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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McKenna (a Minor) v. O Ciarain [2001] IEHC 215 (30 November 2001)
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Cite as: [2001] IEHC 215
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McKenna (a Minor) v. O Ciarain [2001] IEHC 215 (30 November 2001)
    THE HIGH COURT
    JUDICIAL REVIEW 2000 No. 755 JR
    BETWEEN
    DAVID McKENNA (A MINOR SUING BY HIS FATHER
    AND NEXT FRIEND ADRIAN McKENNA)
    APPLICANT
    AND
    GEARÓID Ó CIARÁIN
    RESPONDENT
    AND
    BY ORDER OF THE COURT COUNTY WICKLOW VOCATIONAL EDUCATIONAL COMMITTEE
    RESPONDENT
    AND
    THE BOARD OF MANAGEMENT OF COLÁISTE RÁITHÍN
    NOTICE PARTY
    JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered on the 30th day of November, 2001.
    1.      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;
    2.      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.
    3.      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.
    4.      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.
    5.      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.
    6.      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 vires insofar 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, 2000. The first respondent says that the cases of B and E, being the applicant and one other student, were put before the meeting to see whether fresh information would come to light that would show that the facts put before the Board by the Principal were not accurate. He says that the reason that the applicant and this other student were before the meeting of the 15th November, was to see whether fresh evidence in their favour existed. He says that there was no such fresh evidence and that was the only reason in accordance with legal advise that the case of the applicant and this other student were put before the meeting.
    7.      The first respondent further complains that the decision to set aside the suspension of the applicant was irregular. He complains that neither the Minutes of the meeting of the 6th or of the 15th November, 2000 were before the VEC at its meeting of the 21st November, 2000. In this regard he relies on paragraph 2.8.2 of the Constitution of the Board of Management of the school and Section 21(5) of the Vocational Educational Act, 1930. He further complains that he wasn’t given a hearing before the VEC and that the rules of natural justice were breached in this regard. He further complains that the VEC did not have the submissions of the first respondent nor the report of what occurred on the Aran Islands. He says that insofar as the VEC did not have all the appropriate information before it that any decision that they reached would be defective. He further complains that a letter which he wrote on the 20th November, 2000 was not before the committee, nor was any reference made to it. He further complains that on the 23rd November the letter was not before the members of the VEC either.
    8.      He further complains that he has received no reply to the questions raised in that letter. The first respondent further complains of breach of confidentiality and finally he complains that no distinction was made between the various students in regard to their blameworthiness in circumstances where legal advice was received that this was necessary.
    9.      While a considerable portion of the affidavits put before this Court relate to the ancillary matters concerning the manner in which the meetings of the 6th and 15th November were conducted and whether they breached rules as alleged, on behalf of the applicant and of the second respondent it is submitted that this Court should not permit a collateral attack to be made on the meetings of the Board of Management or of the VEC and its subcommittee.
    10.      It is to be noted that in the context of the letter of the 20th November, 2000 sent by the first respondent to Mr Hugh O’Brien, Chief Executive Officer of the VEC, he noted that the Board had rejected his proposal for the removal of the applicant from the school. In this regard he refers to the applicant as “a hazard”. He said that this left the onus of responsibility entirely on him and that he may be found negligent in the event of any future injuries being caused by David McKenna to anyone in the school. He proceeded to say as follows:-
    “In view of the situation which has now emerged I now require a precise direction from the VEC on how I may extradite both myself and the VEC from legal responsibilities which seem to exist. You will understand that I may need independent personal legal advice on this situation as my professional responsibility may supersede that of the VEC.”
    11.      Unfortunately, the first respondent has failed to exhibit with his affidavit the reply that was furnished to him on foot of this particular letter. In fact by letter of the 27th November, 2000 Mr Hugh O’Brien, Chief Executive Officer wrote to the first respondent addressing his letter of the 20th November, and the points raised therein as follows:-
    “The first point was your anxiety that you may be negligent if you do not remove a person whom you believe may present a hazard to other students or, indeed, to himself. The Committee’s legal advisor is quite clear that since you have done everything you could be expected to do right up to the point where you have advised the Board about the position as you see it, no further legal liability can be attached to you.
    The second point concerns Item 10 in the Constitution of the Board of Management particularly on the issue of “every effort made at rehabilitation.
    The legal concern was that this could place the duty on the school to attempt rehabilitation especially if expulsion were to be imposed.
    The third point at the conclusion of your letter referred to a specific undertaking by parents in relation to any future misbehaviour on the part of the sons, i.e, they would voluntarily withdraw their sons from the school. The VEC, at its meeting on 21 November amended this. It was agreed that should the students re-offend, the VEC would seriously consider stronger actions (with due process) rather than leave such an action in the hands of the parents.”
    12.      While the first respondent has indicated his understanding of what the meeting of the 15th November, 2000 was intended for, it is clear that insofar as he was directed to write a letter to each of the parents which in fact he sent to all of the parents including the applicant’s parents, the notice indicated to the recipients of the letter that the findings and recommendations of the meeting held on the 6th November were then quashed and indicated that the matter was going to be addressed afresh.
    13.      By reference to the decision of Finlay P. in the case of Comhaltas Ceolteoirí Éireann (Unreported, High Court, 14th December, 1977) and the case of Smith -v- East Elloe RDC [1956] 1 All ER 855, it is submitted on behalf of the applicant that it is not open to the first respondent to launch a collateral attack on the validity of the decisions reached at the meetings of the Board of Management on the 15th November, 2000 and the subsequent meetings of the VEC and its subcommittee. It is clear from the authority there opened that if the first respondent wished to challenge those decisions that he should have done so in an appropriate manner by appropriate proceedings and it is not opened to him to attack the decisions of those meetings in the manner by which he seeks to do so in these proceedings by way of a collateral attack.
    14.      The essential situation in this case is that governed by the Constitution of the Board of Management which is itself a subcommittee of the VEC, having regard to the provisions of Section 21(1) of the Vocational Educational Act, 1930. This arises in the context of Articles 9 and 10 of the Constitution which deal with suspension and dismissal respectively. It is appropriate to quote the provisions of these Articles in full:-
    “9 Suspension
    In cases where the code of conduct is continuously breached or where all other efforts to resolve a disciplinary situation have failed, the Principal shall be empowered by the Board to suspend pupils from attendance up to a maximum of three days. In exceptional circumstances where the nature of the incident dictates that the pupil be removed from the school immediately, a longer period of suspension may be imposed by the Principal to enable consultations with the parents and/or with the Board to take place.
    10 Dismissal
    Where every effort at rehabilitation has failed and every other sanction exhausted, the Principal shall put a proposal for dismissal before the Board for its consideration and recommendation. The parents shall be afforded an opportunity to attend the Board meeting at which the proposal for dismissal is being discussed. The parents shall be informed that they have the right to appeal a recommendation for dismissal by the Board to the VEC through the CEO.”
    15.      By reference to these particular provisions of the Constitution it should be abundantly clear that the Principal in any VEC College is given a limited power of suspension essentially for a maximum of three days and only for a longer period in “exceptional circumstances”. It is clear that in the instant case the Principal has purported to maintain the applicant on suspension for an indefinite period, notwithstanding the several meetings of the Board and the subsequent directions received by him in writing from the VEC through its Chief Executive Officer. While the first respondent has in effect sought to submit that the decision of the first meeting of the Board of Management on the 6th November, 2000 is valid insofar as it pertains to the applicant and has never been validly set aside or rescinded, he cannot maintain an entitlement to keep the applicant on suspension in light of the provisions of Section 21(5) of the Vocational Educational Act, 1930 which states as follows:-
    “The acts of every subcommittee of a Vocational Educational Committee shall be subject to confirmation by such committee, save where such committee with the sanction of the Minister dispenses with the necessity for such confirmation.”
    16.      The effect of this section is that any recommendation made by the Board of Management whether for dismissal or a prolonged period of suspension is subject to a decision of the Vocational Educational Committee. In the instant case there has never been any confirmation of any proposed expulsion of the applicant and furthermore 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. Accordingly, I am of the view that the action of the first respondent in maintaining a situation to keep the applicant out of the school contravenes the provisions of Section 21(5) of the Act of 1930 and fails to have regard to the fact that any decision of the Board of Management, even one taken in support of any proposal on his part, required the confirmation of the VEC before it could have any legal effect.
    17.      I am also satisfied, from the evidence before this Court, that the subcommittee of the Vocational Educational Committee sought to address the situation by noting the concerns expressed by the first respondent and causing them to be addressed by the Chief Executive Officer. In this regard I am satisfied that the decisions of the subcommittee were complied with insofar as they placed any obligation on the subcommittee towards the first respondent.
    18.      Vocational Educational Committees, including the second respondent, have been established at law under the terms of the Vocational Educational Act of 1930.
    19.      Counsel for the first respondent has referred the Court to a number of authorities dealing with the issue as to when Judicial Review will lie. In this regard counsel has referred the Court to the case of Murphy -v- The Turf Club [1989] IR 171, O’Neill -v- Iarnród Éireann [1991] ILRM 129, Murtagh -v- St. Emer’s National School [1991] ILRM 549, Browne -v- Dundalk UDC [1993] 2 IR 512, Rajah -v- The College of Surgeons [1994] 1 IR 384 and finally to the case of Healy -v- Fingal County Council (Unreported, High Court, 17th January, 1997) in which Barr J. referred to the decision of Finlay C.J. in the case of Beirne -v- Commissioner of An Garda Síochána [1993] ILRM 1. In this latter case Finlay C.J. stated inter alia as follows:-
    “The principle, which, in general, excludes from the ambit of Judicial Review decisions made in the realm of private law by persons or tribunals whose authority derives from contract is, I am quite satisfied, confined to cases or incidences where the duty being performed by the decision making authority is manifestly a private duty or where his right to make it derives solely from contract or solely from consent or the agreement of the parties affected.
    Where the duty being carried out by a decision making authority ... is of a nature which might ordinarily be seen as coming within the public domain, that decision can only be excluded from the reach of the jurisdiction in judicial review if it can be shown that it solely and exclusively derived from an individual contract made in private law.”
    20.      I am of the opinion that the cases cited by counsel for the first respondent were cases which were essentially determined upon their own facts and do not establish in the most part clear criteria. However, it can be said that if the respondent is a body which does not derive its authority from statute and where the relationship between the applicant and the respondent is one derived solely from contract Judicial Review will not lie. Had this case related solely to the power of the first respondent to impose a period of suspension for three days in accordance with the provisions of Article 9 of the Constitution, it is doubtful that the Judicial Review would lie in such a case in light of the decision in the case of Murtagh -v- St. Emer’s National School. Counsel for the first respondent referred me to the authority of the State (Smullen) -v- Duffy [1980] ILRM 46 where the High Court indicated:-
    “That it would seem an essential power to give to the principal of a school with disciplinary responsibility and powers over a number of pupils that he or she should be entitled, after a bona fide investigation carried out in the informal way which one would expect from a school master with pupils under his care rather than from a court on the trial of a criminal charge, to make an immediate suspension of one or more pupils in order to maintain peace and discipline within the school.”
    21.      In the instant case the power to suspend for more than three days or to expel a student is one which ultimately is governed by statute insofar as it is vested in the Vocational Educational Committee itself and not in the Board of Management or the Principal of a VEC school. This situation can be contrasted with the facts in the Rajah case referred to by Counsel for the first respondent where the High Court held that the jurisdiction of the respondents in that case was derived from the contract which came into being when the applicant became a student of the Royal College of Surgeons.
    22.      As against the authorities cited by Counsel for the first respondent, Counsel for the applicant has referred this court to the authority of M.Q. -v- Gleeson [1998] 4 IR 85 which concerned the suspension of a student from a course of studies run under the auspices of the City of Dublin Vocational Educational Committee. In that particular case Barr J. held that Judicial Review lay against the decision of the Vocational Educational Committee withdrawing the applicant from the course of studies in question.
    23.      In submissions made on behalf of the first respondent reliance is placed upon the principle of respondeat superior to the effect that even if the first respondent was at fault that it is the VEC that is responsible for his actions. Insofar as the VEC has conceded that the applicant, in the instant case, in entitled to the essential reliefs which he seeks, I am further of the opinion that having regard to the same principle that it is not open to the first respondent to question the appropriateness of the relief of Judicial Review in circumstances where the VEC is acting on a statutory footing and the power to suspend for a longer period than 3 days or to expel a student is governed by the provisions of Section 21(5) of the Act of 1930.
    24.      While I have indicated in the course of this judgment that I do not believe that the first respondent is entitled to mount a collateral attack upon the decisions of the Board of Management or of the committee of the Vocational Educational Committee including a subcommittee thereof, the evidence before this Court in any event is such that, if the applicant were entitled to mount such a challenge, I would in my discretion refuse the relief that he seeks, having regard to the clear picture that emerges whereby the first respondent changed the basis upon which he opposed the lifting of the suspension on the applicant and particularly in circumstances where the decision to lift the suspension was put in abeyance for a short period of time to enable the VEC to communicate with the first respondent and to address the concerns raised by him in his letter of the 20th November, 2000. I am satisfied that the first respondent has not adduced evidence that any member of the Board of Management who attended the meeting of the 15th November 2000 was not entitled to participate at the meeting. There is no evidence that the draft minutes furnished to the VEC failed to accurately record the proceedings of the meeting of the 15th November and that meeting was conducted in the presence of a solicitor who attended to render advice to the members of the Board. The affidavit of Hugh O’Brien demonstrates a total disregard on the part of the first respondent for the authority of the VEC insofar as he persistently refused to allow the applicant back into the school despite several oral and written directions issued to him. While the first respondent has sought to accuse others of acting unlawfully in making the decisions of which he complains, it is clear that he himself has no legal authority to maintain on suspension a student such as the applicant for a prolonged period of time especially in the absence of any confirmatory decision taken by the VEC itself. Further, insofar as the first respondent is critical of the nature of the decision taken by the Board of Management insofar as it did not distinguish, in a manner which he considered to be appropriate, the actions of the applicant and other students in the school, I am satisfied that if there was any substance to this complaint that it would be a situation of a complaint in relation to the decision itself rather than the decision making process of the Board of Management and it would not be susceptible to Judicial Review.
    25.      In conclusion, I am satisfied that the applicant is entitled to the relief of mandamus at paragraph 1 of the Notice of Motion and to the injunctive relief at paragraph 4 thereof.

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