MPAA v Wheeler HC Hamilton CIV 2007-419-1187

[2007] NZHC 1993

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2007-419-1187

UNDER  The Education Act 1989

IN THE MATTER OF     an application for review

BETWEEN  MPAA

Plaintiff

AND  RUBINA WHEELER First Defendant

AND  THE NAWTON SCHOOL BOARD OF TRUSTEES

Second Defendant

Hearing:         14 August 2007 (Heard at Hamilton)

Appearances: JA Hope for Plaintiff

MJ Hammond and M King for Defendants

Judgment:      14 August 2007

ORAL JUDGMENT OF ASHER J

Solicitors:

Till Henderson, PO Box 19342 Hamilton

Tompkins Wake, PO Box 258 Hamilton

MPAA V WHEELER AND ANOR HC HAM CIV 2007-419-1187  14 August 2007

[1]      Yesterday afternoon the plaintiff, MPAA, filed an application for an ex parte interim injunction seeking an order that a stand down of A from Nawton School under the Education Act 1989 be lifted forthwith.  I directed that the application be served, and the hearing has taken place today on a Pickwick basis.   A decision is required immediately because Mr Hope, for MPAA, seeks an order before 3:00 pm today.  It is now 2:30 pm.

Background

[2]      MPAA is A’s father.  A is nine years old.  He is a student at Nawton School. He has been diagnosed as suffering from Attention Deficit Hyperactivity Disorder for which he takes regular medication.  Last year he was suspended from school after an incident where he threatened a teacher with a pair of scissors.   His condition results in his on occasion becoming defiant and to an extent aggressive.

[3]      Early last week on 6 and 7 August 2007 there were some incidents involving A at school.  His teacher, Mr New, reports that on the Monday he hit another student with a chair and abused some other schoolmates.  He had swung a chair at a student and the teacher had taken the chair off him.  He then calmed down.

[4]      On  the  Tuesday  he  wrote  over  another  child’s  work  and  then  when reprimanded for this he became angry.   Mr New says that he started to call him names, got on his skateboard, which in breach of the school rules he had under his desk, and then started to ride it.  When it was taken off him he took hold of a chair and threatened the teacher with it.  He then threw the chair at the teacher, hitting his leg.  When told he was going to be removed from class he took off his shoes and threw them at the teacher, swearing at him and calling him names.  He took another child’s pen, which he threw, accidentally hitting another student in the face.   The result of these incidents was that the school decided to stand down A.  His mother was called to advise her of the situation and A was collected from school.

[5]      The next day at 8:40 am on the Wednesday, A’s father, who does not live with A’s mother, arrived at the school and requested a discussion about A with the

school principal.  A discussion then took place, which went on for quite some time. There is an argument about the nature of this meeting to which I will return.

[6]      The next day MPAA’s lawyer wrote to the school requesting a stand down meeting  in  terms  of  regulation 11  of  the  Education  (Stand  Down,  Suspension, Exclusion, and Expulsion) Rules 1999 (“the Rules”).  There was then a meeting on Friday 10 August 2007.   A’s parents, the regional manager of the Group Special Education Service and MPAA’s solicitor all attended the meeting.   The solicitor asked if it was a stand down meeting and was advised that it was not.  The purpose of the meeting was to discuss the way forward with A.  The stand down decision was treated by the school as a fait accompli.

The basis of the plaintiff’s claim

[7]      Mr Hope, who appears for MPAA, submits that there has been a clear failure to hold a stand down meeting as required by the Rules.  The statement of claim seeks an order quashing the decision to stand down, or a declaration that the stand down was invalid, or alternatively a declaration that the stand down was for longer that was required to meet its purposes.

[8]      He asks that I give a decision now as a matter of urgency terminating the stand down from this point onwards.   He claims that the balance of convenience favours termination because the effect will be that in terminating a stand down on this the fifth day, one day of the stand down will cease to have been in effect.  This will then effectively mean that the stand down has only been for four days.

[9]      His  submission  on  this  point  is  based  on  the  provision  in  s 14  of  the Education Act 1989 that a stand down for any given term may not exceed five school days.  Given that A has a recurring condition and may need further periods where he is away from school, the concern is that his five day stand down option for the current term, which has five weeks to run, has been used up.  This will mean that if A does have another outburst during this term the school will not have the stand down option, and if a remedy is required which involves A to be away from school for a period of time it  is more likely that the school will be  forced to order a

suspension, which is the next  most  serious disciplinary measure.   The hierarchy appears to be stand down, suspension and finally exclusion, as set out in Part 2 of the Education  Act 1989.    Exclusion  applies  to  students  under  16  (see  s 15),  and expulsion to students over 16 (see s 17).

[10]     Mr Hope  submits  that  an  order  terminating  the  stand  down  now  before

3:00 pm will mean that there will be at least one stand down day available for the rest of this term, and that is a significant advantage to A.

Serious question to be tried

[11]     Mr Hammond for the defendant submitted that there had in fact been a stand down meeting, which occurred when MPAA met with the school deputy principal, Ms Rubena Wheeler, on the Wednesday morning.  Rule 11 reads as follows:

11.      Stand –down meeting

(1)      A principal who has stood-down a student may cause a stand-down meeting to be arranged.

(2)       A principal  who,  having  stood-down  a  student,  is  asked  by  the student or parent of the student for a stand-down meeting –

(a) Must cause such a meeting to be arranged; and

(b) Must take steps to be available for the meeting as soon as is practicable for the student, the parent, and the principal.

Rule 2(1) defines a stand-down meeting as a meeting to discuss a stand-down.

[12]     It is clear that the Friday meeting was not a stand down meeting.   It was expressly stated not to be so by Ms Wheeler, and it is clear that the decision had been made and would not be reversed.

[13]     It is therefore necessary to consider whether there is a serious question to be tried as to whether there was a stand down meeting on the Wednesday.

[14]     MPAA  in  his  affidavit  stated  that  when  he  had  the  meeting  on  the Wednesday he “asked for a stand down meeting”.   He stated he did not use those words but said he wanted to have a meeting with Ms Wheeler to reconsider her

decision.  It is clear from his affidavit that he did not regard the Wednesday morning meeting as a stand down meeting.  This is corroborated by the fact that his lawyer wrote the next day asking for a stand down meeting.

[15]     Ms Wheeler says in her affidavit that she considered that Wednesday meeting to be a stand down meeting.  She said at the end of it that she told MPAA that she would consider the points he had raised when she made her decision.  She does not assert that she or MPAA ever stated that the meeting was a stand down meeting. Clearly, however, MPAA’ arguments that the stand down was unnecessary or too long were aired at that meeting.

[16]     Despite the discussion that occurred, I consider there is a serious question to be tried that there was no stand down meeting within the meaning of r 2(1) on the Wednesday morning.  Obviously given the urgent timeframe in which stand-downs operate, undue formality for such meetings cannot be required.  Nevertheless, I do consider it necessary for the relevant parties to have a clear indication in advance of a meeting that it is a stand down meeting.  The purpose of a stand down meeting as I read the Rules is to give the interested parties an opportunity to discuss reasons for the stand down including the possibility of, terminating, reducing or otherwise varying the stand down.  The child or parents need to know in advance of a stand down meeting, as they may wish to marshal their arguments and possibly arrange professional assistance.   Obviously the notice given can only be limited given the time  frame,  perhaps  even  a  matter  of  hours,  turning  on  the  circumstances. Sometimes, if all parties agree, an informal meeting could be turned into a stand down meeting.

[17]     In this particular case no notice was given.  If it had been, it seems likely that MPAA would have wanted to make some arrangements.   He could have used the notice period to get A’s mother involved, and to have sought legal assistance.  I do not consider that an informal discussion that evolves between an agitated parent and a principal or other authorised person which covers much of the ground of a stand down meeting should be regarded as stand down meeting.   That is what happened here.  The parties do not appear to have agreed that the meeting was a stand down meeting, and I do not consider that such a meeting took place on the Wednesday.

[18]     These  views  are  tentative  and  given  without  the  benefit  of  extensive argument or consideration.  For the time being I need to be no more than satisfied that there is a serious question to be tried that there has been a failure to hold a stand down meeting properly requested by a student or parent in terms of r 11(2).   I do consider that there is such a serious question to be tried.

Balance of convenience

[19]     I turn, therefore, to the balance of convenience.  I have already set out briefly the  argument  put  forward  by  Mr Hope  as  to  the  need  for  an  urgent  decision. Mr Hammond submits in opposition that a decision now directing that the stand down will terminate will be of no practical relevance.   He submitted that A has inevitably missed five days of school, and in terms of s 14 that this must mean that the five stand down days has expired.  Mr Hope, on the other hand, submits that a decision even this late in the day will mean that this fifth day will not count for the calculation of the stand down period.

[20]     I have concluded that the balance of convenience does not favour the making of an order this afternoon.  Although, again, I do not express any final view on this, it seems to me unlikely that some sort of order by the Court terminating the suspension today could have the effect of taking a day off the five days of stand down that have already occurred.  As a matter of fact A has not attended school for five days as a consequence of the stand down.   The fact that the fifth day has not expired in temporal terms is a technicality, and a decision that only four stand down days had gone by would involve the technical approach to the meaning of stand down days of them being completed 24 hour periods.  It is unlikely that those who drafted s 14 had in this mind.  There have been five days in which A has been away from school, and no order now is not going to change that reality.

[21]     Further, there do appear to have been good grounds on the papers for the school imposing a stand down period of some time.   Again, I emphasise that my view must be regarded as tentative as I have not heard detailed evidence, and I am aware there may be some dispute about A’s alleged behaviour last week.  However, on the face of the papers, and what is said is consistent with the evidence about his

condition and what has happened in the past, A’s behaviour while not necessarily intended to hurt, did constitute a danger to other students at the school and the teacher.   It is, therefore, far from clear that even if there had been a stand down meeting it would have resulted in any different result.

[22]     I am also influenced by the fact that there is some evidence of an unduly aggressive response to the stand down by MPAA.  His affidavit shows some hostility towards particular  school members,  which  is unfortunate.   Again  my  views  are tentative and without the benefit of full argument.  However, there is some basis for the view that the tenor of his response has made decision-making more difficult for the school.

[23]     I  note that  I do  not  sense any deep  unreasonableness or  hostility  in  the position of the school towards A or his parents.   The impression I have from the papers  is  that  the  school  has  A’s  interests  at  heart  and  indeed  MPAA  is complimentary about the performance of A’s teacher.

[24]     I also observe that it is open to MPAA to argue that if there has been a failure to hold a stand down meeting last week as he alleges, that any claimed stand down from the point when a meeting should have taken place is invalid.  I express no final view on this point but it is certainly open to him to submit to the school or the Court at some later point that the stand down came to an end when there was a failure to call a stand down meeting as required by r 11.

[25]     Mr Hammond  for  the  defendants  has  also  referred  me  to  s 27  of  the Education Act 1989, which gives the principal the option of exempting a student from school for a short period of no more than five days.   As Mr Hope correctly points out, this does not come under Part 2 of the Act and is not something the school can impose upon a student.  However, it does give the school an option, with the parents’ agreement, to excuse A for a period, should his behaviour later require some sort of short cooling off period away from school.

[26]     Standing back as I must in considering the matter from the point of view of the overall interests of justice, I do not consider that an interim injunction is required

today.  I am impressed by the commitment of all parties to A’s welfare.  It is trite to say that this will be best advanced by their working together to find ways to assist A’s progress, rather than in Court proceedings.

Result

[27]     The application for an interim injunction is declined.

Costs

[28]     Given the urgency of the situation and the fact that I have found that there is a serious question to be tried, I do not propose making any order as to costs.

…………………… Asher J