Alexander v Laughlin

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST DUNFORD J Friday, 24 NOVEMBER 2000 30033/00 Michael ALEXANDER v Alan LAUGHLIN & Anor JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff seeks, by way of declaration and orders in the nature of certiorari and prohibition, to set aside the decisions of the first defendant as a "prescribed officer" within the meaning of s 2 of the Teaching Services Act 1980 ("the Act") to the effect that he was guilty of misconduct and that his position be reduced from head teacher to teacher for such misconduct. 2 The grounds of his application are that he was denied procedural fairness in the disciplinary proceedings taken against him which resulted in the decisions complained of, because those disciplinary proceedings were conducted by way of the "explanation route" provided for by cl 15(2)(a) of the Teaching Services (Education Teaching Service) Regulation 1994 ("the Regulation") and not by the "inquiry route" provided for by cl 15(2)(b) of the Regulation. 3 At the relevant time the plaintiff held the position of head teacher of English and History at Braidwood Central School, having been appointed to that position on 30 January 1995. He was previously employed as a teacher at the Lucas Heights Community School, Braidwood being his first appointment as head teacher and he had been employed by the second defendant, the Department of Education, since 27 February 1976. 4 On 23 January 1998 he was charged by letter with a breach of discipline within the meaning of s 83(b) of the Act, namely misconduct. The particulars included allegations of submitting false grading advice, falsifying the date on which an HSC assessment task was submitted and knowingly providing a falsified record of grades. The letter of charge required him to reply within 14 days admitting or denying the charge and giving any explanation he desired. On 6 February 1998 by letters from his solicitors he denied the charge and requested particulars, which particulars were refused by letter from the second defendant dated 19 February 1998. 5 On 16 March 1998 the first defendant notified the plaintiff that he had been appointed to deal with the charge and would do so by way of written submissions pursuant to cl 15(6)(a) of the Regulation and that in due course a copy of the Department's submission would be forwarded. That this procedure would be followed was confirmed by the first defendant on 21 October 1998, some seven months later, when the voluminous submissions of the defendant, exceeding 300 pages, was provided, and a response was required by 9 November, a period of three weeks. This period was subsequently extended and the plaintiff, through his solicitors, delivered his submissions comprising two large folders of documents on 1 March 1999. 6 Those submissions included evidence denying or claiming to explain (by reference to its context) the evidence against him and included a claim that factual questions could not fairly be resolved adversely to the plaintiff without an opportunity for him to cross-examine the witnesses against him, and accordingly that it was inappropriate to proceed under cl 15(2)(a), and requested that if any adverse finding was contemplated against him, the matter should be determined by an inquiry under cl 15(2)(b). 7 There was no immediate response to that application, but on 3 June 1999 the first defendant gave his decision without conducting any inquiry under cl 15(2)(b) or otherwise affording the plaintiff an opportunity to confront and test his accusers. By that decision he found a number of particulars proven and required submissions on penalty within 14 days. 8 On 21 June 1999 the Department lodged its submission on penalty, seeking the plaintiff's dismissal from the Education Teaching Service. The plaintiff's submissions were provided on 20 July 1999, and on 20 August 1999 the first defendant notified his decision that the plaintiff was guilty of misconduct and imposed the penalty of reduction from head teacher to teacher. 9 On 17 September 1999 the plaintiff lodged an appeal to the Government and Related Employees Appeal Tribunal ("GREAT") and on 4 November 1999 there was a preliminary hearing before the chairperson of GREAT relating to the production of documents sought by the plaintiff for the hearing of his appeal but such production was denied on grounds of relevance. The plaintiff on 18 November 1999 appealed to the Court of Appeal against that ruling, and an application by the second defendant to have such appeal struck out as incompetent was dismissed by Giles JA on 10 April 2000. On 4 May the present summons was filed. 10 The Act provides that breaches of discipline, which include misconduct (s 83(b)) are to be dealt with by the Director-General or by a prescribed officer (as defined in s 82) in accordance with the Regulation (s 84) whilst s 85 sets out the penalties which may be imposed if such breaches of discipline are established. 11 Clause 15 of the Regulation provides that if the staff member denies the charge, the disciplinary authority (which includes a prescribed officer) is to deal with the charge in one of two ways, either: (a) by directing the member of staff to furnish an explanation in writing (the explanation route); or (b) by conducting an inquiry (the inquiry route), whilst Regulation 15(3) provides that if the disciplinary authority takes action under subclause (2)(a) (the explanation route) it may make a finding after considering any reports and any replies or explanations of the staff member, or may decide to deal with the charge by way of conducting an inquiry under subclause (2)(b). 12 The procedure for inquiries is set out in cl 16. In Hill v Green [1999] NSWCA 477, 48 NSWLR 161, the Court of Appeal, overruling its earlier decision in Matkevich v New South Wales TAFE Commission (No. 3) (unreported - Court of Appeal - 2 February 1996) held that notwithstanding the discretion either to follow the explanation route or the inquiry route, the disciplinary authority was under an obligation to accord procedural fairness to the person charged and if, having regard to the nature and seriousness of the charge and the existence of disputed questions of fact, such procedural fairness could only be achieved by adopting the inquiry route under cl 15(2)(b) and cl 16, then such procedure must be followed before any findings adverse to the person charged could be made. 13 Sheller JA, with whom Mason P agreed, said at [94] to [97]: "There may be many valid reasons why a member of staff would prefer and accept that the charge be dealt with under the first rather than the second procedure. But in my opinion, there is nothing in either the Act or the Regulation which removes or curtails the right of the member of staff charged to have the charge dealt with according to the dictates of procedural fairness. The Regulation ensures that this will happen. If a disciplinary authority decides to follow the procedure under reg 15(2)(a), it may instead of making a finding under reg 15(3)(a) decide to deal with the charge by conducting an inquiry under reg 15(2)(b); reg 15(3)(b). But, by way of example, if a contested charge is dealt with and a finding made against the member charged without the procedures described in reg 16(7) being followed, so that the member is denied the opportunity to challenge and test the evidence the member disputes, not only have the dictates of procedural fairness been flouted but the regulatory scheme has been ignored. It could not seriously be contended that in these circumstances a disciplinary authority could arbitrarily choose, if the member has asked it to conduct an inquiry, not to do so. . . . If on the other hand, against the member's objection, a serious charge founded on testimony which the member disputes is dealt with without the member having the opportunity to challenge and test provided for in reg 16, the member would, ordinarily, have justification to complain and have any adverse finding set aside."

Fitzgerald JA, with whom Beazley JA agreed, said at [144]-[145]: "A discretion which is not expressly fettered, like any other generally expressed power, must be exercised to provide procedural fairness. That principle is applicable to reg 15(2) and reg 15(3). The practical effect which seems intentional, is that a charge may be dealt with under reg 15(2)(a) and reg 15(3)(a) if the procedure for which it provides will be fair to the person charged. Otherwise, a charge must be dealt with under reg 15(2)(b) and reg 16."

Whilst Spigelman CJ at [44]-[45] said that the additional steps which a decision maker must take after receipt of an explanation will be determined by the common law requirements of procedural fairness and may, in appropriate circumstances, include elements of an oral hearing but that does not necessarily have to be conducted as a full 'inquiry' under Regulation 16, but what is required is the provision of procedural fairness beyond the opportunity on the one occasion stipulated in the Regulation to provide an explanation in writing. 14 It is not clear precisely what his Honour had in mind when speaking of something less than a full inquiry, because any inquiry under cl 15(2)(b) is to be governed by cl 16, which contains safeguards for the person charged, including the right to be represented at the inquiry. But on the other hand, cl 16 does not require the whole of an inquiry to take the form of an oral hearing because, subject to subcl (7), subcl (6) of cl 16 does not require all the evidence to be given orally, and the extent of the oral evidence necessary will be determined by what is necessary to provide procedural fairness. A broad discretion as to the fact finding process is conferred by subcl (6), subject always to subcl (7). 15 But the important principle to emerge from all the judgments in Hill v Green is that if, having regard to the nature and seriousness of the charge and the existence of disputed issues of fact on significant matters, procedural fairness can only be secured by conducting an inquiry with the person charged or his representative having the opportunity to cross-examine and otherwise challenge the witnesses against him, then such inquiry must be held. And in determining whether to hold an inquiry, the wishes of the person charged must be taken into account, although such wishes are not necessarily decisive. 16 In the present case, the charge was serious, although not, as in Hill v Green, an allegation of criminal conduct. It was an allegation of misconduct under s 83(b) and not merely a charge of being negligent, careless or inefficient or incompetent under s 83(e). In addition some of the particulars were suggestive of fraud or misrepresentation, and the Department regarded the charge so seriously that in submissions on penalty it sought the ultimate remedy of dismissal, notwithstanding that the plaintiff had 20 years service with the Department as a teacher with no history of previous disciplinary action against him. 17 It is not necessary to go into the disputes on questions of fact in any detail, but sufficient to say that in some cases the plaintiff denied what others said, and in other cases he sought to provide setting and context to explain what he had done or failed to do, and he provided statutory declarations from two other witnesses in relation to these matters. It is no answer in these circumstances to say that the findings were not based on any disputed issues of fact. 18 In this case, through his solicitor, he expressly asked for an inquiry and it was refused without reasons being given. Whilst there may not have been any obligation to give reasons, the fact that no reasons were given does not inspire confidence that the relevant considerations were taken into account. This is particularly so in the circumstance that Hill v Green had not at the relevant time been decided, and the prescribed officer may, and probably did, take into account the decision of the Court of Appeal in Matkevich, since reversed, to the effect that in choosing the explanation route under cl 15(2)(a) rather than the inquiry route under cl 15(2)(b), there had been no error of law or breach of procedural fairness. In my view this was a case where procedural fairness could only be accorded to the plaintiff by the holding of an inquiry under cl 15(2)(b) and cl 16. 19 The defendant nevertheless submits that relief should be refused on discretionary grounds. Firstly it is submitted that even if an inquiry under cl 15(2)(b) were held, the result would be unlikely to be any different, and Stead v State Government Insurance Commission (1986) 161 CLR 141 was relied on. Whilst that case acknowledges the principle that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial, the Court went on to say at 145-6: "It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial."

20 That, it seems to me, is the issue here. It is not an easy task for me to be satisfied, and I am not satisfied, that if an inquiry were held with cross-examination of witnesses, the prescribed officer's findings would necessarily be the same. See also Murray v The Legal Services Commission [1999] NSWCA 70, 46 NSWLR 224, where Sheller JA at [102] referred to the fact that such a submission can unintentionally suggest prejudgment. 21 The second discretionary ground on which the defendants submit relief should be refused is that the plaintiff has an appropriate remedy elsewhere, namely a right of appeal pursuant to s 24 of the Government and Related Employees Appeal Tribunal Act 1980 ("the GREAT Act"). In Hill v Green Fitzgerald JA reviewed a number of cases involving the proposition that an adequate right of appeal can provide an answer to a denial of procedural fairness in respect of an initial determination and ultimately summarised his conclusions at [164] as follows: "In the absence of "plain words of necessary intendment", an initial decision-maker is required to provide procedural fairness and his or her failure to do so will involve legal error. However, the relief available in respect of such an error is ordinarily confined to any statutory right of appeal, provided that an appeal is adequate to provide the appellant with the procedural fairness to which he or she is entitled. A full appeal on facts and law will ordinarily be adequate for that purpose, even if the appeal involves routine forensic disadvantages compared to a "first instance" re-determination. (There is a discussion of the history and nature of appeals in Fleming v The Queen (1998) 73 ALJR 1 and State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 322ff; 160 ALR 588 at 609ff, per Kirby J.) Nonetheless, the Court retains a discretion to grant other relief if that is justified in the circumstances of the case. For example, a person charged with a disciplinary offence which involves criminal conduct should not be obliged to give evidence and expose himself or herself to the risk of self-incrimination: cf Reid v Howard (1995) 184 CLR 1; Vasil v National Australia Bank Limited (1999) 46 NSWLR 207."

See also Spigelman CJ at [55]. Sheller JA and Mason P did not deal with this point. 22 There is no general rule in this State that prerogative or administrative law relief will be refused where a primary decision maker has failed to observe the rules as to natural justice or procedural fairness simply on the ground that because the applicant has a statutory right of review or appeal, appropriate natural justice will be accorded on such appeal or review, which will negate the effect of any defects in the original determination; although there is no doubt that such discretion exists: Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 at 722; Smith v Allan (1993) 31 NSWLR 52 at 59; Hill v Green at [166]. 23 Leave of the plaintiff to his remedy in GREAT in the present case would in my view leave him labouring under a number of disadvantages which he would not be under if procedural fairness had been accorded to him in the first place, including: (a) The appeal to GREAT presupposes a primary hearing, not that the "appeal" should itself become the primary hearing: Smith v Allen at 60. (b) Although the issue does not appear to have been argued in any detail, there are statements in the Court of Appeal to the effect that, by reason of s 42(2) of the GREAT Act , on an appeal against findings of fact, the onus of proof is on the appellant; see Saini v Director-General of NSW (unreported - Court of Appeal - 11 November 1996); Hill v Green at [165]. I was also referred to Treacy v Walker (1985) 12 IR 437 at 439, but I note that that was a promotion, rather than a disciplinary, appeal. (c) It would also appear that if GREAT found the charge proved, it could impose a greater penalty (dismissal) than that imposed by a prescribed officer (demotion). This appears from s 48(2), and I note the remarks of the chairperson on the application for access to the documents: see Exhibit A at p 4, lines 32 to 42. 24 These are all good reasons for granting relief, notwithstanding the plaintiff's right of appeal to GREAT, but in my opinion there is a more powerful reason in the present case. To refuse relief because of the right of appeal to GREAT may send the wrong message to prescribed officers under the Act, and to other officers charged with similar functions under other statutes, and may lead to a perception that although the law requires procedural fairness, that requirement can be disregarded because persons charged will generally be denied prerogative and/or administrative law relief to have the invalid decision set aside, and left to their other remedies. 25 The third discretionary ground on which it is submitted I should refuse relief is the delay in seeking the inquiry route and the apparent acceptance by the plaintiff of the procedure adopted by the prescribed officer. In this regard reliance was placed on cases such as Goktas v The Government Insurance Office (1993) 31 NSWLR 684; Escobar v Spindaleri (1986) 7 NSWLR 51; Vakauta v Kelly (1989) 167 CLR 568 and Auckland Casino v Casino Control Authority [1995] 1 NZLR 142. 26 In my view none of these cases are comparable to the present. In Goktas and Escobar, which both involved lack of procedural fairness, it was held there was no waiver. In Vakauta it was held there was waiver in relation to perceived bias, but the appeal succeeded on the ground of ostensible bias in the judgment, and the Auckland Casino case related to perceived bias because of interest or association, and the claim for waiver succeeded because the point had not been taken, notwithstanding that the facts were known, some time earlier. 27 There can be a form of waiver in relation to this type of situation, as pointed out by Sheller JA in Hill v Green at [96] but that is not the case here. The plaintiff was notified of the procedure to be adopted on 16 March 1998, at which time there had been a refusal of a request for particulars, and it was not until 21 October 1998 that he really knew the case against him. Then when submissions were made in response to that case on 1 March 1999, the point was taken. This, in my view, was within what is envisaged by cl 15(3)(b) of the Regulation. The next response from the prescribed officer was the decision of 3 June 1999 when he gave his decision, not on the procedure to be adopted, but on the merits of the case. At all times up until the delivery of judgment in Hill v Green on 22 December 1999, the decision of the prescribed officer on the procedure was, in the light of the earlier judgment in Matkevich, unchallengeable. These proceedings were instituted within a reasonable time after the judgment in Hill v Green and were preceded by the correspondence set out in Mr Murphy's affidavit. 28 For these reasons I am satisfied that the plaintiff was denied procedural fairness in the proceedings, leading to the two decisions complained of and that no reason has been shown for refusing relief on discretionary grounds. I therefore make a declaration in accordance with para 1 of the summons and I make orders in accordance with paras 2, 3 and 5 of such summons. o0o

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