Phyllis Brown v The Board of Management of Rathfarnham Parish National School and Others

JurisdictionIreland
JudgeHonourable Mr. Justice Quirke
Judgment Date01 June 2006
Neutral Citation[2006] IEHC 178
CourtHigh Court
Docket Number[2005 No. 189 JR]
Date01 June 2006

[2006] IEHC 178

THE HIGH COURT

[No. 189 JR/2005]
BROWN v BOARD OF MANAGEMENT OF RATHFARNHAM PARISH NATIONAL SCHOOL & ORS
JUDICIAL REVIEW

BETWEEN

PHYLLIS BROWN
APPLICANT

AND

THE BOARD OF MANAGEMENT OF RATHFARNHAM PARISH NATIONAL SCHOOL, THE MOST REVEREND DR. JOHN NEIL AND THE MINISTER FOR EDUCATION AND SCIENCE
RESPONDENTS

AND

JOYCE PERDUE
NOTICE PARTY

RSC O.84 r21(1)

EDUCATION ACT 1998 S2(1)

EDUCATION ACT 1998 S14

EDUCATION ACT 1998 S8(1)

EDUCATION ACT 1998 S15(1)

EDUCATION ACT 1998 S23

BEIRNE v CMSR OF AN GARDA SIOCHANA 1993 ILRM 1

GEOGHEGAN v INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND 1995 3 IR 86

RAFFERTY v BUS EIREANN 1997 2 IR 484

BECKER v ST DOMINIC'S SECONDARY SCHOOL CABRA UNREP CLARKE 14.4.2005

DE SMITH WOOLF & JOWELL JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 5ED PAR 5-058

ELM DEVELOPMENTS, STATE v BORD PLEANALA 1981 ILRM 108

IRISH REFINING PLC v COMMISSIONER OF VALUATION 1990 1 IR 568

EDUCATION

Employment

JUDICIAL REVIEW

Remedies

Teachers - Appointment of school principal by board of management of national school - Procedures adopted for appointment - Rules adopted by board of management requiring approval of Government - Boards of management - Whether powers of board of management derived from contract -Education Act 1998 (No 51), ss 15 and 23 -Relief granted (2005/189JR - Quirke J -1/6/2006) [2006] IEHC 178 Brown v Rathfarnham National School - [2008] 1 IR 70

1

JUDGMENT of the Honourable Mr. Justice Quirke delivered the 1st day of June 2006 .

2

By order of the High Court (Hanna J.) dated the 28th February, 2005, the applicant was given leave to seek relief by way of judicial review including inter alia an order of certiorari quashing a decision of the first named respondent (hereafter "the Board") made on the 30th November, 2004, whereby the Board nominated the notice party for appointment to the post of Principal of Rathfarnham National School.

3

The applicant was also granted leave to seek additional declaratory and other ancillary reliefs.

FACTUAL BACKGROUND
4

1. The applicant graduated as a national school teacher in 1973 and was appointed as an assistant teacher in Rathfarnham National School.

5

In 1977, Ms. Myrtle Stanley was appointed Principal of the school and the applicant was appointed Deputy Principal. The applicant discharged the obligations and functions of Deputy Principal of the school (and sometimes as acting Principal) continuously for some 28 years after her appointment. Ill health has precluded her from discharging her obligations since early 2005.

6

2. On the 11th October, 2004, Ms. Stanley announced that she intended to retire. Consequently the Board advertised the post in the national newspapers on the 15th and 16th of October.

7

The advertisement provided inter alia as follows:

"Rathfarnham Parish N.S. requires an Administrative Principal from 1st February, 2005. Applications with references and C.V.'s and S.A.E. by November 1st to Chairperson, B.O.M., Rev. Ted Woods, Rathfarnham Rectory, Rathfarnham Road, Terenure, Dublin 6."

8

On the 1st November, 2004, at 5.15 pm, the applicant handed a completed application form into the Rectory as required by the advertisement.

9

3. On the 11th November, 2004, the applicant received a letter from the Chairman of the Board Rev Ted Woods acknowledging receipt of her application.

10

On the 18th November, 2004, she received a further letter from Rev Woods inviting her to attend at the Rathfarnham Rectory on the 30th of November, to be interviewed in respect of the post.

11

She attended at the Rectory on the 30th November, 2004, at 3.10 pm. She was interviewed by a Selection Board chaired by Rev Woods. That Board comprised Rev Woods and two independent assessors.

12

Shortly after 6.00 pm on the same day (that is the 30th November, 2004), the applicant was informed by Rev. Woods that she had been unsuccessful in her application. He told her that the notice party had been appointed to the position.

13

The applicant received a letter from Rev. Woods dated the 6th of December, confirming that her application had been unsuccessful.

14

4. On the 1st December, 2004, Rev. Woods wrote to the second named respondent (hereafter "the Archbishop") who was (and remains) the Patron of the School. In his letter he formally sought approval for the appointment of the notice party to the position. Neither the letter to the Archbishop nor his response has been adduced in evidence in these proceedings. However the Archbishop appears to have replied by letter of the same date granting approval.

15

In evidence in these proceedings the Rev. Woods averred that on the same date (that is the 1st December, 2004) he formally offered the notice party the post "to take effect from the 1st February, 2005."

16

By letter dated the 2nd December, 2004, the notice party wrote to Rev. Woods in the following terms:

"Thank you for your letter offering me the post of Principal of Rathfarnham Parish National School to take effect from 1st February, 2005.

I am delighted to formally accept your offer and very much look forward to a long and happy association with the School and Parish. Thank you also for your kind wishes and support."

17

5. Shortly after the appointment of the notice party was announced, the applicant received information which caused her to contact Mr. Noel Ward who is the Legal and Industrial Relations Officer with the Irish National Teachers Organisation (hereafter "the I.N.T.O."). Arising out of their conversation Mr. Ward wrote to the Archbishop by letter dated the 17th December, 2004. His letter was marked "Private and Confidential — Urgent — By Courier".

18

In his letter Mr. Ward asked the Archbishop to defer sanction of the appointment pending a full investigation of a number of matters which he said included:

19

"The acceptance of late applications, after the latest date for receipt as stated in the advertisement;

20

The failure to supply those called to interview with details of the established criteria for the post; and

21

The fact that the Board of Management did not meet in order to consider the nomination of the Selection Board."

22

Indicating that he had already advised the third named respondent (hereafter "the Minister") that he was seeking an investigation and asking the Minister to defer ratification, Mr. Ward contended:

"Any one of these alleged breaches would, on its own, constitute a serious ground for challenging the process. The aggregate of the three gives rise to the most serious concern."

23

6. By memorandum dated the 21st December, 2004, the Archbishop advised Rev. Woods inter alia that he had:

"received... your two emails, containing legal advice and a suggested letter to I.N.T.O."

24

He continued:

"I am not a lawyer and cannot advise the Board of Management with regard to legal advice that they have obtained. I have to work very precisely within the rules issued by the Minister and in which as Patron, I have a clearly defined role."

25

He continued:

"I promised I would convey to you my attitude as Patron with regard to the recent appointment of a Principal for Rathfarnham National School and you are at liberty to disclose this to the Board of Management. I must insist that I am aware that there was not any intention to act outside proper procedures, but that I also have a responsibility to ensure that now the procedures are fully implemented.

The procedures as set out in Appendix D have the force of law and, as Patron, I have circulated these in a convenient form to each Board of Management (again attached). I also append below extracts from the Constitution and Rules of Procedure and from the Education Acts which are important in this context, providing the basis of these procedures. The assessors on any Selection Board also have the guidelines. When I approve an appointment it is on the assumption that the Guidelines have been carefully followed.

As patron, I must therefore advise you that having taken advice myself I would wish the procedure to be re-commenced at the point at which it was at midnight on December (corrected to" November") 1st, 2004.

I realise that the Board of Management will seek their own legal advice, but as Patron, I must advise strictly in accordance with the guidelines (which include the statutory appendix) that I have issued to all schools under my patronage.

I note that my approval of the appointment of (the notice party) took due cognizance of your written assurance that the procedures had been followed. You have indicated to me that you are now aware and accept that there was at least one flaw in the procedure as laid down. In the light of this admission (and the possible decision of the Board of Management to maintain the appointment) it would be necessary for me to advise the D.E.S. that I am withdrawing my approval of the appointment due to the apparent invalidity of the procedure followed in the selection process. I will however await the result of the meeting of the Board of Management before contacting the Department of Education and Science so that my communication may accurately reflect the state of affairs."

26

7. By letter dated the 23rd December, 2004, Rev. Woods replied to the Archbishop indicating that the Board had met on the 22nd of December to consider Mr. Ward's letter to the Archbishop. Referring to the

27

Archbishop's request that the procedure be recommenced "at the point at which it was at midnight on November 1st, 2004" the letter advised the Archbishop that

28

..."the legal advice available to the Board" indicated that "... the Chairman of the Board has a discretion to accept the applications and ... that discretion was quite properly and appropriately exercised in accepting (the notice...

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