Bovaird v J - [2008] NZCA 325

IN THE COURT OF APPEAL OF NEW ZEALAND
CA308/07
[2008] NZCA 325
BETWEENSTEPHEN W BOVAIRD

First Appellant
ANDTHE BOARD OF TRUSTEES OF LYNFIELD COLLEGE

Second Appellant

ANDJ SUING BY HIS LITIGATION GUARDIAN

Respondent

Hearing:19 May 2008

Court:O'Regan, Priestley and Heath JJ
Counsel:R M Harrison for Appellants

S R G Judd for Respondent
M S R Palmer and I T McColl for Secretary for Education, Intervener

Judgment:27 August 2008 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.
B The respondent is entitled to costs of $3,000 plus usual disbursements.
REASONS OF THE COURT
(Given by O’Regan J)
Table of Contents
Para No

Introduction  [1]
Is the appeal moot?  [2]
Issues  [3]
Intervener  [5]
Facts  [6]
Investigation of misconduct: natural justice requirements                 [20]
           The Act  [23]
           The Rules  [36]
           The Guidelines  [37]
           Natural justice requirements when investigating an incident        [40]
Suspension decision: requirement for parental involvement              [56]
Failure to apply statutory criteria  [64]
           The Principal’s second decision to suspend J  [65]
           The Board’s decision to expel J  [69]
Result  [77]
Costs  [78]
Introduction
[1]       This case raises a number of issues relating to the suspension or expulsion of a student from a state school or an integrated school. It is an appeal against a decision of Keane J in the High Court: J Suing by his Litigation Guardian v Bovaird HC AK CIV 2007-404-002684 7 June 2007. Keane J quashed a decision of the first appellant, the Principal of Lynfield College, to suspend the respondent, J, a 16 year old student at the College, and the later decision of the second appellant, the Board of Trustees of the College, to expel him. As a result J was reinstated and remains a student at the College.
Is the appeal moot?
[2]       While the Principal and the Board appeal against the High Court decision, they made it clear through their counsel that they did not intend the outcome of the appeal to affect J’s position: he would continue to be a student of the College regardless of the outcome. We have decided that this does not render the issues raised moot. The order for costs made in the High Court against the Principal and the Board remains extant and is in issue on appeal, providing grounds to entertain the appeal: Elders Pastoral Ltd v Bank of New Zealand [1990] 3 NZLR 129 (PC) at 134. In this case, because the question of costs will turn on our analysis of the Principal’s and Board’s duties, issues which are of general importance in the education sector, we decided to hear and determine the appeal. In fact, we have concluded that Keane J was right to quash the decisions to suspend and expel J, for reasons we will come to. However, we disagree with Keane J on two very important issues of process, which were the focus of much of the argument before us.
Issues
[3]       The argument before us focused on two aspects of the process undertaken by a school when considering…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bovaird v J

Details

AGLC: Bovaird v J [2008] NZCA 325
Case: [2008] NZCA 325
Decision Date: 27 August 2008

CaseChat Overview and Summary

The case of Bovaird v J involved an appeal against a decision of Keane J in the High Court, which had quashed a decision of the Principal of Lynfield College to suspend the respondent, J, and the later decision of the Board of Trustees of the College to expel him. The appeal was dismissed by the Court of Appeal of New Zealand, and the costs of $3,000 plus usual disbursements were awarded to the respondent. The Court of Appeal disagreed with the High Court on two main issues: (1) the extent of the natural justice requirements applying at the stage at which a principal or teacher undertakes an investigation of misconduct which may subsequently found a decision to suspend the student, and (2) whether a principal must consult the parents of the student before making a decision to suspend. The Court of Appeal held that there was no legal requirement to consult with parents before a suspension or stand-down decision is made, and that imposing such a requirement is not necessary and is at odds with the legislative policy in the Act and the Rules. The Court of Appeal also concluded that the Principal and the Board had failed to engage with the statutory criteria for suspending and expelling a student, leading to the invalidity of the suspension and expulsion decisions.

Orders