New South Wales Department of Education and Training v New South Wales Teachers Federation

Industrial Relations Commission (NSW)|2006-07-04|Before: Wright J, Walton J, Mr J, Ms P, Grayson DP

CITATION: New South Wales Department of Education and Training v New South Wales Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210

APPELLANT New South Wales Department of Education and Training PARTIES: RESPONDENT New South Wales Teachers' Federation

CORAM: Wright J President; Walton J Vice-President; McLeay C

LEGISLATION CITED: Industrial Relations Act 1996 s 84 s 187 s 188

Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 Box Valley Pty Ltd v Price (2000) 97 IR 484 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Fox v Percy (2003) 214 CLR 118 CASES CITED: Hollingsworth v Commissioner of Police, New South Wales Police Service (2005) 146 IR 285 Humphries v Cootamundra Ex-Services and Citizens Memorial Club (2003) 128 IR 37 New South Wales Teachers Federation (on behalf of Anthony Mossfield) and NSW Department of Education and Training [2005] NSWIRComm 464 NSW Department of Education and Training and NSW Teachers Federation (on behalf of Anthony Mossfield) [2006] NSWIRComm 10 WorkCover Authority (NSW) (Inspector Moore) v Blacktown City Council (2003) 124 IR 59

APPELLANT Mr R Kenzie QC with Mr J Murphy of counsel Department of Education and Training (Mr A Murphy)

LEGAL REPRESENTATIVES: RESPONDENT Mr S Crawshaw SC with Ms P Lowson of counsel Solicitor Paula Potter MacMahon Associates Lawyers

13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President McLEAY C Tuesday 4 July 2006

NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING v NEW SOUTH WALES TEACHERS FEDERATION (ON BEHALF OF ANTHONY MOSSFIELD). Application by New South Wales Department of Education and Training for leave to appeal and appeal against the decision of Deputy President Grayson given on 14 December 2005 in Matter No IRC 3745 of 2005.

1 The New South Wales Department of Education and Training ("the Department") dismissed Mr Anthony Mossfield (a permanent full-time teacher employed on probation) following his assault of a student, "Keith", on 18 June 2004. Mr Mossfield's name was also placed on (i) a list of people not to be employed by the Department without reference to the Director of Staffing Services and (ii) a list held by the Commission for Children and Young People which would instigate a risk assessment, should Mr Mossfield apply for any child-related employment. 2 On behalf of Mr Mossfield, the New South Wales Teachers' Federation filed an application pursuant to s 84 of the Industrial Relations Act 1996 alleging that the dismissal was harsh, unreasonable or unjust. On 14 December 2005, in New South Wales Teachers Federation (on behalf of Anthony Mossfield) and NSW Department of Education and Training [2005] NSWIRComm 464, Deputy President Grayson found that the dismissal was harsh both in its personal and economic consequences for Mr Mossfield and in its disproportionality to the gravity of the misconduct. Grayson DP ordered that Mr Mossfield be re-employed without interruption to a school of his choice; that the Department reimburse Mr Mossfield's pay from the date of dismissal to the date of the orders; and that the Department take the necessary steps to remove Mr Mossfield's name from the register kept by the Commission for Children and Young People. 3 The Department filed an application for leave to appeal and, if leave be granted, appeal pursuant to ss187 and 188 of the Industrial Relations Act 1996 ('the Act') against the decision and orders of Grayson DP referred to above on the basis that, due to erroneous findings of fact, his Honour erred in finding that the dismissal was harsh, and erred in ordering the Department to re-employ Mr Mossfield. The Department also contended that Grayson DP erred in finding that the Department was obliged to proceed against the respondent pursuant to s 84 of the Teaching Services Act 1980 and the Teaching Service Regulation 2001. The Facts 4 The background facts may be stated shortly:

Mr Mossfield was employed at Niland School for Specific Purposes, a school for students with emotional disorders, mental disabilities and illnesses, or both.

2 The student, Keith, was a thirteen-year-old ward of the State with a history of violent outbursts who lived in a 24-hour residential care unit of the Department of Community Services.

Eleven days before the assault, one of Keith's friends from the residential care unit hanged himself. On 14 June 2004, Keith was admitted to Westmead Children's Hospital after attempting to hang himself. The funeral service for Keith's friend was held on 18 June 2004 and Mr Mossfield was aware of these facts.

On the day of the assault, Keith began to behave violently in the computer room, pulling equipment out of the cupboards and throwing it. Mr Mossfield physically intervened, resulting in a struggle, which culminated in Mr Mossfield punching the back of Keith's head with sufficient force to lacerate it. (This uncontested finding of the Deputy President is what we have described thus far as the assault.)

After the assault, Keith was treated at Westmead Children's Hospital for a downward, half-moon shaped laceration to the head (2-3cm) which required gluing.

Keith was suspended from Niland School for his actions on 18 June 2004. Mr Mossfield was transferred to non-teaching duties at another school, pending the Department's investigation of the matter.

The Department summarily dismissed Mr Mossfield by letter dated 28 June 2005 on the basis of two allegations of misconduct: that Mr Mossfield punched Keith in the stomach with a closed fist causing him to lose his breath and cry; and that Mr Mossfield punched Keith in the back of the head causing an injury to his head which required medical attention. 5 However, the facts relating to the assault, and the circumstances immediately preceding it, are strongly contested. In particular, the following two matters form a significant basis of this appeal:

Whether, immediately preceding the assault, Keith was throwing computer keyboards from a cupboard to the ground or whether he picked up a computer hard-drive, threw it at Mr Mossfield, hitting him in the shin, and then picked up another hard-drive intending to throw it; and

Whether Mr Mossfield punched Keith in the stomach with sufficient force to wind him or whether he "hit" Keith in the stomach with the end of his fingers with a lesser force, nonetheless sufficient to make Keith drop the computer hard-drive Mr Mossfield asserted he was holding. The decision at first instance 6 Having recounted the applicant's contemporaneous description of events (which included the assertion "Keith head-butted me in the mouth causing me to bleed"), Grayson DP made the following findings at first instance concerning the laceration to the back of Keith's head: 18 The applicant subsequently resiled from his assertion that he suffered an injury to his mouth and deposed to the blood around his mouth as having come from a laceration to the back of Keith's head. He further asserted that the laceration to the back of Keith's head resulted not from his closed fist but rather from forceful contact with his upper front teeth when Keith allegedly head-butted him in the mouth. Keith did not deny continuing to struggle and in particular, to throwing his head backwards in an attempt to break free of the applicant's restraint. He was adamant however, that the back of his head hit the applicant in the chest and not the mouth. To my mind and although considerable forensic energy was expended on both sides of the record, in establishing whether the scalp laceration was caused by Keith throwing his head backwards into the applicant's mouth or by the applicant's punch to the back of Keith's head, the issue in a manner of speaking, is a peripheral one and something of an unnecessary distraction given the applicant's candid admission that he did in fact punch Keith in the back of the head in an attempt to suppress his escalating violence. 19 Be that as it may, however, I think the balance of evidence supports the fact and I find accordingly, that the laceration was more probably than not caused by the punch. I say that having regard to the evidence of the various witnesses to the incident and also to the evidence going to the downward half-moon shape of the scalp laceration which would make it highly improbable if not, as Mr Murphy submitted, physically impossible given the positions of combatants at the time, for the wound to have been caused in the manner asserted by the applicant. That being so it follows that the blood around the applicant's mouth which he concedes was Keith's blood, must have been transferred from Keith's scalp in the continuing struggle, a fact which of itself indicates contact between Keith's head and the applicant's mouth as the applicant asserts. 7 In relation to the first allegation of misconduct, Grayson DP summarised Mr Mossfield's evidence: 20 As to the allegation of a punch to the stomach with a closed fist causing Keith to lose his breath and then to cry, it was the applicant's initial recital which he recorded contemporaneously and then adopted in the first of two sworn statements, that he moved assertively towards Keith and reactively "hit" him in the stomach causing Keith to drop a computer which he assumed was about to be thrown at him. 21 In a second statement filed in court on the first day of hearing, the applicant said this: In relation to the incident involving Keith, in addition to the account that I wrote on the day I say:

(i) when I hit him in the stomach it (a) was not a punch and (b) was intended to make him drop the computer hard drive by trying to stop my hand, and so to stop him throwing the computer at me or any of the students. (ii) I deny punching him in the stomach, and I deny that by hitting in the stomach I intended to escalate the situation. I was trying to manage the situation as best I could whilst preventing Keith from throwing anything at the other students or at me. 22 When taken in cross-examination to this particular aspect of the incident, the applicant maintained that he in fact pushed Keith in the stomach with outstretched fingers rather than punched him with a closed fist. As the following extract from the transcript reveals, he denied and continued to deny that he punched Keith in the stomach with a closed fist and he continued to deny that Keith was winded or doubled over or that Keith as he alleged fell to the ground and stayed there for three to five minutes as a result of any such impact to the stomach: Q. You hit him in the stomach with sufficient force to wind him? A. That's incorrect.

Q. He then buckled over? A. Incorrect.

Q. And stumbled to the floor? A. Incorrect.

Q. You deny all that? A. Yes.

Q. Would you describe to the Commission how it is that you hit Keith in the stomach? A. Certainly. The boy had thrown a CPU unit, the main part of a computer, at me and hit me in the leg, in my shin, causing my shin to bleed, and had already picked up a second CPU to throw at me and it was for the intent of trying to get him to drop that second one that I pushed him in the stomach. 23 It was put to the applicant that this refined version of events, to use a neutral term, was in the nature of a recent invention, a proposition which the applicant rejected and I note in that regard among the material tendered and relied upon by the respondent, that there is a written response from the applicant a fortnight after the allegation of punching with a closed fist was put to him in August 2004, to the effect that he did not close his fist in making contact with Keith's stomach (Exh 30 annexure L). There was in that regard no recent invention by the applicant as to his version of events. 8 Grayson DP then turned to the version of events described by Keith and the other student witnesses: 24 Furthermore, and as the following extract from transcript reveals, Keith plainly harboured feelings of resentment after being suspended from Niland for his part in the incident and his resentment, in a sense understandable in the circumstances as he perceived them, was based on his erroneous assumption that he had been punished for what happened on 18 June 2004 and the applicant had not. 25 The extract from Keith's cross-examination evidence at p 92 and onwards is as follows:

Q. When Ms Halloran came to interview you at your house - do you remember that? A. Yes.

Q. At that stage you were suspended from Niland School, weren't you? A. Yes.

Q. You had been suspended for 20 days, is that right? A. Something like that.

Q. You had been suspended because of what had happened with Mr Mossfield? A. Yeah.

Q. For throwing computers at him? A. For throwing computers, yes.

Q. And for hitting him as well? A. Yeah.

Q. And when Ms Halloran came to talk to you, at that stage you did not think that was really fair, did you? A. Yes.

Q. You did not think it was fair? A. No, I didn't.

Q. Because you felt you had been suspended and at that stage you did not know if anything had happened to Mr Mossfield? A. No.

Q. You thought nothing had happened to him? A. Yeah?

Q. You did not know he had been suspended from the school as well. A. Yeah.

Q. When Ms Halloran came to talk to you and asked you questions I want to suggest to you that when you were answering those questions you were still feeling that it was unfair that you had been suspended from school and Mr Mossfield had not? A. Yes.

Q. And that when you were answering the questions you wanted to make it clear what you say Mr Mossfield had done to you? A. Can you rephrase that?

Q. When Ms Halloran was asking you questions - A. Yes.

Q. - you wanted to tell the story of what Mr Mossfield had done to you? A. Yes?

Q. And you wanted to minimise what you had done to Mr Mossfield? A. Yeah.

Q. Because you felt you had already been punished for that by being suspended? A. Yes. 26 Although that feeling of resentment may not of itself be sufficient to detract from the ultimate probative value of Keith's evidence, it would when taken as a motive on Keith's part to paint the applicant's actions in the most damaging light together with the variations in theme and content of the evidence of other student witnesses to the incident, tend to give weight to the proposition for which Ms Lowson contends namely that there were insufficient grounds to disbelieve and displace the applicant's version of events as Ms Halloran, the EPAC investigator, did. 9 His Honour resolved the discrepancies between the evidence thus: 27 It is to be remembered here that the respondent accepts that the circumstances confronting the applicant 18 June 2004 were sufficiently serious to warrant the imposition by the applicant of a reasonable form of physical restraint and to the extent that that was one of the allegations initially levelled at him (namely that he physically restrained Keith), it was satisfactorily answered and was not considered to be a matter which warranted disciplinary action or which in the result, should form any part of the grounds upon which it was decided to terminate the applicant's employment. 28 In such circumstances, it is not difficult to imagine in an effort to distract Keith from his angry and destructive activities why the applicant may have elected to push or as he initially said, hit Keith in the stomach. It may not have been the best option with the wisdom of hindsight but it is what the applicant described on oath as the course of action he chose and carried out in an attempt to cause Keith to desist. It does not follow and in my opinion, the evidence does not compel or on balance, permit a finding that a blow to Keith's stomach was delivered with such force as to cause him to lose his breath, to cry and as was further asserted, to fall to the ground winded and lay there for three to five minutes. There may well have been in the highly volatile and emotional circumstances at the time, a sequence of over-reactive responses from Keith designed to create an impression to that effect but it is more likely I think, having regard to the totality of the evidence that the contact with Keith's stomach was as the applicant described it. 29 There is after all, no suggestion anywhere in the evidence of a pre-meditated and sustained attack by the applicant with an intention on his part to cause injury to Keith and conversely, there is an abundance of evidence to suggest that the applicant's actions, however badly chosen they may have been, were designed to bring the situation with which he was confronted under control. 30 In saying that, I should add that I do not consider that the evidence leaves any room for doubt that the applicant was correct in his assessment of the situation at the time he chose to intervene, as posing a clear risk to the safety of Keith and other students and to his own safety and in that regard, I accept and agree with the submissions made by Ms Lowson . 31 I also accept and agree with Ms Lowson's submission that the evidence of the students who are said to have observed the incident should be treated with a high degree of circumspection given as I have already observed, the inherent variations in theme and content as between them in certain respects and in other respects a degree of sameness, as Ms Lowson describes it, which is highly suggestive of memory of what may have been discussed among themselves rather than what was directly observed. 32 Taking these matters into account there seems to me to be a serious question as to whether Ms Halloran, on the material available to her was entitled on reasonable analysis to reach the conclusion she did about the first of the two surviving allegations namely, the allegation about punching Keith in the stomach with such force that it caused him to lose his breath and cry. 33 This is particularly so when one considers that the statement given by Keith to the school principal on the day of the incident was not read or received by Ms Halloran; that the statement made no mention of Keith being winded and that interviews with students other than Keith were not conducted by the investigator Ms Halloran until five months after the incident thus raising the inevitable questions as to accuracy or reliability of recall and so on. 34 I think on balance that the correct conclusion is that the version of events to which the applicant adheres as to the first of the two surviving allegations is more likely to be the most reliable and to the extent that it is at variance with other versions of events, it should be preferred. I do so accordingly. Having said that, it may be observed that the applicant had not received the so-called Physical Assault Restraint Training (PART) in his time at Niland notwithstanding what could be reasonably described, in my opinion, as a working environment which compelled such training and furthermore that the elements of impracticality inherent in the restraint policy said to operate in the Niland environment can be seen as being at odds with DET policy set out in Legal Issues Bulletin No 9 Physical Restraint of Students. 10 His Honour then turned to consider issues of self-defence and the defence of the other students, which necessarily raised the matter of proportionality: 35 For example and by no means exhaustively, in the Niland environment it was expected of the applicant and other teachers that they should await the presence of another adult before intervening in violent or dangerous student behaviour whereas the DET policy emphasises the duty of care owed by staff to students in protecting them from or against risks of injury which are reasonably foreseeable. 36 I am under no illusion that this is a simple matter but it must also be borne uppermost in mind when considering the events of 18 June 2004 that the applicant was confronted on his own with a highly emotionally charged student who was behaving aggressively with a significant history and with every indication that his behaviour at the time would continue to the potential detriment of persons and property within his immediate reach and further that the likelihood of calling for and obtaining support in a timely way was virtually non-existent. I note in that regard that the applicant did not have a teacher's aide working with him as a support person and he was aware that the Niland principal and deputy principal to whom he might ordinarily turn and had in the past turned for assistance, had departed the school precinct earlier in the day. 37 Moreover, and as Ms Lowson submitted, whilst the applicant accepted that hitting a student was inappropriate that is not to say that the question whether he acted in self defence and in the defence of others as I am satisfied he did, is not a significant factor to be taken into account and in that regard, I am further satisfied that there were ample grounds to justify the applicant's conclusion that it was necessary for him to take such a defensive initiative. 38 Plainly, though, the question then arises whether the applicant's actions are to be regarded in whole or in part as reasonably necessary having regard to the specific circumstances (as the DET policy states) and equally plainly, even if one accepts as I do that the restraint measures employed by the applicant with the exception of the forceful blow to the back of Keith's head, were reasonably necessary, the blow to the back of the head presents almost insuperable difficulties in terms of its justification as I am disposed.

39 Having said that, I should not be taken as being in agreement with Mr Murphy's characterisation of that particular act on the applicant's part as conduct which is so reprehensible of itself as to leave DET with no alternative but to bring the applicant's teaching career to a summary end. 11 Finally, Grayson DP found that, notwithstanding the serious misconduct, the dismissal was harsh:

40 In my opinion, the ultimate sanction of dismissal with the additional consequence that the applicant is indefinitely precluded from working in the field of primary, secondary or TAFE education is of such undue severity in the circumstances as to warrant intervention by the Commission and although the Commission may, as it has done traditionally, express its strong disapproval of misconduct such as occurred here, it is as Boland J recently observed in Evans v NSW Police [2005] NSWIRComm 404 at [31], also the function of the Commission to deal with each case on its own facts: because although assault might provide prima facie grounds for removal, circumstances may exist that make removal harsh and that either reinstatement should be ordered or some other remedy applied.

In this case there were as set out above and in the body of evidence generally, such extenuating circumstances as to make the degree of culpability attaching to the applicant's act of punching Keith to the back of the head significantly less than it might otherwise have been and furthermore to make the dismissal harsh both in its consequences for the personal and economic situation of the applicant and in its disproportionality to the gravity of the misconduct (see Byrne v Australian Airlines Ltd per McHugh and Gummow JJ (1995 61 IR 32 at 72). ... 44 For those reasons and having regard to the authorities to which the Commission was taken as to the prerequisite standard of proof ( Briginshaw v Briginshaw (1938) 60 CLR 336; Shop Distributive and Allied Employees Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 and others) I am of the view and find accordingly that the allegation of misconduct involving a punch to the back of the head has been made out. I am also of the view and find accordingly, that the other allegation has not been made out. I further find that the decision of the employer to terminate the applicant's employment to be attended by such a degree of harshness and in turn, unfairness as to warrant the Commission's intervention. Grounds of Appeal 12 The Department asserted that the following findings of fact were made in error:

That the blood around Mr Mossfield's mouth must have been transferred from Keith's scalp during the continuing struggle;

That Mr Mossfield had not recently invented the claim that he had pushed Keith in the stomach with the end of his fingers, or touched him in the stomach, rather than punched him in the stomach to the point of winding him. In particular, this finding took no account of the admissions made by Mr Mossfield in cross-examination that, after hitting Keith in the stomach, he asked Keith " Are you okay ?" and " Can you breathe ?";

That Keith harboured feelings of resentment after being suspended from Niland for his part in the incident, and that resentment caused Keith to paint the respondent's actions in the most damaging light;

That at the time Mr Mossfield chose to intervene, he assessed, correctly, that there was a clear risk to his safety and to the safety of Keith and other students. Grayson DP failed to deal with the range of alternatives that were available to Mr Mossfield, such as grabbing Keith's arm or hand, rather than hitting him in the stomach and then punching him in the back of the head;

That the evidence of student witnesses should be treated with a high degree of circumspection given "the inherent variations in theme and content as between them in certain respects and in other respects a degree of sameness...which is highly suggestive of memory of what may have been discussed among themselves rather than what was directly observed";

That, notwithstanding the "almost insuperable difficulties" in attempting to justify Mr Mossfield's punch to the back of Keith's head, there were "extenuating circumstances as to make the degree of culpability attaching to the applicant's act of punching Keith to the back of the head significantly less than it might otherwise have been...". The extenuating circumstances were never identified with any precision; and

That certain background matters were taken into account by the Department in deciding to terminate the respondent's employment but were not put to Mr Mossfield for him to answer. 13 The respondent made the following submissions (in brief):

It is not open to the Full Bench to reverse the findings of Grayson DP merely because they may have a different view of the factual findings that ought to have been made based upon the evidence; the Full Bench may only intervene if the trial judge has made a finding of fact that was not reasonably available on the evidence or which is plainly wrong.

The appellant has not demonstrated any error, and has merely approached this appeal as though it were a re-hearing.

The finding of Grayson DP in relation to the first allegation of misconduct was reasonably open and is not contradicted by objective, probative evidence. In particular, Mr Mossfield explained that he asked Keith whether he was alright, and whether he could breathe, not because he believed Keith to have been winded, or could see that Keith was winded (both of which he denied) but because Keith said, breathing normally, "I am winded". It was open to Grayson DP to accept this explanation.

The respondent made detailed, lengthy submissions concerning the evidence going to each of the factual issues raised by the appellant, and, in particular, the reasons why Mr Mossfield's evidence should be preferred to the evidence of the students, including Keith. Leave to Appeal 14 We are mindful that if an appeal seeks, by and large, to challenge findings of fact (as this application does), it will face a significant hurdle obtaining leave to appeal: Box Valley Pty Ltd v Price (2000) 97 IR 484, and, more recently, Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113. 15 However, this case is analogous to Humphries v Cootamundra Ex-Services and Citizens Memorial Club (2003) 128 IR 37 in which the Full Bench held at [77]: 77 Secondly, the central issue, which we have been asked to consider, is whether the findings of fact in relation to serious misconduct were wrong. If, as in this matter, there is a substantial basis upon which to conclude that such a contention may be made out, there emerges significant basis for the grant of leave in order to ensure the proper administration of justice. As was said by a Full Bench of this Commission in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 326:

The extent to which, if at all, those errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. In themselves we are satisfied they raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal.

(See also Hollingsworth v Commissioner of Police, New South Wales Police Service (2005) 146 IR 285 at [121] and WorkCover Authority (NSW) (Inspector Moore) v Blacktown City Council (2003) 124 IR 59.) 16 In this case leave to appeal should be granted. We are satisfied that there is a substantial basis upon which to conclude that it was not reasonably open to the Deputy President to absolve Mr Mossfield of the first allegation of misconduct. This raises significant issues as to the proper administration of justice in this jurisdictional area and requires the grant of leave in the public interest. Consideration 17 There are many arguable points of appeal in this case, but we propose to dispose of the appeal on the basis of the two which are the most compelling: first, the Deputy President's finding that Mr Mossfield did not punch Keith in the stomach; and secondly the absence of any mitigating circumstances to alleviate such serious misconduct. 18 The circumstances in which a finding of fact based on the credibility of witnesses may be set aside upon appeal were examined by the High Court in Fox v Percy (2003) 214 CLR 118 where the majority (Gleeson CJ, Gummow and Kirby JJ) held at [28]:

[T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. 19 Similarly, in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 the Full Bench of this Commission held at [7]: 7 The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1978) 142 CLR 531 at p 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). Importantly in this latter respect, we have in mind the observations by the High Court in London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 at p 407 as to the duty of an appellate tribunal, as follows : But where the law says that the Court, and not a jury, is to determine the facts, and also says that an appellate Court can be asked to reconsider them, and therefore should reconsider them, it is the duty of the appellate tribunal (and it is the statutory right of the litigant who invokes it to require of it the performance of that duty) to determine for itself the true effect of the evidence so far as the circumstances enable it to deal with the evidence as it appeared in the Court of first instance. 20 There is a clear inconsistency in the manner in which Grayson DP approached the evidence concerning the two allegations of misconduct. The Deputy President's finding of misconduct in relation to a punch to the back of the head was based upon an assessment of Mr Mossfield's version of events (and the fact that this had changed); the version of events given by Keith and other children in the class which contradicted Mr Mossfield; and the objective evidence about the nature and location of the laceration to Keith's head. In making this finding, Grayson DP necessarily preferred the consistent, corroborative evidence of the student witnesses (including Keith) in combination with the objective evidence to the evidence of Mr Mossfield, which changed over time. 21 In relation to the punch to the stomach, Grayson DP was faced with an almost identical aggregation of evidence: the corroborative evidence of the student witnesses (including Keith) which was consistent over time and which contradicted the evidence of Mr Mossfield (which changed over time in significant ways and was, at times, inconsistent). In place of the medical evidence which was available to support the finding of misconduct in relation to the second allegation, there was a similarly probative piece of evidence which was not dealt with by his Honour. This was Mr Mossfield's significant admission in cross-examination that, following the connection between his hand and Keith's stomach, he asked Keith two questions: "Are you okay?" and "Can you breathe?". Not only was this admission corroborated by the student witnesses; it was also consistent with the evidence of Keith and the students that Mr Mossfield winded Keith by an "upper cut" punch to the stomach such that Keith was laying on the floor "wrapped up like a ball sort of " (as "Scott" put it in cross-examination). 22 The fact that this admission was not considered by his Honour or explained in a manner consistent with his finding that Mr Mossfield did not punch Keith with sufficient force to cause him to lose his breath, cry and fall to the ground winded, is, in our view, an error of great significance to the determination the appeal. 23 Grayson DP had already preferred the evidence of the student witnesses and Keith to the evidence of Mr Mossfield in order to find Mr Mossfield guilty of the second allegation of misconduct. Although his Honour did not make actual findings concerning the credibility of any of the witnesses, he did state (at [31]) that: [T]he evidence of the students who are said to have observed the incident should be treated with a high degree of circumspection given as I have already observed, the inherent variations in theme and content as between them in certain respects and in other respects a degree of sameness, as Ms Lowson describes it, which is highly suggestive of memory of what may have been discussed among themselves rather than what was directly observed.

In our view, this is not only inconsistent with the manner in which the Deputy President resolved the conflict of evidence in relation to the second allegation of misconduct; it is not supported by the evidence. The evidence of the students remained, in all pertinent respects, consistent with the evidence they gave on the day of the assault to the principal of the school. 24 Leaving aside issues of credibility, we have no doubt that, had Grayson DP taken this evidence into account (together with the absence of any plausible explanation as to why Mr Mossfield would ask Keith if he could breathe, were Keith not winded) he would have weighed the competing evidence in the same manner as he weighed the evidence relation to the punch to Keith's head and found - as we do now in the appeal - that the allegation of misconduct had been clearly proved. 25 This brings us to the second most compelling basis for the appeal: the finding that the dismissal for misconduct was harsh, based upon "extenuating circumstances". Notwithstanding the Deputy President's observation that "the blow to the back of the head presents almost insuperable difficulties in terms of justification as I am disposed.", his Honour proceeded to find : such extenuating circumstances as to make the degree of culpability attaching to the applicant's act of punching significantly less than it might otherwise have been and furthermore to make the dismissal harsh both in its consequences for the personal and economic situation of the applicant and in its disproportionality to the gravity of the misconduct 26 The extenuating circumstances were never articulated by the Deputy President, nor were their basis as providing extenuation explained. It is difficult to conceive of any extenuating circumstances which could ameliorate the gravity of the misconduct found by Grayson DP: the assault to the back of the head of a disabled thirteen year old boy (with sufficient violence to require medical intervention) by a person in a unique position of trust and responsibility - his teacher. Certainly, for the purposes of this appeal, there is nothing in the evidence which could, in our opinion, give rise to any claim of mitigation in relation to the blow to the back of Keith's head sufficient to support a finding that the dismissal was harsh. Obviously, this proposition is even more compelling when one takes into account our earlier finding that the first allegation of misconduct is established on the evidence. 27 Our rejection of any foundation for the claim of mitigation requires some elaboration concerning the issue of self-defence. The only possible interpretation of the decision at first instance is that Grayson DP regarded his finding that Mr Mossfield was acting in self-defence (or in defence of the other students) as a mitigating factor. However, there are fundamental problems with this approach. First, his Honour's conclusion that Mr Mossfield's actions were "reasonably necessary having regard to the specific circumstances" expressly excluded the consideration of the punch to the back of Keith's head. Notwithstanding that Grayson DP had endorsed the Department's finding of misconduct on this point, and (by the exclusion mentioned above) stated that such conduct was not reasonably necessary, his Honour proceeded to find extenuating circumstances. In those circumstances we consider that his Honour's finding was not properly available. Secondly, as we have already found, a correct analysis of the evidence at first instance would have resulted in a finding that the first allegation of misconduct was proven. 28 In our view, even if one accepted Mr Mossfield's unsubstantiated assertion that Keith was about to throw a computer hard-drive, the act of punching Keith in the stomach sufficient to make him fall to the ground, winded, in an attempt to make him drop the hard-drive, could not, in any way, be described as proportional to the perceived risk, or appropriate, or reasonably necessary. The action did not therefore constitute self-defence. Nor was it a factor that could mitigate the misconduct involved in the action. Finally, although it is not necessary for us to decide the matter, there are compelling grounds for finding that the Deputy President's finding that Mr Mossfield was acting in self-defence was wrong. The only evidence in support of this contention was Mr Mossfield's version of events (unsupported by any objective evidence corroborating his claim of a cut to his shin from the first time Keith allegedly threw a computer hard-drive) which was contradicted by the student witnesses, who described Keith throwing equipment (but not hard-drives) to the ground. But this conflicting evidence was never resolved by Grayson DP. In our view it was not open to the Deputy President to make a finding that Mr Mossfield was acting defensively without having first made a finding as to what Keith was actually doing before Mr Mossfield hit him in the stomach; and what, if anything, Keith was holding at the time. 29 These findings are sufficient to dispose of the appeal. It is not necessary for us to consider the submissions by the parties (or to resolve the issues) concerning s 84 of the Teaching Services Act 1980 and the Teaching Service Regulation 2001. Orders

30 In conclusion we make the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The orders made by Grayson DP on 14 December 2005 in matter number IRC 3745 of 2005 are set aside. 4. The stay granted by Staff J is dissolved. 5. Liberty to apply as to stay orders made by Staff J on 10 January 2006 in NSW Department of Education and Training and NSW Teachers Federation (on behalf of Anthony Mossfield) [2006] NSWIRComm 10 provided such liberty to apply is exercised within 14 days of this decision. __________________________

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (62 paragraphs)

Parties

Cases Cited (18)

Cited By (7)