Davidson v Victorian Institute of Teaching [2006] VSCA 193

2 Mr Davidson was a teacher at an alternative school which sought to assist students at risk. The school notified the Victorian Institute of Teaching that it had taken action against Mr Davidson because he had engaged in serious misconduct with students.[1] The Institute convened a panel to hear the complaint formally. Mr Davidson, other teachers at the school and some students gave evidence.[2] The hearing panel found that he was unfit to teach and made a determination that his registration as a teacher should be cancelled. It is now an offence to employ him as a teacher.[3]

3 Mr Davidson appealed to the Victorian Civil and Administrative Tribunal.[4] He seeks to challenge a finding of fact on one of the complaints made against him, as well as the finding that he is not fit to teach. The Tribunal has held that its jurisdiction is confined to reviewing the determination cancelling his registration and that it is not open to Mr Davidson to challenge findings made by the panel. Mr Davidson has appealed to this Court against that decision.

Issue

4 The single issue to be determined is whether the Tribunal can review "findings" made by the VIT hearing panel, or is limited to reviewing the determination that Mr Davidson's registration as a teacher should be cancelled. Counsel for the appellant and for the respondent conceded that the Parliamentary

debates preceding the introduction of the Victorian Institute of Teaching Act do not throw any light on this particular question.

What is the Extent of the Tribunal's Jurisdiction to Review a Determination?

5 Under s.42 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal's review jurisdiction is "jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision maker." In this case the enabling enactment is the Victorian Institute of Teaching Act 2001, which gives the Tribunal jurisdiction to review a determination of a formal hearing panel convened to deal with a complaint against a teacher. Section 52(1)(b) allows a person to apply to the Tribunal for review of a determination cancelling or suspending the person's registration as a teacher.

6 In exercising its review jurisdiction, the Tribunal has "all the functions of the decision maker."[5] As the Full Court of the Supreme Court, (Fullagar, Tadgell and JD Phillips JJ) explained in McDonald v Guardianship Board,[6] the Tribunal is required to decide whether the decision which was made by the panel was the correct or preferable one.[7] It must conduct the review without any presumption as to the correctness of that decision.[8]

7 The respondent submits that the Tribunal's jurisdiction is limited to reviewing the determination that the appellant's registration as a teacher should be cancelled. It is said that the Tribunal has no jurisdiction to review the findings of fact upon which the panel based their determination. The fact that Acts regulating other professional groups refer to review of both "findings" and "determinations" made by disciplinary panels, is said to indicate that Parliament intended to confer a more limited right of review of decisions relating to registration and discipline of teachers. It is submitted that the limited power of review conferred by s.52(1)(b) of the Victorian Institute of Teaching Act 2001 reflects the fact that Parliament has established a peer review process of fact finding which was not intended to be reviewable by the Tribunal. It is also said that this process is intended to protect "the likeliest witnesses, children".

8 I do not accept that the review jurisdiction conferred by s.52(1)(b) should be confined in this way. I reject the respondent's submission for five main reasons.

9 First, the Tribunal will usually have to consider the factual findings upon which a panel determination is based in order to decide whether the decision was the correct and preferable one. Acceptance of the respondent's view would preclude the Tribunal considering evidence relevant to this question. For example it could prevent the consideration of evidence which showed that a complaint resulting in cancellation of a teacher's registration was made maliciously or was based on a misconception.

10 I agree with the appellant's contention that this interpretation would make the right of review conferred by s.52 virtually meaningless. I note that Ms O'Brien agreed that the Tribunal should have before it a transcript of the proceedings, exhibits and other relevant material, and that Mr Davidson should be permitted to lead new evidence relevant to the determination made by the panel, including character evidence. The Tribunal agreed that it was appropriate for such evidence to be considered. This indicates the impracticality of reviewing the determination without taking account of the evidence before the panel and any other relevant material.

11 Secondly, as I have explained above, the Tribunal has all the functions of the decision maker. Its powers should be liberally construed, "in accordance with the

flexibility that is such a feature of the Tribunal's jurisdiction".[9] Apart from the use of the word "determination" in s.52, there is nothing in the Victorian Institute of Teaching Act 2001, or indeed in the Parliamentary debates which preceded its introduction, which suggests that the Act was intended to deprive the Tribunal of the power to exercise the functions of a decision maker.

12 Thirdly, as Ms O'Brien conceded, the Victorian Institute of Teaching Act does not use the expression "determination" consistently. Examples include the use of that word in s.9(4) and s.20(4). Mr Staindl also drew our attention to s.41 of the Act, which requires the hearing panel to hear and determine matters which in turn refers to s.40 of that Act.

13 Fourthly, little if any significance should be attached to the fact that legislation controlling a number of other professions confers jurisdiction on the Tribunal to review a "finding or determination",[10] rather than simply to review a determination. This argument relies on the rule of construction that a term included in a document impliedly excludes what is omitted.[11] As the High Court has recognised, this rule is to be applied cautiously, even when it is applied to a simple document.[12] The rule is even less useful in comparing terms used in different pieces of legislation.

14 Finally, I note that s.51(1)(d) of the Dental Practice Act also gives the Tribunal jurisdiction to review determinations, but does not mention "findings". In two Tribunal decisions involving review of a determination made by the Dental Practice

Board,[13] the Tribunal considered the findings of fact on which the determination was based. In Hassad v Dental Practice Board of Victoria,[14] Deputy President Macnamara commented that:

"This Tribunal's powers on review are its usual review powers under s.51 of the Victorian Civil and Administrative Tribunal Act 1998, which include all the powers of the primary decision maker."

A similar approach was applied by the learned President of the Tribunal, Morris J, in Kosnoskis v Dental Practice Board of Victoria.[15] Of course, this Court is not bound by the Tribunal's view on the extent of its jurisdiction to review determinations, but I agree with the approach taken in both those decisions.

15 For these reasons I would set aside the decision made by the Tribunal and remit the matter for its consideration.

16 I am of the same view, for the reasons which her Honour has given. I add these further reasons of my own.

17 The plain object of the formal hearing, for which provision is made under Part IV of the Victorian Institute of Teaching Act, is to put the panel in a position to undertake the consideration provided for by s.42. Sub-section 42(2) confers a power to make a decision. The term "determination" is used but nothing turns on that: see s.4(1)(a) of the VCAT Act.

18 The panel is to make a decision whether to do one or more of the things set out in sub-paragraphs (g), (h) and (i) of sub-s.(2). In the present case, the panel made a decision - that is, a determination - to cancel the registration of the appellant. The exercise of that power of decision is conditioned by sub-s.(2). After considering

the submissions made at the inquiry, the panel may make a finding to the effect of one or more of sub-paragraphs (a) to (f) of sub-s.(2).

19 Sub-section (1) authorises the Tribunal to make such findings. Strictly speaking, such express authorisation is unnecessary because sub-s.(2), if it stood alone, would necessarily imply a power in the panel to make the findings there contemplated. The basis for the implication is as follows. In providing for the contingency that the panel will come to such a finding, by using the words in sub-s.(2) "if the panel finds", the Act clearly contemplates, and implicitly confers, the power to make such a finding.[16]

20 The Act itself, in s.52, confers the right on a person to apply to VCAT for review of a determination under Part IV. That is a perfectly orthodox provision in Victorian legislation, conventionally used to confer "review jurisdiction" on the Tribunal in the sense in which that phrase is used in the VCAT Act. For the reasons her Honour has given, s.52 has the orthodox consequence that the Tribunal has jurisdiction to review the panel's determination. By force of paragraph (a) of s.51(1) of the VCAT Act, the Tribunal has all the powers and functions of the decision maker - in this case, the panel - in respect of the decision being reviewed.

21 It seems to me to be unambiguously clear that Parliament had in mind in enacting s.52 that the review of the panel's determination would be orthodox merits review. That is, the Tribunal would "stand in the shoes" of the panel and would decide whether the cancellation determination was the "correct or preferable decision" in the circumstances. That review cannot be carried out, either as a matter of practicality or in compliance with the VCAT Act, unless the Tribunal is in exactly the position the panel was in when considering the complaints, the allegations, the evidence and the submissions.

22 There are many instances of a statutory power being made exercisable only where a certain state of satisfaction exists - for example, when a statute says that the power can be exercised if the decision maker is satisfied as to A, B or C, or is of the opinion that D or E. Under s.112(1) of the Occupational Health and Safety Act 2004, for example, the inspector has to form the belief there is an immediate safety risk before he/she can issue a prohibition notice. It has never to my knowledge been suggested that, when reviewing a decision premised on the existence of a state of satisfaction, the Tribunal was somehow precluded from deciding whether it was so satisfied.

23 The clearest words would need to be used in the parent statute before it could be concluded that Parliament intended to withhold from the Tribunal an aspect of the primary decision-making process which would otherwise be within the Tribunal's jurisdiction on a merits review. The law as to the amplitude of the Tribunal's powers on merits review is so well established in Victoria that Parliament must be taken to know that a conferral on the Tribunal of jurisdiction to "review" a decision carries with it all of the powers under the VCAT Act.

24 Ms O'Brien for the Institute made reference to what was said by Mason CJ in Bond.[17] In my opinion, what was said in Bond may be accepted in its entirety consistently with the conclusion Neave JA and I have arrived at. It follows from what Mason CJ said in that case that it would have been possible to treat the findings made under s.42(2) - that is, findings about the conduct of the person - as separately reviewable. Parliament has not, however, conferred separate review jurisdiction in respect of such findings, presumably because findings are only relevant where they form the basis of an adverse determination. The determination is itself reviewable and, where there is review of the determination, there will necessarily be a review of the findings on which it is based. On this analysis, it was unnecessary for Parliament to confer a separate right to seek review of the findings. At all events, the fact that the legislation might have been structured differently does not detract from the proposition that, when review jurisdiction is conferred in respect of the determination, the Tribunal stands in the shoes of the panel and has to ask all the

questions necessary to the exercise of that power.

25 In conclusion, I want to say something about the completely unacceptable delay in this matter coming on for appeal. This is a matter which involves very serious allegations against the appellant. The decision of the panel has affected his livelihood. He has been unable to carry on his occupation as a teacher since the decision was made. As the President of this Court I am very concerned that the order against him was made on 7 April 2005, and it has taken 17 months for the appeal to be heard. This appeal has taken less than two hours to complete. It was never going to need very elaborate argument, and counsel have been commendably succinct. This Court needs to make sure that matters of this character - which are urgent from the point of view of the parties and which are of relatively limited compass - are heard promptly, so that the prejudice which this appellant has suffered by virtue of the delay might in another case be avoided.

26 In my view, for the reasons given by Neave JA, the term "determination" in s.52 of the Victorian Institute of Teaching Act 2001 includes all decisions of the panel that led it to make the impugned determination as that term is used in s.42 of that Act. Consequently, what the Tribunal was empowered, if not obliged, to review in this case was the determination or decision of the panel that the appellant's licence should be cancelled and any other decision made by it that was relevant to that determination.

27 It follows that I agree that the appeal should be allowed, and I also agree with the orders proposed by Neave JA.

28 The proposed orders are as follows:

1. Appeal allowed.

2. Paragraph 1 of the orders made by the Tribunal on 7 April 2005 be set aside.

3. The proceeding otherwise be remitted for hearing by the Tribunal in accordance with law.

4. Pursuant to section 148(8) of the Victorian Civil And Administrative Tribunal Act 1998, the Court directs that on remittal of the matter for re-hearing, the Tribunal need not be constituted by the same member who made the original order.

5. The respondent pay the appellant's costs of the appeal.

6. Paragraph 5 be stayed for a period of one month.

[1] The notification was made under the Victorian Institute of Teaching Act 2001, s.27(1).

[2] The formal hearing was conducted under Victorian Institute of Teaching Act 2001 s.41.

[3] Victorian Institute of Teaching Act 2001, s.53.

[4] Victorian Institute of Teaching Act 2001, s.52.

[5] Victorian Civil and Administrative Tribunal Act 1998, s.51(1)(a).

[6] [1993] VicRp 36; [1993] 1 V.R. 521 at 528.

[7] Transport Accident Commission v Bausch [1998] 4 V.R. 249 at 250. Note that this decision was made under the Administrative Appeals Tribunal Act 1984, the predecessor legislation to the current Victorian Civil and Administrative Tribunal Act 1998.

[8] [1993] VicRp 36; [1993] 1 V.R. 521 at 529.

[9] Dretzke v Boornondara CC [1999] VCAT 920. See also s.98(1)(d) of the VCAT Act, requiring that each proceeding is conducted with "as little formality and technicality, ... as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit."

[10] See for example, Nurses Act 1993, Medical Practice Act 1994, Chiropractors Registration Act 1996, Optometrists Registration Act 1996, or the Osteopaths Registration Act 1996.

[11] Expressio unius est exclusio alterius.

[12] In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 560 per Gleeson, C.J., Gaudron, Gummow and Hayne JJ, it was said that "a maxim upon which, it has often been pointed out, it is dangerous to rely."

[13] Hassad v Dental Practice Board of Victoria [2006] VCAT 443 (per Deputy President Macnamara) and Kozeniauskas v Dental Practice Board of Victoria [2005] VCAT 1058 (per Justice Morris, President).

[14] [2006] VCAT 443.

[15] [2005] VCAT 1058.

[16] See Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7 at [24].

[17] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 C.L.R. 321.