Two parents (the Parents) have lost their appeal against an order to pay school fees, after withdrawing their child from a College in Western Australia (the College). The appeal, which was heard in the District Court of WA, determined that the Parents’ defence, filed in court, was not ‘reasonably arguable’ and therefore doomed to fail. This case is an interesting example of the implications of the promises that schools make to parents in their mission statements.

The case

A student, whom we shall call WM, was enrolled at the College. He was subsequently withdrawn from it in 2012 after, as his parents claim that he disclosed to them, he was being bullied at school.

WM was then enrolled in a state school, but did not complete his Year 12 exams and left school. The Parents claim that this was because of the effects of the bullying at the College. They declined to pay their College school fees, and the College sued, claiming the sum of $42,489.49.

The Parents filed a defence and counter-claim against the College. In the Parents' suit, they alleged that:

• the bullying was brought to the attention of the College on at least 10 occasions between 2008 and 2011, but the College failed to take any steps to reduce the bullying;
• WM was ridiculed and called names by other students in front of teachers; and
• WM was bullied and ridiculed on school outings and on camp.

The Parents claimed that the College had breached its contract with them by failing to deal with complaints of bullying, failing to provide a safe environment, and failing to educate WM in accordance with the College's mission statement. Interestingly, this argument can be run against non-government schools because of the existence of a contract, but not against government schools where there is usually no such contract.

According to the Parents, their contract with the school contemplated that an education would be provided that encompassed teaching students in a holistic approach, allowing them to succeed in academic, social, societal, intellectual, spiritual, sporting and other fields.

As part of their claim, they also specifically alleged that the College failed to appropriately supervise students at its premises, to have appropriate bullying prevention policies, and that the College failed to provide a safe environment for students.

In response, the College sought to have the Parents' claim and defence struck out on the basis that is had no 'reasonable prospects of succeeding'. The College succeeded, and this case was then appealed to the District Court of Western Australia.

The result

The issue for Judge Wager was whether the previous decision by the Magistrates Court against the Parents was incorrect. The Parents failed on all counts in their grounds of appeal, and the Judge found that the decision dismissing the Parents' original case (allowing the College to succeed) should stand.

Judge Wager noted, in passing, that the Parents may be able to run their case differently, but noted also that there was a risk that if they were unsuccessful, they faced the risk of a costs order being made against them.

The observations

A few points can be taken from this case.

First, it illustrates that the duty of non-government schools to provide a level of education to students is governed by the contract signed between the school and the parents. In this case, it was found that the threshold for fulfilling this contractual obligation was low, in the sense that an education was undoubtedly provided. WM was allowed to attend school, duly attended classes and received an education in accordance with the College's mission statement.

Second, the ever-present student duty of care cuts across all areas of a school's legal obligations. In this case, the student duty of care (to prevent bullying) can be seen to exist as a contractual obligation, as well as a common law obligation. That is, the contract provides another source of obligations for the school's duty of care.

Third, this litigation shows the importance of policy management. Had a case such as this proceeded to a full trial, an issue that might arise would be the school's policy. Given that some years had passed, either side would be required to show what the school's policies were at any particular time, and whether they were effective and implemented. Without an effective system of managing policy, this might be an unnecessarily laborious, if not impossible, task.

Fourth, although non-government schools administer an education to their students, often its delivery is governed by legally enforceable, black-and-white contracts. School administrators, principals and boards should all be aware that this is yet another source of obligations that they are required to comply with.

Ultimately, the most disappointing aspect of this case is that no party was able to intervene earlier in the bullying of WM and that the conflict between the parents and the College could not have been resolved earlier, without having to go to court.