D v Havill HC Auckland CIV 2009-404-4947 [2009] NZHC 2623 (30 September 2009)

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This judgment is delivered by me on 30 September 2009 at 3:00pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Ladbrooks Solicitors, PO Box 37633, Parnell, Auckland 1151 (for Plaintiff) HarrisonStone, PO Box 6211, Wellesley Street, Auckland 1141 (for Defendants) Counsel:

[1] In this proceeding for judicial review the plaintiff “D” (by his mother as his litigation guardian) challenges decisions made by the Principal of Western Springs College (“the school”) (the first defendant) to stand him down then suspend him, and the later decision by the school’s Board of Trustees (“the Board”) (the second defendant) to expel him.

[2] The review is sought on the grounds of breach of natural justice and failure to comply with the relevant provisions of the Education Act 1989 (“the Act”) and the Education (Stand-Down, Suspension, Exclusion and Expulsion) Rules 1989 (“the Rules”). The defendants say there are no grounds for judicial review, on either basis.

[3] It is necessary to set out the course of events leading to D’s expulsion in some detail. The following account is taken from the affidavits of D’s mother and grandfather, and the Principal, Associate Principal, and Chairman of the Board. Where there is any disagreement as to what occurred, that has been noted.

[4] In mid-June 2009 the Principal became aware of reports that a group of students from the school were congregating outside of it at various locations, smoking marijuana. The Associate Principal initiated an investigation, which involved interviews of students who had been identified as part of this group.

[5] Over one to two weeks the Associate Principal and school deans interviewed approximately 15 students. No written statements were taken. The school’s practice is to interview without taking statements. This is as part of the school’s safety practice. Students are assured that their names will not be mentioned or identified to other students. This assurance is given to keep the students safe, and to enable them to respond in an interview without fear of retribution.

[6] D is 17 years old and was, up until 6 August 2009, a Year 12 student at the school. He was not interviewed at the time of the Associate Principal’s investigation in mid-June, as he was away on a school trip at the time. However, he was identified as being someone who brought marijuana into the school and who regularly smoked marijuana before and after school as well as leaving the school grounds at lunchtime to smoke marijuana. He was also identified as being someone to approach for marijuana.

[7] On 23 June 2009 D attended school in the morning, but then went home sick. During that afternoon one of the school deans made a telephone call to D’s grandfather, and said that D was not to return to school until he had attended a meeting at the school with one of his parents.

[8] A meeting was arranged for 26 June (“the 26 June meeting”). Prior to the meeting D’s mother telephoned the Associate Principal to inquire as to the purpose of the meeting. The Associate Principal refused to provide any information. D’s mother than telephoned the Principal. He told her he knew no details other than that there had been an investigation into a group of senior students around breaches of the school’s drug policy.

[9] The meeting on 26 June began with the Associate Principal giving a report. Counsel agreed that the following (which is part of a report prepared by the Associate Principal after the meeting) is a summary of what the Associate Principal said:

In a meeting with [D], his mother, the principal and associate principal a report was presented.

• The associate principal detailed that for a number of reasons, over the course of Term 2, the deans and senior managers had been concerned about the activities of a group of senior students. This group was congregating in the area by the Pasadena bridge before school, and had left the school grounds at lunchtime. [D] was one of those students.

involvement, involving both senior and junior students. [D’s] name, and involvement, was revealed during these investigations.

[10] The Associate Principal said that she also gave “information such as the different circumstances in which [D’s] name was brought up in relation to various activities”. D’s mother says that D denied selling any marijuana to younger students. The Principal and Associate Principal say that he denied any involvement and said that the school had no evidence. The Principal says that he then asked whether D and his mother wanted to confer privately, and if there was anything else they wanted him to take into account. The answer to this, he says, was “No”.

[11] The Principal and Associate Principal then withdrew to discuss the matter. The Principal considered that D’s name had come up frequently as a person who regularly smoked marijuana, went off-site during the lunch break to smoke marijuana, and was known to be someone who could be approached for marijuana. He did not consider the evidence to be as strong in respect of selling marijuana, as there was no student who had said he had actually purchased marijuana from D.

[12] The Principal was not prepared to accept D’s blanket denial of any involvement with the group smoking marijuana. He went back to D and his mother and asked if D would agree to a “Drug Free Contract”, that would involve drug testing and drug counselling. According to the Principal, while D was not agreeable, his mother was. According to D’s mother, D was “required to sign a contract”. She noted that the contract included a provision that if D completed the programme as directed, the school would “not take any further action relating to this incident”.

[13] The Principal advised D and his mother that he was prepared to accept that D was not involved in selling or procuring drugs, which would likely result in a suspension. Instead, he decided to stand-down D for five school days. He said that he was satisfied that D’s use of marijuana in and around the school was gross misconduct and a harmful or dangerous example to other students. However, he said, in order to reduce D’s absence from school, the stand-down was back-dated to include 24 and 25 June 2009, when D was away sick. Accordingly, the stand-down was for 26, 29, and 30 June 2009 only.

[14] The Principal then sent D’s mother a letter concerning D’s stand-down, as follows:

This letter is to confirm that [D] has been stood-down for a period of 5 days under section 14(1)(a) of the Education Act 1989. This means [he] will not be permitted to attend school for instruction again until Wednesday 1 July.

I have decided to stand-down [D] because he is responsible for offences against the WSC drug policy.

I have enclosed an information sheet provided by the Ministry of Education, to help answer any questions you may have about stand-downs.

Apart from the underlined words (which were handwritten), this was a pre-printed, “template” letter.

[15] The Drug Free Contract required D to participate in counselling as directed. D’s mother says that she met with the Principal on the Tuesday after the stand-down meeting (30 June) to discuss a referral to the Community Alcohol and Drug Service (“CADS”). She said she was given no indication that investigations were continuing.

[16] Term 2 ended and the school holidays began on 4 July. The Principal says that he had a telephone discussion with D’s mother early in the holidays, the purpose of which was to advise her that additional information had come to light, and a further meeting was required. D’s mother says that she received a telephone message from the school, saying that the school had not put through a referral to CADS. When she rang to inquire about this, she says the Principal told her that new evidence had come to light, and D might have to be suspended. She said she was given no details of the new evidence.

[17] Term 3 began on 20 July. There was a meeting of the Principal, Associate Principal, D, and his mother on 28 July (“the 28 July meeting”). D’s sister and a colleague of D’s mother also attended. Prior to the meeting D’s mother asked that she be given a written statement of the allegations so that D could respond to them. The Associate Principal prepared a report (“the Associate Principal’s report”) which was sent to D’s mother.

[18] In part, this report sets out the information relayed at the 26 June meeting

Based on the weight of evidence presented at the meeting, the principal decided to stand down [D] for a period of 5 days. After some discussion, [D] agreed to sign up to the random drug testing programme. His mother vigorously endorsed a referral to [CADS].

The principal reinforced with [D] the necessity to adhere to the school’s code of conduct, specifically relating in his case to drug involvement, staying on the school grounds and respectful behaviour. ...

[19] The second page of the report sets out information said to have been revealed in further meetings with students and their families, at the end of Term 2 and the start of Term 3, as follows:

At the end of term 2 and the start of term 3, further meetings with students and their families, provided further specific details of [D’s] role in supplying marijuana to junior students.

• [D] offered to, and supplied, marijuana to a Year 9 student for $15; this exchange happened twice

• Many Year 9 students go to [D] to get marijuana; they know to do this by word of mouth

[20] The report also set out “further concerns and flouting of school requirements”, as follows:

• The senior managers received a complaint (23 July) from the Head of Media about the practice video (formative assessment) that [D] and his group had made. She had viewed the footage, and was alarmed by the content and breach of requirements. In the video

o [D] acts as the front person, in a ‘mockumentary’ style as a group of 3 students

o The video begins with the question, asked by [D]: ‘What contributes to the health and wellbeing of students?’

o Subsequently, [D] interviews a number of students in the school grounds about the effect of marijuana on the health and wellbeing of students.

Given recent events, the school views this behaviour as a serious incident, and undermining of the agreement that [D] made with the school, on the occasion of his stand down. [D’s] continual disobedience amounts, in effect, to a very serious challenge to the authority of the school, and the safety and well being of other students.

[23] On the morning of 28 July the Principal noticed two Year 9 students waiting in the hallway. When he asked what they wanted, they said they were waiting to see the Associate Principal. She was not available. One student (“A”), said he wanted to tell the Associate Principal that he had “lied to her about D selling him drugs”. A had earlier said that D had sold him marijuana.

[24] The Principal asked what was going on. A said that during the interval break that day he had seen D looking at him in a way that made him uncomfortable. When A asked D what was wrong, D accused A of “narking” on him, and became aggressive. A admitted that he had “narked”. D told A to go and tell the Associate Principal that he had lied about D. The Principal said he was concerned for A’s safety, and that of the student who accompanied him. He arranged for both students to be picked up by their parents.

[25] That incident was also raised at the 28 July meeting, although it had not been covered in the Associate Principal’s report. D’s mother said that no evidence was provided except for the Associate Principal’s report, and the oral report by the Principal in relation to the incident with A that morning. She says that neither the Principal nor the Associate Principal asked any further questions, and “there was nothing more that she or D could say”, other than for D again to deny that he had sold drugs to students at the school.

[26] The Principal agrees that D denied all the additional information provided by Year 9 students, and said they were fabrications. The Principal was satisfied that there was no fabrication, having attended a number of the interviews.

[27] The Principal says that when he outlined the incident with A, he identified him. D agreed that he had spoken to A, and said he had told him to tell the truth. The Principal did not find D’s explanation feasible, querying why D would know to speak to A when the Associate Principal’s report had not disclosed A’s identity. Further, having seen A, the Principal had no doubt he had been subjected to intimidation.

[28] The Principal and Associate Principal then left the meeting. They say they discussed the evidence, D’s response, and options available. The Principal was satisfied that the matters (in particular selling marijuana to Year 9 students) were of a very serious nature. He considered that the seriousness and harm caused by it were self-evident. He was also concerned by D’s “ongoing disobedience and defiance” which had occurred since the 26 June meeting. He gave the following as examples

	(a)	[D’s] leaving the school during lunch break, which had been the subject of detentions and then a specific direction at the stand-down meeting that he not do this, particularly as leaving the school in this way was part of [D’s] marijuana use.
	(b)	[D’s] decision to produce a media studies video which postulated about the benefits of marijuana and involved [D] going out and around the school, involving students in the process.
	(c)	The harassment of A in order to try to get him to change his story, was very serious and for my part, a significant factor in coming to the conclusion that [D] was not going to comply with school rules or directions and that his presence at the school placed some of our younger students at risk of harassment and intimidation.
[29]	The	Principal says he considered other options, and [D’s] personal

circumstances and the fact that his mother was seeking to work with the school to deal with [D’s] drug habit. However, in the light of the information of [D] selling marijuana to Year 9 students, and the breaches of the school’s Code of Conduct since the 26 June meeting, he was not confident that an arrangement could be agreed that [D] would comply with, or honour.

[30] Accordingly, the Principal decided that the appropriate course was to suspend D and for him then to appear before the Board. He advised D and his family of his decision at the 28 July meeting. D’s mother says there was no discussion with her of D’s individual circumstances or whether any options other than suspension should be considered.

[31] That same day a letter was sent to D’s mother, confirming the suspension. Again, it is a pre-printed, “template” letter, with the underlined words added, as follows:

This letter confirms that we have suspended [D] from attending school, under section 14 of the Education Act 1989.

[D] has been suspended because he is responsible for repeated offences against the school code of conduct.

The suspension is for a specified period. This means that [D] is not allowed to attend school again until the Board of Trustees has met and decided whether to:

ƒ extend the suspension with conditions for a reasonable period of time, to be determined by the Board.

The Board of Trustees must now have a meeting to consider whether [D] may continue to attend this school. The meeting must be held before the close of Thursday, 6 August.

ƒ any relevant material used as background to this report that can be made available

ƒ any other material to be presented by me or by the Board at the meeting. At the meeting, the Board will receive my report and may also discuss it.

After that, the Board will ask you to give any information which you believe the Board should consider in making its decision

[32] On 4 August D’s mother received a letter advising that there would be a hearing before the Board at 5:30pm on 6 August 2009. Although described as a “hearing”, it should more correctly have been called a “suspension meeting”. Included with the letter were a “Board of Trustees Disciplinary Report for [D]” (“the Principal’s report”), a report from the Head of Department Media Studies, setting out the complaint relating to the practice video (“the media studies complaint”), a “Background report” as to D’s academic progress, and a copy of the Associate Principal’s report prepared for the stand-down meeting.

[33] The Principal’s report largely repeated the information set out in the Associate Principal’s report. It included an account of the incident involving intimidation of the Year 9 student, A, then set out “further breaches of the code of conduct”. These were in relation to leaving the school grounds at lunch time, and the media studies complaint. In relation to D’s leaving the school grounds at lunch time, the report referred to two specific dates, and then says “this is a continuation of a repeated pattern evident in the first half of the year”. D’s responses to the allegations were set out in the report.

[34] The suspension meeting was conducted by a disciplinary committee of the Board, comprising three Board members. D and his mother attended, supported by D’s sister and his mother’s colleague, as at the stand-down meeting. D was represented by counsel. D’s father attended with two support persons, and met separately with the Board, in the presence of D’s counsel. The Principal and Associate Principal also attended. The hearing lasted until 9pm.

[35] D’s mother says that at the hearing no evidence was provided by the Principal or Associate Principal as to the allegations made against D. The Year 9 students were not present, and there were no written statements from them. In short, nothing further was provided beyond the report prepared for the hearing. In particular, she says:

We were not told anything about why the Year 9 students were talking to [the Associate Principal], the context of the investigations or the nature of the interviews. There were no specific allegations of time, place or circumstances and so [D] could not give his side of the story. All he could do was deny that he had sold drugs, which he did.

The Board provided considerable opportunity for [D], his family members and legal representative to address the Board and make submissions to them. [D’s] father was also given an opportunity to address the Board in the presence of the family’s legal counsel ...

There was considerable room for [D], family members and supporters and their legal representative to respond to the various issues and they took up this opportunity.

[38] The Board deliberated after the meeting. In respect of the deliberations, the

a) It concluded that it was satisfied, on the balance of probabilities, that the identifications of D as having sold marijuana were not fabrications, and that D had harassed A and put pressure on him to change his story. The Board considered that that incident added weight to the allegation that D had sold marijuana to the Year 9 students concerned.

b) The Board noted that there was no dispute that D had breached the direction not to leave the school grounds at lunch time, on two occasions following the 26 June meeting. The committee did not accept D’s explanation that he had left the school to smoke cigarettes to control his anxiety (in itself an infringement); and

c) The Board noted D’s statement that he had not intended that the video be viewed by others, or to undermine the school. However, the committee considered that D had not followed instructions and requirements for the exercise, and noted the offensiveness of the content, and the manner in which other students had been involved.

Further, the Board noted that the filming had occurred soon after D had been stood down for his involvement with marijuana and had signed a Drug-Free Contract.

[39] The Chairman says that the Board considered D’s personal circumstances and academic progress, and considered the statutory options open to it, including returning D to school with conditions. He says that it was concluded that there was nothing the Board had heard throughout “a very long hearing” that gave it any confidence that D was committed to changing his behaviours so he could return to school. The Board members were unanimous that there was no realistic alternative other than to expel D.

[40] The Minutes of the suspension meeting record, with respect to its outcome, as follows:

- Expulsion was the option chosen, as the breaches in the school’s report were considered more likely to have occurred as reported than not, and were considered a harmful or dangerous example to other students at the school.

- Reinstatement without conditions was not appropriate because of the reported breaches.

- Extending the supervision was considered, but there were no grounds for doing so.

- Reinstatement with conditions was fully explored, but considered not appropriate as the student had failed to adhere to the school’s Code of Conduct as specifically requested by the Principal at his earlier stand-down meeting of 30 June.

(It will be noted that there is an error as to the date of the stand-down meeting referred to, as it was, in fact, on 26 June.)

[41] D’s parents were advised of the expulsion by a letter dated 10 August 2009. The comments set out in the Board’s Minutes were included in the letter.

[42] Before turning to counsels’ submissions, it is convenient to set out the relevant provisions of the Act and the Rules.

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

[44] Section 14 then deals with the standing-down or suspension of students. Section 14(1) provides (as relevant):

(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;

[45] Section 17 sets out the Board’s powers in relation to a suspended student who is 16 or older (as D is). Subsections (1) and (4) are relevant to the present case:

(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

(4) If the Board has not sooner lifted or extended it or expelled the student under subsection (1)(c), the suspension of a student who is

(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.

[46] Section 18 provides that notice must be given of stand-downs and suspensions:

18 Notice requirements for stand-downs, suspensions, exclusions, and suspensions

(1) Immediately after a student is stood-down under section 14 the Principal must tell the Secretary and (except in the case of a student who has turned 20) a parent of the student -

[47] Section 18(2) provides that similar notice must be given after a student has been suspended. The Board, the Secretary, and (except in the case of a student who has turned 20) a parent of the student must be told that the student has been suspended, and the reasons for the Principal’s decision.

[48] It is appropriate at this point to refer to the Rules. Rule 5 provides that the purpose of the Rules is to “regulate the practice and procedure to be followed by Boards, Principals, students, parents of students, and other persons, under sections

14 to 18 of the Act.” Rule 7 then provides that every participant in the processes, practices, and procedures dealt with in ss 14-18 of the Act should be guided by the following principles:

Every participant in the processes, practices, and procedures dealt with in sections 14 to 18 of the Act and these rules should be guided by the following principles:

(a) The need for every participant to understand the processes, practices, and procedures;

(b) The need for every participant to treat every other participant with respect, which includes recognising and respecting New Zealand’s cultural diversity:

(d) The need for every participant to be guided by the charter of the student’s school:

(e) The need for every participant to recognise that the Board has a responsibility to maintain a safe and effective learning environment at the student’s school.

[49] Rule 8 provides that the only means by which a Principal may bring about the absence or removal of a student from school for disciplinary reasons is by standing- down or suspending the student under s 14(1) of the Act. Rule 11 provides for stand-down meetings:

(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 a parent of the student for a stand-down meeting –

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

[50] Rule 9 provides that a principal who has stood-down or suspended a student must ensure that the student and a parent of the student are, as soon as practicable, given the information on stand-downs or suspensions provided by the Ministry of Education for the purpose.

[51] Rule 14 provides that a principal who has suspended a student must ensure that a report is written for the Board of Trustees, containing all information relevant to the suspension.

[52] Section 17 of the Act provides that, if a student who is 16 or older has been suspended, the Board may lift the suspension, conditionally or unconditionally,

extend it conditionally, or expel the student. Section 17B gives the student who has been suspended, the student’s parents, and their representatives, the right to attend and speak at at least one meeting of the Board, and to have their views considered by the Board, before it decides whether to lift or extend the suspension or exclusion, or expel the student. This meeting is referred to as “the suspension meeting”.

[53] Rule 15 requires the Board to ensure that a student who has been suspended, and the student’s parents, are given the following information “as soon as practicable after the suspension”:

(1) The Board must ensure that a student who has been suspended, and the student’s parents are given the following as soon as practicable after the suspension:

[54] Rule 15(2) provides that the Board must also ensure that the following information is given, in writing, to the student and the student’s parents at least 48 hours before the suspension meeting (or within a shorter time by agreement):

(b) Advice that the student and the student’s parents may attend the meeting and speak at it about the suspension; and

(c) Those parts of the following that, in the Board’s opinion, it would have no ground to withhold if the student made a request for the following under the Privacy Act 1993:

(ii) any other material about the suspension to be presented by the principal or the Board at the meeting.

(1) Before deciding at a suspension meeting whether to lift or extend the suspension or exclude or expel the student, the Board must -

(a) Require the Principal, the student, the student’s parents, any representatives 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.

[56] The principles applicable to applications for judicial review in cases such as the present one were set out in the judgment of Smellie J delivered on 11 June 1998 in D v M and Board of Trustees of Auckland Grammar School (“Auckland Grammar”).[1] They are:

[57] As noted earlier, Mr Judd submitted on behalf of D that in this case the Principal and the Board failed to comply with the applicable provisions of the Act and the Rules, and that they acted in breach of natural justice.

[58] The importance of applying the statutory criteria was stressed by the Court of Appeal in its judgment in Bovaird and Board of Trustees of Lynfield College v J (“Lynfield College”).[2] The Court of Appeal upheld the finding of Keane J in the High Court[3] that the Principal and Board in that case had failed to engage directly with the statutory criteria for suspending and expelling a student.

[59] In Lynfield College the Principal had failed to identify whether the basis of the student’s suspension was “gross misconduct” or “continual disobedience”, and had failed to address the requirement of “harmful or dangerous example to other students”. Thus, the student’s suspension was invalid. Then, the Board had failed to identify whether it was dealing with the student under s 17(1) (consideration of a suspension) or s 17(3) (referral back to the Board for reconsideration, for breach of conditions). Accordingly, the decision to expel the student was invalid.

[60] Mr Judd submitted that the Principal and the Board failed to comply with the Act and the Rules in a number of respects. It is convenient to deal with these in the order in which they are said to have occurred. Mr Judd’s submission that there were breaches of natural justice (s 13(c) of the Act) will be considered separately.

[61] Mr Judd submitted that the telephone call on 23 June advising that D was not to return to school until after an interview was an “informal stand-down” not preceded by any interview or any prior disclosure to D.

[62] Mr Harrison, on behalf of the Principal and the Board, accepted that a telephone call had been made on 23 June, and that D’s grandfather had been told D

should not return to school until he had attended a meeting with the Principal and

[63] Under s 14 of the Act, and r 8, only the Principal had the power to stand D down from school. Further, stand-down or suspension are the only means by which the Principal could bring about D’s absence or removal from school for disciplinary reasons. Accordingly, if the school intended the call to be a stand-down of D, or that it bring about D’s absence from school for disciplinary reasons, it was invalid. This is because it was not done in accordance with s 14. The effect of the invalidity is that D could not be prevented from attending school on 24 and 25 June – that is, the days preceding the 26 June meeting.

Principal’s decision on 26 June 2009 to stand-down, although saying insufficient evidence to suspend

[64] Mr Judd submitted that, having concluded that there was insufficient evidence to suspend D for selling marijuana, the Principal acted contrary to s 14 of that Act in deciding to stand-down D down for his use of marijuana in and around the school. He submitted that the criteria for stand-down and suspension are the same.

[65] I do not accept that the Principal’s conclusion as to selling marijuana necessarily determined his conclusion for using marijuana. It is clear that the Principal was considering two matters in respect of D: that he was selling or procuring marijuana, and that he was using marijuana. Under s 14, the Principal was required to consider whether each constituted gross misconduct or continual disobedience, and whether each was a harmful or dangerous example to other students at the school.

[66] As noted at [9], above, information was presented at the meeting on 26 June that D was part of the group involved in smoking marijuana, that he regularly smoked marijuana before and after school, and that he would leave the school grounds at lunchtime to smoke marijuana. I am satisfied that there was sufficient

information on which the Principal could conclude that D’s conduct constituted gross misconduct, and that it was a harmful or dangerous example to other students.

Was the stand-down on 26 June 2009 defective for failure to apply the statutory criteria?

[67] Mr Judd submitted that the Principal failed to address the criteria set out in s 14 of the Act, and failed to give reasons for the stand-down of D on 26 June. He submitted that the letter of 26 June (see [14], above) does not comply with s 14(1)(a) of the Act, in that it does not state whether the Principal regarded D’s conduct as “gross misconduct” or “continual disobedience”, or give any reasons for finding any proven conduct to be a “harmful or dangerous example to other students”.

[68] Mr Harrison submitted that the statement in the letter that “[D] is responsible for offences against WSC Drug Policy” complied with s 14.

[69] I do not accept that the Principal’s letter of 26 June properly addressed the criteria set out in s 14. The Principal could only stand D down if he was satisfied on reasonable grounds that D’s conduct was “gross misconduct” or “continual disobedience” and that it was “a harmful or dangerous example to other students”. The Principal says in his affidavit that he was so satisfied, but he did not say that in his letter of 26 June. There is no mention of gross misconduct or continual disobedience, or of D’s being responsible for offences against the school’s drug policy, amounting to a harmful or dangerous example. Further, D’s mother is clear in her affidavit that there was no mention of either element at the interview.

[70] In his judgment given in December 1990 in M & R v S and Board of Trustees of Palmerston North Boys High School (“PNBHS”) McGechan J, at 712, identified two “generalities” in the approach to disciplinary processes under the Act:[4]

a) The use of the word “gross” in s 14(1)(a) (“gross misconduct”) is intended to indicate misconduct striking and reprehensible to a high degree;

b) The phrase “gross misconduct” must be construed in the light of its purpose, namely the description of conduct sufficiently serious to warrant removal of a student from school, notwithstanding the risk of damage that may be done to the student.

[71] It may be that it could be implied that a breach of a school’s drug policy would be gross misconduct and a harmful or dangerous example to others, but in the light of the Court of Appeal’s judgment in Lynfield College, I have concluded that the Principal was required to identify, in his letter of 26 June, the statutory grounds on which D was stood down. He failed to do so. I conclude that the stand-down on

Was the suspension on 28 July 2009 invalid for failure to address and apply the statutory criteria?

[72] Mr Judd submitted that the Principal’s suspension of D on 28 July was not in accordance with s 14(1)(a) of the Act. The Principal’s letter of 28 July stated that the suspension was for “continual disobedience” that was “a harmful example to other students at the school”, on the grounds that “[D] is responsible for repeated offences against the school’s code of conduct” (see [30], above). Mr Judd submitted that there was no explanation of what the “repeated offences” were, and there was nothing in D’s conduct that could be regarded as “continual” or “disobedience”. He submitted that this demonstrated that the Principal had failed to engage with or properly understand the statutory criteria, and that there was no evidence that D did not do what he was asked or told to do. He further submitted that the Principal had failed to engage with the purposes set out in s 13 of the Act, in particular the requirement to minimise the disruption to D’s education.

[73] As with stand-down, the Principal could suspend D if he was satisfied on reasonable grounds as to the elements set out in s14(1)(a). It is to be noted that stand-down and suspension are separate outcomes. There is no suggestion in s 14 that a suspension must follow a (valid) stand-down.

[74] The grounds on which the Principal reached his decision to suspend D are set out in a document prepared by the Associate Principal and provided to D’s mother prior to the meeting. As noted earlier, this document first set out the information presented at the meeting of 26 June (see [9], above). It then set out the outcome of the meeting, noting that the Principal had “reinforced with D the necessity to adhere to the school’s code of conduct, specifically relating in his case to drug involvement, staying on the school grounds and respectful behaviour” (see [18], above).

[75] The report then listed further information gained at the end of Term 2 and the beginning of Term 3 (see [19] and [20], above). That information lists specific examples of conduct in respect of which it was open to the Principal to conclude there was “continual disobedience” and “a harmful example to other students”. These comprised D leaving the school grounds at lunchtime, and his conduct in respect of the practice video. The Principal also had the evidence of D’s intimidation of the Year 9 student, A.

[76] When these are considered along with the Principal’s having reinforced (on

26 June) the need for D to adhere to the school’s code of conduct, specifically in relation to drug involvement, staying on the school grounds, and respectful behaviour, there is no basis in which I could be satisfied that the Principal failed to apply the statutory criteria when deciding to suspend D.

[77] Mr Judd also submitted that the Principal failed to record in writing and provide the reasons for his decision.

[78] Pursuant to s 18(2) of the Act the Principal was required “immediately after” D’s suspension, to tell the Board and D’s mother that D had been suspended, and the reasons for his decision. Neither the Act nor the Rules prescribes the extent of reasons required to be given.

[79] Mr Judd submitted that the Principal was required to explain how he had decided that D’s conduct was “continual disobedience” and why he considered it to

be “a harmful example”. Further, he submitted that the Principal was required to set out “proper reasoning” to justify his conclusion that he had reasonable grounds for his decision, and why he considered that suspension was appropriate. Mr Judd did not cite any authority for this submission.

[80] I am not satisfied that the Principal was required to give reasons to the extent and in the detail suggested by Mr Judd. As the Court of Appeal held in Lynfield College at [74] (albeit in relation to a Board decision), the advice of the suspension must be sufficient to demonstrate that the Principal had addressed his mind to the criteria he had to apply. The letter of 28 July, together with the earlier report from the Associate Principal, achieves this.

[81] Further, pursuant to s 17 of the Act, the decision to suspend D would cease to have effect seven days after the suspension if the Board had not sooner lifted or extended the suspension, or expelled D. The requirement for review by the Board, within a very short period of time, is a pointer against a requirement for the Principal to have given more detailed reasons than he did. In Lynfield College, at [49] the Court of Appeal observed that the s 17 requirement for review provides a check to ensure that a suspension was based on reasonable grounds. Equally, it provides a check as to the reasons expressed by the Principal.

[82] It can also be noted that on 4 August, a few days after the letter of 28 July, the Board’s secretary sent D’s mother a letter confirming the meeting with the Board on 6 August. Included with that letter was a copy of the Principal’s report. As noted at [33], above, the Principal’s report largely repeats the information in the Associate Principal’s report, and sets out the school’s concerns at D’s breaches of the school’s code of conduct.

[83] Accordingly, I am not satisfied that the Principal failed to give any, or adequate, reasons for concluding that D’s conduct was “continual disobedience” and “a harmful example to other students at the school” and that D should be suspended.

Was the Board’s decision invalid for failure to address and apply the statutory criteria?

August was flawed for the same reasons as he had contended for in respect of the Principal’s decisions. In particular, he submitted that the Board failed to consider properly whether the Principal had reasonable grounds for his previous decisions, failed to give any or proper consideration to the statutory purposes (s 13), and failed to give sufficiently detailed reasons.

[85] I am not satisfied that the Board failed to address and apply the statutory criteria, or to follow the procedures set out in the Act and Rules, in any of the respects submitted by Mr Judd. The Board’s considerations and conclusions are recorded in the Minutes of the suspension meeting, set out at [40] above. Although briefly expressed, the Minutes demonstrate that the Board was satisfied that the Principal’s decision to suspend D for “continual disobedience” (breaches of the school’s code of conduct) was appropriate, and that the Board properly considered the matters it was required to consider.

[86] Except in relation to the telephone call of 23 June, and the Principal’s letter in relation to the stand-down of 26 June, I am not satisfied that there was any failure to address and comply with the statutory criteria. In particular, I am not satisfied that there was a failure to address and comply with the statutory criteria in the Principal’s decision to suspend D on 28 July, and the Board’s decision to expel D on 6 August. I therefore turn to consider Mr Judd’s submission that there was a breach of natural justice; that is, a breach of s 13(c) of the Act.

[87] Section 13(c) of that Act provides that one of the purposes of the provisions of the Act dealing with stand-down, suspension, exclusion, and expulsion of a

student is to ensure that individual cases are dealt with in accordance with the principles of natural justice. The parties were at variance as to what the principles of natural justice required in this particular case.

[88] Mr Judd submitted that at the very least, in any disciplinary matter, it is a fundamental requirement of natural justice that the student be given details of what he is alleged to have done, with sufficient particularity to enable him to have a real opportunity to respond. That is, he should be given details of what he is said to have done, where, and when. Mr Judd accepted that in many cases that information could be in the form of a statement from a person (such as an Associate Principal) who had conducted interviews, provided the required detail is included.

[89] However, in the present case, because of the possible consequence of expulsion, Mr Judd submitted that natural justice required that D be given written statements from the witnesses – for example, the students who were said to have seen D smoking marijuana, having possession of “tinnies” at school, or selling marijuana. These statements (which he accepted could have the witnesses’ names removed) should have been in sufficient detail that D had the opportunity to defend himself. He submitted that there may have been inconsistencies identified in the statements, or D may have been able to identify reasons why he could not have done an alleged act – for example, if he was not at a named place at a named time.

[90] Mr Judd submitted that in this case there was a breach of natural justice in that even the most basic requirements of natural justice had not been met, as the Associate Principal’s report, which formed the evidence for the 26 June and 28 July meetings, and a substantial part of the evidence for the suspension meeting with the Board on 6 August, did not give adequate detail of the allegations against D.

[91] Mr Harrison submitted that there was no breach of natural justice, in that the Associate Principal’s report provided sufficient information as to the allegations, such that D could, and did, respond to them, both in the meetings with the Principal and in the suspension meeting with the Board. He submitted that the question of

what is required to adhere to the principles of natural justice must be considered in the context of the school situation, and that there must be a balancing of the interests of an accused person and those of the safety of the school environment.

[92] In relation to the safety of the school environment, Mr Harrison referred to the school’s “Safe Practice Policy” under which students who are interviewed as part of an inquiry are told that their names will not be mentioned, and they will not be identified to other students. This is to keep those students safe and to enable them to respond in an interview without fear of retribution. He submitted that there must be sufficient flexibility in the requirements as to natural justice to allow the school’s Safe Practice Policy to be continued as an important component of the battle to keep drugs out of the school and students safe.

[93] Counsel referred to a number of authorities touching on the question of adherence to the principles of natural justice. It is not necessary to refer to these in detail, as it is clear that what is required in any individual case will depend on the circumstances of that case. In Auckland Grammar a student was suspended for gross misconduct. At the meeting with the Board the Headmaster referred to the student’s earlier breaches, of the same nature. Smellie J found at 739 that the Board had used the references to past breaches to effectively elevate the Headmaster’s decision to suspend for gross misconduct to one based on gross misconduct and continual disobedience. This was a breach of natural justice because the student had not been given prior notice of the Board’s intention to rely on both grounds. This was notwithstanding that the previous breaches had been raised at the meeting with the Board, and the student given the opportunity to respond.

[94] A breach of natural justice was also argued in Lynfield College. The Court of Appeal held that natural justice did not require the presence of a student’s parent at stand-down and suspension meetings with a school Principal. The Court observed at [52] that the school environment required an individualised response to each incident and cautioned against prescribing a set of “rigid rules of universal application” which

would not ensure that the principles of natural justice were always fulfilled. At [55]

[95] The English authorities cited were in relation to what natural justice required in the particular case, and as to the seriousness of the sanction of “permanent exclusion” (that is, expulsion). In relation to the former issue, the Court of Appeal in R v Headteacher and Independent Appeal Committee of Dunraven School (“Dunraven School”) considered the case of B, who was accused of theft.[5] An alleged co-offender, D, had implicated B in his statement. B did not see, and was not told of, D’s statement. The Court quashed the decision that B be permanently excluded. In his judgment, Sedley LJ noted that it was “a proposition too obvious to

require authority” that what is required for fairness in a particular situation will depend on the circumstances. Where permanent exclusion was a possibility, a student had a right to be heard, and such a right was worthless unless it was known “in some adequate form” what was being said against the student. Fairness would ordinarily require enough disclosure to reveal any inconsistency. A second and related principle was that it is unfair for a decision-maker to have access to damaging material to which the student had no access.

[96] In R (T) v Head Teacher of Elliott School & Ors (“Elliott School”) T appealed to the Court of Appeal against a decision that she be permanently excluded for bullying and harassment.[6] The school’s discipline committee, and subsequently an appeal panel, decided the matter on the basis of anonymous statements by school students. The reliance on anonymous statements was challenged on appeal. The Court of Appeal found that the use of anonymous

statements did not create unfairness in the case. Sedley LJ observed at [48] of his judgment that where anonymous statements were tendered, the choice was between two courses each of which would be unfair in some degree either to the student or to the school.

School (“Denbigh High School”) concerned a female student who was excluded for

wearing a Muslim jilhad.[7] Her claim was on the basis of breach of her right to manifest her religious belief and of her right to education. The Court of Appeal found that in excluding her, the school had not followed a proper decision-making process.

[98] The House of Lords’ overturned the Court of Appeal’s decision. At [31] Lord Bingham of Cornhill observed that the Court of Appeal’s approach would introduce “a new formalism” and be a “recipe for judicialisation on an unprecedented scale”, and that the Court of Appeal’s decision-making prescription could not be required of a Head Teacher and Governors. He observed that what mattered in any case was the practical outcome, not the quality of the decision- making process that led to it.

[99] With respect to the seriousness of expulsion, it can readily be accepted that expulsion is a serious sanction. In R (L) v Governors of J School (“J School”) it was described by Lord Hobhouse of Woodborough, at [36] as “the ultimate disciplinary sanction, and as the “final termination of the school-pupil relationship”).[8] A similar observation was made by Lord Bingham in Ali v Head Teacher and Governors of Lord Grey School (“Lord Grey School”) at [21] where he referred to the “immense damage done to vulnerable children by indefinite, unnecessary or improperly- motivated exclusions from state schools”.[9]

[100] It is clear that school disciplinary cases must be dealt with in accordance with the principles of natural justice. What is required in any particular case will depend on the circumstances of the case. The fact that a particular sanction is possible is a relevant factor to be taken into account in deciding what is required to adhere to the principles of natural justice.

[101] It can be accepted, as observed by Sedley LJ in Dunraven School, that the students’ right to be heard requires disclosure, in some adequate form, of what is

alleged. In this case, where expulsion was (at least) a possibility, was the material provided to D at the various stages of the disciplinary proceeding (see [8], [18]-[21], and [32]-[33], above) sufficient to inform him of the charges against him, and to provide him with a proper opportunity to defend himself?

[102] I have considered the material. Although the Associate Principal’s report is of some length, it is in general terms and provides no detail of, for example, when and where a student or students purchased marijuana from D, when and where D approached students asking if they wanted to purchase marijuana, and when and where D had been seen to have “tinnies” at the school.

[103] The Principal’s report repeats this material (without the addition of further detail). Further, it refers to a “repeated pattern evident in the first half of the year” of D’s leaving the school grounds, without specifying what made up the “pattern”. In other respects, that is the references to the incident involving the Year 9 student A, two occasions of D leaving the school grounds at the start of Term 3, and the media studies complaint, the Principal’s report does identify the time and place of the alleged act.

[104] The report of the Head of Department Media Studies, in relation to the media studies complaint, contains sufficient detail to inform D of the case against him.

[105] I have concluded that the failure to provide details in the Associate Principal’s report, and in the Principal’s report where that material was repeated, was a breach of the requirement that D be properly informed of the case against him, and that that breach deprived him of a proper opportunity to defend himself.

[106] I do not accept that natural justice required that D be given copies of witness statements, whether anonymous or not. In that respect, I accept Mr Harrison’s submission that when the interests of the wider school community, as reflected in the school’s Safe Practice Policy, are balanced against D’s interests, the balance falls against providing written statements. However, it would have been possible, without infringing that policy, to have given details of what D was said to have done, when, and where. Had that occurred D would have had the opportunity to say (if such were

the case) that he could not have done what was alleged, and provide reasons. As it was, he was not able to do anything more than give a “blanket denial” of what was alleged against him.

[107] In general terms, I appreciate that this may in some instances enable identification of the provider of the information. However, this is not necessarily and inevitably the case, and it is, in my judgment, the minimum required to afford the accused student a reasonable opportunity to defend himself.

[108] The allegations relating to marijuana which were set out in the Associate Principal’s report, and the allegations of repeated absences from school, were central to the Principal’s decision to suspend D, and the Board’s decision to expel him. For that reason, the breach of natural justice means that the decisions are flawed.

[109] In the case of the Principal’s decision to suspend D, the breach of natural justice may not be fatal, given the requirement for review by the Board. As noted in Lynfield College at [69], an invalid suspension decision by a Principal can be cured by a valid re-consideration by the Board. However, the breach of natural justice at the level of the suspension meeting with the Board means that the decision to expel D cannot stand.

[110] There will, therefore, be a declaration that the Board’s decision to expel D is invalid and of no effect. The decision is quashed. The matter of D’s suspension is remitted back to the Board for reconsideration, should the school wish to pursue it.

[111] Mr Judd sought costs, submitting that the Court “needs to send a very clear message to schools that they must treat students properly and fairly”. Mr Harrison submitted that costs should be reserved.

[112] I do not consider that this case is one that requires “a very clear message to be sent”. The matter the school was dealing with was of some complexity, and a balancing of competing interests has been required. Nonetheless, as I have found in

favour of D, in respect of the Board’s decision to expel D, it is appropriate that costs follow the event. D is entitled to an award of costs on a 2B basis. Should the matter of costs not be able to be resolved between the parties, then memoranda may be filed, that on behalf of D within 15 working days of the date of this decision and that of the Principal and the Board within a further 15 working days. Counsel should

[1] [2003] NZAR 726, at 731.
[2] _{[2008] NZCA 325; [2008] NZAR
667.}
[3] J v Bovaird and Board of Trustees of Lynfield College [2007] NZAR 660.

High Court of New Zealand Decisions

D v Havill HC Auckland CIV 2009-404-4947 [2009] NZHC 2623 (30 September 2009)