Australia: NSW Court dismisses school's bullying appeal

Last Updated: 28 July 2013
Article by Mal Byrne

In a recent blog, I discussed the New South Wales case of Oyston v St. Patrick's College. In that case, a single judge of the NSW Supreme Court found that the college breached its duty of care to a student who had been bullied over a period of four years. While the school had policies in place on bullying, the court found that the school was liable for the psychiatric injury suffered by the bullied pupil because it had failed to consistently implement its policy when the many instances of bullying that the pupil suffered were reported. Subsequent to that decision, the College appealed to the Full Court. The appeal was unsuccessful.

The facts of the case were disturbing. The victim Jazmine Oyston began to be bullied in the latter half of 2002 by several girls in what was described as the "popular group" within her class. Initially, the bullying took the form of sniggering, name calling, nudging and jostling. However, while the bullying was low level, it was constant and took place before during and after school every second day on average. The bullying even occurred during swimming carnivals and school sports days.

In 2003, the bullying intensified. It occurred on a daily basis and escalated to physical bullying which included Ms. Oyston being pushed in the corridor three or four times a week and on one occasion, being struck in the head by a plastic coke bottle.

Ms Oyston reported the bullying to her Year Coordinator who simply asked her to write down what happened and referred her to the college counsellor. No further action was taken. Understandably, Ms Oyston became reluctant to report any further incidents to the same Year Coordinator.

Towards the end of 2003, Ms Oyston reported the bullying to another teacher. She continued to report the various incidents that occurred once or twice a fortnight. Several incident reports were completed. Ms Oyston's mother also complained. Ms Oyston began towards the end of 2003 to express suicidal ideation.

The most severe bullying took place during 2004. At this stage, Ms Oyston was clinically depressed, experiencing panic attacks and engaging in episodes of self-harming with a razor blade. On 5 February 2004, Ms Oyston attended a public hospital with what looked like a panic attack. She reported the bullying to a doctor who wrote a letter to the school. The school scheduled a meeting the following day. All that was decided at the meeting was that various teachers at the school keep an eye on Ms Oyston and watch out for any bullying incidents. The perpetrators were not approached or dealt with.

The bullying continued and Ms Oyston became even more unwell.

On April 2004, Ms Oyston was attacked by several girls in the school toilet. Ms Oyston reported the incident. Once again, the perpetrators were not approached even though school policy dictated that they should be suspended at the very least. The school did not take action against any of the alleged perpetrators until August 2004. All that happened was that the girls were required to enter into a behaviour contract. One of the girls breached the behaviour contract shortly thereafter. Towards the end of 2004, it was quite clear that Ms Oyston had developed an eating disorder as part of her overall illness. The bullying was continuing. The Year Coordinator arranged various meetings this time with the perpetrators but no action was taken. Once again, the Year Coordinator simply asked teachers to keep an eye on things.

By early 2005, Ms Oyston was suicidal. Ms Oyston was admitted to Campbelltown Hospital on 2 March 2005 and was withdrawn from the school shortly thereafter.

The primary judge had found that the college's responses to the bullying were inadequate. It had failed to document complaints, act on complaints and to monitor the situation to ensure that Ms Oyston was not subjected to ongoing bullying. Whilst the bullying policy on paper was fine, it was not being implemented. The judge pointed out that the school was giving too much emphasis to supporting students engaging in misbehaviour at the expense of protecting the victim. Instead of insisting that the bullying cease, the school's approach was to provide the victim with counselling to help the victim better deal with the bullying.

The college appealed the decision to the Full Court arguing that:-

  1. Ms Oyston was not being bullied on an ongoing basis and that the episodes were more isolated;
  2. That the college was not aware of the full extent of the bullying;
  3. That there were no "known bullies" and that the incidents were more isolated;
  4. That the college's policies conferred a discretion upon teaching staff as to how complaints of bullying should be dealt with and that on each occasion that bullying was reported, the relevant teacher exercised the discretion properly, or at least without negligence;
  5. That the steps taken by the college were consistent with its written policy;
  6. That there was ample evidence that Ms Oyston's health was monitored.

The appeal court of three judges did not agree with the school. The Court found that the Year Coordinator drew a "spurious distinction" between what she described as bullying and "inappropriate behaviour". Incidences of bullying were classified as inappropriate behaviour and not dealt with as bullying. The Court also found that the bullying experienced by Ms Oyston was relentless, that the college was on notice early in the piece, that the complaints were not adequately investigated and little action was taken.

While the court found that it was not reasonable to expect the school to ensure or guarantee that the student was not bullied, that it was required to take reasonable steps to protect the victim including identifying the perpetrators and to take such action as reasonable to prevent repetition of the bullying by those perpetrators.

Such reasonable steps required that perpetrators be made well aware of the unacceptability of their contact and if that required expulsion, so be it. At no point did the college really engage in any action that would have deterred perpetrators from re-offending.

What his decision reinforces is that schools must not only have a policy to deal with bullying, but must fully enforce that policy on each and every occasion that an incident is reported. Where bullying occurs, there is a victim and a perpetrator. In my experience, schools make the mistake of treating bullying reports as a dispute between two students that has to be mediated and resolved rather than wrong doing where a victim needs to be supported and a perpetrator needs to be made well aware that his/her conduct is unacceptable and that s/he will be punished if s/he doesn't stop. The priority should be protection, not peacemaking.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.