Gallavin on Litigation: Breach of right is not a duty to enforce

By Chris Gallavin

Over the two years or so that I have written this column there have been some that have caused controversy; this column I suspect will be one such piece.

My thesis here is that there are some wrongs for which litigation is available but is nonetheless inappropriate – some actions to which the focus of court attention is counter-productive, and some grievances that the engagement of the justice system will merely aggravate rather than provide a quick and appropriate remedy.

A perceived breach of a right does not correspond to a duty to enforce. And in fact, the pursuance of a right through court can sometimes undermine the existence of the right itself. In other words the standing of rights can be undermined by first, the turning of everything into a perceived right and second, overzealous enforcement.

Two cases

Two such cases I suggest have made the headlines in New Zealand in recent months: the St Bede’s School disciplinary action and subsequent grant of interim injunction, and the prosecution of the North Island mother for the death of her toddler left in the car. As the second involves a case still to be determined I will leave my commentary on it until after it has been finalised – watch this space.

For today however, there is I believe, much we as litigators can learn from the St Bede’s case.

You will likely remember this case if only for the public outcry that accompanied it. It involved two young men who in their foolishness decided to ride an airport carrousel which eventually took them into restricted parts of the airport.

A few years ago such an action would likely have received little attention both from the airport or the school but in this day and age such an action is widely accepted as being little to laugh about.

The boys were part of a school team travelling to compete in the Maadi Cup rowing tournament. The school decided to punish these young men by prohibiting them from competing in the tournament.

Following this decision the parents of each boy filed an action to review the decision of the school accompanied by an application for an interim injunction. The injunction was granted by the High Court in Christchurch and the boys were reinstated to the team.

After the tournament but before the substantive hearing of the matter the parents withdrew their action upon what the media described as “coming to an agreement with the school”.

I understand the position of the school in reaching an agreement but only wish they had the resources to have pursued this and sought an order for costs. The outcome of a hearing is imponderable. Nevertheless if granted, the public nature of such an order would have sent a clear message that interim injunctions are not a remedy in and of themselves and that those committed to such applications ought to be prepared to follow through with the substantive hearing or to face the consequences of costs.

I do not deny the right of parents to judicially review the decisions of schools. I also acknowledge the incredibly competitive environment our young people are faced with – many of my young students have CVs of a 40-year-old, given the achievements and extra-curricular activity they have amassed. It is no longer acceptable, it seems, merely to have good grades.

Social costs

These caveats aside, I do argue that court action is just not appropriate in the vast majority of these cases.

Putting aside the money spent by schools in defending such actions, there are a number of clear social costs to the bringing of these cases.

First is the diminution of the standing of both the courts and the practice of law in the eyes of the public at large.

Although some supported the right of these parents to take the action they did, most saw it as an extreme reaction made worse by the withdrawal of the action before the hearing of the substantive issue.

My second point relates to the undermining of the role of schools in our society. Schools are not merely there to teach our children reading, writing and arithmetic but are to assist in the transition of our young people into the wider world.

Schools teach values – values we all must learn in order to live harmoniously within society. Rules relating to uniforms, jewellery, hair length, and general standards of acceptable behaviour are all, in my opinion, legitimate conditions to be set by schools in the ordering of their daily operation.

I accept that many of us have bad memories of our high school teachers and that we might regard many of them as officious and dictatorial – but my attitude toward my teachers at 17 ought not to be my approach at 40.

Our kids have to learn to deal with all sorts of people and conforming to authority that one might not like is a valuable lesson we all must learn.

My third point relates to the perception of justice for sale. “Is this a case of rich parents buying their children out of trouble?” was how one news reporter put it to me.

This view is understandable as parents of children at some schools catering for less affluent families in poorer communities in New Zealand are unlikely to have had the resources to pursue such an action.

This argument can, of course, be criticised on the basis that those who are able to protect their rights should not be limited by the fact that others cannot. I accept that – my point being that it comes at a cost, and that cost is the diminution of the standing of the justice system, the parents of these young men and unfortunately the young men themselves.

Protecting the rule of law

Only in rare occasions do I believe it appropriate to engage the courts to remedy perceived wrongs in such circumstances.

I have already received feedback criticising my publicised stance on the St Bede’s case from lawyers who absolutely believe it to be the right (near duty) of parents to take schools to task over such matters.

If that approach is to prevail then so be it, but in my view it fails to appreciate the consequences upon society such actions will very quickly have.

As litigators I do not believe we are here to merely give effect to the desires of every client who walks through the door. We have our professional obligations yes, but we also have the rule of law to protect – a key component of which is the task of ensuring it is respected and not ridiculed.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.

This was first published in LawTalk 864, 8 May 2015.