First Plaintiff v First Defendant

1 This is an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) by the plaintiff, Dale Foster, who, until 8 November 2007, was a teacher at Balwyn High School ("School"). The application is in respect of decisions by a delegate of the Secretary to the Department of Education and Early Childhood Development (respectively, "Department" and "Secretary") to assign Mr Foster to non-teaching duties outside the School following the commencement of a disciplinary inquiry against him and the refusal of a Merit Protection Board ("MPB") established under s 2.4.44 of the Education and Training Reform Act 2006 (Vic) ("ETRA") to hear an application for review of a "personal grievance" relating to the decision to assign him to non-teaching duties and certain decisions of the principal of the School concerning the investigation of complaints against Mr Foster.

2 The second plaintiff is Mr Foster's union, the Australian Education Union. The first defendant is the Secretary and the second defendant is the MPB.[1] The MPB appeared through counsel but did not take an active part in the proceeding.

3 Mr Foster seeks an order in the nature of certiorari quashing the decision to assign him to non-teaching duties on the grounds that the decision was made in breach of the rules of natural justice and pursuant to an inflexible policy. He also seeks an order quashing the decision of the MPB refusing to hear his application for review of a personal grievance and an order in the nature of mandamus compelling the MPB to hear that application on the ground that the MPB has misconstrued the scope of its jurisdiction and has failed to exercise a jurisdiction it is legally required to exercise.

4 For the reasons set out in this judgment, I have decided that the decision to assign Mr Foster to non-teaching duties is invalid on the grounds that the decision was made in breach of the rules of natural justice and pursuant to an inflexible policy, and that the MPB did not fail to exercise a jurisdiction it is legally required to exercise. Orders will be made quashing the decision to assign Mr Foster to non-teaching duties and requiring the Secretary to reassign Mr Foster to teaching duties at the School. The proceeding will otherwise be dismissed.

5 Evidence on behalf of Mr Foster comprised an affidavit affirmed by him, and an affidavit affirmed by his solicitor, David Shaw. Neither Mr Foster nor Mr Shaw was cross-examined. Evidence on behalf of the Secretary was given by affidavits of: Jim Watterston, the Regional Director of the Eastern Metropolitan Region of the Department and a delegate of the Secretary; Vicki Augustinus, an officer in the Conduct and Ethics Branch of the Department; Bruce Armstrong, the principal of the School; and Warren St Clair, a retired officer of the Department. Mr Watterston and Ms Augustinus supplemented their affidavits by proofs of additional evidence and were cross-examined.

6 The facts relevant to this proceeding are not contentious and can be stated briefly.

7 Mr Foster has been a teacher since 1984 and has taught at the School since 1987. At relevant times, he taught in the Art/Technology Department at the School.

8 In July and August 2007, Mr Armstrong received four written complaints about Mr Foster from then current and former teachers at the School. In summary, the complaints related to Mr Foster's alleged unsafe use of investment powder in the classroom and his alleged overbearing conduct towards other teachers. Mr Armstrong sought advice from Ms Augustinus on how to proceed. Pursuant to the Secretary's Guidelines for Managing Complaints, Unsatisfactory Performance and Serious Misconduct in Relation to Teachers as at May 2006 ("Guidelines"), a principal may deal with complaints against a teacher either under an informal process or a formal process. Mr Armstrong decided firstly that the allegations made against Mr Foster may, if proven, constitute serious misconduct and secondly to implement a formal process to deal with those allegations. In this judgment, I refer to this decision as the "principal's formal process decision".

9 As part of the formal complaints process, on 24 August 2007, Mr Armstrong sent a letter to Mr Foster, to which were attached copies of the written complaints. The letter was drafted by Ms Augustinus. In the letter, Mr Armstrong described the allegations in the complaints, added his own allegation that Mr Foster "consistently and systematically denigrate[s] and make[s] negative and 'toxic' comments about the Principal Class", sought a written response from Mr Foster to the allegations and said:

Please be advised that these matters, if proven, may constitute serious misconduct. This may result in disciplinary action against you pursuant to the Education and Training Reform Act 2006, such action may include your dismissal. I have, therefore, contacted the Conduct & Ethics Branch for advice.

I am currently following the Department's Complaints Procedures. I refer you to the "Complaints Procedures" section (pages 7-13) of the Complaints, Unsatisfactory Performance and Serious Misconduct section of the Department's Human Resource internet site for further information in relation to this process. This can be accessed at [a web-site address].

10 Mr Foster responded to the allegations in Mr Armstrong's letter in letters dated 2 and 4 September 2007. Mr Foster denied the allegations and said that they did not warrant the charge of serious misconduct.

11 On 14 September 2007, a meeting took place between Mr Armstrong, Mr Foster and others, at which the allegations against Mr Foster were discussed.

12 It appears that in early November 2007, Mr Armstrong contacted Ms Augustinus to seek further advice. He informed her that he considered that the complaints made against Mr Foster may have substance and that he was going to refer the matter for an inquiry under Part 2.4, Division 10 of the ETRA. On 7 November 2007 at 11.25am, Ms Augustinus sent an email to Mr Armstrong attaching a draft letter from Mr Armstrong to Mr Watterston and a draft letter from Mr Armstrong to Mr Foster, both of which had been prepared by Ms Augustinus. In her email, Ms Augustinus said:

I have attached the draft letters for you to send to Jim Watterston and Dale Foster. I would suggest you send the letter to Jim today (I haven't spoken to him yet but have asked that he ring me).

You can give Dale his letter but you may prefer to wait to give Dale his letter until Jim appoints you investigator and writes to Dale (the letter will be sent to you for delivery) [telling] him he is to be removed from duty. This way he is out of the school immediately he is told the investigation is happening and (hopefully) can't cause too much further angst.

13 Some time between 11.25 am and 11.54 am on 7 November 2007, Mr Watterston called Ms Augustinus. The conversation lasted about five minutes. During the conversation, Ms Augustinus informed Mr Watterston of "quite general big picture things" about the allegations against Mr Foster which she described as "difficulties between Mr Foster and his colleagues [and] the leadership team at [the School]". She gave Mr Watterston a general overview of the issues but did not give him details because she thought to do so might prejudice the inquiry. Ms Augustinus told Mr Watterston that it was her view that an inquiry should be commenced and that Mr Foster should be removed from the School for the duration of the inquiry. In re-examination, Ms Augustinus said that she cannot now recall what she said to Mr Watterston.

14 During the five minute conversation with Ms Augustinus on 7 November 2007, Mr Watterston formed the view that the facts alleged against Mr Foster would, if proven, constitute serious misconduct. As delegate of the Secretary, he decided to commence an inquiry under Part 2.4, Division 10 of the ETRA. He also decided, as delegate of the Secretary, to remove Mr Foster from his teaching duties and to assign him to non-teaching duties out of the School pending the outcome of the inquiry ("reassignment decision"). The basis upon which Mr Watterston made his decisions appears from his affidavit and from his oral evidence. As this evidence is critical to the issues in this case, I set it out in detail below.

15 In paragraphs 7, 8, 10 and 12 of his affidavit, Mr Watterston deposed:

1. From my discussion with Ms Augustinus ... I formed the view that the alleged conduct should be characterised as serious misconduct. The allegations essentially related to Mr Foster's negative behaviour towards other staff, including the Leadership Team.
2. I formed that view because, in my judgement, allegations that a teacher has failed to treat colleagues with respect and has treated colleagues in a negative manner, if proven, would constitute serious misconduct. For a school to operate effectively it is essential that the staff are cohesive and collegiate. In my experience, conflicts amongst staff can create an unhealthy work environment and can seriously undermine the capacity for teachers to focus on their primary goal of teaching their students in a safe and encouraging environment.
3. It was, and remains, my view that, once a matter has been appropriately characterised as containing allegations of serious misconduct, it is necessary to remove the teacher from his or her teaching duties and assign the teacher to non-teaching duties. Therefore, when I make my assessment of whether complaints should be characterised as serious misconduct I am mindful that, if so, the consequences will be that the teacher will be removed from teaching duties.
4. In the case of Mr Foster, having formed the view that the allegations, if proven, would constitute serious misconduct, I determined that he should be removed from his teaching duties. I also spoke to Ms Augustinus about this. In making my determination, I took into account the view expressed by Ms Augustinus that she considered that the removal of Mr Foster would be appropriate.

16 During cross-examination by Mr Niall, who appeared for the plaintiffs, Mr Watterston gave the following answers to Mr Niall's questions:

Mr Niall: At the time of [the] briefing between 11.25 and 11.54 you'd not spoken to Ms Augustinus before about the matter. Correct?

Mr Watterston: I ... don't recall speaking to her before that.

Mr Niall: You'd never looked at any documents in relation to Mr Foster of Balwyn High School. Correct?

Mr Watterston: That's correct.

Mr Niall: You had no knowledge of the issues before Ms Augustinus rang you?

Mr Watterston: Not issues directly pertaining to Mr Foster.

...

Mr Niall: At the time the conversation started it would be fair to say that you had no knowledge of the allegations and circumstances concerning Mr Foster?

Mr Watterston: Concerning Mr Foster that's correct.

...

Mr Niall: ... during that conversation you told Ms Augustinus that you would initiate an enquiry, and you told her that Mr Foster should be removed. Correct?

Mr Watterston: Correct.

Mr Niall: At the time you formed that view did you know that the principal had written on 24 [August] to Mr Foster, outlining some complaints?

Mr Watterston: No, I ... don't believe I was aware of that correspondence.

...

Mr Niall: Did you know that these issues or these complaints had been around since August 2007?

Mr Watterston: I don't recall knowing, no.

Mr Niall: You obviously hadn't had that letter and you hadn't read it before you made the decision to remove Mr Foster. Correct?

Mr Watterston: Correct.

Mr Niall: I take it also that you hadn't read Mr Foster's response to those allegations?

Mr Watterston: Correct.

Mr Niall: You hadn't spoken to the principal or Mr Foster?

Mr Watterston: Correct.

Mr Niall: You say that your understanding of the allegations was that Mr Foster had failed to treat colleagues with respect, and had treated colleagues in a negative manner?

Mr Watterston: That was my understanding of the ... allegations.

Mr Niall: Did you know how many [colleagues]?

Mr Watterston: No. I was aware that it was a number of colleagues and it ... included the leadership team.

Mr Niall: Did you know that he'd denied the allegations?

Mr Watterston: I ... didn't ask. ... I didn't see that as my responsibility.

Mr Niall: Once you'd had the allegations described to you in general terms, you formed the view that they could amount to serious misconduct if proven. Correct?

Mr Watterston: I did.

Mr Niall: Then you made the decision to remove Mr Foster from the school?

Mr Watterston: I did.

...

Mr Niall: Having formed the view that ... the allegations were appropriately characterised as containing allegations of serious misconduct, you formed the view that Mr Foster must be removed?

Mr Watterston: I formed the view that if those allegations were substantiated then his removal ... would be appropriate.

Mr Niall: You didn't turn your mind to how strong the evidence might be?

Mr Watterston: No, not at that stage.

Mr Niall: You didn't turn your mind to whether Mr Foster might have an explanation?

Mr Watterston: Not at that stage.

Mr Niall: You didn't turn your mind to the question of how long the inquiry might take?

Mr Watterston: No.

Mr Niall: You didn't turn your mind to the impact that removing Mr Foster might have on Mr Foster did you?

Mr Watterston: I certainly did. I strongly considered the impact.

Mr Niall: You didn't think it would be appropriate to communicate with Mr Foster before you made the decision?

Mr Watterston: No, I didn't.

Mr Niall: Did you regard it as a matter of urgency?

Mr Watterston: I regarded it as a result of the nature of the allegations to be the right thing to do, so in that sense I determined that it needed to be done as soon as possible.

Mr Niall: You thought it had to be done that day?

Mr Watterston: I thought it was best to remove him that day, yes.

Mr Niall: Even though you didn't know how long the allegations had been around?

Mr Watterston: I'm not sure that mattered to me.

Mr Niall: So it didn't matter to you that the allegations might have been raised in August 2007 and Mr Foster had been continuing to teach during that period?

Mr Watterston: What mattered to me was that they were raised to me the previous day.

...

Mr Niall: Well when you say "previous day" your decision - they were first raised with you on the seventh?

Mr Watterston: Sorry, well the seventh is the day I'm referring to.

Mr Niall: You made the decision within a five minute briefing?

Mr Watterston: Well I had to receive the letter the next morning from Mr Armstrong.

Mr Niall: But you'd made your decision?

Mr Watterston: I had agreed that - well I believed that those allegations were serious enough to warrant removal.

Mr Niall: But it would be fair to say that you had only the most general understanding of what those allegations were?

Mr Watterston: I had a general understanding of what those allegations were, but I had a deep and strong understanding of the context of the school.

Mr Niall: But not as that related to Mr Foster I take it?

Mr Watterston: Not as that related to Mr Foster, but certainly from a contextual point of view what the issues were in the school, and what the prevailing context would do in terms of influencing my decision.

Mr Niall: So it was general issues that were concerning you, rather than the specifics of Mr Foster?

Mr Watterston: No, it was the specific issues relating to Mr Foster that required me to make a decision as to whether he should be removed or not. My knowledge of the school helped influence that decision.

Mr Niall: Where did your information about the knowledge of the school come from?

Mr Watterston: Well in my role for the previous three years or more I'd had many interactions with the school, both on location and through consultation with many of the people that work at the school.

Mr Niall: But you'd never spoken to Mr Foster?

Mr Watterston: Not to my knowledge.

Mr Niall: You'd never had any information about Mr Foster before the seventh?

Mr Watterston: Not that I'm aware of.

...

Mr Niall: Mr Watterston you ... signed a letter that Ms [Augustinus] had written to Mr Foster ... advising Mr Foster that he'd been removed from teaching duties, and placed under ... your supervision until further notice. He was to report to the regional office. Where's the regional office?

Mr Watterston: The regional office at that time was at the corner of Burwood Highway and Springvale Road. However it's now in Springvale Road in Glen Waverley.

Mr Niall: And the duties ... which Mr Foster was being given [would] fairly be described as menial, would they not?

Mr Watterston: I can't really comment because I wasn't directly involved in providing those duties but I assume they were clerical.

17 In re-examination by Mr Hanks QC, who appeared with Ms Gordon for the Secretary, Mr Watterston provided the following clarification of the answers he gave in cross-examination.

Mr Hanks: Mr Watterston, you were asked by my friend about the briefing from Ms Augustinus and you said that you agreed that the allegations were serious enough to warrant Mr Foster's removal from the school?

Mr Watterston: I did.

Mr Hanks: What aspect of the allegations was it that you regarded as of sufficient seriousness?

Mr Watterston: It was the allegations pertaining to conflict with staff and leadership team members. I felt that it could constitute bullying and harassment and in that sense it would be an occupational health and safety issue, which I'm responsible for within the school. So I felt that the issue had the potential to be volatile enough to impact on the performance or conduct of the people around Mr Foster.

Mr Hanks: Then in answer to another question I think you said that you didn't have a detailed understanding of the factual background but you did have a deep understanding in the context of the school?

Mr Watterston: I did.

Mr Hanks: Could I ask you what you mean by that phrase, "the context of the school"?

Mr Watterston: I understood that the principal had implemented a change management process over a long period of time and that had received some pushback I guess from some staff and there had been previous times when there was some volatility and I was aware of the difficulties that had proven to cause in the past.

Mr Hanks: So that's what you had in mind by the context?

Mr Watterston: Yes.

Mr Hanks: And what aspect of that context did you regard as relevant to your decision on removal?

Mr Watterston: Well the relevance was that in the past where there had been difficulties and volatility between leadership team and staff members that the occupational health and safety of some of those members had been compromised and it was a volatile environment. So I felt it was best to remove Mr Foster from that situation.

18 On 7 November 2007 at 11.54 am, following her conversation with Mr Watterston, Ms Augustinus sent an email to Mr Armstrong, in which she said: "I've spoken to Jim, he's happy to support Dale's removal. I will email him the letters for his signature now." On the same day at 11.58 am, Ms Augustinus sent an email to Mr Watterston attaching draft letters from Mr Watterston to Mr Armstrong and Mr Foster, respectively, to be signed and sent by Mr Watterston once he had received a letter from Mr Armstrong recommending the commencement of an inquiry.

19 On 8 November 2007, Mr Armstrong wrote the letter to Mr Watterston that Ms Augustinus had emailed to him on the previous day. The letter stated:

I write in relation to Mr Dale Foster.

I have completed a local level complaints process in relation to complaints received about Mr Foster concerning misuse of materials in class and negative and inappropriate comments being made to, and about, colleagues and the Leadership team.

As a result of this, I have formed the view that there may be grounds for action under Part 2.4, Division 10, of the Education and Training Reform Act 2006 and I am recommending the commencement of an inquiry under the Act.

20 Mr Watterston had made his decision to commence an inquiry and the reassignment decision during his brief conversation with Ms Augustinus on 7 November 2007, before receiving Mr Armstrong's letter of 8 November 2007. In his proof of additional evidence, Mr Watterston acknowledges that the letter did not play any part in his decisions. I note that the letter did not make any recommendation that Mr Foster be reassigned to non-teaching duties outside the School.

21 In this judgment, I refer to Mr Armstrong's decision to recommend the commencement of an inquiry as the "principal's inquiry recommendation decision". I refer to the principal's formal process decision and the principal's inquiry recommendation decision collectively as the "principal's decisions".

22 On 8 November 2007, Mr Foster was provided with two letters bearing that date, both of which had been drafted by Ms Augustinus. The first letter was from Mr Armstrong advising Mr Foster of Mr Armstrong's decision to recommend an inquiry and noting the requirements of confidentiality in relation to the complaints process. The second letter was from Mr Watterston advising him of the inquiry, the appointment of Mr Armstrong as investigator and the decision to remove Mr Foster from teaching duties at the School pending the outcome of the inquiry. Mr Watterston's letter stated:

I write in reference to a letter received from Mr Bruce Armstrong, Principal, Balwyn High School, in which he recommended the commencement of an inquiry under Part 2.4, Division 10, of the Education and Training Reform Act 2006. The inquiry will be in relation to allegations of making inappropriate and negative comments to, and about, colleagues and leadership at Balwyn High School, improper use of materials in class and any other relevant matters.

...

... I now nominate Mr Bruce Armstrong as the investigator under clause 2.4.65 of the Act for the purpose of conducting the investigation and providing me with a report. ...

...

Further, as you are the subject of allegations of serious misconduct, you are to be removed from teaching duties at Balwyn High School pending the outcome of action under the Education and Training Reform Act 2006. You are to be placed under my supervision until further notice.

You are to report to the Regional Office on the day following your receipt of this letter. ...

23 Apart from his letter of 8 November 2007 to Mr Watterston and a reply from Mr Watterston of the same day advising him of the commencement of the inquiry and his appointment as investigator, Mr Armstrong did not have any communication with Mr Watterston about Mr Foster. Mr Watterston had no communication with Mr Foster apart from the letter dated 8 November 2007 referred to in paragraph 22 of this judgment.

24 On 9 November 2007, Mr Foster reported to the Regional Office and was instructed to attend the State Schools Relief Committee ("SSRC") premises. At those premises, Mr Foster's main role consists of packing school uniforms in preparation for posting to underprivileged and refugee students in State Schools. He also takes on additional work to occupy himself, including shredding documents, work on the computer network and maintenance in the grounds of the premises occupied by the SSRC.

25 On 16 November 2007, Mr Foster lodged an application for review of a personal grievance with the MPB in respect of what he described as "the decision to go to formal [discipline] procedures - suspension from duties". The decision-maker was identified as Mr Armstrong and the date of the decision was stated to be 8 November 2007.

26 Mr Foster gave evidence of the following consequences of the reassignment decision:

(a) Since the reassignment decision, he has worked at the premises used by the SSRC, as described in paragraph 24 of this judgment.

(b) He was removed from teaching duties immediately before end of year assessments and the preparation of student reports, meaning that he was required to report on students and provide assessments without the benefit of seeing the final product of his students' year's or semester's work.

(c) When he attended the School on 13 December 2007 in order to retrieve some items that were being thrown out as part of a clean up, he discovered that many items which he had acquired or made were either missing or piled up in the School grounds in readiness for removal. Many of those items remain missing. Had he been at the School when the clean up was occurring, he would have preserved many of the items for use in his future teaching.

(d) Because of the confidentiality obligations imposed on him, he is not able to explain to friends and family the reasons why he is not undertaking his teaching duties.

27 In early December 2007, Mr St Clair replaced Mr Armstrong as the nominated investigator in the inquiry against Mr Foster.

28 On 27 February 2008, following receipt of submissions from Mr Foster and the Department, the MPB made a ruling that it did not have jurisdiction to hear Mr Foster's application for review of a personal grievance. The MPB's reasons for the ruling are discussed later in this judgment.

29 Mr St Clair has reported to Mr Watterston on the result of his investigation. He provided a copy of the report to Mr Foster for his response and Mr Foster has responded. However, Mr Watterston has provided an undertaking to Mr Foster that he will not make a decision on the inquiry until 30 days after the judgment of the Court in this proceeding.

30 Ms Augustinus gave evidence that it is common for an inquiry under Part 2.4, Division 10 of the ETRA to take at least six months but uncommon for an inquiry to take longer than 12 months. In Mr Foster's case, the inquiry has not been completed, although this is partly due to the commencement of this proceeding. Mr Foster has not performed teaching duties for over 12 months.

Originating motion and issues in the proceeding

31 On 21 April 2008, Mr Foster filed an originating motion in which he seeks orders in the nature of mandamus to compel the MPB to review the principal's decisions and the reassignment decision, a declaration that the MPB has jurisdiction to review each of those decisions and an order in the nature of certiorari quashing the MPB's decision refusing to review those decisions. As an alternative, the originating motion seeks an order quashing the reassignment decision. It also seeks an order reinstating Mr Foster to the position and/or duties of a teacher at the School.[2]

32 The grounds of review set out in the originating motion are a wrongful failure by the MPB to exercise its jurisdiction or the commission by the MPB of jurisdictional error, or the existence of an error of law on the face of the record of the MPB's decision, in each case arising from the MPB's interpretation of the ETRA and a Ministerial Order known as Teaching Service Order 186 ("TSO 186"). Further, the originating motion claims that Mr Watterston fell into jurisdictional error by not giving Mr Foster any opportunity to make a submission or be heard on whether the reassignment decision should be made, by failing to consider for himself whether there was an allegation of serious misconduct and/or whether the allegations justified or required the reassignment decision, and by applying a rule or policy without regard to the merits of Mr Foster's case.

(a) Does the hearing rule of natural justice apply to the reassignment decision?

(b) If the hearing rule of natural justice applies to the reassignment decision, was there a breach of the rule?

(c) Did Mr Watterston fetter his discretion in making the reassignment decision by applying an inflexible policy that once it is determined that the allegations against a teacher, if proven, constitute serious misconduct, the teacher is to be removed from his or her school and be assigned non-teaching duties?

(d) What is the proper interpretation of cl 5.1.1 of TSO 186, which defines the jurisdiction of the MPB to hear an application for review of a personal grievance?

(e) Does the reassignment decision fall within the MPB's jurisdiction to hear an application for review of a personal grievance?

(f) Do the principal's decisions fall within the MPB's jurisdiction to hear an application for review of a personal grievance?

34 Section 2.4.3 of the ETRA, which is in Part 2.4, Division 2, headed "Employment in teaching service", provides:

2.4.3 Employment of teachers, principals and other staff

(1) For the purposes of this Act, there shall be employed by the Secretary on behalf of the Crown in the teaching service -

(a) teachers; and

(b) principals and assistant principals; and

(c) persons engaged or employed as teacher aides, assistant teachers or to perform professional, administrative, clerical or computing or technical duties in schools; and

(d) any person in any other category of staff declared by Ministerial Order to be staff in schools who may be employed by the Secretary; and

(e) any other persons who are necessary for the purposes of this Act.

(2) The Secretary, on behalf of the Crown, has all the rights, powers, authorities and duties of an employer in respect of employees in the teaching service.

(3) Without limiting subsection (2), the Secretary may -

...

(d) assign work to employees;

(e) issue lawful instructions that must be observed by employees;

...

(h) transfer employees to other duties in the teaching service;

(i) suspend employees from duty with pay;

(j) terminate the employment of employees; ...

35 Section 2.4.44 of the ETRA, which is in Part 2.4, Division 7, headed "Appeals", provides:

2.4.44 Merit Protection Boards

(1) There are established one or more Boards to be known as Merit Protection Boards.

(2) The functions of the Boards are -

...

(b) to hear reviews and appeals in relation to decisions made under this Act (except Division 10) or any other Act;

...

(d) to hear reviews and appeals in relation to any decision prescribed by the regulations or Ministerial Order to be a decision in respect of which there is a right of review by or appeal to a Merit Protection Board; ...

36 Division 10 of Part 2.4 of the ETRA is headed "Misconduct and inefficiency". It comprises ss 2.4.60 to 2.4.70. Sections 2.4.60 to 2.4.62 provide:

2.4.60 Grounds for action

(1) The Secretary, after investigation, may take action under this Part against an employee who -

(a) conducts himself or herself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise; or

(b) commits an act of misconduct; or

(c) during his or her period of service is convicted or found guilty of a criminal offence punishable by imprisonment or a fine; or

(d) is negligent, inefficient or incompetent in the discharge of his or her duties; or

(e) contravenes a provision of this Act or a Ministerial Order made for the purposes of this Chapter; or

(f) contravenes a requirement by or under any Act that corporal punishment not be administered to any Government school student; or

(g) without reasonable excuse, contravenes or fails to comply with a lawful direction given to the employee by a person with authority to give the direction; or

(h) without permission and without reasonable excuse, is absent from his or her duties; or

(i) is unfit on account of character or conduct to discharge his or her duties.

(2) In considering the fitness of an employee to discharge his or her duties, consideration may be given to any relevant matters including his or her character and any conduct in which he or she has engaged (whether before or after becoming an employee).

2.4.61 Action against employee

(1) If the Secretary is satisfied on an inquiry under this Part that there are one or more grounds under this Division for taking action against an employee, the Secretary may take one or more of the following actions against the employee -

(a) a reprimand;

(b) a fine not exceeding 50 penalty units;

(c) a reduction in classification;

(d) termination of employment.

(2) The Secretary, by notice in writing, must advise the employee of -

(a) the determination of the Secretary on the inquiry; and

(b) if the Secretary takes action under subsection (1), the right to appeal to a Disciplinary Appeals Board.

2.4.62 Procedures for investigation and determination of allegations

The Secretary must establish procedures for the investigation and determination of an inquiry under this Division.

2.4.64 Suspension from duty

(1) If -

(a) the Secretary reasonably believes that there may be grounds under this Division for taking action against an employee; or

(b) an employee is charged with a criminal offence punishable by imprisonment or a fine -

the Secretary may suspend the employee from duty, with or without pay, by giving notice in writing to the employee.

(2) A suspension under subsection (1) continues, at the discretion of the Secretary, until the Secretary has made a determination whether or not to take action under this Division against the employee.

...

(4) Before deciding whether to suspend an employee from duty without pay, the Secretary must give the employee an opportunity to make a submission in writing to the Secretary addressing whether suspension without pay should occur. ...

2.4.65 Investigation

(1) The Secretary may nominate a person to investigate and report to the Secretary in connection with an inquiry under this Division.

(2) The Secretary or nominated investigator must give to an employee against whom it is alleged there are grounds under this Division for action -

(a) notice in writing of the alleged grounds; and

(b) written particulars of the alleged grounds; and

(c) an opportunity to provide to the Secretary or investigator, as the case may be, a response in writing to the alleged grounds.

...

2.4.66 Employee may make submissions

(1) The Secretary must give to an employee against whom it is alleged there are grounds for action notice in writing that the employee may make a submission in writing to the Secretary addressing one or more of the following matters -

(a) the alleged grounds;

(b) any action that may be taken by the Secretary under this Division.

...

(3) The Secretary must consider any submission made in accordance with this section before determining the issue to which the submission, or that part of the submission, relates.

2.4.68 Appeal

(1) An employee may appeal to a Disciplinary Appeals Board against a determination of the Secretary to take action against the employee under this Division.

...

(5) An appeal must be conducted as a re-hearing.

(6) A Disciplinary Appeals Board must hear and determine the appeal and may -

(a) allow the appeal in whole or in part and vary the decision of the Secretary; or

(b) dismiss the appeal.

39 Section 2.4.72 of the ETRA, which is in Part 2.4, Division 11 headed "Disciplinary Appeals Boards", provides:

2.4.72 Establishment of Disciplinary Appeals Boards

(1) There are established one or more Boards to be known as Disciplinary Appeals Boards.

(2) The function of the Boards is to hear and determine appeals in relation to decisions of the Secretary made under section 2.4.61.

40 It was common ground before me that the reassignment decision was made pursuant to s 2.4.3(3) of the ETRA, which empowers the Secretary to "transfer employees to other duties in the teaching service", "assign work to employees" and "issue lawful instructions that must be observed by employees" (see paragraph 34 of this judgment). Although the expression "teaching service" is not defined in the Act, it is clear from ss 1.1.1(2)(g) and 2.4.3(1) and the definitions of "employee" and "teacher" in s 2.4.1 that the teaching service comprises not only teachers but also other employees. In any event, it was not submitted by Mr Niall that the reassignment decision had the effect of removing Mr Foster from the teaching service.

41 Mr Niall submitted that, in deciding whether to transfer Mr Foster out of the School and to assign him to non-teaching duties, Mr Watterston was obliged to comply with the hearing rule of natural justice. He submitted that Mr Foster had an interest or at the very least a legitimate expectation that he would not be removed from teaching duties at the School without being afforded an opportunity to be heard. He submitted that the reassignment decision had serious adverse consequences for Mr Foster, including the facts that he was deprived of the opportunity to carry out the duties for which he was employed as a teacher, he was removed from the School suddenly without explanation which affected his reputation within the School community, and he was assigned menial and uninteresting tasks. Mr Niall submitted that the general principles in Kioa v West,[3] Annetts v McCann[4] and Ainsworth v Criminal Justice Commission[5] applied. Those cases recognise that public officials having power to make decisions which adversely affect a person's rights, interests or legitimate expectations must comply with the rules of natural justice before making such decisions unless the rules are excluded by plain words of necessary intendment in the statute conferring the power.

42 Mr Hanks submitted that the reassignment decision did not attract the hearing rule of natural justice because it was essentially precautionary pending the outcome of the disciplinary inquiry and did not have a punitive or disciplinary character. He submitted that even if the hearing rule might otherwise have been applicable, it was excluded by the ETRA because it evinces an intention to do so. Mr Hanks referred to a number of provisions of the ETRA (including ss 2.4.56(5), 2.4.64(4), 2.4.65(2), 2.4.66, 2.4.68, 2.6.15, 2.6.27, 2.6.38 and 2.6.45) which expressly require compliance with the hearing rule and submitted that it should be inferred that, as s 2.4.3(3) does not expressly require compliance with the hearing rule, that rule is excluded. In particular, Mr Hanks referred to s 2.4.64(4), which expressly requires the Secretary to hear a teacher before he or she is suspended without pay, for the proposition that a suspension with pay does not attract the hearing rule and therefore neither does a transfer to non-teaching duties on the same salary.

43 Mr Hanks also submitted that as the reassignment decision was made for the purposes of the inquiry established under Part 2.4, Division 10 of the ETRA, it formed part of the scheme for dealing with serious misconduct allegations in the ETRA. He submitted on the basis of Cornall v AB[6] that as Division 10 contains extensive provisions for affording a hearing to a teacher who is the subject of misconduct allegations, the initial decision to assign a teacher to non-teaching duties does not attract the hearing rule.

44 In Cornall, after conducting an investigation, the Secretary of the Law Institute of Victoria ("LIV Secretary") formed the opinion that there appeared to have been misconduct by a solicitor and, as he was accordingly entitled to do under the then Legal Profession Practice Act 1958 (Vic), referred the matter to a registrar's hearing. The Appeal Division considered the legislative provisions and the authorities then extant, including Annetts and Ainsworth, and decided that the LIV Secretary was not required to comply with the requirements of procedural fairness in forming his opinion. In arriving at this view, the Appeal Division relied on the proposition that, at a preliminary or administrative stage of a decision-making process, no obligation to afford procedural fairness will be imposed if, looking at the procedure in its entirety, the person to be affected had a fair and complete right to put his or her case.[7]

45 In my opinion, where the Secretary to the Department proposes, in relation to a teacher who is the subject of complaints about his or her conduct, to transfer the teacher out of his or her school and assign to him or her non-teaching duties pursuant to s 2.4.3(3) of the ETRA, the Secretary must give notice of the proposed action to the teacher and afford the teacher a reasonable opportunity to make submissions and present material to the Secretary as to why the Secretary should not take the proposed action. The notice must describe the nature of the proposed non-teaching duties and where they are to be performed so that the teacher can assess how he or she will be affected by the proposed action. The reasons for my opinion are set out in paragraphs 46 to 54 of this judgment.

46 A teacher in Mr Foster's position is employed to teach at a particular school and to enjoy the attributes of that professional role. To be denied teaching duties fundamentally alters the role for which the teacher has been employed, particularly where the teacher is assigned relatively menial duties, as in this case, which do not require any professional qualifications and could be regarded as demeaning. The decision is akin to a demotion on the same salary for between six to 12 months. These features are sufficient to attract the hearing rule of natural justice even if the decision does not have a punitive or disciplinary purpose or effect. It is not necessary for me to determine whether the decision has a punitive or disciplinary character for the purpose of reaching this conclusion and I make no finding on this issue.

47 A reassignment decision of the type in issue in this case not only adversely affects a teacher's enjoyment of his or her employment but also has the potential to damage his or her reputation. In this case, after teaching at the School for 20 years, Mr Foster suddenly left the School on 8 November 2007 and has been absent for over 12 months. The potential for damaging speculation as to the reasons for Mr Foster's sudden and prolonged absence is obvious. Cases such as Ainsworth emphasise that protection of reputation is a sufficient interest to attract natural justice.[8]

48 I do not accept Mr Hanks' submission that the ETRA, read as a whole, evinces an intention to exclude the rules of natural justice in relation to a reassignment decision made under s 2.4.3(3). Although various provisions of the ETRA expressly impose natural justice requirements, this does not necessarily mean that natural justice does not apply where a provision is silent in relation to natural justice.[9] On the contrary, the common law requires compliance with the rules of natural justice where a decision adversely affects rights, interests or legitimate expectations, unless the rules are excluded by express words or necessary implication. The provisions that Mr Hanks referred to deal with termination due to incapacity,[10] suspension from duty for, and investigation in relation to, misconduct or inefficiency,[11] appeals to a Disciplinary Appeals Board,[12] and decisions by the Victorian Institute of Teaching to refuse an application for registration to teach or impose conditions, limitations or restrictions on the registration or permission to teach of an applicant,[13] to suspend a registration or permission to teach,[14] or to conduct a disciplinary hearing.[15] It cannot be seriously suggested that no other provision of the ETRA, which is a long and complex statute which, among other things, regulates Victorian teachers, attracts the rules of natural justice. In any event, as none of the provisions referred to by Mr Hanks deal with reassignment of duties, they cannot evince an intention to exclude the rules of natural justice in relation to an involuntary reassignment decision under s 2.4.3(3).

49 I also reject Mr Hanks' submission that the reassignment decision was a first step in a scheme which sets out exhaustively when natural justice must be afforded. The recent case of Byrne v Marles[16] demonstrates that the question of exclusion of natural justice depends on the precise provisions of the Act under consideration. In that case, the Court of Appeal held that a decision of the Legal Services Commissioner made under the Legal Profession Act 2004 (Vic) whether to treat a complaint as a disciplinary complaint and refer it to the Law Institute of Victoria for investigation is subject to the hearing rule. The Court distinguished Cornall on the basis that, by contrast to the position under the Legal Profession Practice Act 1958, under the Legal Profession Act 2004, the Legal Services Commissioner is required to give written notice and details of the complaint to the legal practitioner and has a discretion to dismiss the complaint summarily if the Commissioner forms the view that it is vexatious, misconceived, frivolous or lacking in substance.[17]

50 The Secretary has a discretion whether to transfer a teacher to non-teaching duties under s 2.4.3(3). Moreover, the ETRA does not link a decision under s 2.4.3(3) to an inquiry under Part 2.4, Division 10 in the same way that a decision to transfer a teacher to other duties under s 69(1)(a) of the Teaching Service Act 1981 (Vic) ("TSA") as in force on 12 November 2003 was linked to the disciplinary provisions of the TSA,[18] and as a decision to suspend a teacher under s 2.4.64 of the ETRA is now linked to an inquiry under Part 2.4, Division 10. Section 2.4.3(3) is in Division 2 of Part 2.4 headed "Employment in teaching service" and not in Division 10 headed "Misconduct and inefficiency". The power in s 2.4.3(3) can be used independently of an inquiry under Part 2.4, Division 10 as well as in aid of such an inquiry in the sense that a teacher can be reassigned to non-teaching duties after the commencement of the inquiry for the purposes of the inquiry. However, the fact that the power can be used in aid of an inquiry under Division 10 does not mean it is part of the disciplinary scheme in Division 10.

51 Further, the natural justice requirements which form part of the disciplinary scheme in Division 10 will not "cure" any unfairness perpetrated in the making of a reassignment decision and the prejudice caused by such a decision cannot be remedied by the Division 10 natural justice requirements.[19] A Division 10 inquiry will not investigate a reassignment decision and the Disciplinary Appeals Boards do not have jurisdiction to hear an appeal in respect of a reassignment decision.[20] It cannot be said that there is no practical merit in providing a teacher with the opportunity to be heard before the Secretary or a delegate determines whether to reassign the teacher to duties outside the School.

52 For the reasons set out in paragraphs 49 to 51 of this judgment, Cornall and cases that ha[21] applied its reasoning21 can be distinguished.

53 Although the parties did not refer me to it, I have considered Cava v Marshall.[22] That case held that a decision of the South Australian Director-General of Education to permanently transfer five teachers from a school to other schools following an external review of the first school which found that the school was in a state of crisis brought about in part by the five teachers, was not subject to the rules of natural justice. The transfers were not made in the context of disciplinary processes against the five teachers. The case turned on the particular provisions of the Education Act 1972 (SA), including the existence of an appeal on the merits to the Teachers Appeal Board in respect of the transfer decisions. It does not alter my conclusions as it is simply an illustration of the principle that the rules of natural justice apply unless the particular legislation excludes them.

54 Another illustration of this principle is James v MacDonald.[23] That case decided that the principles of natural justice applied to a decision under r 116A of the Public Service Regulations (Cth) to temporarily transfer a public servant to another location, on the same classification level, on the basis of perceived deficiencies in the performance of his duties and his working relationships. In deciding that the rules of natural justice applied, the Court had regard to the terms of the relevant legislation and the fact that the temporary transfer "was bound to have a substantial impact upon [the public servant's] career prospects and reputation".

55 Mr Hanks did not submit that, if the hearing rule applied to the reassignment decision, the rule was complied with. In my opinion, having regard to the facts set out in paragraphs 13 to 17 of this judgment, it cannot be argued that Mr Foster was given an opportunity, let alone an adequate opportunity, to persuade Mr Watterston not to make the reassignment decision.

56 The reassignment decision is a substantive decision affecting Mr Foster's rights rather than a procedural decision and it is therefore amenable to an order in the nature of certiorari. Mr Hanks did not submit otherwise. The reassignment decision is invalid and will be quashed.

Reassignment decision: fettering discretion by applying a policy inflexibly

57 As I have concluded that the reassignment decision is invalid because it was made in breach of the rules of natural justice, it is not strictly necessary for me to make a decision on the alternative ground of invalidity, namely that the reassignment decision was made by applying a policy inflexibly without having regard to the merits of Mr Foster's case. However, in case I am wrong in relation to natural justice, I will set out my reasons for upholding this alternative ground.

58 Mr Niall submitted that, on the evidence, Mr Watterston could not have considered the merits of Mr Foster's case. He pointed out that Mr Watterston spent only five minutes on the telephone discussing the matter with Ms Augustinus and that Mr Watterston deposed in his affidavit that once he decided that the complaints against Mr Foster should be characterised as containing allegations of serious misconduct, it inevitably followed that Mr Foster would be removed from the School (see paragraph 15 of this judgment). Mr Niall submitted that Mr Watterston applied an inflexible policy and thereby fettered his discretion. He submitted that applying a policy inflexibly without regard to the merits of the individual case constitutes a jurisdict[24]nal error.24

59 Mr Hanks submitted that Mr Watterston did consider the merits of Mr Foster's case rather than applying an inflexible policy. He referred to Mr Watterston's oral evidence that he had considered the nature of the allegations against Mr Foster, the situation that had arisen in the past in relation to disputes between staff and the leadership team which had led to occupational health and safety issues at the School, and the impact of the reassignment decision on Mr Foster.

60 In my opinion, Mr Watterston applied an inflexible policy and failed to take into account the merits of Mr Foster's case. It was not in dispute that Mr Watterston was not provided with the details of the allegations against Mr Foster. All that Mr Watterston was told was that the allegations related to disputes with other staff and leadership team members. Mr Watterston spent only five minutes considering this issue during a telephone conversation with Ms Augustinus, without referring to any documents. Having regard to the time Mr Watterston spent considering the issue, and the absence of any detailed knowledge of the allegations against Mr Foster, Mr Watterston could not have given "proper, genuine and realistic consideration"[25] to the merits of Mr Foster's case. Indeed, in the absence of information that Mr Foster's situation involved occupational health and safety issues, it appears that Mr Watterston may have been influenced by matters extraneous to Mr Foster's case by taking into account past occupational health and safety issues.

61 Mr Watterston also failed to have proper, genuine and realistic regard to the impact of the reassignment decision on Mr Foster. In his evidence, Mr Watterston said that he assumed that Mr Foster would be assigned clerical duties. He made no inquiries in this regard and did not know that Mr Foster was assigned relatively menial tasks. It is no answer for Mr Watterston to say that he did not personally decide what duties were assigned to Mr Foster, as he was the delegate of the Secretary who made the reassignment decision. He had the power under s 2.4.3(3) to "assign work" to Mr Foster and purported to exercise it without specifying any duties. An instruction to report to the regional office may be a lawful instruction but is not, in and of itself, an assignment of duties. In order to properly, genuinely and realistically consider the merits of Mr Foster's case, Mr Watterston needed to know what duties were to be assigned to Mr Foster so that he could take into account the impact that the assignment of those duties would have on Mr Foster. Mr Watterston also needed to give notice to Mr Foster of the proposed duties so that Mr Foster could assess the impact on him (see paragraph 45 of this judgment).

Reassignment decision: comments on the Department's procedures

62 The course that was adopted in making the reassignment decision is unfortunate. That course appears to have resulted from the Department's desire to insulate the decision-maker from the details of the allegations made against a teacher in order to avoid accusations that the decision-maker's decision at the conclusion of the inquiry was tainted by pre-judgment or otherwise. This concern is apparent from Ms Augustinus' evidence.[26]

63 It is necessary for the decision-maker to make an impartial decision under s 2.4.61 of the ETRA based on the results of the inquiry, which results are arrived at after the natural justice requirements in provisions such as ss 2.4.65 to 2.4.67 (see paragraph 37 of this judgment) are complied with. However, depriving the decision-maker of relevant information about the allegations and the teacher's response to the allegations, as occurred in this case, runs the risk of breaching the rules of natural justice and decisions being made without regard to the merits of the individual case. Another risk is that the process will lack transparency, in the sense that the decision is based on oral briefings by Departmental staff, the details of which are not recorded and cannot be precisely recollected (as occurred here), rather than written information whose content, accuracy and even-handedness can be scrutinised. Furthermore, in this case the correspondence that was used, which Ms Augustinus said in her evidence was based on pro forma letters, was potentially misleading insofar as it suggested that Mr Watterston decided to commence an inquiry on 8 November 2007 after receiving Mr Armstrong's letter of that date.

64 A decision to commence an inquiry and a decision to remove a teacher from his or her school and to assign him or her to non-teaching duties are important decisions which have adverse consequences for the teacher. They should be made after a fair and impartial consideration of the allegations against the teacher and the teacher's response to the allegations, not for the purpose of making any decision (preliminary or otherwise) on the merits of the allegations but for the purpose of making an informed decision on whether the information presented warrants the commencement of an inquiry and the removal of the teacher from the school and assigning him or her to non-teaching duties for the duration of the inquiry.

65 While the process that was followed in this case in relation to the reassignment decision may have been well-meant, it was unfair, lacked transparency and gave the appearance of being one-sided. A person in Mr Foster's position would be justified in feeling uneasy that a significant and prejudicial decision was made concerning him on the basis of a five minute telephone discussion whose precise content neither Mr Watterston nor Ms Augustinus can remember. What is known, however, is, first, that Mr Watterston was aware of neither the precise allegations against Mr Foster nor Mr Foster's response to those allegations and, second, that Mr Watterston did not see it as his responsibility to know about the merits of Mr Foster's position. Mr Foster is entitled to feel aggrieved because the process that was adopted avoided consideration of his individual circumstances by the decision-maker.

66 The above comments on the Department's procedures are not intended to reflect adversely on Mr Watterston, Ms Augustinus or any other individual. I observed Mr Watterston and Ms Augustinus in the witness box. They gave truthful evidence to the best of their recollection. They applied the Department's established procedures and it was not suggested that they did not act in good faith. For completeness, I add that while the above comments relate to the manner in which the Department's procedures have been applied to Mr Foster, they say nothing about the merits of the allegations made against him.

Jurisdiction of MPB in respect of a personal grievance

67 The hearing before me proceeded on the basis that s 2.4.44(2)(b) of the ETRA (which is set out in paragraph 35 of this judgment) does not itself confer any jurisdiction on the MPB but simply empowers the MPB to hear appeals or reviews in relation to decisions made under other provisions of the ETRA (such as ss 2.4.7(5), 2.4.51(3), 2.4.54(3) and 2.4.57) and any other Act which are expressed to be subject to appeal or review by the MPB. The hearing also proceeded on the basis that no provisions of the ETRA or any other Act conferred jurisdiction on the MPB in respect of the reassignment decision or the principal's decisions and that the only potential source of jurisdiction in respect of those decisions is the MPB's jurisdiction to hear applications for review of personal grievances.

68 The jurisdiction of the MPB in relation to personal grievances derives from s 2.4.44(2)(d) of the ETRA, which is set out in paragraph 35 of this judgment. That section enables the MPB to "hear reviews and appeals in relation to any decision prescribed by ... [a] Ministerial Order to be a decision in respect of which there is a right of review by or appeal to a Merit Protection Board". The relevant Ministerial Order is TSO 186, which was made under the TSA. That Act was replaced by the ETRA on 1 July 2007. Clause 1.13(b) in Schedule 8 to the ETRA, in conjunction with s 6.1.3(1) of that Act, relevantly provides that a Ministerial Order made under the TSA is deemed to be a Ministerial Order made under the ETRA. Clause 1.2(2) in Schedule 8 provides that references to the TSA in any Act, regulation, subordinate instrument or "other document whatsoever" are to be construed as references to the ETRA unless the contrary intention appears.

69 Part 5 of TSO 186, as amended by me using square brackets to refer to provisions of the ETRA rather than the TSA, provides as follows:

PART 5 - PERSONAL GRIEVANCE

5.1.1 For the purposes of this Part:

(1) "action" means a decision and includes refusal or failure to take an action.

(2) "Merit Protection Boards" means a board established pursuant to Section [2.4.44] of the Act.

...

(4) (a) "personal grievance" means a grievance of a teacher in respect of any action, other than those matters excluded under sub-clause 4(b), taken within a work location which directly affects that teacher and which the teacher considers:

(i) is in breach of the Act or this Order; or

(ii) infringes the principles of merit and equity, or infringes any personnel policy or guidelines issued by the Secretary; or

(iii) is otherwise unreasonable.

(b) Notwithstanding sub-clause 4(a) the following matters are excluded from the definition of personal grievance:

(i) employment, appointment, transfer or promotion under the Act;

(ii) proceedings under section [2.4.56] or Part [2.4, Division 10] of the Act;

(iii) proceedings under Teaching Service Order 165 or its successor;

(iv) decisions prescribed by regulation under Section [2.4.44(2)(d)] of the Act;

(v) decisions under this Part to refuse an application or request for review; or

(vi) determinations or directions by the Senior Chairperson under this Part.

...

(5) "Senior Chairperson" means the person appointed as Senior Chairperson of the Merit Protection Boards pursuant to Section [2.4.45(2)] of the Act.

5.1.2 A teacher, other than a person employed on a casual basis, may lodge an application for a personal grievance in writing with the Senior Chairperson of the Merit Protection Boards. Prior to hearing and determining the personal grievance, the Senior Chairperson must be reasonably satisfied that the Merit Protection Boards have jurisdiction to entertain the application.

5.1.3 If in respect of any action taken a teacher has a right to seek a review or lodge an appeal under the Act or any other Part of this Order, the teacher may not lodge a personal grievance under clause 5.1.2 and the Senior Chairperson cannot hear and determine that grievance under this Part.

...

5.1.6 (1) ... the Senior Chairperson may determine an application for review of an action under this Part, and may confirm, vary or quash that action or recommend such other action as may be appropriate provided that any determination, order or decision under this Part must have regard to the operational requirements of the Department ... and, if relevant, the educational requirements of the school including the interests and welfare of the students.

...

5.1.8 An application for a personal grievance must be lodged within 14 days of the action or of the date of notification of the action the subject of the grievance, whichever occurs last. Except in special circumstances, the Senior Chairperson must not accept an application for a personal grievance out of time. The Senior Chairperson cannot hear and determine a personal grievance application lodged outside this period if the applicant has not made an application for special circumstances. The Senior Chairperson shall take all reasonable steps to ensure teachers are made aware of the requirement to lodge an application for a personal grievance within 14 days.

...

70 Section 2.4.56 of the ETRA, which is referred to in cl 5.1.1(4)(b)(ii) of TSO 186, deals with termination of employment due to incapacity and is not relevant to this proceeding. Teaching Service Order 165, which is referred to in cl 5.1.1(4)(b)(iii) of TSO 186, sets out duties in respect of the conduct of teachers and other employees in the teaching service and is not relevant to this proceeding. In the remainder of this judgment, I will refer to Part 2.4, Division 10 of the ETRA simply as Division 10.

Submissions of the parties on cl 5.1.1 of TSO 186

71 Mr Niall submitted that the reassignment decision and the principal's decisions fell within the definition of "personal grievance" in cl 5.1.1(4)(a) of TSO 186 and did not fall within any of the exclusions in cl 5.1.1(4)(b). He submitted that the definition of "personal grievance" in cl 5.1.1(4)(a) is governed by the expression "action" which is defined by cl 5.1.1(1) to mean "decision".

72 Mr Niall submitted that having regard to the context, the word "matters" in cl 5.1.1(4)(a) and (b) means "decisions". Accordingly, a personal grievance is a grievance of a teacher in respect of any decision, other than those decisions excluded under cl 5.1.1(4)(b), taken within a work location which meets the remaining criteria in cl 5.1.1(4), and the matters excluded under cl 5.1.1(4)(b) are decisions of the type set out in that paragraph. On this interpretation, cl 5.1.1(4)(b)(ii) excludes decisions made under Division 10. In support of this submission, Mr Niall referred to s 2.4.44(2)(b) of the ETRA, which refers to the functions of the MPB as including "to hear reviews and appeals in relation to decisions made under" the ETRA except Division 10. He submitted that, as the reassignment decision and the principal's decisions were not decisions made under Division 10, they did not fall within the exclusion to the MPB's jurisdiction to hear personal grievances.

73 Mr Niall also submitted that the purpose of the exclusions listed in cl 5.1.1(4)(b)(i) to (vi) is, firstly, to avoid duplication in that other provisions of the ETRA confer jurisdiction on the MPB or the Disciplinary Appeals Boards in relation to those decisions and, secondly, to refer to decisions of the MPB itself which should obviously not be reviewed by the MPB.

74 Mr Hanks submitted that, on its proper construction, the definition of "personal grievance" in cl 5.1.1(4)(a) and the exclusions in cl 5.1.1(4)(b) are governed by the expression "in respect of", which simply requires "some connection or relation between ... two subject-matters".[27] He submitted that the word "matter" is used deliberately in contradistinction to the word "action", to refer to "subject matter" rather than "decision". He pointed out that it is inappropriate to read the word "matters" in cl 5.1.1(4)(b) as meaning "decisions", because sub-paragraphs (i) to (vi) refer not just to decisions but also to "proceedings", "determinations or directions" and particular activities, namely "employment, appointment, transfer or promotion". Mr Hanks submitted that a personal grievance means a grievance of a teacher in respect of any decision referred to in cl 5.1.1(4)(a), other than decisions in respect of the subject matter excluded under cl 5.1.1(4)(b). On this interpretation, cl 5.1.1(4)(b)(ii) excludes from the jurisdiction of the MPB any decision that has a connection with a proceeding under Division 10.

75 In support of these submissions, Mr Hanks referred to the following legislative history of Part 2.4:

(a) Part 2.4 is headed "Government Teaching Service". Its provisions were previously in the TSA. Prior to 2004, s 45 of the TSA conferred on the MPB jurisdiction in respect of disciplinary matters as well as matters relating to incapacity. The Teaching Service (Conduct and Performance) Act 2004 (Vic) ("2004 Act") replaced Part V of the TSA with a new Part V dealing with disciplinary matters. The new Part V of the TSA ultimately became Part 2.4, Division 10 of the ETRA. The new Part V established Disciplinary Appeals Boards and conferred jurisdiction on those Boards, rather than the MPB, to hear disciplinary matters. The 2004 Act also inserted the words "(except Part V)" in s 64(2)(b) of the TSA which became s 2.4.44(2)(b) of the ETRA. When s 2.4.44(2)(b) was enacted, the words "(except Part V)" became "(except Division 10)". In addition, the 2004 Act inserted the following section into the TSA, which is now part of s 2.4.3(2) and (3) of the ETRA:

(1) The Secretary, on behalf of the Crown, has all the rights, powers, authorities and duties of an employer in respect of officers and employees in the teaching service.

(2) Without limiting sub-section (1), the Secretary -

(a) may assign to an officer or employee any duties that the Secretary thinks fit;

(b) may transfer an officer to another office in the teaching service.

(b) In the Second Reading Speech to the Bill that became the 2004 Act, the then Minister for Education and Training said:[28]

This section states that the secretary has all the rights, powers, authorities and duties of an employer and may assign duties to officers and employees and transfer officers. This will clarify the right of the secretary to remove a teacher from teaching duties at a school location when serious allegations are raised and before the teacher has been formally suspended from duties pending the outcome of an investigation.

(c) In the Second Reading Speech, the Minister also referred to the separation effected by the Bill of merit/incapacity decisions, in respect of which appeals remained with the MPB, from performance/conduct decisions, in respect of which appeals would now go to the Disciplinary Appeals Boards, in the following terms:[29]

Inquiries under the current section 45 are not limited to physical fitness but include an examination of general allegations associated with an officer's character and conduct ...

The new section 45 is designed to deal with genuine physical or mental incapacity. Allegations of character and conduct, and inefficiency associated with unsatisfactory performance, will now be dealt with under the new part V.

76 Mr Hanks submitted that the above legislative history and the Second Reading Speech indicate a clear legislative intention that decisions made in respect of an inquiry under Division 10 (including a decision of a principal to recommend an inquiry under Division 10 and a decision of the Secretary or a delegate to reassign a teacher who is the subject of an inquiry under Division 10) were not within the jurisdiction of the MPB. He submitted that a finding that those decisions were within the jurisdiction of the MPB would allow a collateral challenge to performance and conduct decisions and lead to the bifurcation of the streamlined process established by the 2004 Act for review of such decisions.

77 Although the reassignment decision was made by Mr Watterston, Mr Hanks did not rely on the fact that Mr Foster's application for review of a personal grievance named Mr Armstrong as the decision-maker. Accordingly, I will proceed on the basis that the reassignment decision formed part of the subject matter of the application for review of a personal grievance.

Decision on proper interpretation of cl 5.1.1 of TSO 186

78 The issue in this case is the meaning of the expression "the following matters are excluded from the definition of personal grievance: ... proceedings under ... Part [2.4, Division 10] of the [ETRA]" in cl 5.1.1(4)(b) of TSO 186. Neither Division 10 nor TSO 186 defines the critical words "matters" and "proceedings". I accept Mr Hanks' submission that the expression "matters" is used in contradistinction to "action" or "decision" and means "subject matter". In relation to the meaning of "proceedings", the best guide is the structure and content of Division 10. It refers to inquiries which comprise both an investigation stage and a determination stage. The investigation commences when the Secretary nominates a person to investigate and report to the Secretary in connection with an inquiry under the Division. Following the investigation, the Secretary may take the action set out in s 2.4.61, which is set out in paragraph 36 of this judgment. The purpose of the investigation is to determine whether any of the grounds for action listed in s 2.4.60, which is set out in paragraph 36 of this judgment, are established. Although Division 10 does not state when an inquiry commences, it can be inferred that it commences when the Secretary or a delegate makes a decision to establish the inquiry.

79 It follows that cl 5.1.1(4)(b)(ii) of TSO 186 excludes from the definition of "personal grievance" any decision whose subject matter concerns the investigation or determination of one of the matters set out in s 2.4.60 of the ETRA and which is made after an inquiry on any of those matters is commenced. Once an inquiry is commenced, those matters can only be investigated and reported on by the investigator nominated by the Secretary in accordance with Division 10 and an appeal lies to a Disciplinary Appeals Board in relation to any action taken by the Secretary under s 2.4.61 following the completion of the investigation. Those matters cannot be the subject of an application for review of a personal grievance to the MPB under TSO 186.

80 The reference to "proceedings under ... Part [2.4, Division 10] of the [ETRA]" in cl 5.1.1(4)(b)(ii) means that once an inquiry is commenced under Division 10, any decisions made in the course of or for the purposes of that inquiry (whether in the investigation or the determination stage), fall outside the jurisdiction of the MPB. It does not matter whether such a decision is made under Division 10 (in the sense that the power to make it is in Division 10) or any other provision of the ETRA (such as s 2.4.3(3)) as long as the decision is made in the course of or for the purposes of an inquiry that has been commenced under Division 10. It follows that I do not accept Mr Niall's submission that cl 5.1.1.(4)(b)(ii) excludes from the MPB's jurisdiction only decisions made under Division 10.

81 It also follows that I do not accept Mr Hanks' submission that cl 5.1.1(4)(b)(ii) excludes from the jurisdiction of the MPB all decisions which precede an inquiry under Division 10, where such decisions have a connection with such an inquiry. In respect of decisions preceding the commencement of an inquiry, as an inquiry under Division 10 is established by the Secretary or a delegate, only decisions of the Secretary or the delegate which are made for the purposes of the proposed inquiry fall within the exclusion in cl 5.1.1(4)(b)(ii) of TSO 186. Both a decision of the Secretary or a delegate to commence an inquiry, and their decision that the allegations against a teacher warrant the establishment of an inquiry, are made for the purposes of the proposed inquiry and fall within the exclusion in cl 5.1.1(4)(b)(ii).

82 The submissions that Mr Niall and Mr Hanks made about the underlying purpose of the provisions discussed above and the submissions made by Mr Hanks based on the legislative history of those provisions do not persuade me to accept the interpretations advanced by them, insofar as they differ from the interpretation I have adopted.

Decision on MPB's jurisdiction regarding the reassignment decision

83 As appears from his evidence extracted in paragraphs 15, 16 and 17 of this judgment, Mr Watterston made the reassignment decision immediately after deciding to initiate an inquiry under Division 10, because he formed the view that the complaints against Mr Foster involved allegations of serious misconduct. As the reassignment decision was made after the commencement of the inquiry, for the purposes of the inquiry, and was connected to the subject matter of the inquiry, it was part of the subject matter of the proceeding under Division 10. It therefore fell within the exclusion in cl 5.1.1(4)(b)(ii) of TSO 186 and outside the "personal grievance" jurisdiction of the MPB.

84 Contrary to Mr Hanks' submissions, my conclusion in paragraph 83 of this judgment has not been influenced by the fact that the Guidelines refer to the Secretary's power to remove a teacher from duties at his or her school. Although the Guidelines are made under s 68 of the TSA and are now deemed to be made under s 2.4.62 of the ETRA (which is set out in paragraph 3[30] of this judgment),30 they deal not only with the procedures relating to inquiries under Division 10 based on misconduct, but also procedures dealing with complaints (both informal and formal) and unsatisfactory performance issues. The Guidelines dealing with inquiries under Division 10 in relation to misconduct commence at page 20 under the heading "Serious misconduct procedures&#8[31] and end on page 24.31 This is made clear by the first paragraph under that heading, which states: "These procedures are established under section [2.4.62] of the [ETRA]". The provisions of the Guidelines that precede the heading "Serious misconduct procedures" are not procedures under s 2.4.62. That is not to say that all of the provisions appearing under the abovementioned heading are procedures under s 2.4.62. For example, the provision on page 24 which summarises s 170CK of the Workplace Relations Act 1996 (Cth) may be useful in clarifying the limits of the Secretary's powers, but cannot be characterised as a procedure made under s 2.4.62 of the ETRA. The reference to the Secretary's power to remove a teacher from duties at his or her school appears above the heading "Serious misconduct procedures" and is not a procedure made under s 2.4.62 of the ETRA. Even if the reference appeared under that heading, it could not be characterised as a procedure made under s 2.4.62 of the ETRA. It is simply a statement that the Secretary has a removal power under s 2.4.3 of the ETRA. Mr Niall correctly described it as a cross-reference.

85 As part of his submissions that the reassignment decision did not fall within the exclusion in cl 5.1.1(4)(b)(ii) of TSO 186, Mr Niall emphasised that if the exclusion applied, the ETRA would not contain any provision for merits review of decisions to reassign to non-teaching duties teachers facing disciplinary charges. He submitted that, although such a decision would usually be reversed if the teacher is vindicated by the inquiry or by a Disciplinary Appeals Board on appeal, the adverse consequences suffered by the teacher during the reassignment period of six to 12 months would not be reversed or compensated. As is evident from paragraph 51 of this judgment, I agree. However, this is the effect of cl 5.1.1(4)(b)(ii) of TSO 186 where a decision to reassign a teacher is made following a decision to commence an inquiry under Division 10, and for the purposes of that inquiry. Clause 5.1.1(4)(b)(ii) of TSO 186 would not apply to a decision to reassign a teacher that preceded a decision to commence an inquiry under Division 10 or which, notwithstanding that it was made after a decision to commence an inquiry, was not made for the purposes of that inquiry.

86 The MPB decided that it lacked jurisdiction to hear the reassignment decision as a personal grievance under TSO 186. The MPB's reasons appear from paragraph 22 of its "Ruling on Jurisdictional Issue" dated 27 February 2008:

The decision to move Mr Foster from duty and assign him to non-teaching duties at the Regional Office, part of the general powers of the Secretary in s 2.4.3, was made pursuant to chapter 4 of the Guidelines which are made pursuant to s 2.4.62 in Division 10 of the ETRA. The decision to assign therefore falls within proceedings under Division 10 of the ETRA and within the exception to a personal grievance in clause 5.1.1(4)(b)(ii) of the TSO. Thus, MPBs do not have jurisdiction to hear the decision to assign to other duties because it falls within the exception to personal grievance in subclause 4(b)(ii) of the TSO.

87 As is evident from paragraphs 83 and 84 of this judgment, although I agree with the MPB's ultimate ruling that the reassignment decision fell outside the MPB's jurisdiction by virtue of the exclusion in cl 5.1.1(4)(b)(ii), I do not agree with the MPB's reasons that this arises because the reassignment decision was made pursuant to the Guidelines. Notwithstanding the error in the MPB's reasoning, it did not wrongfully refuse to exercise a jurisdiction that it was lawfully required to exercise and therefore there is no basis for making an order in the nature of mandamus.

Jurisdiction of MPB regarding the principal's decisions

88 As noted earlier, Division 10 enables the Secretary to commence an inquiry under that Division. The Secretary can delegate this power and, in this case, delegated it to Mr Watterston. Division 10 does not set out how a decision to commence an inquiry is to be made, and, in particular, does not state that the Secretary must act on the recommendation of a principal or any other person. It follows that the Secretary can decide to commence an inquiry based on information received by the Secretary independently of the principal. In this case, Mr Watterston made his decision to commence an inquiry and the reassignment decision based on information provided to him by Ms Augustinus, who in turn relied on information provided to her by Mr Armstrong. Mr Watterston did not rely on Mr Armstrong's letter of 8 November 2007 in making his decisions.[32]

89 Although Mr Armstrong's formal process decision may have contributed to the events that ultimately resulted in the decision made by Mr Watterston to commence an inquiry under Division 10, it was not a necessary step for the commencement of that inquiry. Further, it was not a decision that was made after the commencement of the inquiry and for the purposes of the inquiry.

90 Mr Armstrong's inquiry recommendation decision was more proximate in time to Mr Watterston's decision to commence an inquiry under Division 10. However, it is not clear whether it influenced Mr Watterston's decision to commence the inquiry. It could only have done so indirectly by being communicated verbally to Mr Watterston by Ms Augustinus in the five minute conversation they had on 7 November 2007. Mr Armstrong's letter of 8 November 2007 did not influence Mr Watterston's decision. Notwithstanding that the inquiry recommendation decision may have influenced Mr Watterston, that decision preceded Mr Watterston's decision to commence the inquiry and therefore cannot be characterised as part of the subject matter of the proceeding under Division 10, as that proceeding commenced when Mr Watterston decided to commence the inquiry. This conclusion is not affected by the fact that the Guidelines refer to the principal making a recommendation that an inquiry be commenced as one of the steps in the "Serious misconduct procedures". This is because, on its proper construction, the expression "procedures for the investigation and determination of an inquiry under this Division" in s 2.4.62 of the ETRA refers to procedures that apply after the inquiry under Division 10 is established and does not extend to procedures preceding the commencement of the inquiry.

91 It follows that neither the formal process decision nor the inquiry recommendation decision comes within the exclusion in cl 5.1.1(4)(b)(ii) of TSO 186 to the MPB's personal grievance jurisdiction. Whether the decisions fall within the jurisdiction of the MPB depends on whether they satisfy the definition of "personal grievance" in cl 5.1.1(4)(a) of TSO 186. As that definition includes the word "action", which is defined to mean "a decision", an important consideration is whether the two decisions can be characterised as "a decision" for the purposes of cl 5.1.1 and, if so, whether each decision "directly affects [the] teacher".

92 In my opinion, the inquiry recommendation decision is not "a decision" which "directly affects" Mr Foster within the meaning of cl 5.1.1 of TSO 186. This is because the decision did not have any legal effect. Mr Watterston did not need to receive it and was not legally required to consider it, let alone accept it.[33] It has not been established that Mr Watterston relied on Mr Armstrong's recommendation as distinct from Ms Augustinus' views. Even if Mr Watterston relied on Mr Armstrong's recommendation, he did so indirectly and therefore it did not directly affect Mr Foster. It follows that the MPB did not have jurisdiction in relation to the inquiry recommendation decision.

93 It is not necessary for me to decide whether the formal process decision is a "decision" which "directly affects" Mr Foster within the meaning of cl 5.1.1 of TSO 186 because it was not the subject of Mr Foster's application for review of a personal grievance. The formal process decision was made in August 2007. The application for review of a personal grievance that Mr Foster lodged with the MPB on 16 November 2007 was in respect of "the decision to go to formal [discipline] procedures - suspension from duties" and specified the decision-maker as Mr Armstrong and the date of the decision as 8 November 2007. The description "go to formal [discipline] procedures" can only refer to Mr Armstrong's letter to Mr Foster dated 8 November 2007 which sets out Mr Armstrong's recommendation to Mr Watterston to commence an inquiry under Division 10. The personal grievance therefore relates to the inquiry recommendation decision rather than the formal process decision. As the formal process decision was not before the MPB, the MPB did not have jurisdiction to hear it.

94 Mr Niall submitted that as the correspondence to the MPB from Mr Foster's solicitors following the lodgement of the application for review of a personal grievance and the MPB's ruling on jurisdiction referred to the formal process decision, that decision was before the MPB. I reject this submission. While reference was made in the correspondence and in the MPB's ruling to the formal process decision set out in Mr Armstrong's letter of 24 August 2007 to Mr Foster, the reference was made as part of a consideration of the history of the personal grievance. The subject matter of the personal grievance before the MPB was set out in Mr Foster's application for review of a personal grievance, namely the principal's inquiry recommendation decision and the reassignment decision. That document was not amended at any stage. Another indication that the application for review of a personal grievance did not extend to the principal's formal process decision is the fact that the application was lodged more than 14 days after the principal's formal process decision and was not accompanied by an application for special circumstances as required by cl 5.1.8 of TSO 186.

95 The MPB decided that it lacked jurisdiction to hear the principal's inquiry recommendation decision as a personal grievance under TSO 186 for the following reasons:

1. The Guidelines ... provide the steps which are to be taken in relation to serious misconduct. ...
2. In accordance with the process set out [in the Guidelines], Mr Foster was advised in the letter of 24 August 2007 ... that the allegations may constitute serious misconduct ...
3. Next, in accordance with ... the Guidelines, Mr Foster was advised in the letter of 8 November 2007 from the Regional Director that he had received the principal's recommendation to commence an inquiry and nominated the principal as the investigator. This step is pursuant to s 2.4.65 in Division 10 of the ETRA ...
4. The characterisation of the allegations as serious misconduct and the Principal's recommendations, given the above analysis, are necessarily part of the proceedings under Division 10 of the ETRA and as such not reviewable by the MPBs.

96 Once again, although I agree with the MPB's ultimate ruling, I do not agree with its reasons. In particular, I agree that the MPB lacked jurisdiction in relation to the principal's inquiry recommendation decision, but I do not agree that this is because the decision falls within the exclusion in cl 5.1.1(4)(b)(ii) of the TSO. The correct legal position is that the MPB did not have jurisdiction in respect of the decision because it is not a "decision" that "directly affects [Mr Foster]" within the meaning of cl 5.1.1.

97 As it has not been established that the MPB wrongfully refused to exercise a jurisdiction that it was lawfully required to exercise in relation to the principal's inquiry recommendation decision, there is no basis for making an order in the nature of mandamus and no useful purpose would be achieved by quashing the MPB's ruling on the basis of its erroneous reasoning.

98 I propose to make orders quashing the reassignment decision and requiring the Secretary to reassign Mr Foster to teaching duties at the School and otherwise dismissing the application for review.

99 I will hear from the parties on the precise form of the orders and on the question of costs.

[1] Section 2.4.44 of the ETRA establishes more than one MPB. For simplicity, I will refer to the MPB in the singular.

[2] The originating motion also seeks an order restraining the Secretary from taking any further steps in the inquiry initiated in relation to Mr Foster's conduct. Mr Niall's written submissions stated that this order was sought pending the reviews by the MPB.

[3] [1985] HCA 81; (1985) 159 CLR 550, 582-5.

[4] [1990] HCA 57; (1990) 170 CLR 596, 598 ("Annetts").

[5] [1992] HCA 10; (1992) 175 CLR 564, 576 ("Ainsworth").

[6] [1995] VICSC 7; [1995] 1 VR 372 ("Cornall").

[7] [1995] VICSC 7; [1995] 1 VR 372, 397-401.

[8] [1992] HCA 10; (1992) 175 CLR 564, 578, 585, 592.

[9] Annetts [1990] HCA 57; (1990) 170 CLR 596, 598; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 85 [96], 86 [99], 94-8 [129]-[143], 108-15 [171]-[188]. See also Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 470-1, referring to Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 395-6.

[11] Sections 2.4.64, 2.4.65(2) and 2.4.66.

[16] [2008] VSCA 78.

[17] [2008] VSCA 78, [83]-[87].

[18] On 1 July 2007, the TSA was replaced by the ETRA.

[19] See Rees v Crane [1994] 2 AC 173, 189-96; cf Cornall [1995] VICSC 7; [1995] 1 VR 372, 398; Garde-Wilson v Legal Services Board [2008] VSCA 43, [8]-[11], [97]-[118].

[20] See ss 2.4.61(1), 2.4.68(1) and 2.4.72(2) of the ETRA which are set out in paragraphs 36, 38 and 39 respectively of this judgment.

[21] See, for example, Phan v Kelly [2007] FCA 269; (2007) 158 FCR 75, 83-5 [40]-[46].

[22] [2003] SASC 371.

[23] [1994] FCA 1416.

[24] Jackson v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 643; [2003] FCAFC 203, [20].

[25] Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291; BC8702232.

[26] In paragraph 3 of her affidavit, Ms Augustinus states that the purpose of the arrangements is to try to ensure the independence of the decision-maker. During cross examination, she agreed with Mr Niall that she did not wish to give Mr Watterston detailed information because she "thought that might prejudice the inquiry".

[27] CSR Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1380; [2006] 68 NSWLR 440, 447 [30], [31].

[28] Victoria, Parliamentary Debates, Legislative Assembly, 16 September 2004, 556 (Lynne Kosky).

[29] Victoria, Parliamentary Debates, Legislative Assembly, 16 September 2004, 556-7 (Lynne Kosky).

[30] See cl 1.13(b) in Sch 8 to, and s 6.1.3(1) of, the ETRA.

[31] The Guidelines also deal with inquiries under Division 10 in relation to "inefficiency" commencing on page 32 under the heading "Step 5 - Inquiry under the Teaching Service Act 1981" and ending on page 35.

[32] See paragraph 20 of this judgment.

[33] See Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 162-5.