Ness v Secretary, Department of Education [2019] NSWCATAD 222

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ness v Secretary, Department of Education [2019] NSWCATAD 222 Hearing dates: On the papers Date of orders: 29 October 2019 Decision date: 29 October 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: The application is dismissed. Catchwords: ADMINISTRATIVE REVIEW – no reviewable decision – request to refer a question of law to Supreme Court - costs – special circumstances – exercise of discretion – no point of principle Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Education Act 1990 Inclosed Lands Protection Act 1901 Inclosed Lands Protection Regulation 2018 Cases Cited: None cited Category: Principal judgment Parties: Kristel Ness (Applicant) Secretary, Department of Education (Respondent) Representation: Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent) File Number(s): 2019/00153829 Publication restriction: Nil

REASONS FOR DECISION 1. The applicant, Kristel Ness, has two children who attended a primary school in a Sydney suburb (the school). Ms Ness made various complaints about the school and the treatment of her children which were responded to by officers of the NSW Department of Education (the Department). On 14 May 2019, Ms Ness made an application to the Tribunal seeking review of three decisions which had been made by officers of the Department. 2. The first decision was made by Andrew Stevenson, Director Educational Leadership, Pittwater Network on 14 February 2019. Acting under the Inclosed Lands Protection Act 1901 (the Inclosed Lands Act) Mr Stevenson issued a direction that Ms Ness was not to enter the school site without his prior approval. The direction was made as a result of what was regarded as inappropriate behaviour by Ms Ness during the first two weeks of Term 1 which posed a health and safety risk to staff and parents. 3. The second decision is dated 27 March 2019 when Mr Stevenson wrote to Ms Ness in response to her complaint about the "Sight Words Program" conducted at the school. It appears the school had trialled the program with kindergarten students and Ms Ness's complaint dated back to 2017 at which time one of her children was in the class. Ms Ness alleged that "unethical human experimentation" had taken place at the school as a result of the program; that the school had links with Macquarie University and that parents were not informed about the program and written parental consent had not been sought. Mr Stevenson found that Ms Ness's complaints were not substantiated. 4. The third decision was made on 11 April 2019 by Cathy Brennan, Executive Director School Performance, Metropolitan North Operational Directorate in response to a request by Ms Ness for review of the two decisions made by Mr Stevenson. Ms Brennan upheld the decisions made by Mr Stevenson. 5. In her application to the Tribunal Ms Ness sought review of the three decisions on several grounds which in general were framed as errors of law in the nature of judicial review. The orders she sought were for certiorari, prohibition and, in relation to the third decision "a merit review ... or in the alternative an order in the nature of mandamus, remitting the matter to the Minister for Education". 6. During the course of written submissions provided in these proceedings, Ms Ness also referred to another matter – the "constructive cancellation of enrolment/expulsion" of her children from the school which she states was the collective effect of the three decisions outlined above.