Romeo v Wesley College
[2014] WADC 152
•6 NOVEMBER 2014
ROMEO -v- WESLEY COLLEGE [2014] WADC 152
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 152 | |
| Case No: | APP:41/2014 | 3 SEPTEMBER 2014 | |
| Coram: | WAGER DCJ | 6/11/14 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | VINCENT JIM ROMEO KAREN LEE ROMEO WESLEY COLLEGE |
Catchwords: | Appeal from Magistrates Court seeking to set aside judgment Amended statement of defence and counterclaim does not disclose any reasonably arguable grounds |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 s 17, s 40(4) District Court Rules 2005 r 50(2), r 50(3) |
Case References: | Baltic Shipping Co v Dillon [1993] HCA 4 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125 Intertransport International Private Ltd v Donaldson [2005] VSCA 303 Newspapers Ltd v Bancks (1951) 83 CLR 322 Smeaton Hanscomb & Co Ltd v Sassoon I. Setty Son & Co [1953] 2 All ER 1471; [1953] 1 WLR 1468 Vitale v Bednall [2000] WASC 207 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Appellant
KAREN LEE ROMEO
Second Appellant
AND
WESLEY COLLEGE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE ATKINS
File No : PE GCLM 15278 of 2012
Catchwords:
Appeal from Magistrates Court seeking to set aside judgment - Amended statement of defence and counterclaim does not disclose any reasonably arguable grounds
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 s 17, s 40(4)
District Court Rules 2005 r 50(2), r 50(3)
Result:
Appeal dismissed
Representation:
Counsel:
First Appellant : In person
Second Appellant : No appearance
Respondent : Ms C Rab
Solicitors:
First Appellant : Not applicable
Second Appellant : Not applicable
Respondent : Mossensons
Case(s) referred to in judgment(s):
Baltic Shipping Co v Dillon [1993] HCA 4
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125
Intertransport International Private Ltd v Donaldson [2005] VSCA 303
Newspapers Ltd v Bancks (1951) 83 CLR 322
Smeaton Hanscomb & Co Ltd v Sassoon I. Setty Son & Co [1953] 2 All ER 1471; [1953] 1 WLR 1468
Vitale v Bednall [2000] WASC 207
1 WAGER DCJ: Mr Romeo appeals against the decision of her Honour Magistrate Atkins who, following a re-hearing, dismissed his application brought pursuant to the Magistrates Court (Civil Proceedings) Act 2004 s 17(3) (MCCP Act) seeking to set aside the judgment made by his Honour Magistrate Malone who had granted judgment in favour of Wesley College pursuant to s 17(1)(b) and s 17(2) MCCP Act on 20 December 2013.
2 Neither Mr Romeo nor Mrs Romeo had appeared on the Romeos' behalf before his Honour Magistrate Malone. The learned magistrate proceeded in their absence to rule that the second amended statement of defence and counterclaim lodged by them did not disclose any reasonable grounds of defence or counterclaim. It was for this reason that he granted judgment in favour of Wesley College.
3 Mr Romeo was self-represented when he appeared before her Honour Magistrate Atkins on 4 April 2014. Although the learned magistrate questioned whether Mr Romeo's wife remained a party to the proceedings, her Honour proceeded to determine the matter on Mr Romeo's sole appearance and submissions.
4 Mr Romeo advised Magistrate Atkins that he had failed to appear on 20 December 2013 because of ill health. He said he had been suffering from stress because he could no longer afford to have a lawyer represent him. Mr Romeo did not have any medical evidence to support his assertion of ill health. Although her Honour considered his reasons for non-appearance were not supported by the most satisfactory nor reasonable of explanations, she gave Mr Romeo the benefit of the doubt and allowed him to proceed with his application. Her Honour then advised Mr Romeo that he had to satisfy her that his amended defence and counterclaim had reasonable prospects of succeeding. Ultimately she found that they did not.
History
5 Wesley College claimed the sum of $42,489.49 being outstanding school fees owed by Mr and Mrs Romeo as at 16 July 2012 (together with interest). In its statement of claim Wesley College set out that by two written agreements Mr and Mrs Romeo had contracted with Wesley College to provide education to their children NR and GR. By completing an application for admission to Wesley College as a pupil in respect of both of the boys evidenced by documents entitled 'Memorandum' that had been by Mr and Mrs Romeo dated 24 May 1996 and 23 July 1998 (received in evidence pursuant to s 40(4) MCCP Act and r 50(2) and r 50(3) District Court Rules 2005), Mr and Mrs Romeo had undertaken to give a term's notice in writing to Wesley College prior to the withdrawal of either child from the school. The Romeos knew that fees would be charged by Wesley College if they did not comply with the signed agreement in the memorandum. Wesley College also claimed Mr and Mrs Romeo signed the two memorandums agreeing that they would be bound by the terms and conditions and that they would observe the rules and conditions set by Wesley College.
6 Mr and Mrs Romeo did not dispute that they signed the contracts in the memorandums in relation to the education of their sons. However, in a second amended defence and counterclaim they claimed that, consistent with Wesley College's education mission statement 1998 (but varied from time to time), Wesley College had informed them that the meaning of the term 'the education' encompassed:
(i) teaching students a holistic approach to learning which would make them well rounded persons;
(ii) teaching students the skills of reading and writing;
(iii) teaching students the skills of interacting socially with their peers and to have mutual respect for one's peers;
(iv) teaching students the skills to enable them to make a positive contribution to society;
(v) teaching students to excel in the spiritual and intellectual capabilities;
(vi) teaching students to develop their personal qualities and attitudes so that they would be able to face the challenges of the future with confidence;
(vii) teaching students to excel and achieve in their chosen sport;
(viii) teaching students to obtain full intellectual and holistic development; and
(ix) teaching students a strong Christian belief including attitudes of responsibility, tolerance and care of others (paragraph 2 summary of facts relevant to the second amended defence and counterclaim).
7 The Romeos claimed Wesley College breached implied fundamental conditions of the contract to provide the agreed education as defined in the mission statement because Wesley College failed to appropriately supervise students at the school premises and on school outings, to have appropriate bullying prevention policies in order to prevent and/or to reduce the risk of bullying, to act promptly on all allegations of bullying, to take active steps to substantially reduce the risk of bullying and that they failed to provide a safe environment for students to be in receipt of education.
8 The Romeos claimed (par 6(iii)) that between 1995 and 2012 they had correspondence on at least 20 occasions with various staff members from Wesley College who assured the Romeos on each occasion that the type of education provided by Wesley College encompassed all aspects and components of the mission statement.
9 They claimed that Wesley College had therefore breached the contract in respect of the child GR because he was the subject of bullying from 2008 until 2011. The Romeos also claimed (par 20) that the bullying was brought to their attention on at least 10 occasions from 2008 until 2011 but that Wesley College had failed to take any steps to prevent and/or reduce the risk of GR being bullied whilst in Wesley College's care. They claimed (par 19) that they nevertheless made part payment of GR's school fees because at the time they were unaware of the extent and gravity of Wesley College's breaches of contract. They did not become aware of the full extent of the bullying until it was finally disclosed by GR in or about early 2012. Once the bullying was disclosed the Romeos withdrew GR from Wesley College in the first term of 2012 and sent him to a state school however he did not complete his Year 12 exams and left school because, the Romeos claim, of the effects the bullying at Wesley College had on him.
10 Particulars of the alleged breaches were set out for each year from 2008 until 2011. The particulars included details of ridiculing and name calling of GR by other students in front of Wesley College staff when the staff took no action and a failure by GR's French teacher in 2010 and 2011 to intervene when GR was openly ridiculed by other students in French class. It was also claimed GR was bullied and ridiculed on school outings and at school camps when teachers or representatives of Wesley College were present and that no action was taken by Wesley College in respect of both the bullying and the inaction of staff.
11 The Romeos also claimed that by failing to properly supervise GR, failing to act on the complaints of bullying, failing to provide a safe environment and failing to educate GR in accordance with the mission statement, Wesley College had fundamentally breached its contract with the Romeos as a result of the substantial bullying suffered by GR because he was not educated to the level of his peers. As a result his career prospects had been limited (par 7(b)).
12 The Romeos claimed a complete failure of consideration in relation to the contract to educate GR and sought a refund for most of the fees paid to Wesley College on GR's behalf from 2008 until 2010 being $50,880 plus levies over the three-year period of $12,536.25 together with interest pursuant to s 12 MCCP Act. The Romeos also claimed breaches of the then Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (WA) which are enunciated in the Fair Trading Act 2010 (WA) and the Competition and Consumer Act 2010 (Cth).
13 In dismissing Mr Romeo's application Magistrate Atkins said that there was no fundamental breach of contract because GR had received an education and although she felt sympathy for GR's position, there was no reasonably arguable case. On that basis she dismissed the claim.
The appeal
14 An appeal under the MCCP Act s 40, is determined on the materials and the evidence that were before the Magistrates Court plus any other evidence that is admitted by leave. The appeal is by way of re-hearing and does not necessitate the demonstration of error in the court below. Detailed technical criticism of the grounds of appeal is not required.
15 I need to determine whether the Romeo's amended statement of defence and counterclaim discloses any reasonably arguable ground.
16 Mr Romeos' grounds of appeal are:
1. The Magistrate erred in the determination of the relevant period outlined in the appellant's pleadings/submissions and consequently failed to apply the relevant law and consequently erred in finding that the contract between the respondent and the appellants was partly dealt with.
2. The Magistrate erred in the interpretation and application of the doctrine of Privity of Contract.
3. The Magistrate erred in finding that the appellants' pleadings/submissions before the court did not reveal a formal defence.
4. The magistrate erred in law in the application of the principles outlined in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977), as outlined in the appellants' pleadings/submissions.
5. The Magistrate did not take into account the relevant sections of the Trade Practices Act (Cth), the Fair Trading Act 1987 (WA) and the Australian Consumer Law Act as adopted in the Fair Trading Act 2010 (WA) as outlined in the appellants' pleadings/submissions.
6. The Magistrate failed to consider all the evidence presented to the court.
7. The Magistrate erred in law in the application of the ratio decidendi in the case of Vitale & Ors v Bednall & Anor [2000] WASC 207, as outlined in the appellants' pleadings/submissions.
8. The Magistrate failed to distinguish Baltic Shipping Company v Dillon [1993] HCA 4: 1993 [sic] from this case as outlined in the appellants' pleadings/submissions.
17 Counsel for Wesley College submits grounds 1, 2, 3, 5 and 6 should be struck out and that in respect of ground 5, even if Wesley College was found to have breached implied terms this would not amount to a total failure of consideration. As such ground 5 has no basis in law.
Ground 1
18 In oral argument in relation to ground 1, Mr Romeo conceded that the relevant time period was 2008 through until 2011 being the years when GR was attending Wesley College Senior School. The learned magistrate considered this period. The magistrate did not err in her consideration of the relevant period.
Ground 2
19 Mr Romeo also accepted that the contract was between him, his wife and Wesley College for the education of GR and that the issue for consideration was whether the Romeos suffered any loss or damage as a result of the alleged breach. Mr Romeo stated from the bar table that he had paid for medical treatment and counselling services for GR as a result of the injury GR suffered as a result of the bullying he received at Wesley College. The loss was not claimed in the second amended statement of defence and counterclaim.
Grounds 3, 5 and 6
20 In dealing with ground 3, Mr Romeo said the learned magistrate should have identified the defence referred to in grounds of appeal 4 through to 8.
21 Mr Romeo did not specifically address ground 5.
22 Ground 6 related to Mr Romeo's argument in respect of grounds 4, 7 and 8.
Ground 7
23 Ground 7 referred to the magistrate's application of the ratio decidendi in the case of Vitale v Bednall [2000] WASC 207.
24 Vitale v Bednall was a case in which the parents of a boy at Wesley College were the first plaintiffs and the child by his next friend was the second plaintiff. The plaintiffs brought a claim for defamation arising out of the publication of certain letters by the first defendant in his capacity as headmaster of the second defendant Wesley College. Hasluck J considered various applications to strike out the plaintiffs' claim and dismissed the application save as they were directed to specific paragraphs of the statement of claim. Although reference was made in that case to implied conditions, the learned magistrate did not refer to the ratio decidendi in the present case and it would not be relevant to any issue the magistrate was required to consider.
Grounds 4 and 8
25 Accordingly, the two grounds argued by Mr Romeo in support of this appeal are grounds 4 and 8.
26 Mr Romeo claimed that although there was no express term in the contract to provide an education free of bullying, this term together with other implied terms arising from the content of the mission statement applied.
27 In order to justify the implication of a term in a contract which the parties have not thought fit to express, the following conditions (which may overlap) must be satisfied:
1. it must be reasonable and equitable;
2. 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;
3. it must be so obvious that 'it goes without saying';
4. it must be capable of clear expression;
5. it must not contradict any express term of the contract:
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283.
Would any implied term Mr Romeo sought to rely on be a fundamental term of the contract?
29 A fundamental term is a contractual term so important that, if not complied with, the performance becomes something totally different from that which the contract contemplated: Smeaton Hanscomb & Co Ltd v Sassoon I. Setty Son & Co [1953] 2 All ER 1471; [1953] 1 WLR 1468. The innocent party may regard breach of a fundamental term as a fundamental breach justifying termination of the contract on the ground of repudiation.
30 In the leading case of Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 a newspaper company sought to enforce a contract by which a cartoonist had agreed to supply a weekly cartoon for 10 years. The cartoonist claimed that he had justifiably terminated the contract because the newspaper had, on three successive occasions, failed to publish his cartoon on the front page of the comic session as required by the contract. The question that arose was put as follows by the plurality (336):
The … question is whether the company's undertaking to present the defendant's drawings on the front page of the comic is a condition or essential term of the contract going to its very root, the breach of which would immediately entitle the defendant at his option to rescind the contract and sue for damages … or a mere warranty or non-essential and subsidiary term the breach of which would entitle the defendant to damages.
31 In the present case the 'very root' of the contract is to provide education to GR. It cannot be successfully argued that the provision of education without bullying is an essential or a fundamental term of the contract because it is not disputed that GR received an education from 2008 until 2011.
Baltic Shipping Co v Dillon
32 Ground 8 alleges the magistrate failed to distinguish Baltic Shipping Co v Dillon [1993] HCA 4 from this case because there has been a total failure of consideration on the part of Wesley College.
33 A failure of consideration occurs when a payment is made under a contract in return for a performance that has not eventuated, and will not eventuate. A failure of consideration does not normally occur until it is clear that the contract has been avoided or terminated. The breach of a contract does not in itself constitute failure of consideration if the contract has not been terminated: Intertransport International Private Ltd v Donaldson [2005] VSCA 303 [28] – [30].
34 In Baltic Shipping Co v Dillon Ms Dillon claimed restitution of the fare paid for a 14-day holiday cruise that came to an end when the ship she was aboard sank on the ninth day. The High Court held that she could not recover the fare as the consideration had not wholly failed. At pages 378 – 379 Dawson and Deane JJ said:
The consideration in the present case was the provision of a holiday experience. It did not wholly fail. Baltic provided and Mrs Dillon accepted and enjoyed eight complete days of the cruise. The catastrophe of the shipwreck undoubtedly outweighed the benefits of the first eight days. It did not, however, alter the fact that those benefits were of real value, had been provided, accepted and enjoyed.
35 In the present case GR received an education at Wesley College from 2008 until the end of 2011. It could be argued the impact of bullying may have outweighed the benefit of the education in the Romeos' assessment, however Wesley College still provided GR with a form of education. There was not a total failure of consideration.
36 I am aware that great care must be exercised to ensure that a litigant is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125, 130.
37 However, for the reasons outlined I consider the learned magistrate did not err in striking out the Romeos' second amended statement of defence and counterclaim. The application is dismissed. The judgment made in favour of Wesley College is not set aside.
38 Given the nature of this appeal I have reached this conclusion because the Romeos defence and counterclaim pleaded fundamental breach and total failure of consideration.
39 In passing I note that Mr Romeo proceeded with the current defence and counterclaim after it had been drafted by a lawyer. Her Honour Magistrate Atkins acknowledged this (ts 5):
I have read your general form of affidavit and I have read again your submissions. The issue of a problem that you have, that I can see, Mr Romeo, is that things haven't changed since the third counter-claim or the second amended counter-claim, which was the third version, where there was talk of failure – total failure of a consideration. Now that is also raised in the counter-claim.
The issue of total failure of consideration was raised with your previous lawyer. I don't know whether you were present at the time. But it was raised with your previous lawyer and case law was referred to, which you have also referred to. And at an earlier application, part of the counter-claim was struck out because of the issue of the total failure of consideration.
40 It is not my role to comment on the merits of the case further given that I have dismissed the appeal, however I note that it may be open for Mr Romeo to commence proceedings in respect of breach of contract and to plead the loss he has suffered consistent with the money expended by him in securing medical assistance and counselling support for GR. If Mr Romeo chose to commence future proceedings then it would be likely that GR would be required to give evidence at trial in relation to the bullying, trauma and degradation he allegedly suffered at the hands of teachers and students from 2008 until 2011 in order to prove the claim. GR would also most likely be cross-examined by counsel representing Wesley College at trial about matters that may be distressing for him.
41 Mr Romeo may also choose to consider that, in the event that he is not successful at any future trial, a further costs order could be made against him in favour of Wesley College.
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