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Sydney Speech Night Saga: School and Parents Settle out of Court

12/10/16
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It's hard to forget that controversial speech made by an impassioned 18-year old school captain at a Sydney non-government school's speech day ceremony last year. While the speech was originally intended to go out to the members of the school community, it went viral online and immediately brought forth an onslaught of media scrutiny and public debate. Trial by media was the last thing the school involved expected.

In her speech, the student spoke of the school’s apparent misgivings as well as her feelings of distress caused by her sister’s expulsion in early 2015. The student stated that the expulsion was the subject of an ongoing legal dispute between her family and the school – a comment which triggered an influx of media of attention and public speculation.

Fast forward almost a year and the Chair of the school board has now revealed that the legal dispute has been settled out of court. While the case was scheduled to be heard in the Supreme Court on October 24, the parties decided to mediate and settle the matter privately.

The school has sent out a letter to parents and staff stating that the media allegations about the student’s sister were “false and unfounded” and that “the parties have agreed not to make any further comment”.

School Governance published an article this year on the facts of the incident referred to in the speech and the preventative procedures schools can implement to avoid such fall-outs. The importance of procedural fairness in school disciplinary matters was brought into the spotlight, as well as the reasonableness of expulsion as a method of punishment.

These recent developments showcase the way schools can approach impending court cases. A story about a school being sued by a student's parents is not unique. School matters are often brought before the courts and can arise out of discrimination, unfair disciplinary action, or physical/psychiatric injury. While court proceedings provide parties with legally binding rulings, they are costly and often make small private disputes very public.

To settle or not to settle

It is not wholly surprising that the parties in this case settled outside of court. Court proceedings are public and will comprehensively showcase the internal management of schools. Courts will scrutinise school handbooks, policies, procedures, the history of the school’s management of its students and any other evidence relevant to the proceedings. This may involve interrogating the school’s public policies and procedures, as well as all private communications between staff and students.

On top of this, court cases are notoriously costly, lengthy and require parties to relay their dispute multiple times in a highly public setting. This can be traumatic for all parties involved and may further sever already strained relationships. It is due to this that less than 2% of legal matters go to court.

Court proceedings, the ins and outs

While they have clear draw backs, court proceedings are sometimes necessary in order to settle highly contentious issues, particularly where alternative dispute resolution is unsuccessful.

With this in mind, there are many things schools and parents of students should take into consideration when considering whether or not to go to court.

1. Can either party remain anonymous?

Embarrassment, economic or reputational harm is not enough to get a pseudonym order under the law. The principle of open justice dictates that there is a public interest in having matters before the courts seen and heard by the community.

This means that there is no right to anonymity in court proceedings unless one of the parties falls within an established exception. These exceptions will often apply to children who are victims of serious abuse, children accused of an offence, children who are deceased or persons who identify as victims of sexual offences.

2. Can schools get suppression or non-publication orders to prevent media publication?

Suppression or non-publication orders prevent media outlets from reporting on court proceedings. They are founded on the belief that, in some cases, any media publicity would cause unfairness to the parties and interfere with the proper administration of justice.

These orders usually protect victims of blackmail, trade secrets or national security interests. The NSW Supreme Court has, in the past, permitted the use of a suppression order to prevent the name of a party being leaked to the press on the basis that identification would put the person at risk of physical injury, if not death, in jail. In these instances, the court will weigh up the public interest against the personal safety of the party in order to make a decision.

In another case, a person sought a suppression order on the basis that their grandchildren would be teased or bullied at school if news of the court case was made public. The Court struck down this application stating that teasing is not the same as a real risk of physical injury or death. Courts have emphasised that merely because a matter is embarrassing or damaging to a person’s reputation is not an acceptable basis to suppress media publication.

3. Can the media access the court files?

Non-parties, specifically media outlets, may have access to court files by applying to the relevant court. Court files can include anything from the parties’ arguments and counter-arguments to a comprehensive suite of evidence including meeting transcripts, witness statements, affidavits and emails.

If the court believes that the release of court files has a real possibility of damaging the parties’ reputations or increasing the distress of the victim, it will deny media access. Nonetheless, courts have made it clear that simply because something is embarrassing does not mean that it should be protected. It is in the public interest to allow media outlets access to court files to allow them to write fair and accurate reports of the proceedings.

Courts have also stated that simply because allegations are unfounded and untested does not mean they cannot be ventilated in public. The principle of open justice prevails.

The School’s decision

If the parties had gone to court in this situation – all tendered evidence may have been accessible by the public. As the issue was already in the public domain, it was prudent of the School to settle out of court to avoid further media attention. It is particularly important as evidence consisting of unfounded accusations are still accessible by non-parties on application to the relevant court.

Moreover, courts are often reluctant to issue orders preventing media outlets from broadcasting the matter. This is due to our legal system’s longstanding commitment to open justice and the idea that the community has the inherent right to know about proceedings within our justice system. It also allows the public to perform a watch-dog function over courts in order to protect against abuses of judicial power.

Simply because something is unpalatable, embarrassing or salacious is no reason to prevent media access. Due to this, parties in court proceedings must lay all their issues out on the table when choosing to litigate. Nonetheless, litigation is unavoidable where out-of-court mediation fails – meaning that schools should ensure they can provide comprehensive evidence of all their internal policies and procedures.

The decision to settle out-of-court in this instance was made on the basis that the issue had been in the media and any further litigation would have reinvigorated media scrutiny. Each circumstance has its own unique challenges but schools should ensure that their response to court litigation is appropriate and properly safeguards the school and its community.

 
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About the Author

Kieran Seed

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