Australia: Recovery of school fees and the bullying defence

In brief - Schools should manage their risk by training staff on the school's duty of care and reviewing enrolment documentation

Schools continue to face challenges with some parents advancing novel claims, such as schoolyard bullying, as a basis for non-payment of lucrative school fees. While case law in Australia shows that parents have not been successful in pursuing such claims, this may not always be the outcome, particularly in cases of extreme bullying. Schools should therefore take steps to mitigate this risk and to keep children safe at school.

School fees and bullying test case

The parents of a school student refused to pay nearly $43,000 in private school fees after claiming a prestigious school failed to protect their son from repeated bullying by his peers.

The student attended Wesley College in Western Australia between 2008 to 2011. It was alleged that during this time their son was bullied by his peers, including ridiculing and name calling in front of College staff who took no action to intervene. The parents eventually withdrew their son from the College, but refused to pay outstanding school fees.

The parents alleged the College had fundamentally breached the enrolment contract by failing to prevent the bullying suffered by their son, who they alleged was not educated to the level of his peers, and this had the effect of limiting his future career prospects.

In Romeo v Wesley College [2014] WADC 152, the parents alleged the College had failed to uphold the enrolment contract by not appropriately supervising students who engaged in bullying; failed to have appropriate bullying prevention policies in place; and failed to act on complaints, leading to a complete failure of consideration in relation to the contract to educate their son.

The District Court of Western Australia dismissed the parents' claims, primarily finding that an education free of bullying was not an essential or a fundamental term of the contract. There had not been a total failure of consideration on the College's part to provide an education, because the Court found the child did receive a limited form of education from 2008-2011, despite the bullying.

The appeal to the Federal Court of Australia was also unsuccessful.

Lessons for schools

The decision demonstrates that parents cannot refuse to pay school fees simply because their child is a victim of schoolyard bullying. While schools have a duty of care to take steps to prevent or reduce bullying, they cannot guarantee that bullying will never occur.

However, future cases, relying upon emerging case law more frequently litigated in the United States may produce different outcomes. In extreme cases of bullying, it is conceivable that a child may be so severely mistreated as to effectively receive no appropriate form of education at all. In those circumstances, it is arguable that a claim for non-payment of school fees could succeed.

Train staff on school's duty of care and audit school enrolment material

Schools cannot guarantee that bullying of students will never occur, but there is no doubt that bullying allegations complicate fee recovery and may give rise to a negligence claim for breach of a school's duty of care.

To guard against the risks, and to ensure children are kept safe at school, schools should ensure regular training is provided to staff on the school's duty of care to protect students from bullying by peers. Schools should review student supervision protocols with a focus on the effectiveness of yard duty functions.

It is also essential that schools review enrolment documentation to cover off on fee recovery comprehensively, and ensure promissory statements are not made in admission documents about the school environment that in reality cannot be guaranteed, such as "the school is a bully free environment". You can read more about reviewing enrolment documentation in our article Schools must review enrolment contracts to protect legal interests.

Paul O'Halloran
Education law
Colin Biggers & Paisley

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.

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