O'Donovan v Board of Management of De La Salle College Wicklow and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 03 April 2009
• Neutral Citation: [2009] IEHC 163
• Judgment citation (vLex): [2009] 4 JIC 0305
• Court: High Court
• Date: 03 April 2009

[2009] IEHC 163

THE HIGH COURT

RECORD NO. 418 JR/2007

O'Donovan v Board of Management of De La Salle College Wicklow & Ors

BETWEEN:

TIMOTHY O'DONOVAN

APPLICANT

AND

THE BOARD OF MANAGEMENT OF DE LA SALLE COLLEGE WICKLOW AND JOHN MURPHY, ANNE LODGE AND BRENDAN DOODY AS MEMBERS OF THE APPEAL COMMITTEE APPOINTED PURSUANT TO SECTION 29 OF THE EDUCATION ACT 1998

RESPONDENTS

EDUCATION ACT 1998 S29

RSC O.84 r21

EDUCATION (WELFARE) ACT 2000 S21(4)

EDUCATION (WELFARE) ACT 2000 S24(4)

EDUCATION (WELFARE) ACT 2000 S23

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202 1986/6/861

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

VOZZA, STATE v O FLOINN 1957 IR 227

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT & SGS (IRL) LTD 2003 2 IR 270 2003 2 ILRM 210 2003/12/2484

O'BRIEN v JUSTICE MORIARTY 2006 2 IR 221 2005 2 ILRM 321 2005/45/9458 2005 IESC 32

MIN FOR LABOUR v GRACE 1993 2 IR 53 1993/4/1076

BARRY v FITZPATRICK & HOGAN & DPP 1996 1 ILRM 512 1995/15/3832

EDUCATION (WELFARE) ACT 2000 S21(5)

EDUCATION (WELFARE) ACT 2000 S24

EDUCATION (WELFARE) ACT 2000 S21(5)(B)

EDUCATION (WELFARE) ACT 2000 S24(2)

EDUCATION (WELFARE) ACT 2000 S21(5)(A)

EDUCATION (WELFARE) ACT 2000 S24(3)

ANISMINIC LTD v FOREIGN COMPENSATION CMSN 1969 2 AC 147 1969 2 WLR 163 1969 1 AER 208

KILLEEN v DPP & NEILAN 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845

EDUCATION (WELFARE) ACT 2000 S24(1)

EDUCATION

School

Expulsion - Breach of constitutional and statutory rights - Certiorari - Incident during charity football match - Meeting - Submissions - Decision to permanently exclude student - Appeal - Impact of incident on teacher - Good faith - Failure to disclose material fact regarding invitation to emergency board meeting - Delay - Mootness - Consequences for reputation and self-esteem - Breach of statutory duty - Failure to notify educational welfare officer - Primary function of officer - Violation of statutory procedure - Error of law - Whether decision of appeals committee based on irrelevant issues - Fair procedures - Audi alteram partem - Unreasonableness - State (Keegan) v Stardust Victims' Compensation Tribunal [1986] IR 642; O'Keeffe v An Bord Pleanála [1993] 1 IR 39; State (Vozza) v O'Floinn [1957] IR 227; Dekra Éireann Teoranta v Minister for Environment and Local Government [2003] 2 IR 270; O'Brien v Moriarty [2005] IESC 32 [2006] 2 IR 221; Minister for Labour v Grace [1993] 2 IR 53; Barry v Fitzpatrick [1996] 1 ILRM; Anisminic Ltd. v Foreign Compensation Tribunal [1969] 2 AC 147 and Killeen v. Director of Public Prosecutions [1997] 3 IR 218 considered - Education Act 1998 (No 51), s 29 - Education (Welfare) Act 2000 (No 22), ss 21 and 24 - - Rules of the Superior Courts 1986 (SI 15/1986), O 84 r 21 - Declaration that expulsion in breach of statutory rights (2007/418JR - Hedigan J - 3/4/2009) [2009] IEHC 163

O'Donovan v Board of Management of De la Salle College

1 Mr. Justice Hedigan, delivered on the 3rd day of April 2009

2 1. The applicant is a third level student from Wicklow Town. At the commencement of these proceedings, he was a minor suing by his mother and next friend, Carla O'Donovan.

3 2. The first named respondent is the governing body responsible for the management of De La Salle College Wicklow.

4 3. The second, third and fourth named respondents ('the appeals committee') are the members of the statutory body, appointed under section 29 of the Education Act 1998 ('the 1998 Act') which had responsibility for determining the appeal of the applicant in the present case.

5 4. The applicant seeks the following relief:

6 (i) A declaration that the first named respondent's decision to expel the applicant, effective as of the 30 ^th of January 2007, was in breach of his constitutional and statutory rights;

7 (ii) A declaration that the decision of the appeals committee made on the 26 ^th of January 2008 to uphold the said decision of the first named respondent was in breach of the applicant's constitutional and statutory rights;

8 (iii) An order of certiorari quashing the decision of the first named respondent to expel the applicant;

9 (iv) An order of certiorari quashing the decision of the second named respondent to uphold the said decision of the first named respondent;

10 (v) An order of mandamus directing the first named respondent to perform its legal obligation in accordance with the decision of this Court; and

11 (vi) An order of mandamus directing the appeals committee to perform their legal obligation in accordance with the decision of this Court.

I. Factual and Procedural Background

12 5. When the applicant was twelve years of age, he enrolled as a secondary student at De La Salle Secondary College in Wicklow ('the College') which he attended happily and without any significant pattern of misbehaviour up until the incident which ultimately forms the basis of these proceedings.

13 6. On the 28 ^th of November 2006, the applicant and a number of his fellow students participated in a charity football match during regular school hours. Each student made a donation of 2 euro to charity and the teams were joined by two younger members of the teaching staff, one of whom was BG. The match culminated in a penalty shootout and the applicant featured as goalkeeper for his team. In this capacity, he succeeded in saving the final penalty which was taken byBG. This resulted in victory for his side.

14 7. Having saved the winning penalty, the applicant ran up behind BG and proceeded to pull the teacher's shorts downwards. The shorts descended several inches causing part of BG's backside to be exposed to onlookers. There is some dispute as to the reaction to this incident of the parties involved. The applicant maintains that he was at once remorseful and that he apologised toBG, who did not seem overly perturbed and subsequently joked about the incident with the applicant in the communal changing rooms following the game. The respondents contend that that the applicant was not quite so contrite, and that he revelled to some extent in the commotion that was caused by his actions. The respondents also contest any suggestion to the effect that BG did not take the incident seriously from the outset.

15 8. On the 29 ^th of November 2006, the applicant was absent from school owing to an injury which he had sustained during a rugby training session which took place following the incident. On that day, the principal of the school, Ms. Maria O'Carroll, received a formal complaint from BG in relation to what had occurred. Ms. O'Carroll telephoned the applicant's mother to inform her that the applicant was being suspended from school until the next meeting of the first named respondent on account of his behaviour during the charity football match. However, later that afternoon, the applicant's mother received another call to inform her that a fellow student and friend of the applicant's had been killed in a road traffic accident. Owing to these exceptional circumstances, the applicant's suspension was lifted to allow him to grieve with his peers.

16 9. On the 30 ^th of November 2006, the applicant returned to school and in an unprompted gesture brought a letter of apology forBG. This was delivered to the teacher by another member of staff. BG discussed the letter with Ms. O'Carroll and it seems that he was unhappy with the overly familiar tone which was adopted in its contents. Ms. O'Carroll, who had been surprised in the first place to learn that the applicant had returned to school, telephoned the applicant's mother that evening to discuss matters. There is some dispute as to what was said during this phone call but it is common case that Ms. O'Carroll informed the applicant's mother that the intention had been that his suspension should be lifted for one day only. She also stated that the applicant should remain out of school until the first named respondent met to consider the matter on the 7 ^th of December 2006. At all times, she maintained that the matter was a very serious one and advised the applicant's mother that she could not predict the sanction that would be imposed.

17 10. It should be noted that the school's code of conduct was not precisely complied with at all times throughout the dealings between the parties. For instance, Clause D of the school's Code of Conduct quite clearly envisages the parents should be advised in writing where serious sanctions are being considered and that they should be invited, also in writing, to discuss the situation with the school principal. The respondents maintain that any departure from the regular protocol arose from the distraction caused by the tragic death of the applicant's fellow student. They further assert that the applicant was not deprived of any material advantage by virtue of the means of communication used in contacting his parents.

18 11. A meeting of the first named respondent to consider the complaint took place on the 7 ^th of December 2006.BG, who is a member of the first named respondent absented himself. Ms. O'Carroll gave a report on the incident and the applicant's behavioural history to the first named respondent which, following some consideration, recommended that an emergency meeting should be held on the 18 ^th of December 2006. It was also advised that counselling should be offered to BG and that he should be invited to make a submission to the first named respondent for the purposes of the emergency meeting.

19 12. By letter dated the 8 ^th of December 2006, Ms. O'Carroll invited the applicant and his parents to attend the meeting on the 18 ^th of December 2006. Alternatively, they were invited to make a written submission to the first...