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Student loses case against Geelong Grammar

By Legal Eagle

In May this year, I wrote a post about the case of Rose Ashton-Weir, who, with her mother, Elizabeth Weir, was suing Geelong Grammar because she alleged it did not support her to a sufficient degree to allow her to get into Law at Sydney University. Judgment has been handed down (Weir v Geelong Grammar School (Civil Claims) [2012] VCAT 1736). It may not surprise readers  to know that Ms Ashton-Weir and her mother lost the case. They failed in their allegations of breach of contract and misleading and deceptive conduct pursuant to the Fair Trading Act 1999. There was no breach of contract, and no relevant misleading or deceptive conduct.

Even if they had succeeded in their claims, there were problems with the damages claims. The mother had claimed that the school should pay for her increased rent when she had to move to new larger premises to accommodate Rose after she returned from Geelong Grammar. At [185], Lulham DP noted, ‘She [the mother] did not prove, for example, that her residence on Copacabana was so small that Rose could not be accommodated there. People who claim damages have an obligation to mitigate their damage, and if Copacabana was inadequate for Jane and Rose to cohabit, that would not explain why Jane had to move to Double Bay at around 2.5 times her Copacabana rent.’ The loss of Rose’s mother’s earnings from a proposed chocolate fortune cookie business were rejected because they were not losses which fell within the rule in Hadley v Baxendale: they were not losses which arose naturally (first limb) or were not losses which were in the contemplation of the defendant at the time the contract was made (second limb). (At [187], the Deputy President uses the following example: ‘if a builder breached its contract by performing defective building work, the owner’s need to incur the cost of rectifying the defects occurs in “the usual course of things”, but the loss occasioned because the owner was unable to hire out the house as a wedding venue until the repairs were completed would not.’)

As to Rose’s loss of income as a lawyer, Lulham DP said at [191] – [193]:

Rose’s claim for damages is illusory. The fact that Rose has gained admission into a double degree at Sydney University reflects well on Rose in Year 12, but also reflects poorly on her claim against the School because it shows that Rose did not suffer any damages at law.

Rose asserts that she will complete her degrees, then study Law, then graduate from Law, then gain employment as a lawyer. Assuming that events pan out in that way, the costs and deferral of income arising from them will not have occurred in “the usual course of things”, within the meaning of Hadley v Baxendale. Rose assumes that the School somehow guaranteed that she would gain admission to Law school immediately after Year 12, and there is no basis for that assumption.

As with Jane, Rose must mitigate her damage. Rose conceded that her Year 12 marks were sufficient to gain her entry into a law school other than Sydney University. Her decision not to take that path is contrary to her duty to mitigate.

I do hope some of my Remedies students are reading this post…!

What I gleaned from the case was that Rose had been pushed by her parents (particularly her mother) to go to Geelong Grammar boarding school. She was hideously unhappy there, and frequently unwell. She regularly failed to attend meals and class, and did not interact well with other students and teachers. She often did not bring books to classes or did not do homework. When I read the case, my inference was that Rose simply did not want to be at the school, but that her mother really wanted her to be there, and was not prepared to listen to the school when it told her how depressed her daughter was. Rose’s lack of attendance at meals and class seems to me to be a kind of protest (conscious or subconscious) about being so far away from her parents – the message was: “I don’t want to do this, I don’t want to be here“. It seems evident to me that the school thought that what Rose needed most was guidance and support from her mother, or her father (who were separated). I felt rather sorry for Rose at this point.

However, Rose’s mother had obtained a psychological report when Rose was 13 years old which said that she was highly intelligent, but needed a structured environment, and lacked organisational skills. From this, Rose and her mother took that she was “gifted” but that she had a “disability” (namely, lack of organisation and ability to apply herself) and that the school needed to work with these two things. Thus, they sued the school because it did not help Rose reach her potential as a “gifted” student, and she did not get into Law at Sydney University when she ultimately sat her HSC (at a different school, I might add). Her results were sufficient to get into Law at other New South Wales universities, but she instead chose Arts/Science at Sydney University.

At [97] – [100], Lulham DP said:

Being “gifted” is a 2-edged sword – you have to apply yourself. The world is full of talented people and talent alone is not enough. In his [Mr Herbert's] mind “gifted” means “talent + application”.

“Talented and gifted” programs are not about academically gifted students who are not being challenged enough. They are about assisting students learn more about something that they are passionate about. Timbertop has many talented students and Timbertop offers many rich experiences.

A student in the “talented and gifted” program has to be self-motivated. The program does not provide “one on one” teaching.

Mary Jane Clarke of the School has special training in gifted and talented education. The School does not have a definition of “giftedness”. Members of staff meet and discuss each student. Rose did not apply to do anything in the gifted and talented program.

In my opinion, being labelled as “gifted” is not always helpful. I believe I might have been labelled as “gifted” in Primary School, but my parents did not make a big deal out of it, although I knew I was “clever”. I was later explicitly labelled as “gifted” in my Australian High School, and this was positively deleterious for me. What helped me was going to my English High School, where they initially thought I was retarded (seriously!) and I then set about proving them wrong in a convincing fashion. As I’ve said in my earlier post, I had to really work and learn how to apply myself. It was the making of me.

A while back, I had a conversation with an old friend who had been labelled “gifted” at an early age. She felt like she had failed her potential by working in an ordinary professional job on a part-time basis while raising two children: she wasn’t prime minister, she wasn’t a law firm partner, she didn’t have a PhD (you get the picture). However, she acknowledged that she has always had difficulty meeting deadlines and being organised. She is genuinely clever and good at exams, so she managed to muddle through very well until she got into the working environment, when her organisational problems began to impede her. Anyway, my response to my friend is this: you’re a fantastic woman who is doing a great job of bringing up two beautiful children. In your job, you help disadvantaged people and help them to access their legal rights, which is important to making our society compassionate and fair. You have not failed. You have recognised your problems and you are dealing with them. You juggle work and kids (no mean achievement on an organisational scale!) You should be proud of yourself.

But my friend’s story illustrates that if you are labelled as “gifted” you are constantly holding yourself up to extraordinary outcomes (‘Being Prime Minister’) and finding yourself wanting. I, too, have a tendency to do this, particularly on the days when I’m suffering from that frequent companion of academics, ‘imposter syndrome‘. Whereas if you hold yourself up to ordinary people, you’re doing just fine and dandy. This also comes through in Rose Ashton-Weir’s case, as Lulham DP notes at [154]:

Another aspect of the alleged giftedness emerges in how the applicants perceive Rose. If, dare I say, Rose was an ordinary, normal adolescent secondary student in 2008 – 2009, and she is now an ordinary, normal undergraduate, her marks at school and university are unexceptional. It is only when Rose self defines as “gifted”, which implies an expectation that her marks must be exceptional, that her marks are perceived as being a problem.

What the Deputy President is saying is that Rose’s marks and Rose’s achievements are just fine for an ordinary person. It is only when she says that she is “gifted” that her marks appear below par.

If Rose lacks organisation, dedication, inter-personal skills and resilience, then it doesn’t matter how high her IQ is; she will have difficulties in succeeding (whether she falls at the hurdle of university studies or whether she falls at the hurdle of work). There comes a point when people don’t push you and organise you any more. You can’t blame other people any more: you can only acknowledge that your failure to achieve what you wanted has come about as a result of your own choices and your own failings. And then you have to have the resilience to get back up again, look your failings in the eye and deal with them. This is the part that I find hard — but I’ve had to learn, and I’m a much better person and a better academic for it.

My suggestion to Rose and her mother is this: accept that Rose is not a special snowflake. Rose is no more gifted than the average bear, even if she genuinely does have a high IQ, because she appears to lack the other things which give rise to success in the real world: organisation, responsibility, dedication, inter-personal skills and resilience. Her lack of dedication and resilience and her lack of an ability to take responsibility for her own actions (encouraged by her mother) is exemplified by the choice to bring legal proceedings against Geelong Grammar School during Rose’s first year of university, rather than to concentrate on doing well in her Arts/Science degree so that she can transfer into Law. (The latter would have been the sensible option to take in these circumstances, by the way). Please don’t appeal this decision and keep on going with your attempt to blame others. Rather I’d suggest that Rose and mother have two options:

  1. Make peace with Rose’s shortcomings and accept that Rose has done well given that she has those shortcomings, and that she may not achieve what she wants; or
  2. Face Rose’s shortcomings, help her to try to overcome them, and get up and try again. There’s no guarantee that Rose will succeed. But both Rose and her mother will feel better for trying their best, not blaming others.

46 Comments

  1. Holden Caulfield
    Posted November 25, 2012 at 10:27 am | Permalink

    Getting into Arts/Law at Sydney Uni is very, very hard. The ATAR is 99.75. I doubt even the Dux of Geelong Grammar would get that. GG is not known as a particularly academic school, and Victoria does not have the culture of extremely competitive selective schools that Sydney does.

  2. Elisabeth
    Posted November 25, 2012 at 11:09 am | Permalink

    What a fascinating post, and one that I think is helpful for all of us who struggle with the notion of our intelligence or otherwise.

  3. Holden Caulfield
    Posted November 25, 2012 at 11:40 am | Permalink

    LE. No, a selective public school.

  4. Holden Caulfield
    Posted November 25, 2012 at 11:41 am | Permalink

    Which involves two years of private tutoring before sitting the selective schools exam, and then private tutors all the way through high school as well. The system is terrible, but that’s the way it is.

  5. Posted November 25, 2012 at 11:42 am | Permalink

    Yes, academic success results from a happy coincidence of a wide range of circumstances. Raw talent is an important factor, and at a certain level it becomes a necessary one. It’s important to note that these circumstances can change over time and that success or failure at one stage doesn’t mandate success or failure at a later stage. Many of these circumstances can be beyond the control of the individual and so any failure shouldn’t necessarily be seen as a clear indication of individual worth. The corollary of this is that a students failure doesn’t necessarily indicate that educators have failed in their responsibility either.

    The symbols of success such as becoming prime minister, or getting into a particular law school represent the equivalent of holding a royal flush in poker. It might be something nice to hope for or aspire to, but the best most of us can do is to play the hand we are dealt. It’s important not to become so distracted by the symbols of success that we become blind to its substance.

  6. Holden Caulfield
    Posted November 25, 2012 at 11:51 am | Permalink

    desipis. Once it gets to the level of 99.75, there’s no room for ‘luck’. And these kids (and especially their parents) know this. I know kids who went to Sydney Girls and James Ruse High Schools who were doing 4 Unit Maths – probably had IQs of 160+ and still had private tutors in Year 12 – even for Maths!

  7. Posted November 25, 2012 at 12:29 pm | Permalink

    In my time at Sydney Uni I met a lot of students doing Law and law/whatever double degrees. Student politics will do that for you.

    They generally struck me as very intelligent. But I didn’t feel as if they were actually smarter than I was; mostly that they had the drive — whether inborn or imposed — to do the tedious infinite hours of work that distinguish a 99.8 from a 99.7.

    From a purely strategic point of view, I’d put a kid through the IB instead of the HSC. The points translation is very generous — I got a midrange IB total and it translated into 93 or 94 on the TER, which is how I got into Sydney Uni.

  8. Posted November 25, 2012 at 12:38 pm | Permalink

    Great post thanks.
    I hope that poor girl does achieve a law degree and while doing so can devise a plan to wreak vengeance on one really screwed-up Mom.
    Actually the Mom is all about $$$ so Rose can do it now with a sex tape as this was the genesis of the degree-free Kardashians, any of whom could buy and sell the entire cast of this Tiger-Mom saga, without Geelong Grammar or any other kind of grammar.

  9. Posted November 25, 2012 at 3:00 pm | Permalink

    Holden, there’s always room for luck. Much of the rigorous work that students put in is about mitigating the risks involved. It’s about ensuring the student can demonstrate their capability to jump through hoops despite some factor of bad luck that other students might not face. The sample size of assessment is far too small and narrow for the results to be devoid of luck. There’s luck involved in avoiding physical or mental illness, getting a dud tutor, falling in with the “wrong” friends, etc.

    While there’s plenty of criticism of the OP system here in Queensland, I wonder to what extent the breadth of each scoring point helps avoid an obsession with the precision in the ATAR.

  10. Posted November 25, 2012 at 3:02 pm | Permalink

    I also wonder how a HR department would see the issue when they get a job application and find the story in a google search.

  11. Mel
    Posted November 25, 2012 at 3:14 pm | Permalink

    D @13: “I also wonder how a HR department would see the issue when they get a job application and find the story in a google search.”

    Exactly. Why should an employer risk taking on a litigious employee?

    Rose would’ve been better off claiming she was a [middle class white woman] and getting a scholarship to Harvard or something …

    [SOONED by admin - LE]

  12. Holden Caulfield
    Posted November 25, 2012 at 3:36 pm | Permalink

    Either way, it’s clearly a very flawed mechanism for allocating university places.

  13. Miss Candy
    Posted November 25, 2012 at 4:56 pm | Permalink

    Mel your comment about light-skinned aborigines puts you squarely in the Andrew Bolt corner. I hope you’re ok with that because the Federal Court wasn’t.

  14. Holden Caulfield
    Posted November 25, 2012 at 5:06 pm | Permalink

    I think the US system is much better. Sydney Uni could set some sort of cut-off mark – say 95.0/97.5 – then look at the applicant’s whole application – including interviews, CV, recommendations, essays, if necessary. The current trend seems to be away from undergrad Arts/Law degrees altogether, in favour of graduates-only JD degrees. A similar situation has existed within Medicine as well for some time now.

  15. Mel
    Posted November 25, 2012 at 6:49 pm | Permalink

    Yep, that was a bad joke. Sorry. I blame it on the heat, the mosquitoes, the lack of rain and the grass seeds that keep getting in my socks … Naah, I take full responsibility ;)

  16. Posted November 25, 2012 at 7:02 pm | Permalink

    I agree with Holden @ 18. I really can’t see how a 23 year old can provide useful advice to a business client in particular. Far better to have someone in their late 20s/early 30s. Ditto for medicine.

  17. Tim Quilty
    Posted November 25, 2012 at 8:05 pm | Permalink

    That isn’t really Sooning, LE. A proper Soon needs to reverse (or near enough) the intent of the original comment. You can’t just substitute something at random. Jason (& Graeme) would not approve.

  18. ken n
    Posted November 26, 2012 at 5:52 am | Permalink

    A good analysis, as usual SL.
    Does anyone know how the selection by interview process that many med schools use has gone?
    I am uncomfortable about interviews and other subjective judgements – in my experience, we look for people like ourselves.

  19. ken n
    Posted November 26, 2012 at 5:56 am | Permalink

    And success? What is success really? I’m happy if I basically keep it all together: bring up my children to be healthy, happy adults; enjoy spending time with my husband and family; do quality academic work which makes people think; and make my students think and give them knowledge which will help them with whatever they choose to do. For me, though, family comes first, above anything else.

    Yep.

  20. Posted November 26, 2012 at 6:31 am | Permalink

    A good analysis, as usual SL.

    Ah, LE gets all the credit for this one, not me :)

  21. Jonathan D
    Posted November 26, 2012 at 7:27 am | Permalink

    Holden, I was put off the whole concept of personal tutors because in the different groups of people I knew, those who were willing to pay tutors were precisely those who didn’t need them. To get to my point, just because people at these schools tend to have tutors doesn’t tell us how much much the tuition helps in any sense.

  22. ken n
    Posted November 26, 2012 at 8:37 am | Permalink

    “Ah, LE gets all the credit for this one, not me”
    Bloody initials. Always got me into trouble. Sorry LE. I meant you…

  23. Holden Caulfield
    Posted November 26, 2012 at 10:52 am | Permalink

    Yeah, Jonathan, that was my point. If you are smart enough to take 4 Unit Maths, attend a highly selective school, packed with enthusiastic, smart, ambitious, and motivated teachers, double that for fellow students, and triple that for parents (especially Asian/Indian parents), the marginal return of a private tutor would be zero. But as desipis said, risk mitigation can be almost pathological in these environments.

  24. Posted November 26, 2012 at 4:57 pm | Permalink

    I was supposedly fortunate to go to a “prestigious” school in Melbourne, 3rd generation, courtesy of our “old boy” grandfather, from where those expelled would be accepted by Geelong Grammar :)

    However, the parents……, they view these types of schools as increased social status by whatever w***ers they have as their social peers but place undue pressure on their children, who often are unhappy and do not want to be there.

    Related, sitting at a friend’s b’day drinks many years ago in Central Europe who worked at Embassy. I was sat next to Ambassador’s wife (whose daughter went to GG) but paid little interest to me (suited me fine), but friend then duly informed her which school I went to…. Well then huge swivel round, “really!?” and invitations to dinner etc. etc. (which were not accepted). Don’t ever let anyone tell you Australia has (perceived) social classes

  25. Jolly
    Posted November 26, 2012 at 9:17 pm | Permalink

    @ken n
    I am so with you on this, Ken. This so-called interview system, especially for med is a much abused system promoting patronage and old school tie connections. Via the subjective interview system students with lower scores have been successful than those with higher scores. Their selections are based neither on their verbal skills nor their special talents; on the contrary, it’s parents’ connection with the Board (including doctors) who sit on the panel. This is such common knowledge amongst some in the community. I am all for scores, let the best and brightest get what they deserve. Why relay on a subjective analysis that also has great potential for misuse & abuse (“..we look for people like ourselves” … true). No one has yet challenged this in the courts. I am certain it would be like opening Pandora’s box. That for another day.

    We may complain about private tuition and the unfairness of it for those in the lower economic ranks. But the truth is the simple fact that most of us Aussies have a choice; whether to put aside funds for tuition fees instead of going on the annual holiday to Bali or Phuket. Frankly it is not private tuitions that contribute to academic success; it is often the home background and what parents value most that rub off on children. It is single-minded focus and diligence. It takes character. Our top sportsmen’s successes are a result of this, too.

    My Indian neighbor’s engineering degree was not recognized. His wife’s medical degree was invalid in Australia. So while working as a technician for an electric company, he also studied (part-time) for a sec teaching degree and finished off with an excellent PhD. His wife went on to qualify as a surgeon (after 14 years of studying in a local uni). Meanwhile both their children (born in Australia) ended up with top VCE results (top state scores) and landed in medicine and law (respectively). I am happy for them and proud of them. I am not concerned about the ethnic origins of my surgeon or architect or dentist or lawyer or tradie as long as they are honorable, competent and excellent in what they do. In this sense we are lucky that in Australia we have such a varied lot of people with a diversity of talents and skills. May the best continue to thrive, serve and benefit all Australians. We are truly a blessed nation.

  26. RipleyP
    Posted November 27, 2012 at 8:50 am | Permalink

    Although possibly just random thought yet I get a sense that the mother is more the driver in this than the daughter. Although no evidence I am hypothesising that the mother is looking for a bit of reflected glory or seeking to have some form of social status upgrade in regard to the daughter’s success.
    I admit freely that gifted is a term that has never been applied to me. Yet this meant that I lacked the pressures placed on me to attain a level of success based on others expectations of a gifted nature. I had enough and still have too many unrealistic expectations that I place on myself. I dread the thought of excessively high expectations being placed on me from an external source.

  27. Posted November 28, 2012 at 6:18 am | Permalink

    most of us Aussies have a choice; whether to put aside funds for tuition fees instead of going on the annual holiday to Bali or Phuket.

    What makes you think most Australians can afford an annual holiday to Bali or Phuket? We certainly can’t. This is like the usual argument for private schools: if we’d just give up our new Merc/SUV/home theatre (*every year!*) we could afford the fees. This is fantasy.

  28. Jonathan D
    Posted November 28, 2012 at 8:49 am | Permalink

    Jolly, I have to echo what Helen said, but mainly point out that my comment about “willing to pay” was less about “economic ranks” and more about what the parents/children value. (I suppose tuition may serve a purpose in emphasising that the results/work are valued, even if the tuition itself has minimal value.) LE’s example is a situation different to those which first supported my opinion years ago, but even in that case, I wonder how often those who can do with tuition and are willing to pay for it also those have family/friends willing to provide it.

    Holden@31, it does seem we’re saying the same sort of things. But, without knowing the individuals you’re speaking of, I note that at soem schools doing 4U Maths can be as much a reflection of being in that competitive environment as it is of mathematical ability. That may be one of the cases where tutors make a bit more difference than usual, but not really on the 99.75 ATAR level.

  29. Mel
    Posted November 29, 2012 at 12:24 pm | Permalink

    I also echo Helen. I would personally ban private schools.

  30. Posted November 30, 2012 at 4:27 am | Permalink

    On private schools, the range of fees varies widely, as do private schools, Also, paying the “good school premium” in house prices to get into, say, Balwyn Secondary is just another way of paying for a better education/networking opportunities; abolishing private schools won’t change that.

    If we were a small monocultural society like Finland, we could probably run a good monopoly system. As it is, given the fun of a multicultural/polygeneric society, the monopoly option would be very unlikely to work so well.

    But antipathy to private schools is not about inequality — see the Balwyn Secondary house premium; government schools vary widely in quality in ways which tend to be directly connected to the socio-economic status of their catchment areas — it is about controlling belief by controlling the belief-formation inputs.

  31. Posted November 30, 2012 at 12:24 pm | Permalink

    Barmaids having a week off work will spend it in Bali. A common event.
    Anybody unable to regularly have a week’s holiday in Bali shoulod perhaps consider getting financial planning advice from a barmaid.

  32. AJ
    Posted November 30, 2012 at 4:42 pm | Permalink

    I don’t have anything against the existence of private schools, but catchment zones for public schools should definitely be abolished. There isn’t even the justification, like in the US, of schools being financed by local taxes. Everyone who pays taxes is paying for elite government schools. The catchment zones are solely to keep the riff-raff out.

  33. Mel
    Posted November 30, 2012 at 5:09 pm | Permalink

    Schooling is mostly about getting a score for a uni place. Adjust the scores enough and the Balwyn premium melts away.

    Lorenzo is also correct about to flag beliefs. Australia is well on the way to becoming a rigid class society as well as one that is fractured on ethnic and religious lines. Compulsory public education is but one small step in mitigating these insidious trends. Another is to smash rich ghettos with low income housing.

  34. Posted November 30, 2012 at 5:14 pm | Permalink

    Would be nice to see more “disconnect” between formal secondary and tertiary education and pressure to attain high (ATAR?) scores, i.e. work, travel, get a life etc. before (paying fees) deciding upon university and possible occupation or career….. and look at alternatives e.g. study abroad, VET/TAFE pathways etc. versus sausage in sausage out….

  35. Posted December 2, 2012 at 2:48 pm | Permalink

    M@43 Actually, Australia is a lot less religiously or otherwise fractured than it used to be. And observing the steady march of non-Anglo faces through elite public schools makes me deeply sceptical that they are as much of a barrier to social mobility as they are made out to be.

  36. Jane
    Posted May 8, 2013 at 11:50 pm | Permalink

    Having just read your article even at this later date I feel like responding. Member Lulhams judgement did not mention the short falls that Geelong Grammar made many times ie wrong NAPLAN sent to parents, wrong maths stream demanded, the interstate data transfer note required for intake of students sent to the wrong school and many other ‘administrative’ mistakes. Most importantly though for the sake of fairness to Rose in the media Rose did not ever claim that she missed out on entrance to Law at Sydney university where Member Lulham got that is a mystery. If Rose is to be compared to your friend I suggest that you consider that she did take great strides to try to cope with the academic offerings at GGS only to find that if you are ‘bright’ then you had better not require learning support and incidentally many of this cohort do particularly in later years of high school because they have missed out on subject matter by being disorganised, bored and disengaged during the early stages. It is useful to understand that as your friend experiences very ‘bright / gifted’ people are often confused, disorientated and misplaced in their environments from an early age. Just two last points Rose chose GGS and insisted on going there for 4 years before I could financially arrange it and I wonder why you were so keen to post such an emphatic article without having a transcript to deal from, have you any idea how crazy we would have to be to have taken GGS on if what you have said was the sum of our disagreement.

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