X v Bovey
[2014] NZHC 1103
•22 May 2014
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PLAINTIFF.
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV-2014-454-10 [2014] NZHC 1103
IN THE MATTER of an applicaton for Judicial Review BETWEEN
X Plaintiff
AND
DAVID BOVEY First Defendant
THE BOARD OF TRUSTEES OF PALMERSTON NORTH BOYS' HIGH SCHOOL
Second Defendant
Hearing: 14 May 2014
(Heard at Wellington)
Counsel:
T G A Manktelow for Plaintiff
J O Upton QC and P J Reardon for DefendantsJudgment:
22 May 2014
RESERVED JUDGMENT OF MACKENZIE J
I direct that the delivery time of this judgment is
4.50 pm on the 22nd day of May 2014.
Solicitors: Roger Crowley, Wanganui for Plaintiff
Lawler & Co, Auckland for Defendants
X v BOVEY [2014] NZHC 1103 [22 May 2014]
Background
[1] The plaintiff (X) was a pupil at Palmerston North Boys’ High School (PNBHS). He was caught smoking cannabis off school grounds but while in school uniform and during school hours. He was suspended by the Rector, Mr Bovey, the first defendant, and later expelled by the disciplinary committee of the School Board of Trustees (the Board), the second defendant. He seeks judicial review of the decisions of the Rector and the Board. The essence of the claim, in respect of both decisions, is that the Rector and the disciplinary committee had predetermined the outcome and that they failed to consider properly the circumstances of the breach of the rules, and failed to take into account personal mitigating circumstances of X. The plaintiff also challenges the validity of the appointment of the disciplinary committee and the delegation of the Board’s power to it.
The law
(a) The legislation
[2] Suspension and expulsion of a student from a state school are governed by the Education Act 1989 (the Act). Most relevantly ss 13, 14(1) and 17(1) provide:
13 Purpose
The purpose of the provisions of this Act concerning the standing-down, suspension, exclusion, or expulsion of a 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.
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 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.
17 Board's powers when suspended student 16 or older
(1) If a student who is 16 or older has been suspended from a State school, the board may—
(a) lift the suspension at any time before it expires, either unconditionally or subject to any reasonable conditions it wants to make; or
(b) extend the suspension conditionally for a reasonable period determined by the board when extending the suspension, in which case subsection (2) applies; or
(c) expel the student.
[3] The Board’s powers under s 13 may be delegated under s 66 of the Act. Relevantly that provides:1
66 Delegations
(1) The governing board of a board may delegate any of the functions or powers of the board or the governing board, either generally or specifically, to any of the following persons by resolution and written notice to the person or persons:
(a) a trustee or trustees:
(b) the principal or any other employee or employees, or office holder or holders, of the board:
(c) a committee consisting of at least 2 persons, at least one of whom is a trustee:
(d) any other person or persons approved by the board's responsible Minister:
(e) any class of persons comprised of any of the persons listed in paragraphs (a) to (d).
…
(3) The governing board must not delegate the general power of delegation.
(4) A delegate to whom any functions or powers of a board or governing board are delegated may,—
1 The reference in s 66 to the “governing board of a board” reflects the application of the Crown Entities Act 2004, pursuant to s 65H of the Act. For present purposes, it is sufficient to refer to “the Board”, being the board of trustees constituted under Part 9 of the Act.
(a) unless the delegation provides otherwise, perform the function or exercise the power in the same manner, subject to the same restrictions, and with the same effect as if the delegate were the board or the governing board; and
(b) delegate the function or power only—
(i) with the prior written consent of the governing board; and
(ii) subject to the same restrictions, and with the same effect, as if the subdelegate were the delegate.
(5) A delegate who purports to perform a function or exercise a power under a delegation—
(a) is, in the absence of proof to the contrary, presumed to do so in accordance with the terms of that delegation; and
(b) must produce evidence of his or her authority to do so, if reasonably requested to do so.
…
(7) A delegation may be revoked at will by—
(a) resolution of the governing board and written notice to the delegate; or
(b) any other method provided for in the delegation.
…
(12) Until revoked, a delegation to a committee continues in force, even if the membership of the Board or committee changes.
(b) The relevant principles of judicial review
[4] An application for judicial review is not an appeal against the challenged decision. The function of the Court is to review the lawfulness of the decision making process, not the merits of the decision itself. In reviewing the lawfulness of the decision making process, the Court operates within a framework of quite well developed but flexible principles about categories of situations in which the Court may intervene.
[5] The grounds relied upon in this case are:
(a) in the case of both decisions, that the Rector and the Board respectively had predetermined the outcome; and
(b)that the disciplinary committee did not have proper delegated authority from the Board to make the decision to expel, and that the committee did not have a quorum.
[6] As to the first ground, the relevant principle is that the decision-maker must not come to the decision with a closed mind: that is, the decision-maker must not have predetermined the outcome. The vitiation of a decision because of predetermination is an application of the principle that a decision-maker must not be biased. An allegation of predetermination is an allegation of actual bias. To succeed on this ground, an applicant for review must show actual predetermination. It is not sufficient to show an appearance of predetermination. Before a decision can be set aside on this ground it must be established on the balance of probabilities that in fact the mind of the decision-maker was not open to persuasion so that the
decision-maker simply went through the motions.2
[7] Those principles apply to the first ground of challenge. It is convenient to defer discussion of the legal principles applying to the second ground of challenge until the discussion of the Board’s decision.
The suspension decision
(a) The process
[8] The incident giving rise to the suspension and expulsion occurred in the last week of term at PNBHS for 2013. X, then 16 years old, was a year 12 pupil. On
10 December, he came to the attention of the school when he was returned to school by two police officers. He had been caught with three other boys, one of whom was a PNBHS student, and they had admitted smoking marijuana. The Deputy Rector, Mr Atkin, spoke to X and prepared an incident report for the Rector. That contained
a report of what police had said when X was returned to the school. It contained a
2 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 194 per Richardson J; Travis Holdings Ltd v Christchurch City Council [1993] 3 NZLR 32 (HC) at 47; New Era Energy Inc v Electricity Commission [2010] NZRMA 63 (HC) at 71-73.
verbatim statement from X, prepared at Mr Atkin’s request, detailing what had occurred. It also contained X’s responses to clarification questions asked by Mr Atkin.
[9] Following the receipt of the incident report on 10 December 2013, the Rector arranged an appointment with X and his mother for 13 December. They were given a copy of the incident report.
[10] Mr Bovey’s description of the meeting on 13 December is that X and his mother (Y) both attended. His recollection is that the meeting lasted about half an hour. He explained how the meeting would proceed. He read the incident report out loud, asking X to interrupt if he disagreed with any statement made in the incident report and paused at the end of each sentence to give him the opportunity to comment. X made one comment in regard to a minor detail. The Rector then questioned X about his decision to leave the school grounds during the school day, whether he was aware of fundamental school rules and what his thought processes were when he was asked if he would like to smoke marijuana. X responded to those questions saying that he was very disappointed with himself. The Rector then asked both X and Y if they wanted to make any comment about his personal circumstances. Y explained that X had had some difficulties as a result of the death of two family members in recent weeks and had been having issues with a young lady who had been stalking him. She suggested an outcome whereby X would not be suspended, but would agree to be randomly drug tested. The Rector considered that there was nothing to suggest this was not an appropriate case for suspension. He advised his decision to suspend at the end of the meeting.
[11] Y said that the meeting was very brief, lasting only about 15 minutes; that the Rector made no notes; and he appeared to focus entirely on establishing that X had used marijuana. She said that X made his apologies to the Rector and to her and she was given a brief opportunity to speak on X’s behalf. She says that Mr Bovey did not appear unsympathetic, but responded to her points by saying that his hands were tied, or words to that effect.
(b) Discussion
[12] The process followed met the obligation in s 13(c) to deal with X’s case in accordance with the principles of natural justice. The sole issue for consideration is whether the Rector had predetermined his decision, in that he had approached it with a closed mind.
[13] The Rector, in his affidavit, emphasises the importance which he and the school place on its traditions and its reputation as a school that sets high standards. He refers to the importance of the school rules which prohibit the use of alcohol or drugs. At the beginning of each year he sends a letter to every parent enclosing a copy of the rules and reminding them of the seriousness of complying with the rules on alcohol and drugs. In his letter sent in 2013, he expressed his view that the integrity and standards of the school are seriously compromised by any breach of the rules relating to the use of drugs and alcohol.
[14] It is relevant, in assessing whether the evidence shows that the Rector had predetermined the case, to bear in mind that the principal of a state school is responsible for leading the school and setting the standards expected by students. As an institution responsible for the education and discipline of young adolescents, a school needs to set clear boundaries, and apply those consistently. Those considerations may well lead the Rector to the view that the usual appropriate response for gross misconduct involving drugs will be suspension, and possible expulsion. That is not predetermination. What the Rector may not do is to apply that view in such a rigid way as to fail, in an individual case, to assess the individual circumstances.
[15] Suspension was an option open to the Rector in this case. The use of marijuana, even to the very limited extent involved, was a breach of the school rules, and was criminal conduct. The proposition that it fell within the definition of gross misconduct cannot be seriously contested. The threshold in s 14(1)(a) for the exercise of the power to suspend was met, if the Rector was satisfied that the misconduct was a harmful or dangerous example to other students.
[16] The evidence does not establish that the Rector failed to assess the merits of this case and reach a decision based on those merits. The process followed was directed to that end. The evidence does not indicate a process undertaken as a matter of form, to reach a predetermined outcome. Rather, it indicates a proper consideration of the case to determine whether, having regard to the Rector’s views on the most likely outcome for conduct of that type, that outcome was in fact appropriate in this case.
[17] With those general observations, I turn to the particulars relied on in the statement of claim as indicating predetermination.
[18] The first is that the Deputy Rector informed Y prior to the meeting that X would be suspended by the Rector. Y says in her affidavit that she asked Mr Atkin what was to happen at the meeting and he advised her that the Rector would be suspending X and after that the matter would go before the Board. Mr Atkin says, in his affidavit that Y asked him what the discipline process would be and he explained that, due to the seriousness of the incident, he had decided to refer the matter to the Rector for his consideration. She asked questions about the likely outcome and Mr Atkin explained the drug use was a breach of the fundamental school rules meaning that suspension would be considered as a possible disciplinary response but the only person who could make that determination was the Rector.
[19] I accept from that evidence that Y was left with the impression that suspension was the likely outcome. However, what the Deputy Rector said does not indicate predetermination on the part of the Rector. As I have said, the Rector is responsible for setting standards and expectations within the school, and Mr Atkin, with his knowledge of the Rector’s views on these matters, may well have formed a view about the likely outcome. That is not evidence of predetermination by the Rector. There is no evidence that Mr Atkin’s comments were based upon his knowledge of a policy of the Rector that suspension is an invariable outcome for drug use or any other gross misconduct.
[20] The second particular relied upon as indicating predetermination is Y’s
evidence about the Rector’s reference to his hands being tied. Mr Bovey’s evidence
is that he does not remember using the phrase, that his hands were tied, but believes that he responded to Y’s suggestion that X remain in school but be subjected to random drug testing by saying something to the effect there was nothing in the circumstances to avoid a suspension decision. I think it is more likely that the tenor of the Rector’s remark was as described by him, rather than by Y. But, even if its tenor was as described by her, the Rector’s remark does not indicate predetermination on his part. The remark was made after both X and Y had spoken. Even if his remark is regarded as evidence of a mind made up when the remark was made, it is not evidence of a mind that was not open to persuasion by what was said during the meeting.
[21] The third particular relied upon is that the Rector took no time to deliberate on his decision and felt able to suspend X at the conclusion of a meeting lasting only approximately 15 minutes. I have found on the evidence, that the duration of the meeting was somewhere between 15 and 30 minutes. The length of the meeting is however largely peripheral to the question whether or not the decision was made after sufficient deliberation. A rector responsible for a school with 1,700 boys will be used to acting firmly, decisively and quickly on disciplinary issues. That he was able to make his decision at the conclusion of the meeting without needing further time for deliberation is not evidence of predetermination.
[22] The statement of claim also asserts that the Rector erred in the exercise of his discretion by failing to take into account extenuating and mitigating circumstances personal to X. It also asserts that in exercising his discretion to suspend, the Rector had a duty to consider the rehabilitation of X but failed to do so. I do not propose to deal in detail with these allegations. The law does not prescribe, beyond the provisions in the Act, particularly ss 13 and 14, the matters that must be taken into account by a person exercising disciplinary powers within a school. The assessment of factors which are, or are not, relevant to a particular case is a matter for the Rector, in his consideration of the exercise of his discretion whether to suspend or
not.3 The weight to be attributed to these factors is also a matter for the Rector. This
is not a case where the Court may consider whether as a matter of law, a relevant
3 CREEDNZ Inc v Governor-General, above n 2, at 183; Petrocorp Exploration Ltd v Minister of
Energy [1991] 1 NZLR 1 (CA) at 33.
consideration has not been taken into account or an irrelevant consideration taken into account. In his affidavit, Mr Bovey addresses the matters relied on in the statement of claim. The way in which he addresses those matters does not indicate any error of the sort of which this Court may intervene on an application for judicial review. This is not an appeal against the exercise by the Rector of his discretion.
[23] In essence, the claim that there was predetermination amounts to a contention that another option should have been adopted. That is not the issue on this application for judicial review. Whether the circumstances justified suspension, and a referral to the Board for consideration of expulsion, was a judgment for the Rector to make. The evidence establishes clearly that he did exercise that judgment, after following a process to ensure that he was fully apprised of all the circumstances.
The decision to expel
(a) The process
[24] Following his meeting with X and Y on 13 December, the Rector prepared a report for the Board that day. He reported briefly on the circumstances and informed the Board of his decision to suspend. In a letter dated 16 December 2013 to Y, the Rector advised that a meeting of the Board of Trustees to consider whether X may continue to attend the school would be held on Wednesday, 18 December 2013 at
6 pm.
[25] The chairman of the Board of Trustees, Mr Lawrence, arranged for three trustees who were available at short notice to attend: himself, Mr Leenards and Mr Watts. Mr Watts, when he heard about the case, disqualified himself because he is a police officer and had become aware of the incident through police channels and been a party to discussions about it. As a consequence, only Mr Lawrence and Mr Leenards took part in the hearing.
[26] Mr Lawrence chaired the meeting and conducted it by following a prepared check list. In opening the meeting he advised all present that the two trustees were sitting as a committee delegated by the Board and with authority to make decisions on behalf of the Board. X, together with both parents and two sisters, attended the
meeting. Mr Lawrence asked X and Y to confirm that the Rector’s suspension report
correctly summarised what had happened at the meeting with the Rector on
13 December, and they confirmed its accuracy. The committee went over the salient facts with X and Y. There was questioning of X by the trustees. Y read a written statement that she had prepared. Y’s statement was eloquent and carefully prepared. She had taken legal advice. She reminded the Board of its obligation to consider all the circumstances of the individual case. She referred to the need for the Board to decide whether this was gross misconduct and whether it was striking and reprehensible to a high degree. She acknowledged that this was for the Committee to decide. She expressed the opinion that the Rector had not taken into consideration any of the circumstances and had erred in his decision making. She described the incident as completely out of character and referred to a supporting letter from the teacher in charge of athletics. She described X’s family circumstances including the two deaths in the family and the incident with the stalker. She also referred to his disappointment that his relay team would not be attending the national secondary schools athletics championships and the other consequences of X’s suspension for him. X’s elder sister (Z) also spoke, suggesting that X’s suspension be lifted on terms that he be subject to random drug tests.
[27] A point of difference on the affidavits as to what occurred at the meeting is Z’s evidence that Mr Lawrence responded to her suggestion that X should have his suspension lifted but on terms by saying that he could not give 1,700 pupils a chance. Mr Lawrence’s evidence is that his comment was that the Committee needed to consider the 1,700 other pupils as well as the interests of her brother when making a decision. Whoever is correct on this point, the remark is not evidence of a closed mind on the outcome of the hearing.
[28] At the conclusion of the meeting the chairman advised that the committee would consider its decision. He reiterated the four options open to it under the Act. The meeting closed at 6.45 pm. The committee members remained and discussed the case. They concluded that expulsion was the appropriate result. Mr Lawrence phoned Y that evening to advise the committee’s decision. This was confirmed by a letter dated 19 December 2013.
(b) Discussion
[29] I consider that (subject the issues of composition of the Committee and delegation which I later address), the procedures followed met the legal obligation of the Board to deal with X’s case in accordance with the principles of natural justice, so far as process is concerned.
[30] The challenge to the validity of the decision is, again, that the decision was predetermined. The first matter pleaded as indicating that the Committee had predetermined the outcome is an allegation that the Board has a policy that boys who use illegal drugs while under the authority of the school must be expelled. That is alleged to be evidenced by no boy so offending having been allowed to remain at the school since at least the 1970s. In support of that proposition, the plaintiff relies on X’s evidence that a teacher told X that in his years at PNBHS, apparently dating back to the 1970s, no pupil had escaped expulsion after being caught using drugs.
[31] That evidence is hearsay. There is no evidence of the outcome of all such cases. In any event, evidence of the outcome of such cases prior to 1990 is of little relevance. The reason is that PNBHS did once have a “zero tolerance” policy on offences against school rules relating to alcohol and the use of illegal drugs. The published policy was that “offences against school rules relating to alcohol and the use of illegal drugs will result in immediate suspension and a recommendation to the Board of Trustees for the removal of offenders from the school”. That policy was considered by this Court in 1990 in M and R v S and Board of Trustees of
Palmerston North Boys’ High School.4 McGechan J held that while schools may
have a general policy towards the use of alcohol and the use of illegal drugs, cases involving their use must not be resolved automatically in accordance with such policy.5 The circumstances of each case must be considered.
[32] There is no evidence that the school continued this policy after 1990 despite its being held by this Court not to be permissible. There is no longer a formal policy
to that effect. The proposition that, despite there being no formal policy, the school
4 M and R v S and Board of Trustees of Palmerston North Boys’ High School [2003] NZAR 705 (HC).
5 At 724.
has continued to operate under the same or a similar policy involves an allegation of bad faith, namely that the school has deliberately refused to give effect to this Court’s decision. Clear evidence would be necessary before that inference could be drawn. There is no such evidence.
[33] There is no evidence about the outcome of all disciplinary actions by the school since that case was decided in 1990. Mr Bovey’s evidence is that in 2012 and
2013, since he has been Rector, there have been 48 suspensions for gross misconduct or continued disobedience which resulted in 21 exclusions or expulsions. The nature of the misconduct is not specified. But, even if the outcome for all cases involving drug use since 1990 has been expulsion, that would not establish predetermination. Illegal drug taking while under the control of the school is serious misconduct and it would not be surprising if expulsion is the usual consequence when each case is considered on its merits. A consistency of outcome arising in that way is not predetermination.
[34] Mr Bovey describes as “simply not true” the suggestion that PNBHS does not allow any discretionary element to enter into its decision making, so that once a boy admits taking drugs the result is an automatic exclusion or expulsion. I accept his evidence. He has been Rector since the beginning of 2012. He has dealt with one previous case of marijuana use. His description of the circumstances indicates that it was considerably more serious than the present case. That resulted in him suspending the pupil. That outcome is unsurprising, and not indicative of a predetermined policy.
[35] The second matter pleaded as indicating predetermination is that Mr Leenards has expressed a desire to maintain the traditions and values of the school and to keep discipline strong, especially in response to pressures coming from outside the school. Reliance is placed upon material prepared by Mr Leenards and circulated to parents before the Board of Trustee elections. The statements fall well short of supporting an inference that Mr Leenards has a fixed and predetermined view as to the outcome for illegal drug use in breach of school rules.
[36] The third matter pleaded is that by construing any use of illegal drugs in breach of the school rules as a harmful example to the school, it in effect has a policy that all such offending will result in expulsion. The evidence does not support the contention that the Board’s position in effect constitutes a policy that all such offending will result in expulsion. But, even if that were so, it does not follow that there has been predetermination. The power to suspend arises under s 14 if the principal is satisfied on reasonable grounds that the student’s gross misconduct is a harmful example to other students at the school. The Board’s power to expel follows the Rector’s decision to suspend. So, a decision that the misconduct is a harmful example is a precondition of the Board’s exercise of the discretion to expel or not. The policy which is asserted, even if it was supported by evidence, would not be evidence that the Board had predetermined the outcome of any individual case coming before it.
[37] Fourth, it is alleged that during the hearing the Committee “endeavoured to set a trap for the plaintiff by unfairly attaching significance to any sporting prowess he might have”. The evidential basis for that assertion is Y’s evidence that Mr Lawrence asked X whether he thought other boys looked up to him for his sporting achievements. That was recorded in Mr Lawrence’s note as “as a top athlete other students look up to [X]”. Mr Manktelow submits that Mr Lawrence’s questioning of X was geared to elicit evidence in support of an argument that X’s example was a harmful and dangerous example. He submits that the description of X as a “top athlete” is clearly wrong.
[38] This goes further than an allegation of predetermination. It is an allegation of bad faith. The evidence relied on does not support a finding of predetermination, or of bad faith. The extent to which other students might look at X as an example was directly relevant to the s 14 test. X’s sporting prowess was relevant, because among the material produced in support of X was a letter from the teacher in charge of athletics. I do not find established the proposition that Mr Lawrence deliberately sought to overstate X’s sporting prowess or to attach unfair significance to it.
The delegation and quorum issues
[39] The challenge to the composition of the disciplinary committee is that the Board had not properly delegated its powers under s 17 of the Act to a disciplinary committee comprising Messrs Lawrence and Leenards. The statement of claim alleges two defects in the delegation.
(a) the Board never passed a resolution identifying the members of the disciplinary committee; and
(b)the committee was inquorate, because there is no resolution authorising only two members of the disciplinary committee to exercise its disciplinary powers.
[40] Mr Lawrence’s affidavit addresses these issues. He was appointed Chairman of the Board in November 2011. Mr Hart, the previous chairman, was a lawyer, and had been in office for many years. He explained various legal and procedural matters to Mr Lawrence when handing over responsibility. Mr Hart told him it had been the long standing practice of the Board to have all trustees as members of the disciplinary committee. Mr Hart told Mr Lawrence that during his tenure as chairperson a resolution had been passed delegating the Board’s disciplinary functions to a committee and fixing the quorum at two. The quorum had been set at two, because the disciplinary committee often had to sit at short notice and it could be difficult to find available trustees. He told Mr Lawrence that the Act provided that the delegation to a committee continued in force even if there were changes to
the committee membership.6
[41] Mr Lawrence did not check that information himself but as a consequence of this proceeding he has gone back over the Board minutes. He has produced the minutes of a meeting held on 17 June 2010 which resolved to adopt a committee structure for the 2010/2011 year. That listed the then members of the committee
followed by the words “(at least two)”.
6 Education Act 1989, s 66(12).
[42] Mr Lawrence says that each January the Board Secretary sends to each of the Board members a document headed “Committee Structure”, reminding trustees of the committees to which they have been appointed for the forthcoming school year. The document was sent in January 2013. That listed, as the disciplinary committee, the names of all Board members, followed by the words “(at least two required for any meeting)”. I infer that the document was prepared based upon the secretary’s understanding of the position. Mr Lawrence is not aware of any resolution specifically appointing the trustees to the disciplinary committee at the beginning of
2013, because the Board had a long standing practice of treating all trustees as members of the disciplinary committee.
[43] There was a trustee election in May 2013. At the first meeting following that election, on 20 June 2013, the following resolution was passed:
Resolved the Board of Trustees delegates to the Disciplinary Committee any of the functions and powers of the Board in respect of disciplinary matters.
The desired number of Trustees at disciplinary meetings is three.
[44] A letter was then sent to each Board member dated 24 June 2013 in these terms:
Re: Disciplinary Powers
As an appointed member of the Disciplinary Committee you are hereby advised of the resolution passed at the Board of Trustees meeting on
20 June 2013, namely:
That the Board delegates to the Disciplinary Committee any of the functions and powers of the Board in respect of Disciplinary Matters.
The notice is given in accordance with the requirements of Section 66 of the
Education Act.
[45] As to the record in the minutes that the desired number of trustees is three, Mr Lawrence says:
The Board then passed a resolution delegating its disciplinary functions to the Disciplinary Committee. There was some discussion about how many should sit. While everyone was happy for the quorum to remain at two, it was thought desirable to aim for three trustees to be present at any disciplinary hearing. I did not understand this desire for three to mean that the quorum was being increased from two trustees to three trustees. The quorum remains at two.
[46] Mr Atkin was present at the 20 June 2013 meeting and prepared the minutes. He confirms the correctness of Mr Lawrence’s statement. He says:
I confirm that this statement is correct. I recall that all of the Board members agreed that the quorum on the Disciplinary Committee should remain at two, but a discussion then arose about the desirability of having more than just two people sit at any particular disciplinary hearing.
I did not capture all of this discussion in the minutes. I simply noted the expression of desire to have three. I should have recorded that the Board wanted the quorum to be two, but expressed the desire that there should be three persons actually sitting.
The minutes I took were not intended to be a transcript of everything that was said, but a summary of what I thought was pertinent at the time.
[47] On that evidence, I find that the delegation to the disciplinary committee, comprising all members of the Board, was validly made, and that the two trustees participating in the meeting on 18 December 2013 constituted a quorum. Not all I’s were dotted and T’s crossed as well as they should have been. However, I find that the process adopted led to a valid delegation. The resolution of 20 June 2013 was a valid delegation of the Board’s power to the “disciplinary committee”. While the minutes do not record the composition of the committee, I am satisfied that all trustees understood and agreed that, in accordance with a long standing practice, all trustees were members of the committee. The letters sent to each trustee following the meeting are consistent with this understanding and there is no evidence that this was questioned, or that any misapprehension existed on the part of any trustee as to the composition of the disciplinary committee to which the resolution of
20 June 2013 related. The long standing practice had been that the quorum was two. I find on the evidence of Mr Lawrence and Mr Atkin, that the discussion by the trustees about the number to attend meetings took place against their understanding that the quorum was two. I find that the trustees did not intend to change the quorum which had been in place since at least June 2010. The wording of the minutes is consistent with that evidence.
[48] For these reasons I am satisfied that the Board’s decision was made in
accordance with proper delegated authority from the Board.
[49] If I am wrong in that conclusion, then I would, under s 5 of the Judicature Amendment Act 1972, refuse relief. The evidence as I have described it displays at most a defect in form or a technical irregularity. There was no misapprehension, on the part of any person involved in the process, as to the composition of the disciplinary committee, its powers under delegated authority, or its quorum. If there is a defect in the delegation, that has not given rise to any substantial wrong or miscarriage of justice.
Result
[50] For these reasons, the application for judicial review is dismissed. There has been, by agreement, an interim arrangement for X’s attendance at the school pending this decision. The termination of the arrangement will not require any order from the Court.
[51] Costs are reserved. The parties may submit memoranda if they are unable to agree. The memoranda must address any reasons why it would not be appropriate to apply the usual principle that costs follow the event.
[52] I venture a final personal comment. It is clear that X is a young man with a promising future. His conduct was out of character. I express the hope that he will be able to respond positively to this unfortunate setback, and to put it behind him so that it does not affect his future. I wish him well in that regard.
“A D MacKenzie J”
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