New South Wales Supreme Court CITATION : Boxx v Aquilina [2000] NSWSC 166 CURRENT JURISDICTION: Common Law Division Administrative Law List FILE NUMBER(S) : SC 30006/2000 HEARING DATE(S) : 10 March 2000 JUDGMENT DATE : 15 March 2000 PARTIES : Julia Boxx (Plaintiff) John Aquilina MP (Defendant) JUDGMENT OF : Dunford J COUNSEL : RPL Lancaster (Defendant) SOLICITORS : Plaintiff in person IV Knight Crown Solicitor (Defendant) Education Act 1990, ss 71 & 72 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Supreme Court Act 1970, s 63 DECISION : Summons dismissed. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST DUNFORD J WEDNESDAY 15 MARCH 2000 30006/00 - Julia BOXX -v- John AQUILINA - Minister for Education and Training JUDGMENT 1 HIS HONOUR: These proceedings concern the registration of the plaintiff's six children for home schooling under Pt 7 Div 6 of the Education Act 1990 (the Act). 2 Sections 71 and 72(1) and (2) are as follows: 71 (1) A parent of a child may apply in writing to the Minister for registration of the child for home schooling. (2) As soon as practicable after such an application is made, the Minister is to obtain advice on the application from an authorised person. (3) The authorised person is to notify the applicant in writing of a recommendation to the Minister that the application be refused. 72 (1) As soon as practicable after receiving the recommendation of an authorised person about an application for registration of a child for home schooling, the Minister: (a) is to register the child in a Register kept by the Minister for the purpose, or (b) is to refuse to register the child. (2) The Minister is to register the child if the Minister, having regard to: (a) the recommendation of the authorised person about the application, and (b) any decision of the Tribunal on an application for a review of the authorised person's recommendation, is satisfied that the conditions subject to which registration is required to be given will be complied with. 3 Section 72(4) provides for a right of review in accordance with the Administrative Decisions Tribunal Act 1997 in cases were the authorised person recommends that the Minister refuse to register a child for home schooling, such right of review to be exercised within 30 days of the applicant being given notice of the recommendation. 4 Subsections (5) and (6) of that section provide for the Minister to notify the applicant in writing of his decision to refuse to register a child for home schooling or if the child is registered, for a certificate of registration to be issued for the child. 5 Section 73 provides that registration of a child for home schooling is subject to the conditions certified in the certificate of registration which must include a condition for the child to receive instruction that meets the relevant requirements of Pt 3 of the Act relating to the minimum curriculum for schools, and such registration is to be limited to such period (not exceeding two years) certified in the certificate of registration. 6 The applicant's six children were previously registered for home schooling which registration expired 12 September 1999. It is apparent that at least since 1995 there has been some dispute between the plaintiff on the one hand and the Minister and his Department on the other as to what information should be supplied by an applicant for registration. 7 By letter dated 6 August 1999 to the Minister the applicant applied for registration, and the last paragraph of such letter was as follows: "I will provide for these children to receive instruction that meets the relevant requirements of Pt 3 relating to the minimum curriculum for schools, the condition to which registration is subject as provided for under ss 22(b) and 73(2)(b) of this Act". 8 Mr Phil Lambert was appointed authorised person for the purposes of s 71(2) and the plaintiff was invited to permit a home visit by the authorised person or to submit any further documentation or oral information in support of the application beyond the statement of her letter of 6 August quoted above. She declined to do so. 9 In his report of 28 September 1999 Mr Lambert noted that he had insufficient information to determine whether her current approach complied with minimum curriculum requirements and that no information had been provided with the current application regarding the educational facilities and resources used or to be used for home schooling; and he recommended that the applications for home schooling be refused. 10 His recommendation was not notified to the plaintiff until 26 October 1999 and no explanation has been provided for the delay. On that date the plaintiff was advised by letter of the result and of her right to seek an internal review of the recommendation. 11 She replied by letter to the Minister on 10 November 1999 in which she stated, inter alia, that she need not and would not be appealing Mr Lambert's recommendation, and concluded by saying: "You are required by law to as soon as practicable after the 24th November register or refuse to register my children. I expect you to immediately thereafter register my children and issue me certificates valid for two years and free of any conditions as proof of those registrations". She did not seek an internal review and did not lodge any appeal. 12 There was no response from the Minister until 14 February 2000 and in the meantime the plaintiff instituted these proceedings by Summons filed 2 February 2000 in which she sought an order that the defendant "make a decision pursuant to s 72(1) and as the case may be from that fulfil his duty pursuant to Section 72(5) or s 72(6) of the Education Act 1990 on the Plaintiff's application for registration of the children for home schooling". 13 The Summons was returnable in the Directions List on 15 February 2000, but on 14 February the Minister replied in which he noted his statutory duty to ensure that every child gains an education that meets the minimum curriculum requirements set out in the Act, and went on that in order to make an informed and responsible decision he required information which confirmed that the program proposed by the plaintiff met the minimum requirements set down by the Act. 14 He said that given her personal dedication he was certain that the information he required would be readily available to her, but that he was not able to make an appropriate decision on the sole basis of her assertions that her program met the minimum requirements. 15 He indicated he was prepared to ask an authorised person to reconsider her application when he was in receipt of the necessary information, including a description of the educational programs she employed and/or information about the progress and achievements of her children, and concluded that if the forthcoming information was not available by the close of business on 18 February, he would have regard to the current recommendation of the authorised person and refuse the application. 16 In the light of that letter, on 15 February the matter was stood over to the Directions List on 29 February. No further information was provided by the plaintiff, and on 28 February the Minister again wrote to the plaintiff, again referring to her failure to provide any information including any description or data about the progress and achievements of her children, and pointing out that he required this information to fulfil his statutory obligations under the Act. He went on: "In these circumstances and having reviewed the limited material available to me in respect of your applications, those applications for registration are hereby refused." 17 At the Directions hearing on 29 February, the Minister's solicitor submitted that in the letter of 28 February the Minister had made a decision as sought by the plaintiff, even though it may not have been the decision she wished. But the plaintiff submitted that the letter of 28 February was not a decision within s 72(1) and indicated that she wished to proceed with her Summons. 18 I inquired whether she wished to amend her Summons to include a claim that the decision was wrong and ought to be reversed and invited her to seek to amend her Summons but she declined (see transcript of 29 February 2000 at pp 1 and 2). I therefore set the matter down for final hearing before me last Friday, 10 March. 19 In detailed written submissions the plaintiff claims that the Minister's statement in his letter of 28 February that "...those applications for registration are hereby refused", may not be taken to mean a refusal to register the children. She submits that s 72(1) authorised the Minister to do one of two things, namely "to register the child" or "to refuse to register the child", and that merely to state that "these applications for registration are hereby refused" does neither. 20 Section 71(1) provides that a parent may apply for registration of a child for home schooling, and subss (2) and (3) used the term applicant and applications, as does s 72(1). The application is an application for registration of the child for home schooling and if such application is refused, what is refused is the application for registration, which clearly means that the Minister has refused to register the child for home schooling. There is no difference in substance or effect between stating that the application for registration is refused and stating that he has refused to register the child. 21 In her written submissions the plaintiff submitted that the Act makes a distinction between the application and the child, and that by refusing the application as opposed to refusing to register the child the Minister has not maintained this distinction. As the application is an application in respect of the child I consider that this submission lacks substance. 22 She also submitted (third argument) that because the Minister states he requires certain information to fulfil his statutory duties under the Education Act, it follows that he does not have the information he requires to fulfil his duty under s 72(1), and it is therefore illogical to refuse to register the children. 23 Section 72(2) requires, that before registering the child (or granting the application), the Minister must be satisfied that the conditions, subject to which registration is required to be given, will be complied with. Those conditions include that the child will receive instruction which meets the relevant requirements relating to the minimum curriculum for schools, s 73(2)(b). 24 As pointed out in the Minister's letter of 28 February 2000, the key element of what he required was a description or data about the progress and achievements of the children. This the plaintiff had refused to supply. As he had said in his letter of 14 February, he was not able to make an appropriate decision solely on the basis of the plaintiff's assertions that her program meets the minimum requirements. In those circumstances he had no alternative but to refuse the registration of the children for home schooling. 25 The fifth argument in her written submissions, as I understand it, is closely related to the last argument and is to the effect that the Minister cannot require or obtain any information beyond that obtained by the authorised person. But in a situation where the parent has refused to furnish to the authorised person, information necessary to the Minister to consider before determining the application, I can see no reason why the Minister should not give the applicant a further chance of making up the deficiency by supplying the information directly to him before refusing the application. 26 A further submission by the plaintiff was to the effect that because in his letter of 28 February he invited her to provide further information he was not making a decision on the application but merely putting it aside. Actually it was the letter of 14 February which invited further information, with the 28 February letter merely stating that because no further information had been provided the application was refused. 27 But even if the letter of 28 February is construed as an invitation to submit further information, that does not mean that the application had been put aside and not determined. The letter of 28 February clearly determined the application as at that time, even if it is construed as leaving open the possibility that the determination may be reviewed if the further information is supplied. 28 In written submissions faxed to me yesterday (with a copy to the defendant's solicitor) the plaintiff referred to s 109(2) of the Act and submitted that, by the operation of that provision in conjunction with s 6(4) of the Administrative Decisions Tribunal Act 1997, the Minister is to be taken as at 6 January 2000, five months after the date of her original application, to have made a decision to refuse to make a decision and that, therefore, his letter of 28 February cannot amount to a decision. 29 I do not consider those provisions to be in any way relevant to the present application. If they had the effect contended for by the plaintiff it would mean that it was not competent for the Minister to make a decision after 6 January 2000 and therefore mandamus would not run to compel him to do so now. The only time specified for making a decision under s 72(1) is "as soon as practicable", subject only to allowing 30 days an application to review the recommendation pursuant to s 72(4). 30 For these reasons I am satisfied that whether it be expressed as a refusal of the application or a refusal to register the children, the plaintiff received a decision on her application on 28 February and the claim for the substantive relief sought in para 1 of the Summons must be refused. But for the avoidance of doubt and having regard to the provisions of s 63 of the Supreme Court Act 1970 and SCR Pt 40 r 1, I consider it appropriate to make a declaration as to the effect of the defendant's letter of 28 February. 31 However, by her Summons the plaintiff also sought an order for costs. She submitted her application on 9 August 1999, the recommendation of the authorised person was made on 28 September but there has been no explanation on behalf of the defendant as to why she was not notified of it until 26 October; and in any event, as the plaintiff made clear in her letter of 10 November, she was entitled to and required an answer promptly after the expiration of the time fixed by s 72(4), that is 25 November; and as already noted s 72(1) requires a decision as soon as practicable after the recommendation is received, subject only to s 72(4). 32 After 25 November 1999 there was deadly silence from the Minister, and in my view the plaintiff was more than justified in commencing these proceedings on 2 February 2000, and in maintaining them up to and including 29 February, bearing in mind that the decision by the Minister was only made and notified to her the previous day. 33 However, since 29 February there was no need or valid reason to continue the proceedings and on the substantive issues argued at the final hearing, the plaintiff has failed. The plaintiff has appeared in person and therefore is not entitled to any professional costs, only to expenses and disbursements. 34 I, therefore, declare that the defendant's letter to the plaintiff bearing date 28 February 2000 constitutes a refusal by the defendant to register for home schooling the plaintiff's children, namely, Eli, Zachary, Abraham, Martha, Esther and Seth Boxx. 35 I order that the defendant pay the plaintiff's expenses and disbursements up to and including 29 February 2000 and order the plaintiff to pay the defendant's costs of the proceedings after that date. Save as aforesaid, the summons is dismissed. -------------------------- Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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