Amicus Curiae: On the St Bede’s College Rowing Row Injunction

Elizabeth Murray

The decision to grant an interim injunction to two St. Bede’s rowers to allow them to race in the Maadi Cup has caused controversy among the New Zealand public over the last few days. The two boys, Jack Bell and Jordan Kennedy, were removed from the team after they jumped on a luggage carousel at Auckland Airport and rode it through the rubber curtains to an off-limits area. The parents of the two boys won the injunction on the basis that there was a breach of natural justice in removing them from the team so hastily.

Was this reasoning sufficient to justify granting the injunction? The parents of Bell and Kennedy were quick to point out that they did not defend their sons’ actions. They argued the punishment was not proportionate to the boys’ actions and that the decision making process that occurred was a breach of natural justice. This breach occurred because the head coach, not present at the incident, made the decision to remove the boys from the team without hearing from them first. Conversely, there is the argument that the action was appropriate because it was a serious issue that could not go unpunished. Given the speed at which decisions had to be made, it could be argued it was appropriate for the school to make decisions quickly.

Ultimately, Justice Dunningham believed it would not be possible to fairly compensate the boys had the injunction not been granted and they won subsequent litigation. Was this reasoning sufficient to justify granting the injunction? The urgency of this case seem to have been paramount to Justice Dunningham’s decision. She heard the case at 9am on Monday, as one of the boys had their first race at 11:28am. This decision is understandable. As the parents stressed in their argument, the Maadi Cup is an opportunity to be selected for trial for teams such as the South Island Under-19’s (which Mr Kennedy was hoping to gain selection for). Arguably, had subsequent litigation been won, the boys could not be compensated for the lost chance to trial for these teams. However, of course, if the boys lose future litigation, they are effectively not punished. It could set a dangerous precedent that as long as a student can get the courts to delay proceedings, they will not be punished appropriately.

This leads to an important discussion of the consequences of allowing families to bring such action against schools. The President of the Principals’ Federation Denise Torrey argues that these types of decisions fail to instil in students the reality that there are consequences for breaking rules and that rules are there to outline expected behaviour. The increase in action against school appears to undermine schools’ authority and jurisdiction to punish students for breaking rules. Although factually different from the rower’s case at hand, this issue echoes last year’s problems with hair length in schools.[1] It is a legitimate concern that cases like that of Bell and Kennedy, and Battison v Melloy (where the High Court found for Lucan Battison and said it was unlawful that the school suspended him for his hair length) will bread a culture of litigiousness where parents rush to the courts before looking at other methods of reconciliation with schools. This is definitely University of Canterbury Dean of Law Dr Chris Gallivan’s concern.

It is important to establish in New Zealand the best way to deal with challenging school board decisions and decide whether we want to breed this litigiousness in our justice system.

The latest update in this case is that the boys’ parents are seeking an extension of the interim injunction so that discussions can continue.

[1] Battison v Melloy [2014] NZHC 1462.

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