McKenna v O Ciarain
| Jurisdiction | Ireland |
| Judge | Mr. Justice Aindrias Ó Caoimh |
| Judgment Date | 30 November 2001 |
| Neutral Citation | [2001] IEHC 215 |
| Date | 30 November 2001 |
| Docket Number | [2000 No. 755 J.R.] |
| Court | High Court |
[2001] IEHC 215
THE HIGH COURT
BETWEEN
AND
AND
AND
Citations:
VOCATIONAL EDUCATION ACT 1930 S21(5)
COMHALTAS CEOLTEOIRI EIREANN, IN RE UNREP FINLAY 14.12.1977 1977/2/306
SMITH V EAST ELLOE RDC 1956 1 AER 855
VOCATIONAL EDUCATION ACT 1930 S21(1)
MURPHY V TURF CLUB 1989 IR 171
O'NEILL V IARNROD EIREANN 1991 ILRM 129
MURTAGH V ST EMER'S NATIONAL SCHOOL 1991 ILRM 549
BROWNE V DUNDALK UDC 1993 2 IR 512
RAJAH V ROYAL COLLEGE OF SURGEONS IN IRELAND 1994 1 IR 384
HEALY V FINGAL CO COUNCIL UNREP BARR 17.1.1997 1997/4/1170
BEIRNE V COMMR GARDA SIOCHANA 1993 ILRM 1
SMULLEN, STATE V DUFFY 1980 ILRM 46
Q (M) V GLEESON 1998 4 IR 85
Synopsis:
JUDICIAL REVIEW
Education
Injunction - School - Disciplinary procedures - Whether matter one of public or private law - Whether applicant should be re-admitted into school - Vocational Educational Act, 1930 (2000/755JR - O Caoimh J - 30/11/2001)
McKenna v Ó Ciaráin - [2002] 3 IR 35
Facts: The applicant had been suspended from school by the first respondent, the principal of the school, as a result of an incident involving drugs. Subsequently the Board of Management of the school declared that the suspension of the applicant had been lifted and that he was welcome back in the school. The first respondent was unhappy with the decision and sought clarification from the Vocational Educational Committee (VEC). The VEC upheld the decision to lift the suspension of the applicant, nevertheless the first respondent refused to allow the applicant back into the school. The applicant initiated judicial review proceedings seeking orders lifting his suspension and permitting his re-admission into the school. The first respondent contended that no remedy could lie against him as the actions of him fell within the realm of private law and not public law. In addition the first respondent contended that both the Board of Management and the VEC had disregarded the obligations placed upon them.
Held by Ó Caoimh J in granting the relief sought to the applicant. The provisions of the Vocational Educational Act, 1930 provided that any recommendation made by the Board of Management whether for dismissal or a prolonged period of suspension was subject to a decision of the VEC. There had never been any confirmation of any proposed expulsion of the applicant and the decision of the committee was for the reinstatement of the applicant in the school and not one providing for a lengthy period of suspension. The action of the first respondent in maintaining a situation to keep the applicant out of the school contravened the provisions of Section 21(5) of the Act of 1930 and failed to have regard to the fact that any decision of the Board of Management required the confirmation of the VEC before it could have any legal effect.
JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered on the 30th day of November, 2001 .
The applicant, who is a pupil in Coláiste Ráithín in Bray in the County of Wicklow seeks
1. An Order of Mandamus directing the first respondent to comply with the directions of Wicklow VEC concerning the readmission of the applicant to Coláiste Ráithín, Bray, County Wicklow;
2. An Order of Mandamus directing the first respondent to lift the suspension of the applicant from Coláiste Ráithín, Bray, County Wicklow;
3. An Injunction restraining the respondent from suspending or excluding the applicant from Coláiste Ráithín, Bray, County Wicklow;
4. An Injunction directing the respondent to permit the applicant to attend as a pupil of Coláiste Ráithín, Bray, County Wicklow;
The first respondent suspended the applicant on the 23rd October, 2000 pending a decision of the Board of Management of the school. This arose in circumstances where the applicant, along with other pupils, was found to be smoking cannabis on a school trip to the Aran Islands in October, 2000. From the outset he admitted his involvement in the incident. It appears that the applicant had provided cannabis to some of his colleagues in the school to smoke same. At a meeting of the Board of Management of the school of the 6th November, 2000 an initial decision was taken by the Board recommending expulsion of the applicant and four other pupils from the school. The decision of the Board of Management was notified to the applicant by letter from the first respondent and the applicant's father thereafter made enquiries with the Chief Executive of the second respondent, hereinafter referred to as "the VEC", that the Board of Management of the school was going to reconvene to consider the matter completely and that fresh representations could be made to that meeting. The applicant was later informed that the second meeting of the Board would be held on the 15th November. Prior to the 15th November, the respondent invited three of the five pupils, who had been suspended, to return to school. The applicant, however, was not invited back. The Chief Executive of the VEC informed the applicant's father that this was not a decision of the VEC and that it must have been a decision of the first respondent.
The applicant together with his parents attended the second meeting of the Board of Management on the 15th November, 2000. At the conclusion of the meeting they were informed by the Chairman of the Board, Mr. Micheál Ó Flainn that the Board was lifting the suspension on the applicant and that he was welcome back in the school. The Chairman did indicate however, that the first respondent had a difficulty with the decision and was seeking clarification from the VEC. It was indicated that the applicant would remain suspended or absent himself from the school for a short period pending that clarification. Thereafter the VEC upheld the decision to lift the suspension of the applicant, but notwithstanding this fact, the respondent failed to comply with directions in relation to allowing the applicant back into school. As a result of this the applicant brought an application to this Court for leave to seek Judicial Review against the respondent.
In dealing with this application I directed that the respondent would be served and heard on the application for leave. This was done and on the 13th December, 2000 I made an order, in circumstances where the respondent was not minded to allow the applicant back into school, giving the applicant leave to seek the relief which he now seeks by way of an application for Judicial Review. Notwithstanding the granting of leave in these proceedings the respondent maintained his position in refusing to allow the applicant back into school and this resulted in an application being made to this Court for Interlocutory relief. That application came before this Court on the 4th January, 2000 and on the 5th January, 2000 I made an order directing the first respondent to permit the applicant to attend as a pupil of Coláiste Ráithín pending the trial of this action. At the same time the VEC was joined as a respondent and the Board of Management was joined as a notice party to these proceedings. The VEC has served a statement of grounds of opposition in this case, but in fact it has been indicated on behalf of the VEC that it is not opposed to the Orders of Mandamus and Injunctive relief sought by the applicant. In light of this fact the real issue in these proceedings is one raised by the first respondent as against the applicant.
The first respondent has raised a number of issues in these proceedings. These can be summarised as follows:-
That the relief sought is one that should not be granted insofar as the proceedings herein are taken by way of Judicial Review and it is submitted by and on behalf of the first respondent that Judicial Review should not lie as against him. In this regard it is pleaded that the actions of the respondent fall within the area of private law and not within the realm of public law. Further the first respondent says that responsibility for any wrong pertaining to any decision or recommendation that was made results from the fact that the VEC and its subcommittees and in particular the Board of Management disregarded the obligations placed on them.
In the statement of opposition filed on behalf of the first respondent, he says that the decision of the Board of Management of its meeting of the 6th November, 2000 was ultra vires and irregular as a result of contravening the recommendations of the first respondent pertaining to three of the students who were recommended to be expelled rather than suspended as proposed by the first respondent. He says that as a result of this that the meeting of the 15th November, 2000 was convened to correct matters arising from the first meeting. He complains that the decision to allow the applicant back was ultra viresinsofar as no prior notice had been given in respect of this decision in accordance with paragraph 2.3 of the Constitution of the Board of Management of Coláiste Ráithín. He further pleads that a person who attended the meeting of the Board of Management was ineligible to be a member of the Board and that this person took an active part in the proceedings of the meeting without authority. In this regard, reliance is placed on paragraph 2.2 of the Constitution of Coláiste Ráithín. It is further pleaded that this individual did not receive all the facts of the affair as a result of which his knowledge was deficient. The first respondent further complains that he was not given a hearing as required with regard to the decision of the Board of the 15th November,...
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...of Chartered Accountants [1995] 3 I.R. 86, Eogan v. University College Dublin [1996] 1 I.R. 390, McKenna v. O'Ciarain and Wicklow VEC [2001] I.E.H.C. 215 and O'Donnell v. Tipperary (South Riding) County Council[2005] 2 I.R. That latter decision was a decision of the Supreme Court in which D......