Re Carl

[2003] NSWSC 14

CITATION:	Re Carl [2003] NSWSC 14 revised - 18/08/2003
HEARING DATE(S):	28 - 29 January 2003
JUDGMENT DATE:	30 January 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Sperling J at 1
DECISION:	1. The proceedings are to be listed in the Administrative Law directions list on Tuesday 11 February 2003 at 9.30 am; 2. The plaintiff is to serve the summons and affidavit in support by 5.00 pm on Wednesday 5 February, together with a letter advising of the listing on 11 February 2003; 3. I refer the plaintiff to the registrar pursuant to Pt 66A r 4 for referral to a barrister or solicitor on the pro bono panel for legal assistance.
CATCHWORDS:	Administrative Law - judicial review of departmental decision as to conditions for enrolment in a selective high school - application for interlocutory relief - balance of convenience - no question of principle
PARTIES :	Plaintiff - Known to the Court Defendant - Minister for Education & Training
FILE NUMBER(S):	SC 30009/03
COUNSEL:	The Plaintiff in person No appearance for the Defendant
SOLICITORS:	The Plaintiff in person No appearance for the Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Administrative Law List

Sperling J

Thursday, 30 January 2003

30009/03 Re Carl

Judgment

1 Sperling J: The plaintiff and her husband left Europe about twelve years ago. They arrived in Australia in March 1995. Their son Carl is now twelve years of age. The family does not have Australian citizenship or permanent resident status. Their attempts to be allowed to remain in Australia have not been exhausted. There is an appeal pending in the High Court.

2 Carl is now twelve years of age. He has attended school continuously in Australia since commencing kindergarten in 1995. He has just completed Year 6 at a Sydney public school. In years 5 and 6 he has been in the opportunity class, a stream for high performance children.

3 An application for placement at a Sydney selective high school (hereafter “the selective high school”) has been successful. Notification to that effect was received on 3 September 2002. In conformity with departmental policy it was a condition of such placement that the applicant have Australian citizenship or permanent resident status, a condition which Carl cannot satisfy. The plaintiff wrote to the Minister for Education and Training requesting waiver of the condition. On 18 December 2002, a departmental officer wrote to the plaintiff advising that a position at the selective high school would be held open until 31 January 2003, but that the condition to which I have referred continued to be maintained.

4 The plaintiff appeared before me on 29 and 30 January 2003 seeking ex parte relief on an interim basis. She sought an order requiring the Department to admit Carl to the selective high school or at least to hold a position open for him, pending final determination of the proceedings.

5 At an earlier stage, the plaintiff had applied to the Federal Court of Australia for relief. That application was refused on 30 January 2003.

6 The legal argument in support of the applicant's application in this court is conveyed by a letter from Marrickville Legal Centre dated 19 December 2002, a copy of which I will mark as exhibit A.

7 There is an issue to be tried as to whether the departmental policy of restricting admission to selective high schools to students with Australian citizenship or permanent resident status is inconsistent with the department's statutory charter, as to whether the decision implementing that policy in this case was valid, and as to whether in the events that have occurred the department is bound to accept Carl as a student at the selective high school. I am not satisfied, however, that what is termed the balance of convenience favours the making of any interim order.

8 The school year at the selective high school commences today. The plaintiff believes that if Carl is not enrolled there at the commencement of the school year four consequences will flow. First, his expectations will be so disappointed that he will suffer psychological harm. Secondly, that the place held for him will be allocated to another applicant and there will then be no prospect of admitting him later. Thirdly, that Carl will be deprived of the advantage of a selective high school education during the time taken to decide whether final orders should be made. Fourthly, that if he is ultimately admitted to the selective high school he will have the problem of having to catch up with his fellow students.

9 As to these matters I have to say that I believe the plaintiff's apprehension of psychological harm to Carl is exaggerated. Secondly, I would expect that, if this court were to decide that the department was wrong in deciding as it did, Carl will be enrolled even if that meant that the school carried one student in excess of its normal intake. Thirdly, I have to say that for a bright child to have missed part of the year at a selective high school and to have to catch up later on (if that should occur) is not such a serious problem; experience shows that children cope with missed schooling due to illness and other eventualities. Fourthly, the education of a bright child at a selective high school is not critical to the child's future prospects and well-being. Many bright children do not attend selective high schools - such as in rural districts of this state - and do well. Fifthly, in this case, there is no assurance that the child will remain in Australia to continue his education at a selective high school.

10 There are, then, further aspects of the situation relative to Carl's welfare and the welfare of others. First, there is not only the prospect of final relief being granted as claimed, there is also the prospect that it will be refused. There is, therefore, the prospect that, if Carl is enrolled now at the selective high school under an interim order, he may have to leave later in the year and attend a regular high school with, I apprehend, more disruption for him than the other way around. Secondly, there is a consequence for others. If Carl is not enrolled at the selective high school or if a position held open for him, I apprehend that another applicant of less - but only marginally less - attainment will be admitted in his place and, conversely, if Carl is enrolled even on an interim basis or a position held open, that would deprive another applicant of a place at the commencement of the academic year. If final relief were then refused, another student may be admitted part way through the year with the disadvantage (such as it is) of having to catch up.

11 The balance of fairness and interest is not demonstrably in favour of granting the relief sought. For these reasons, the plaintiff's application for interim relief is refused.

12 I make the following orders.

1. The proceedings are to be listed in the Administrative Law directions list on Tuesday 11 February 2003 at 9.30 am;

2. The plaintiff is to serve the summons and affidavit in support by 5.00 pm on Wednesday 5 February, together with a letter advising of the listing on 11 February 2003;

3. I refer the plaintiff to the registrar pursuant to Pt 66A r 4 for referral to a barrister or solicitor on the pro bono panel for legal assistance.

13 I add that a certificate has been prepared in relation to order 3 and will be given to the plaintiff.

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Last Modified: 10/03/2003