Judicial Review
No 327 of 1988
THE HIGH COURT
CATHERINE MURTAGH AND THOMAS MURTAGH
.V.
BOARD OF MANAGEMENT OF ST. EMER'S NATIONAL SCHOOL

Judgment of Mr. Justice Barron delivered the 27th day of November, 1989
At the time of the events giving rise to these proceedings Alan Murtagh was a pupil at St. Emer's National School Longford. He was aged eleven having been born on the 10th July 1976 and was in sixth class. On the 1st March 1988 during class Alan Murtagh wrote on a sheet of paper the words "Noleen Bitch Rooney". Mrs. Rooney was the infants' class teacher at the school. His punishment for this was a direction to apologise to Mrs. Rooney. He refused and on the following day aggravated his conduct by leaving a note in the following terms on Mrs. Rooney's desk:

"To Noleen Bitch Rooney,
I did not think that it was any of your business interfering in the running of fifth and sixth classes. I think that your job is to teach infant classes and not any other classes. To put it plainly it was none of your business. The headmaster was appointed to take care of incidents such as yesterday's one. And if your want to be headmistress I am sorry to dissapoint (sic) you but you can apply elsewhere.
Alan"

The word "bitch" was crossed out on this note, but in such a way that it could easily be read. Nothing was done to punish Alan Murtagh for writing this note. Mr. Ward continued to require an apology but did nothing else. The reason given is that the boy was doing his secondary school entrance examination on the 2nd April and Mr. Ward did not wish to upset him by punishing him for his behaviour.

On the 18th April Mr. Ward wrote to Alan's parents asking them to meet him at the school library on 25th April at 8.30 p.m. That letter was as follows:
"Dear Parents,
I request you to meet me in the school library on Monday evening next 25th April at 8.30 p.m..
I wish to discuss with you the matter of Alan's indiscipline in school.
Is mise le meas
Micheal MacAbhaird

The parents came to the school library at the time requested and there was a short and acrimonious meeting. The Murtagh's rejected Mr. Ward's right to deal with the matter. They wished Father Noonan the Chairman of the Board to be present. On the same evening the School Board met. The matter was put before it by Mr. Ward and it was agreed that Alan Murtagh should be suspended for three days. His parent's were notified. They sought a meeting with Father Noonan which was held on the 28th of April. They accused him of being responsible for the suspension and asked him to arrange" for them to meet the full Board. He agreed and meanwhile the suspension was rescinded. The meeting with the Board took place on the 9th of May. Substantially all that occurred was that the Murtaghs refused to see anything wrong with what their son had written, but the Board nevertheless gave them time to consider the matter further and told them that an apology either from Alan or from them would close the incident. On the 12th May 1988 they wrote to the Board as follows:

"To Board of Management St. Emer's N.S.
The following is our response to our meeting with the B.O.M of St. Emer's N.S. Longford in the presbytery of St. Mel's Cathedral Longford on Monday May 9 1988.
We the undersigned wish to state that at this moment in time we do not wish to add anything further to the points made by us at the above mentioned meeting.
Thomas Murtagh Renee Murtagh"
The Board met again on the 16th May. They again considered the matter and the letter which they had received. As it contained no apology they decided to suspend Alan for three days being the 19th, 20th and 23rd of May.
The present proceedings now seek to quash that decision.

The Respondents submit that certiorari does not lie since there is not the necessary public element in the decision sought to be set aside. They accept that the decisions of the Board of a national school may in certain circumstances be so subject but submit that matters of discipline are in the private domain.

The cases in which certiorari lie have not been clearly defined. In general the Body whose decision it is sought to quash must be discharging a function of a public nature affecting private rights and be under a duty to act fairly in coming to that decision. The public element is essential, but even then if the authority to make the decision is based upon a private contract certiorari would not lie.

In the present instance it does not seem to me that it can be said that questions of discipline are in the private domain. The school is a national school under the Department of Education. Rules formulated by the Department with the concurrence of the Minister for Finance govern every aspect of it's existence. This includes school discipline. Although the school had an obligation to adopt a code of discipline and had failed to do so, this cannot alter the nature of the function of the school. The provisions for discipline are no different in character from any other of the Rules governing these schools. They are not consensual in nature. Nor do they become so because, where different schools may have adopted different codes of discipline, one school rather than another is chosen. In each case, the parameters of the code are governed by the rules. In most cases where redress is sought for what occurs in the classroom there will be a cause of action giving rise to a right of action. However, neither this fact nor the trivial nature of any complaint can affect the supervisory jurisdiction of this Court to deal with the matter, even though in practice it might exercise its discretion to refuse relief on one or both of these grounds.

It is unfortunate that such a submission can still properly be made because it seems to me that Order 84 of the Rules of the Superior Courts 1986 was intended to avoid submissions that the moving party had adopted the wrong procedure. In particular Order 84 Rule 22(1) and Order 84 Rule 26(5), neither of which apply in the present case, are designed to this end.

The Applicants submit that they should have had an opportunity to make representations to the Board before any decision was made. The obligation upon the Board was to act fairly. What procedures are or are not fair depend upon the nature of the tribunal, the nature of the matter requiring the decision, and the effect of an adverse decision upon the person affected. I do not see that there was any breach of what was required. The Principal of the school was left with a situation which he felt ought not to be dealt with by him alone. He wrote to the parents so that they could meet him to discuss the matter. At no time did the parents show any surprise or indicate in any way that they were not aware of the purpose of the meeting. At that meeting the parents refused to address themselves to the matter at issue but made legalistic points. The Principal was fully entitled to bring the matter before the Board and to tell it's members that the parents had adopted an unhelpful attitude. Some form of disciplinary action had to be taken and that taken was perfectly reasonable.

The reaction of the parents was to seek a meeting with the Chairman of the Board and then with the Board itself. These parties behaved perfectly properly. The parents were given an opportunity to say why they opposed the suspension. They did not do so which really was not surprising because the offending note spoke for itself and was indefensible. They saw nothing to require an apology either by their son or by themselves. When they reiterated this opinion by letter the Board met again. They reconsidered the matter and imposed the suspension. This again was perfectly proper.

The Applicants seek to establish that these latter meetings of the Board were not bona fide in the sense that the Board members acted with closed minds. That was not the position. The members made it clear that an apology would end the matter. There was nothing closed about the minds of the members who said that and such decision was unanimous. Of course there may be cases where a tribunal may be barred from dealing with a matter which has already come before it. Such cases would arise amongst others where disputed evidence had been ruled on improperly so that the tribunal could not come fresh to the issue to be determined on the second occasion. That was not the case here. The facts were not contraverted.

It has not been suggested in any of the affidavits filed on behalf of the Board, but it seems to me that the offending note was not the work of Alan Murtagh and that Mr. Ward and the Board may well have suspected that that was so. This would certainly explain their agreement to accept an apology from the parents. Consideration of the contents of the offending note suggests that it was composed by an adult and an adult who held ill will against Mrs. Rooney. In particular, who does or does not wish to become headmistress does not seem to me to be a topic of conversation amongst eleven year olds though it may well be a subject for a staff common-room. Bearing in mind that the note appeared the day after the original incident, it seems more than probable that Alan's parents were the real authors of that note-even though it was written by the boy himself. If this is so, then their attitude on the 25th of April merely compounded what they had already done. Mr. Ward was looking for a way around an impasse, all be it of his own making since he ought long since to have dealt firmly with the matter. Taking this view as I do on the authorship of the note, even if there had been any ground for impugning the decision of the Board I would have exercised my discretion against granting relief.
               
In the circumstances the relief sought will be refused.