J v O'Grady
[2019] NZHC 1295
•12 April 2019
ORDER PROHIBITING PUBLICATION OF APPLICANTS’ NAMES. IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE
CIV-2019-435-002
[2019] NZHC 1295
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER OF
An application for judicial review
BETWEEN
[J] BY HIS LITIGATION GUARDIAN [MRS M]
Applicant
AND
MARTIN O’GRADY
First Respondent
AND
RATHKEALE COLLEGE BOARD OF TRUSTEES
Second Respondent
Hearing: 9 and 12 April 2019 Appearances:
A C Beck for Applicant
R M Harrison (9 April) and S A Hawkins (12 April) for First and Second Respondent
Judgment:
12 April 2019
JUDGMENT OF GRICE J
[J] v O’GRADY [2019] NZHC 1295 [12 April 2019]
Contents
Introduction [1]
Issues [10]
Scope of the judicial review and approach [13]
Statutory framework as well as rules, guidelines and bylaws
of the school [17]
Events leading to the decisions to suspend and exclude [25]
The process followed by the Principal leading to the decision
to suspend J [33]
The decision of the Board [78]
Does the case justify the most serious response [82]
Conclusion [103]
Order suppressing name of student and family [104]
Introduction1
[1] J was a pupil at Rathkeale College for two years until his exclusion from the school in March 2019.2 His mother, J’s litigation guardian, has applied for judicial review of the decisions by the Principal and by the Board to suspend and exclude J from the school.
[2] On 20 February 2019, J was found by a staff member in possession of vaping paraphernalia, two empty cigarette packets and $40 in cash. J denied he had any vaping paraphernalia. J was then interviewed by the Deputy Principal. When he was asked to empty his bag and pockets, vaping paraphernalia was discovered as well as cash and two empty cigarette packets. J then told the Deputy Principal that he had sold vaping liquid to some students. The Deputy Principal then asked J about whether he had taken or had other drugs. J said no.
[3] J was referred to the Principal, Mr O’Grady. The Deputy Principal called J’s mother. While the Principal was with J’s mother, J was waiting with the Deputy Principal in another room. J told the Deputy Principal that he did have a small bag of cannabis which was concealed in his underwear.
1 I am delivering an oral decision in this matter given the need for arrangements to be made for J’s schooling in the upcoming term. He has already been out of school for six weeks. The written decision will be corrected for any grammar, flow, suppression and to provide full citations and references where appropriate. The written decision may, therefore, not exactly match the oral but its substance will of course be the same. Interim orders covering suppression of respondents has lapsed see [105].
2 He started at Rathkeale College in 2017.
[4] Following the meeting with J and his mother, the Principal determined the misconduct by J was significant and amounted to gross misconduct which warranted suspension. The Principal phoned J’s mother later in the evening and advised her that he was going to suspend J. The Principal followed that notification with a letter dated 25 February 2019 setting out the reasons and notice of suspension in writing. In that letter the Principal provided relevant information to J’s mother as to the process which would then be followed.
[5] On 1 March 2019, J, his mother and J’s three advocates met with the Board Disciplinary Committee (the Board) chaired by the Chair of the Board of Trustees of the college, Mr Murdoch.
[6] The Principal had provided the written Principal’s report to J’s mother and the Board of Trustees before the meeting. The meeting between the Board, J’s mother and his advocates took approximately one hour and 15 minutes. The Board then deliberated for about an hour. Minutes of that meeting were taken by the secretary. These indicate that there was an interactive meeting.
[7] At the outset the Principal’s report was presented and comments were sought on it. The Chairman asked whether there were any errors of fact “or anything that was disputed” in the report. There was no comment and Mr Beck, for J, confirms that the information in that Principal’s report is not in dispute.
[8] Following its deliberations, the Board determined that J’s suspension should be extended and that J be excluded from Rathkeale College. It conveyed that decision first by telephone to J’s mother immediately after the meeting and then by a letter to J’s mother dated 6 March 2019.
[9] J’s mother then took legal advice and the Board was asked to reconsider its decision on 13 March 2019. The Board responded to that request on 27 March 2019. It stood by its decision.
Issues
[10] There was no contest concerning the facts which give rise to the disciplinary process.
[11]The four main issues which emerge are whether:
(a)the conduct complained of was “gross misconduct” sufficient to justify first suspension and secondly exclusion.
(b)the Principal, in reaching his decision to suspend J, followed the correct legal process, with particular reference to the sufficiency of the reasons given,3 consideration of the circumstances and availability and consideration of other potential options open to the Principal.
(c)the Board, in its determination that J’s suspension was to be continued and he should be excluded from the school, properly considered the circumstances, the level of misconduct, and all the alternative sanctions.
(d)the Board appropriately noted its consideration of those matters set out above in its written exclusion decision dated 6 March 2019.
[12] I now turn to consider the scope of judicial review, and the relevant statutory framework as well as the related rules and bylaws which apply in this case.
Scope of the judicial review and approach
[13] There was no dispute that the Principal’s decision to suspend and the Board’s decision to exclude J were both exercises of statutory powers of decision. They are susceptible to review by this Court with reference to whether they were lawful, by a fair process and reasonable.4 A judicial review is not an appeal. It is primarily
3 These reasons were contained in the Principal’s letter of 25 February 2019 (following the telephone advice of 20 February to J’s mother).
4 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) per Cooke J.
concerned with the observation of procedural compliance, rather than substance, of a decision.5 Any error of law must be material – meaning that it is “one which may well have altered the ultimate decision”.6 A failure to consider relevant matters is an error of law whereas the weight given to those considerations is a matter for the decision maker. This means failing to consider relevant matters is a ground of judicial review but failing to have sufficient regard to relevant matters may not be.7
[14] Caution is expressed in judicial review cases involving disciplinary decisions by Principals and Boards. This Court does not stand in their shoes. As McGechan J put it in M v Syms in relation to a Principal’s decision:8
Where a discretion is exercised the Court will give appropriate weight to the advantages a Principal has from expertise and from close acquaintance with the school and matter concerned. The Court must see the discretion whether or not to discipline is exercised, and in accordance with the law; but is not itself to become a substitute disciplinarian. Decisions on the merits, provided they are reached by lawful process, are for Principals.
[15]Faire J further elaborated on this sentiment in A v Hutchinson when he said:9
[67] This is not an appeal. The issue is whether the decisions were lawful, reached by fair process and were reasonable. If so, they are valid. If not, they are invalid. In D v M and Board of Trustees of Auckland Grammar School, Smellie J identified the applicable legal principles for judicial review in these cases as:10
(a)The court does not substitute its view on the merits of the case. The court is concerned with the correctness of the decision-making process;
(b)The court is required to determine whether the relevant statutory law has been complied with;
(c)The Court must determine whether procedural fairness and the rules of natural justice were observed in the decision-making process;
(d)There is a subsidiary of the rules of natural justice that decisions are to be made on correct facts.
5 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
6 Astrazeneca Ltd v Pharmaceutical Management Agency HC Wellington CIV-2011-485-2314, 22 December 2011 at [73] citing Bulk Gas Users Groups v Attorney General [1983] NZLR 129 (CA) at 136 per Cooke J.
7 Berryman v Solicitor-General [2008] 2 NZLR 772 (HC) at [84].
8 M v Syms [2003] NZAR 705 (HC) at 718. This case was decided under earlier legislation, but the principle expressed remains current.
9 A v Hutchinson [2014] NZHC 253, [2014] NZAR 387.
10 D v M [2003] NZAR 726 (HC) at 731.
[16] I am, therefore, more broadly concerned as to whether the decision was made according to the law, applying the correct legal tests and taking into account the correct considerations in applying the tests.
Statutory framework, rules, guidelines and bylaws of the school
[17] Rathkeale College is an integrated school but is still subject to the provisions of Part 2 of the Education Act 1989 (the Act).11 Section 13 of the Act specifies the purpose of the provisions governing stand downs and suspensions:
13Purpose
The purpose of the provisions of this Act concerning the standing-down, suspension, exclusion, or expulsion of a domestic student from a state school is to—
(a)Provide a range of responses for cases of varying degrees of seriousness; and
(b)Minimise the disruption to a student’s attendance at school and facilitate the return of the student to school when that is appropriate; and
(c)Ensure that individual cases are dealt with in accordance with the principles of natural justice.
[18] Stand downs and suspensions are governed by ss 14 and 15 of the Act. Those sections provide insofar as they are relevant to this case:
14Principal may stand-down or suspend students
(1)The Principal of a state school may stand-down or suspend a student if satisfied on reasonable grounds that—
(a)The student's gross misconduct or continual disobedience is a harmful or dangerous example to other students at the school; or
(b)Because of the student's behaviour, it is likely that the student, or other students at the school, will be seriously harmed if the student is not stood-down or suspended …
(2)A stand-down may be for 1 or more specified periods, and—
(a)The period or periods may not exceed 5 school days in any 1 term:
11 Section 414(2).
(b)A student may be stood-down more than once in the same year but for not more than 10 school days in total in that year:
(c)In calculating the period of a stand-down, the day on which the student was stood-down, and any day on which the student would not have had to attend school in any event, must not be counted:
(d)The Principal may lift the stand-down at any time before it is due to expire.
(3)If a student has been stood-down or suspended, the following provisions apply in relation to the student's attendance at the school:
(a)The Principal may require the student to attend the school if the Principal reasonably considers the student's attendance is appropriate for the purposes of section 17A:
(b)The Principal must allow the student to attend the school if the student's parents request that the student be permitted to attend the school and the Principal considers the request is reasonable:
(c)Otherwise the student does not have to, and is not permitted to, attend the school while stood-down or suspended.
15Board’s powers when suspended student younger than 16
(1)If a student younger than 16 has been suspended from a state school,
the school’s Board may—
(a)Lift the suspension at any time before it expires, either unconditionally or subject to any reasonable conditions the Board wants to make:
(b)Extend the suspension conditionally for a reasonable period determined by the Board when extending the suspension, in which case subsection (2) applies:
(c)If the circumstances of the case justify the most serious response, exclude the student from the school by extending the suspension and requiring the student to be enrolled at another school.
(2)If the Board extends a suspension conditionally, the Board must impose reasonable conditions aimed at facilitating the return of the student to school and must take appropriate steps to facilitate the return of the student to school.
(3)If a student fails to comply with any condition imposed under this section in respect of the lifting or extension of his or her suspension, the Principal may request the Board to reconsider the action it took under this section in that case and the Board may confirm or reverse its earlier decisions or may modify its earlier decisions by taking any action specified in any of paragraphs (a) to (c) of subsection (1).
(4)If the Board has not sooner lifted or extended it or excluded the student under subsection (1)(c), the suspension of a student younger than 16 ceases to have effect—
(a)At the close of the 7th school day after the day of the suspension; or
(b)If the suspension occurs within 7 school days before the end of a term, at the close of the 10th calendar day after the day of the suspension.
(5)If the Board of a state school excludes the student under subsection (1)(c), the Principal must try to arrange for the student to attend another school (which school is a suitable school that the student can reasonably conveniently attend).
(6)If the Principal is unable, by the 10th school day after the day of the Board's decision to exclude a student, to arrange for the student to attend another school, the Principal must tell the Secretary what steps the Principal took in trying to do so.
[19] Beyond these provisions, the Secretary of Education has made rules pursuant to s 18AA of the Act. These are the Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules 1999 (the Rules).
[20] These rules set out in some detail the processes and procedures which must be followed, in particular by the Board, in standing down, suspending, excluding or expelling a student from a school. In this case the suspension and exclusion provisions are particularly relevant. Rule 17 governs the decisions of the Board:
17 Board’s decision
(1)Before deciding at a suspension whether to lift or extend the suspension or exclude or expel the student, the Board must:
(a)Have due regard for each circumstance relevant to the suspension; and
(b)Consider each statutory option available to it.
(2)The Board may –
(a)Require the Principal, the student, the student’s parents, any representative of the student, and any representative of the parents to withdraw from the meeting while the Board makes its decision; or
(b)Ask the Principal, the student, the student’s parents and any representatives of the student and the parents to stay at the meeting while the Board makes its decision.
(3)Before making its decision, the Board may try to get all the parties at the meeting to agree on what the decision should be.
(4)The Board must record its decision, and the reasons for it, in writing.
[21] Schools may also adopt their own rules or bylaws as they are called. In the case of Rathkeale, a set of general rules and expectations were in place. They generally deal with the school rules and expectations in relation to behaviour and appearance of students.
[22] For the purposes of this case the section dealing with alcohol, smoking and illegal substances applies. The bylaws say:
…
ILLEGAL DRUGS
(a)No student shall consume, sell, purchase, supply, have in his possession or be under the influence of alcohol, tobacco, (or look alike tobacco products such as, but not limited to, e-cigarettes/vaping), illegal drugs, synthetic drugs, R18 legal drugs or party pills, whether or not lawful under the law of New Zealand, while on the School’s property or under the authority of the College.
(b)No student is permitted to have in their possession any drug or alcohol paraphernalia while under the authority of the College.
(c)A disciplinary committee of the Board of Trustees is authorised, in its sole discretion, to determine, in any particular case before it, whether a drug, pill or substance is prohibited by Rule (a) above.
NOTE: “while under the authority of the College” is taken to be on the school premises, travelling to and from the College, while in school uniform, and while on any school-sanctioned activity.
SMOKING
The School is, by law, a smoke free zone.
· Smoking is prohibited, as is the possession of tobacco, lighters and matches.
· Report offenders to a Deputy Principal or Housemasters.
· It is an offence to be in the company of smokers in out of bounds areas.
[23] J’s mother signed an admission agreement when J was offered a place at Rathkeale in 2017. This agreement recorded that J would fully support the special
character of the school, that he would abide by the school rules and policies and be subject to the discipline of the school.
[24] At the same time J himself signed the terms and conditions of agreement and undertook in writing to observe the school’s rules and policies in force from time to time, be subject to the discipline of the school and adhere to the school’s special character programme. Of course, J was only 13 years of age at the time so it would be unlikely that he would readily recall those rules had they not been reinforced from time to time as an important aspect of the school’s ethos and values. Most recently they had been reinforced by the Principal on the morning of 22 February at an assembly a few hours before the incidents occurred which give rise to the disciplinary action.
Events leading to the decisions to suspend and exclude
[25] Mr Beck, for J, confirmed that no issue was taken with the facts as set out in the Principal’s report to the Board. This had been provided to J’s mother and to the Board members before the meeting in accordance with the procedural requirements.
[26] The report incorporates a summary by the Principal of the circumstances and behaviour leading to the suspension. It also annexes more detailed material and reports which included: a Subject Teacher Report with comments dealing with J’s attitude and academic process in all his subjects; as well as a Tutor Report Comments and a Pastoral Care file which includes notes of any earlier incidents which had been the subject of discipline. In this case there were a number of earlier incidents mentioned. They included a note of J being caught vaping in his cube during prep with others. This occurred on 7 August 2018. It was agreed, and I accept, that while there was action taken it was low level and none of the incidents (recorded in the file) were escalated to the Principal. The material was provided only as background material for the Board rather than evidence of any pattern of misbehaviour.
[27] The reports generally paint a picture of J being a personable young man with plenty of potential. These were points which were emphasised by J, his mother and his advocates as well as his referees at the Board meeting.
[28] The report included notes on the present incident attached to the Principal’s report. The notes were made by Mr [G], and dated Wednesday, 20 February 2019. They read as follows:12
Date : Wed, 20 Feb 2019 12:40 pm
What : Behaviour – Smoking
Why :
Where : School
Teacher : AJG Mr [G]
Description : [J] sent to AJG by GAM - in possession of a vaping device
Notes: [J] was brought to Mr. [G] by Mr. [M] towards the end of the lunchtime period today. Mr [M] handed Mr [G]
· a vaping device,
· a plastic bottle containing vaping liquid
· an empty packet of cigs which he had taken from [J].
Mr [M] saw a group of boys gathering around [J] after lunchtime today and was suspicious about what might be going on. Mr [M] asked [J] if he had a vaping device in his school bag and [J] said no. In fact, [J] did have a vaping device in his blazer pocket. In effect he intentionally lied to Mr [M] about being in possession of a vaping device. [J] said that he was with a group of boys named [DELETED] and [DELETED] but could not/would not give other names.
Mr [G] asked [J] if he would be prepared to empty the contents of his bag and all his pockets and he agreed to do this. Of interest was $40 in cash. There was an additional empty cigarette packet in his blazer pocket.
After some discussion and repeated requests to [J] by Mr [G] to tell the truth, [J] admitted that some students had asked him to supply vaping liquid for them – hence the cash. [J] named:
· [DELETED], who he said had given him $24 to provide vaping liquid
· [DELETED], who he said had given him $25 to supply vaping liquid
· [DELETED], who had asked [J] if he could arrange for vaping liquid to be sent to [J]’s house.
Mr [G] twice asked [J] if he was taking drugs and he denied it.
Mr [G] spoke to [the Principal,] about what had happened. There was a discussion about smoking, vaping and the possible consequences of that form of activity at school. Mr [G] had a conversation on the phone with Mrs [M], who
12 The material referred to as in square brackets follows [DELETED] was material deleted. The name of J, his mother, the teachers involved and others have been anonymised and instead square brackets with letters have been inserted.
came into school to have a meeting with [the Principal]. [The Principal] and Mrs [M] met and then asked [J] to join them to discuss the incident. Before [J] joined the meeting he gave Mr [G] a small plastic bag containing Cannabis.
[29] It was agreed that the factual report was accurate. The emphasis put on the facts by J and his mother in their affidavits emphasised that J did voluntarily admit to the possession of cannabis and so, is a victim of his own honesty.
[30] Other comments made by J’s mother which were not directly relevant to the issues before me included:
(a)Some criticism of some of the questioning by the Board described as digging in relation to J.
(b)Her feeling that the Board’s mind had been made up and the meeting with the Board was a formality. She said she knew this because the Board’s Chair had shaking hands and during the meeting she could hear the shakiness of his voice.
(c)She said that she and J had been told by other students and friends that some other boys who had been caught with cannabis had not been disciplined to the same extent as J. They gave some examples.
(d)She said the Board drilled J with questions when he was not prepared for questioning and J did not deal with them well.
[31] For completeness, I note that the Principal, and the Board Chair, Mr Murdoch, say that the offending by other students described above has not been brought to their attention.
[32] Those matters are by way of background. They are not directly relevant and I put them to one side.
The process followed by the Principal leading to the decision to suspend J
[33] Mr Beck for J says, and I accept, the Principal’s decision to suspend was on the grounds that J’s “misconduct was a harmful or dangerous example to other students at the school”. That is, it was a decision under s 14(1)(a) of the Act. That provision allows a Principal to stand down or suspend a student if satisfied on reasonable grounds that the student’s gross misconduct or continual disobedience is a harmful or dangerous example to other students at the school. These are disjunctive.
[34] Mr Beck says the Principal did not specify what he had identified as “gross misconduct”. The submission is that there were a number of possibilities for instance, possession of the vaping paraphernalia, the empty cigarette packets and $40 cash. There is no dispute that J had also sold the vaping fluid to other students and he was in possession of cannabis. In addition, he initially denied being in possession of the vaping paraphernalia and the possession of drugs. The supply of students with various materials related to vaping and J’s possession of cannabis at school were identified as the reasons for the suspension in the letter from the Principal to J’s mother dated 25 February 2019. This followed on from the Principal’s oral advice by telephone to J’s mother on the evening of the incident.
[35] Mr Beck submits that the conduct described is not “gross misconduct” deserving of suspension in this case. Nor he says, is it clear that it posed a harmful or dangerous example. Mr Beck for J gave examples of behaviour that would clearly be both gross misconduct and harmful or dangerous examples as threatening behaviour or insurrection in the school. Mr Beck submitted that in this case the behaviour was covert and it was J who was most directly affected. Mr Beck did concede that J was selling the vape fluid to other boys.
[36] Mr Beck cited M v Syms in his submissions on what constituted “gross misconduct”. In that decision McGechan J said:13
I start from those two generalities: (i) the use of the word “gross” is intended to indicate misconduct striking and reprehensible to a high degree; (ii) the phrase is to be construed in light of its purpose, namely description of conduct
13 M v Syms, above n 8, at 712.
sufficiently serious to warrant removal of the child notwithstanding risk of individual damage.
[37] The Judge there noted that there are situations where the answer is obvious, such as serious assaults on teachers and deliberate challenges to school authorities.
[38] McGechan J emphasised that the conduct in question must be gauged against all the circumstances of the case. He said the Principal was obliged to pause “and ask himself whether in this particular case, or in its particular circumstances, consumption of this alcohol by these boys went so far as to meet the ‘gross misconduct’ test”.14
[39] Mr Beck also pointed to D v M where the Court highlighted the importance of a Board giving meaningful consideration to all the options open to it.15 In that case the Court held there had been no serious consideration of suspension with conditions attached.16
[40]Further in A v Hutchinson the Court said:17
[74] One must always ask the question whether when objectively considered, this incident justified the most serious response the legislation provides for by the Principal.
[41] In this case the points that indicate J’s behaviour was not gross misconduct justifying suspension were, in Mr Beck’s submission:
(a)This was a first offence (in the sense it was the first disciplinary action escalated to the Principal) in relation to J.
(b)It was not in the category of obvious “gross misconduct” that warranted the most serious response provided for by the legislation.
(c)The Principal had distributed a newsletter to the students and parents about how the school viewed vaping and the use of substances but that was only after the Principal’s decision in relation to J.
14 At 716.
15 D v M, above n 10.
16 At 733.
17 A v Hutchinson, above n 9.
(d)The Principal did not exercise his discretion. There are a number of alternative options which must be considered and suspension was not an automatic consequence, even if gross misconduct was found. Suspension is the most draconian alternative.
(e)The Principal was required to weigh up all the competing considerations, including the disadvantages to J and the potential disruption to his education.
[42] Mr Beck says there was no indication in the Principal’s letter of 25 February that he had given serious consideration to anything other than suspension as a sanction. In addition, Mr Beck says there was nothing in that letter to indicate he considered the effects it would likely have on J.
[43] In summary Mr Beck’s submission was that objectively viewed the conduct does not appear to have been so “striking and reprehensible” that only suspension could provide an adequate remedy. Secondly, in his submission, the Principal did not sufficiently set out the reasons in writing nor did he set out the consideration of options other than suspension in writing.
[44]I now consider the misconduct in this case.
Nature of the misconduct
[45] I note that in most of the judicial review cases dealing with school disciplinary matters the Court has emphasised that they would not interfere with the merits of the decision. By way of example:
(a)McGechan J in M v Syms held that it was open to the Rector to form an opinion that “gross misconduct” had occurred where two students had consumed small quantities of beer on a ski trip. They had deliberately and openly consumed alcohol. This was a significant, reprehensible and a deliberate breach of a clear school rule. The breach of school rules was not a decisive factor, but was one of significance. The Rector
could have also lawfully formed an opinion the boys’ conduct was a harmful or dangerous example to set to other students.18
(b)Keane J in J v Bovaird found that the Principal’s first suspension of J when found to have a pipe for smoking cannabis in his bag, was, in the primary sense, the right decision for “gross misconduct”. He pointed out that this is an offence under the Misuse of Drugs Act 1975 and use of cannabis inside or outside school is pernicious. The Principal was entitled to conclude that J’s conduct was not only “gross” but “a harmful or dangerous example to other students”.19
(c)Smellie J in D v M held that in view of the danger of fire and the clear prohibition laid down, the plaintiff’s smoking of a cigarette (on a school field trip) could amount to gross misconduct. He indicated he would not overturn the Headmaster’s decision on a finding that this could be a dangerous or harmful example to other students.20
[46] In my view, the conduct by J in this case is significantly more serious than any of the above examples. The aggravating factors here include:
(a)J initially lied to a staff member on duty when asked about his activities and was not forthcoming about the fact that he was not only in possession of these prohibited items, but he was selling them to other students;
(b)J sold prohibited vape fluid to other students for cash;
(c)The school rules and expectations concerning J’s activities were well known to him. They had been recently reinforced not only in earlier school communications but at assembly on the morning of the offending. This, therefore, was a knowing breach of an established emphatic school rule;
18 M v Syms, above n 8.
19 J v Bovaird [2007] NZAR 660 (HC) at [71]–[72].
20 D v M, above n 10, at 737.
(d)The relevant school rule is of significance as it was regarded, and publicised by the school, as a cornerstone of providing and promoting a safe and healthy learning environment. J’s selling of vape liquid to other students had jeopardised the health and welfare of not only the students he sold to but all students;
(e)The possession of cannabis at school is a serious and harmful activity, irrespective of whether it had been consumed prior, during or after school. The possession of cannabis on its own, in a school context, is objectively gross misconduct that is a dangerous or harmful example to students.
[47] Mr Harrison, for the respondents, submitted the possession and sale of vaping paraphernalia/liquid to other students for cash and the possession of cannabis at school, quite independently, were each well within the range of conduct that objectively would be considered gross misconduct that is a harmful or dangerous example to other students within the school context. As he pointed out the supply of vaping products to under 18 year olds and the possession of cannabis are each criminal offences.
[48] The principal outlined the discussion at the meeting he had with J and J’s mother on 20 February 2019. It was a long meeting which ranged over a number of issues.
[49] During the meeting J admitted to being a regular smoker of cannabis. The Principal asked J about the rules and expectations and whether he was aware of them, particularly with reference to the vaping paraphernalia and cannabis. J said he was. The Principal also asked J about whether he had listened to the assembly speeches, particularly the one presented the morning of the day on which J was found with the banned substances. He also asked J about his comments on the health and safety risk it presented to the other students. J confirmed to the Principal that he felt slightly awkward listening to the address that morning knowing what he had in his possession. When he was asked why, by that lunchtime, he was showing off the vaping paraphernalia for sale, J replied, he did not think he would be caught.
[50] The Principal said he indicated to J’s mother, as I have said, and J that the conduct was “at the serious end of the range” and the Principal would be considering stand-down or suspension.
[51] The Principal said he then took time to consider the information he had received, checking again to clarify the events of the day. He also reviewed pastoral care information about J and spoke to a range of other staff to get a full picture of J’s time at Rathkeale. He said he was also conscious of J’s mother’s comments about her concerns over J and the lack of support from J’s father since their separation.
[52] However, the Principal came to the view that the misconduct was significant and amounted to gross misconduct. It was not a trivial minor breach of the rules or school expectations. The factors he said contributed to that view were:
(a)[J] was aware of our rules and expectations which I had reinforced again that morning in assembly, I would have expected that this might have given cause for pause and reflection, but instead [J] proceeded to sell the vaping paraphernalia he had brought into school at the lunchbreak;
(b)When [J] was approached by the staff member on duty and asked about his activities, [J]’s response was to lie to him. The expectations within our values and special character is to be honest and truthful;
(c)[J] had brought vaping paraphernalia and liquid into our school in order to sell to other students. This was not a case of simple possession for his own use, but this was calculated activity involving sourcing the product in order to sell to other students for cash in the school. This was a particularly striking and reprehensible aspect of [J]’s conduct in the circumstances.
(d)…
[53] The Principal also considered whether J’s individual circumstances in the context of the behaviour might mitigate against suspension and whether there were other alternative actions including disciplinary steps. He came to the view that a disciplinary outcome short of suspension would be entirely inappropriate given the aggravating factors involved and the message it would send to the students and school community in terms of upholding the rules and expectations in the important area of harmful substances.
[54] Once he had made his decision the Principal phoned J’s mother and, in that discussion, explained to her about the decision he had made and the reasons for that decision. She acknowledged the seriousness of the actions and did not question or take issue with him then, over the decision. In a subsequent phone call the principal explained to J’s mother he considered the behaviour met the threshold for suspension. He said that he would have to use wording in the letter to follow that included reference to gross misconduct as that was the term used under the Education Act and was required in the circumstances. The principal encouraged Ms M to seek support or representation to help with the process that would follow. He also said that counselling was available for J.
[55] The Principal, in his letter to J’s mother of 25 February was clear about what the relevant gross misconduct was. It said:
Further to my telephone call of 20 February, this letter confirms that [J] has been suspended from school. I have made this decision because I am satisfied that his gross misconduct is a harmful or dangerous example to other students at the school (under section 14(1)(a) of the Education Act 1989).
I have decided to suspend [J] after our investigations and subsequent meetings with [J] and you established that [J] has been supplying students with various materials related to Vaping and was found in possession of a quantity of Cannabis at school.
[56] The rest of the letter relates to the timing of the suspension, its effect and the process for the Board meeting which would follow.
[57] As discussed above, Keane J in J v Bovaird noted that the mere possession of a pipe for smoking cannabis by a student was a criminal offence and use of cannabis was “pernicious”. He said the Principal was entitled to conclude the misconduct was not simply gross but “a harmful or dangerous example to other students.”21
[58] In my view J’s behaviour did amount to gross misconduct sufficient to be met with immediate suspension. It was serious in the context of the rules and the values of the school and the stated importance of keeping the school free of prohibited substances. That was a message regularly communicated including at the assembly
21 J v Bovaird, above n 19, at [72].
on the morning of the incidents. To his credit J did say he felt uncomfortable flouting the rules only a couple of hours after the assembly. Nevertheless, he thought he would get away with it again.
[59] A summary of the reasons for the Principal’s finding of gross misconduct and his decision to suspend J are succinctly and clearly set out in the letter itself. The Courts have noted that these decisions are often made quickly, under tight timeframes and the letters are not crafted by lawyers or Judges.22 That summary in the letter was sufficient to advise in writing of the reasons for the decision. I find that the behaviour of J could and did amount to gross misconduct in the circumstances and warranted the sanction imposed.
[60] Mr Beck says that the behaviour was covert and perhaps not in the same category as an assault or insurgence. I disagree. It was open to the Principal and the Board to categorise it as gross misconduct in terms of the legislation. The fact that it was covert and difficult to detect may make it worse than a physical altercation which is immediately apparent.
[61] I accept the evidence of the Principal that he also considered the circumstances. These in his view aggravated the offending. J lied about both having the vaping paraphernalia and being in possession of drugs. It was only when it became inevitable that the paraphernalia would likely be found and the strong possibility the drugs would be located, just as he was about to be called into face the Principal and his mother, that he admitted he had them. When asked by the Principal about why he behaved as he did only a couple of hours after that assembly at which the school body had been reminded of the prohibition on substances in the school J responded he thought he could get away with it.
[62] The danger and harm flowing by way of example to the other students by allowing a student to think that he could “get away with it” introducing not only substances banned by the school, but also selling them (the vaping liquid) as well as being in possession of cannabis, an illegal substance, is at the very serious end of the
22 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 at [31].
spectrum. Therefore, not only was the behaviour serious on its own, the surrounding circumstances made it much more serious.
[63] The Principal did consider all the circumstances including the personal circumstances relating to J and he considered the other options. The required level of natural justice was observed in the circumstances.
[64] There was no real complaint about the fairness of the hearing and the meetings. J’s mother was in fact in the Principal’s office when J made the admission about the possession of the cannabis. There is no complaint otherwise about information not being made available to her.
[65] The Principal alerted J’s mother to the seriousness of the offending and told her he would be considering the options which included the possibility of a stand down or suspension and would phone her. The Principal then took time to consider the information before he phoned J’s mother to explain his decision to suspend and the reasons for that decision. At that time J’s mother acknowledged the seriousness of the actions and did not question or take issue with the decision.
[66] In addition, the Principal also telephoned J’s mother before the formal letter of 25 February was sent which set out the decision. This was to explain the wording that would be used in the letter including the reference to “gross misconduct” which was required under the Act. He did this as he was aware that it was a term which Principals did not normally use when communicating with parents. He explained the suspension process and encouraged her to seek support or representation to help with the process on behalf of J.
[67] I am satisfied that the Principal did consider other alternatives to suspension at this stage even if he was not required to under the legislative scheme.
[68] While the Courts have not been slow to intervene on applications for judicial review concerning disciplinary decisions affecting students, they have also warned against introducing rigid procedural requirements which are not suited to the circumstances in which these disciplinary decisions are made.
[69] In J v Bovaird the Court of Appeal warned against the imposition of procedural requirements which add to those already set out in the Act and rules.23 It allowed the appeal insofar as it related to rejecting a requirement imposed by the High Court that parents be involved every investigation of misbehaviour in order to meet the requirements of natural justice. The Court said:
[48] As Lord Steyn once famously observed, “In law, context is everything”: R (on the application of Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [28] (HL). The context for the investigation and decision-making for a suspension is that those undertaking the exercise are teachers who are no doubt expert in teaching, but are not lawyers or police officers. Decisions will sometimes be required to be made with urgency, to prevent ongoing disruption or to protect the safety of other students. The level of seriousness of the alleged misconduct will vary from case to case, as the statement of purpose in s 13(a) recognises. And the principal and other teachers have other responsibilities. The expectations of parents of students who do not misbehave are that teachers will be engaged in the education of those students (see [27] above). In this case, the student complement of the College is, we were told, over 1800.
[49] While these complicating factors mean that a principal sometimes has to make a prompt decision based on incomplete information, that information must always be sufficiently reliable to constitute “reasonable grounds” under s 14(1). The requirement of the Board to review the decision within 7 days (s 17) and to notify the parents (s 17B) provide a check to ensure that a suspension was based on reasonable grounds. The special competence of a principal and the existence of these internal protections means that a court will rarely intervene in a principal’s decision to stand down or suspend a student under s 14(1).
…
[52] The common thread among these difficulties is that the school environment requires an individualised response to each incident. Prescribing a set of rigid rules of universal application will not ensure that the principles of natural justice are always fulfilled. It is preferable to examine each case on its facts: Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [90]. Such an approach is consistent with the statutory scheme, which emphasises the importance of having a range of responses (s 13(a)) and ensuring that “individual cases” are dealt with in accordance with the principles of natural justice: s 13(c).
[53] All of this brings to mind the comment made by Lord Bingham of Cornhill in R(SB) v Governors of Denbigh High School [2007] 1 AC 100 (HL) in which he criticised the prescriptive approach suggested by the Court of Appeal in that case and added:
[31] I consider that the Court of Appeal’s approach would introduce “a new formalism” and be “a recipe for judicialisation on an unprecedented scale”. The Court of Appeal’s decision-making
23 J v Bovaird [2008] NZCA 325, [2008] NZAR 667 at [48]–[49] and [58]–[53].
prescription would be admirable guidance to a lower court or a legal tribunal, but cannot be required of a head teacher and governors, even with a solicitor to help them. If, in such a case, it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a challenger’s task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.
[70]Section 14 of the Act specifically says:
14 Principal may stand-down or suspend students
(1) The Principal of a state school may stand down or suspend a student if satisfied on reasonable grounds that –
(a)The students gross misconduct or continual disobedience is a harmful or dangerous example to other students at the school; or …
[71] There is no specific requirement to consider other options nor set them out in writing. This in contrast with the requirements under s 15 concerning the obligations of the Board. These are also elaborated on in the Rules. Under r 17 the Board is specifically directed to consider each statutory option open to it.
[72] A Principal’s decision may be invalid if it was based on mistaken fact, absence of reasonable grounds or the conduct itself was clearly outside the meaning of gross misconduct. Similarly, if there were breaches of natural justice which in the circumstances indicate the process was unfair the decision may be challenged. None of those errors occurred here.
[73] The letter of 25 February 2019 sets out the reasons in a manner which informed J or his mother of the basis of the decision. The behaviour was clearly gross misconduct. Nothing further was required in the written advice.
[74] In reaching this conclusion I bear in mind Mr Beck’s submission that the purpose, set out at s 13 of the Act, concerning disciplinary reactions is to provide a range of responses for cases of varying degree of seriousness, to minimise disruption to a student’s attendance at school and facilitate the return of the student to school when that is appropriate as well as ensuring individual cases are dealt with in accordance with natural justice.
[75] I also bear in mind Mr Beck’s submission about the purpose of the processes and legislation with emphasise on the importance of a student having access to education.
[76] However, the Principal here has properly selected a response in view of the seriousness of the offending and it is a necessary consequence that the student’s attendance at school will be suspended as a result of that offending. That decision as one for the Principal. He took time to undertake that consideration.
[77] In addition, the Principal extended the availability of counselling to J and while J’s mother was critical of some aspects of this offer, J did take it up. In making these comments I do not intend to suggest the offer of counselling and related matters is a requirement of the legislation. Merely that it underscores the fact the Principal was highly aware of J’s circumstances and was attempting to do what was possible in the circumstances to support him.
The decision of the Board
[78] A criticism of the process of the Board is that the requirements of s 15 were not met. Section 15(1)(c) of the Act allows the Board to exclude a student only if first the student has been suspended by the Principal. I have found that he was properly suspended by the Principal. Secondly, and this is where the focus is here, whether the circumstances justify the most serious response.
[79] In addition, Mr Beck says that the Board is required to give written reasons for its decision. The written reasons are set out in its letter of 6 March 2019 but he says these were insufficient. While the Board said (through the Chairman’s affidavit) that it considered additional matters as set out in the minutes, it is only the reasons given in writing in that letter that form part of the decision. Mr Beck says they were deficient.
[80] Mr Beck also said the letter does not show there was any consideration of the purposes of the legislation governing suspension and exclusion. Nor does the letter, he says, refer to the need to minimise disruption to students nor to apply only the sanction that is necessary to deal with the particular case. He says that the Board did
not identify what conduct by the applicant amounted to “gross misconduct” or why it should be regarded as gross misconduct in the circumstances.
[81] A further point raised by Mr Beck is that the reasons provided by the Board give no indication that serious consideration was given to anything other than exclusion and in particular there is no suggestion that conditional suspension could be used to address the J’s case.
Does the case justify the most serious response
[82] Mr Beck noted that the above phrase uses a superlative, and the case must require the most serious response. He said that even if suspension was lawful the Board had to reach a conclusion that justified that most serious response.
[83] The Board meeting commenced, according to the minutes, at 4.45 pm on 1 March. As well as the committee and the Principal, J’s mother and three supporters or advocates for him were present on J’s behalf. A number of references from family, friends and J’s sister, as well as a general reference from his primary school teacher, were produced in support of J. The thrust of the references and submissions by his mother were that J had had some problems at home, he loved Rathkeale and while the behaviour, the subject of the meeting, was not condoned nor trivialised, he should have a chance to continue at the school.
[84] There was extensive discussion during the meeting. J’s mother complains that there was some “digging” into J’s previous misdemeanours which were recorded in the pastoral care records. Mr O’Grady has said that he did question J on those with the aim of getting a full picture of J and the surrounding circumstances. It appears from J’s mother’s evidence that J himself was prepared to give a formal presentation but when he was questioned he did not “cover off well” as she puts it.
[85] J’s mother feels that because J was honest he has lost his place at the college and that other students involved in worse cases have not suffered the same fate. The Principal and the Chair of the college both say, as I have said earlier, they were not aware of the circumstances of the cases which were apparently similar or worse than
this one. There is no other evidence on this point and as I have said, I put this to one side.
[86] However, it is clear from even J’s mother’s evidence that the meeting was very thorough. The circumstances and background to the offending were examined as were J’s circumstances. It allowed the opportunity for J, his mother and the advocates to comment and question. The minutes disclose that conditions were discussed and J’s mother spoke about a “contract” that was in place at home now for J’s behaviour and J was specifically asked about what he would say to other boys vaping. He responded he would tell them not too.
[87] The Board’s deliberations were recorded in the minutes. They started about 6 pm and lasted about an hour. The minutes were truncated by necessity but they indicate that the Principal’s report was reviewed, as was the decision to suspend. The minutes record that the Board looked at the three options of: suspension; of lifting the suspension (with or without conditions); of extending the suspension with conditions for a reasonable period of time; or excluding J from the college and requiring him to attend another school. The minutes record that the Board decided that because of J’s actions and the circumstances the best option was to exclude J. The minutes set out the reasons for reaching the decision to exclude as:
(a)The explanation given by J for bringing cannabis to the school was implausible. He said he had it at home, but his mother said she smelt cannabis, so he panicked, put it in his bag and took it to school.
(b)The combination of J’s decision to have vaping paraphernalia for sale at school and his clear knowledge of the consequences.
(c)The cannabis, empty cigarette packets and cash clearly indicated other students were at risk and the health and well-being of all students is paramount for the Board and “must be an important consideration”.
[88] The Board also noted that J was well aware of the school’s expectations in this area.
[89] The minutes record that the Board felt the behaviour “met the test of being striking and reprehensible especially as [J] clearly articulated at the meeting that he knew this to be the case. It was also noted that there was clearly documented evidence that [J] was prepared to lie when questioned by staff when he was breaking a school rule.”
[90] The minutes were not provided to J’s mother with the written decision on 6 March 2019. Nevertheless, they indicate that the Board, before reaching its decision did:
(a)Have due regard for each circumstance relevant to the suspension.
(b)Consider each statutory option available to it.
[91] It is clear from the minutes, that the Board took time to consider the circumstances relevant to the suspension. The Principal’s report was before it. That report had been made available to J’s mother before the Board hearing. At the meeting J was questioned about the events and asked for explanations. The minutes indicate a very careful and comprehensive consideration of all the circumstances relevant to the final decision. In addition, the minutes make it clear, as does the Principal’s report, that the other statutory options were considered. In the circumstances the Board considered the behaviour was so serious that it did amount to the gross misconduct which justified the most serious response under s 15(c) of the Act. This was a decision open to the Board in the circumstances.
[92]The Board made no errors in its consideration and decision.
[93] I also add that I have referred to the minutes as being the contemporaneous record of the Board’s meeting and deliberations. They must be read in conjunction with the materials before the Board, which included the Principal’s report (which was very comprehensive), the statements and submissions by J, his mother and the advocates as well as the references.
[94] The Principal, as soon as the decision was made by the Board, telephoned J’s mother to tell her. The letter setting out the reasons dated 6 March 2019 is relatively concise it says:
After considering all the material presented at the Board, the points raised in discussion and the options available to it, the Board of Trustees decided to exclude [J] from Rathkeale College and require him to attend another school.
The Board made this decision because we felt the possession and supply of vaping paraphernalia, the possession of cannabis, empty cigarette packets and cash from the sale of vaping paraphernalia placed other students at risk and was a harmful or dangerous example to other students. We felt the reason for
[J] bringing cannabis to school was implausible. Lastly, it was also noted that
[J] had indicated that he was well aware of the school’s expectations in this area.
I realise that this outcome was not the one you were seeking and appreciate the time and effort you have put into supporting [J].
[95] That letter was sufficient to convey the decision and the reasons for it. To require anything further in writing would stray into the territory of formalism which the Court of Appeal in J v Bovaird and Lord Bingham in R (SB) v Governors of Denbigh High School warned against.24
[96] These investigations must be carried out fairly. There is no substantive criticism of the actual hearing process itself or allegations of failure of natural justice there. The procedures followed and the matters discussed with J’s mother and J present as outlined by the Principal and Chairman are not contested in any significant way by either J or his mother.
[97] The reasons for the decision must be conveyed in writing. At the same time regard must be had to the fact these decisions are made within a short timeframe and should not introduce unduly legalistic requirements. Introducing requirements beyond those stipulated in the Act in terms of process (subject to of course to no errors of law being present) would add a layer of formalism and legalism which is not realistic in the circumstances.
24 R (SB) v Governors of Denbigh High School, above n 22; J v Bovaird, above n 23.
[98] Under r 17 of the Rules the Board had to make the decision to exclude having due regard to each circumstance relevant to the suspension and to consider each statutory option available to it. It did so. That it did so is supported by the minutes, the evidence of the Principal and the Chairman.
[99] Accordingly, I conclude the decision to suspend and to expel reached by the Principal and the Board respectively were properly made. The behaviour for which the suspension was handed down was capable of being and was gross misconduct. The circumstances could justify the most serious response of excluding the student from the school, extending the suspension and requiring him to be enrolled at another school.25
[100] To interfere with these decisions as J requests would be to interfere with the merits of the decision. The weighing up of the circumstances and the options is a matter for the Principal and the Board. They have done that.
[101] I also add that I was advised that inquiries have been made and there is a place available, subject to confirmation, for J at another College commencing at the beginning of the next term.
[102] Finally, I also note that had there been errors involved I would have exercised my discretion in favour of upholding the decisions of the Board and the Principal.
Conclusion
[103]Accordingly, the application for judicial review application is dismissed.
Order suppressing name of student and family
[104] I have made an order, which counsel agreed was appropriate, that final orders be made suppressing the name of the student involved together with the names of members of his family. J is under 16 years of age at present. While I am advised the details of the matters giving rise to this proceeding are well known in the school
25 Education Act, s 15(1)(c).
community it is appropriate his and his family name not be published. That order is made accordingly.
[105] As I mentioned earlier an interim order had been made suppressing the name of the respondents. It is not usual for the name of the school to be suppressed in these cases involving disciplinary proceedings and I would not have thought there was any real reason for that occurring in this case. Nevertheless I will hear from counsel on that point if they seek orders.26
Grice J
Solicitors:
Hazel Armstrong Law, Wellington Harrison Stone, Auckland
26 Addendum: no such application was made and, as such, name suppression for the respondents has lapsed.
0
3
0