiff was experiencing financial difficulties. Between 1997 and 1999 there were many occasions when the plaintiff failed to co-operate and failed to communicate with the Board about her financial position in relation to the payment of school fees. The Bursar of the school had written to the plaintiff many times requesting that she supply the Board with evidence and also stated that if the plaintiff was experiencing financial hardship, to discuss this with the Board.

114 I find that the basis of the decision of the Executive Board to cancel the enrolments of Laura and Ryan was the lack of co-operation and communication by the plaintiff in relation to the payment of school fees. The evidence provided by Michael Hogan, Timothy Allsopp and Mr. Guz, which I accept (all members of the Executive Board), established that the lack of co-operation and lack of communication was in fact the basis for the cancellation of the enrolments. The plaintiff’s claim based on alleged breach of contract with respect to Laura and Ryan must accordingly fail.

115 Given the express provisions in the contract, there is no basis for the alleged implied term. The claim on this basis must accordingly fail.

Summary conclusions on liability

116 On the basis of findings made and recorded earlier in this judgment, the following conclusions in relation to liability are made:-

(a) There is no basis for the implication of the implied terms alleged and relied upon by the plaintiff.

(b) The termination of Robert Klewer’s enrolment was the result of the plaintiff’s own conduct and not a consequence of action taken by the defendants.

(c) On this basis, there was no breach of contract in relation to the termination of Robert Klewer’s enrolment.

(d) There existed a cogent and proper basis for the decision to terminate the enrolment of Laura and Ryan Klewer, namely, the repeated failure by the plaintiff to pay fees:-

(i) due and owing under the contract relevant to each enrolment;

(ii) pursuant to agreements reached for the payment of school fees at a reduced level.

(iii) the conduct of the plaintiff in failing to co-operate and provide evidence of an inability to pay fees. Such conduct including reduced school fees, constituted repudiatory conduct by the plaintiff in relation to the agreements entered into by her for payment of school fees.

117 It follows from the above findings and conclusions that there must be a verdict and judgment in favour of the defendants.

The evidence on damages

118 On this basis, it is accordingly unnecessary that I address the question of damages claimed in the proceedings. However, in deference to submissions made by the plaintiff, I will make some limited observations in relation to that issue.

119 The plaintiff, in a document (MFI 3), set out in outline particulars as to the basis of the claim and losses alleged to have resulted from the breaches relied upon.

120 In general terms, the document records the contention that, as a result of the breaches alleged, the plaintiff’s children, Laura and Ryan, would suffer psychological harm and disruption to their education and that this would impact upon their future academic achievements in their future careers.

121 Separate allegations are made in respect of claimed losses by Robert. The particulars of relief claimed include:-

“(a) Compensate the children from their losses;
(b) to obtain an order against the defendant for costs required to pay for private tuition for the children …
(c) to compensate the children for their suffering, eg., distress, shame and embarrassment, depressive symptoms.
(d) to compensate the children for the loss of their future academic and future potential that lead to compensate the children’s mother for the grief she suffered by watching her children suffer and her inability to continue to ensure the provision of the quality and standard of education provided until March 2001.”

122 There was very little evidence tendered in support of these identified heads of claim. The evidence is principally to be found in the following reports:-

(a) Report of Barbara Liddle, consultant clinical psychologist (undated) concerning an assessment of Ryan Klewer on 24 January 2003.

(b) Report of Barbara Liddle (undated) in respect of an assessment of Laura Klewer on 24 January 2003.

(c) Report of Barbara Liddle (undated) with respect to Robert Klewer, in relation to an assessment on 24 January 2003.

(d) Handwritten report of Dr. Andrew Duguid in respect of Robert Klewer.

(e) Handwritten report of Dr. Andrew Duguid dated 12 January 2001 in respect of Laura Klewer.

(f) Report of Kip McGrath Education Centres (Ms. Judith Burley), an “assessment report” with respect to Robert, Ryan and Laura Klewer.

(g) Assessment report with respect to Robert Klewer in relation to an assessment dated 23 February 2000 written by Cathy Conroy.

123 The various assessment, psychological and other reports in evidence establish the following:-

(a) Robert has had a long history of learning difficulties. Those difficulties are related to matters not associated with the events with which these proceedings are concerned (reports of Ms. Conroy, Ms. Liddle and Dr. Duguid). Ms. Liddle’s psychological assessment of disadvantage to Robert by the termination does not indicate how the same impacts on pre-existing disadvantages and the extent to which they may impair his future performance and prospects.

(b) Ms. Liddle’s assessment of Ryan was that, based on information provided by Mrs. Klewer, he had been upset and anxious after his enrolment was terminated. By the end of 2002 he was working well in all subjects and had reached a Year 5 level commensurate with his age (the last academic year before Ms. Liddle’s assessment on 24 January 2003). He was, as at this date, reporting normal behaviour for a boy of his age and it was not considered likely that he would demonstrate long term emotional sequelae as a result of the incident in question.

(c) Ms. Liddle’s assessment of Laura undertaken on 24 January 2003 included a history that Laura was unhappy at Coffs Harbour High School and was not as motivated. Ms. Liddle noted that she had moved to a new school (unidentified) and ti was not yet possible to say if she would regain her motivation and previous academic achievement. Her depressed mood had appeared to have lifted somewhat. See also the report of Dr. Duguid dated 12 June 2001 which refers to emotional distress following the termination. The only other report on Laura’s academic progress status is the undated report of Ms. Judith Burley (said to have been prepared on 14 May 2004). It records that knowledge in English was sound. There were deficiencies in mathematics but that with help “she would show rapid improvement” . Ms. Burley recommended tuition in the areas mentioned.

124 These reports do not support the claim made for damages as particularised. The evidence does not establish any causal link between any action by the defendants with respect to Robert or Ryan. There is very limited assessment of Laura which I have identified. There is some evidence to support the claim of some emotional upset and unspecified health problems. There is no evidence of any progress by Laura since last assessed and what, if any, tuition has been provided to her as recommended.

125 For the reasons earlier stated, I order a verdict and judgment in favour of the defendant. I order the plaintiff to pay the defendant’s costs of the proceedings.

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