Plaintiff v Defendant

1 The plaintiff, Mr Hakan Cuvegen ('Mr Cuvegen') is a teacher employed by the defendant, the Secretary to the Department of Education and Training ('the Department'). In April 2019, Mr Cuvegen was charged with criminal offences. On 29 May 2019, the Department suspended Mr Cuvegen's employment with pay. Approximately one month later, on 2 July 2019, a delegate of the Department, Mr Stephen Gniel ('Mr Gniel'), exercised a statutory power under the Education Training and Reform Act 2006 ('ETR Act') to suspend Mr Cuvegen's employment without pay.

2 Mr Cuvegen challenges the validity of the 2 July 2019 decision to suspend him without pay ('the suspension decision'). He seeks an order in the nature of certiorari pursuant to Order 56 of the Supreme Court (General Civil Procedure Rules) 2015 ('Rules') quashing the decision. As a result of this decision, Mr Cuvegen was not paid a salary for an entire year[1] and seeks backpay for the period 2 July 2019 to 29 May 2020.[2]

3 Mr Cuvegen advances three grounds of review in this proceeding, with a fourth one ultimately being abandoned.[3] First, he submits that by reason of Mr Gniel having regard to whether 'community trust' in the Department would be compromised, the suspension decision was so irrational and/or unreasonable as to constitute jurisdictional error. Second, he submits that in arriving at its decision the Department took the irrelevant consideration of 'community trust' into account. Third, he submits that the Department denied him procedural fairness by not giving him a fair opportunity to be heard before the decision was made.

4 The Department submits that each ground should be rejected and that the proceeding should be dismissed.[4] The Department submits that it was reasonable to consider community trust. It submits that this was not an irrelevant consideration as it was not a prohibited consideration under the ETR Act. The Department concedes that the failure to provide Mr Cuvegen with an opportunity to make submissions about the community trust consideration resulted in a breach of the rules of procedural fairness. However, it submits that this error was not material and therefore did not constitute jurisdictional error.

5 For the reasons that follow, the grounds of review pressed by Mr Cuvegen must fail. It was not unreasonable for Mr Gniel to consider whether community trust in the Department would be eroded if Mr Cuvegen continued receiving salary drawn from public funds whilst his registration was suspended and he was the subject of serious criminal charges. It was not a consideration which Mr Gniel was prohibited to take into account by the ETR Act, either expressly or by necessary implication. Notwithstanding the conceded breach of the rules of procedural fairness, Mr Cuvegen has not discharged the onus of proving that the error was material in the requisite sense. That is, he has failed to prove on the balance of probabilities that the Department's failure to provide him with an opportunity to make submissions deprived him of the realistic possibility of a different outcome. The exercise of statutory power under the ETR Act was not tainted by jurisdictional error and the suspension decision is not invalidated. Mr Cuvegen is not entitled to an order in the nature of certiorari which would entitle him to backpay for the period between 2 July 2019 to 29 May 2020. The proceeding is dismissed.

6 Mr Cuvegen is a teacher who has been employed by the Department for approximately 25 years.[5] In April 2019, Mr Cuvegen was charged with criminal offences. Although the charges were ultimately withdrawn, they were serious. The alleged offences included threat to inflict serious injury, recklessly causing injury, unlawful assault, assault in company, criminal damage, wilful damage, possessing a dangerous article in a public space and carrying a dangerous article in a public area.[6]

7 On 28 May 2019 the Department was notified by the Victorian Institute of Teaching ('VIT') that Mr Cuvegen's registration was suspended on an interim basis pursuant to s 2.6.28 of the ETR Act because the VIT formed the belief that he posed an unacceptable risk of harm to children such that the suspension was necessary to protect children.[7] As a consequence of this decision, Mr Cuvegen could not teach at a school and required a Working with Children Check to perform other duties in a school.[8]

8 On 29 May 2019 the Secretary's delegate, Mr Gniel, who was at the time the Acting Deputy Secretary, suspended Mr Cuvegen with pay with immediate effect. This was communicated to Mr Cuvegen in a letter dated 29 May 2019, titled 'Notification of proposal of suspension from duty with pay and proposal of suspension from duty without pay: section 2.4.64 of the Education and Training Reform Act 2006'. When writing the 29 May 2019 letter, Mr Gniel had a Briefing Note that recommended that Mr Cuvegen be immediately suspended with pay, and that Mr Cuvegen be invited to respond to a proposal to suspend him without pay.[9]

9 The Department's 29 May 2019 letter noted the VIT decision on 28 May 2019 to suspend Mr Cuvegen's teacher registration on an interim basis. Mr Gniel confirmed in the letter that he had 'been delegated the powers of the Secretary under [s 2.4.59] of the Act'. Mr Gniel wrote the following:

I make no comment as to whether the alleged conduct which forms the basis of the charges has substance. However, they are serious charges and I consider it inappropriate for a person who is the subject of such charges to be on duty in a Victorian government school whilst the matter is being determined.

For these reasons, I am suspending you from duty with pay from the date of this letter. Due to the decision of VIT to suspend your registration I am considering suspending you from duty without pay for the period in which the suspension is in effect pursuant to s 2.4.59 of the Act.[10]

10 The 29 May 2019 decision to suspend Mr Cuvegen with pay is not the subject of any claim for relief in the present proceeding.

11 In the 29 May 2019 letter Mr Gniel also quoted part of s 2.4.64 in relation to suspension without pay, noting that it is 'a temporary measure taken without prejudice to the issues to be determined' and that it is a 'precautionary step taken to preserve community trust whilst a matter is being determined'.[11] Mr Cuvegen was invited to make submissions as follows:

You are invited to provide me with a written submission in response to my proposal to suspend you from duty without pay. In this submission you are invited to address how you believe you will be affected by the proposed action so that I can give proper, genuine and realistic regard to the impact of any suspension decision on you.[12]

12 On 3 June 2019 Mr Cuvegen forwarded a written submission to Mr Gniel addressing the proposal to suspend him without pay. Mr Cuvegen stated his innocence and his intention to contest the charges against him. He noted his employment with the Department for approximately 25 years without any disciplinary issues. Mr Cuvegen wrote:

Furthermore, I have held many voluntary positions in the community, working with associations to help my community, where I am also highly regarded and respected.[13]

Mr Cuvegen also submitted that he lives with his financially dependent son and that a decision to suspend him without pay would cause financial hardship.

I note that in your submission you vehemently deny the allegations concerning the charges brought against you and state your belief that you will be able to demonstrate your innocence of those charges. You also outline that your son and yourself are under considerable stress as a result of these allegations, and a suspension without pay would add to this stress and cause severe financial hardship.

The Department of Education and Training (the Department) as your employer, has been notified by the Victorian Institute of Teaching (VIT) that your registration was suspended on an interim basis on 28 May 2019. VIT referred to your failure to be a positive role model in the community, and your failure to respect the rule of law and provide a positive example in the performance of civil obligations. Further, VIT advised it has formed a reasonable belief that you pose an unacceptable risk of harm to children and the suspension of your registration is necessary to protect children. In these circumstances, as your VIT registration has been suspended, you are no longer exempt from the provisions of the Working With Children Act 2005 and, are therefore, unable to engage in child-related work. As such, you are not currently eligible to undertake teaching or non-teaching duties at Glenroy Secondary College or any other Victorian government school.

Furthermore, on the question as to whether you should be suspended without pay by the Department, I have considered the matters raised in your submission including the current financial commitments you outlined. These matters do not persuade me that you should not be suspended without pay. I am also concerned that community trust in the Department would be compromised if you remained in receipt of salary whilst you are the subject of serious criminal charges and your teacher registration is suspended.

I have therefore determined to suspend you from duty without pay with immediate effect from the date of this letter until such time as an inquiry under Division 10 of the Act into your alleged conduct has been completed.

I have suspended you without pay pursuant to section 2.4.64 of the Education and Training Reform Act 2006 (Vic).[14]

14 On 23 August 2019 Holding Redlich, on behalf of Mr Cuvegen, sent a letter to the Department contending that the decision to suspend Mr Cuvegen was attended by jurisdictional error and thus void.[15] The letter recorded Mr Cuvegen's intention to seek judicial review of the decision in this Court unless the decision be rescinded and Mr Cuvegen's wages reinstated, including backpay for the period since 2 July 2019. A further letter sent by Holding Redlich on 29 August 2019 addressed the need for an extension of time to be sought for proceedings to be initiated in the Supreme Court of Victoria.[16] On 30 August 2019 the Department indicated that it did not object to the granting of an extension of time.[17]

15 During the period from 16 September to 10 December 2019, the parties' solicitors exchanged correspondence with respect to the suspension decision.[18] Proceedings were filed on 18 December 2019 by way of an originating motion.[19]

16 On 3 February 2020 the charges against Mr Cuvegen were withdrawn.[20] On 12 February 2020 Holding Redlich sent a letter to the VIT, enclosing orders made by the Magistrates' Court evidencing the withdrawal of charges against Mr Cuvegen. The letter stated:

On the basis that the only information disclosed to Mr Cuvegen that the VIT had in support of its decision was contained in the charges, there is no longer a basis for the suspension. Accordingly we request on behalf of Mr Cuvegen that the interim suspension be lifted forthwith.[21]

17 On 14 February 2020 Holding Redlich sent a letter to the Department's solicitors, MinterEllison, requesting:

that the delegate within the Department conclude the investigation under Part 10 of the Education and Training Reform Act 2006, remove the suspension without pay, back pay Mr Cuvegen and, on the reinstatement of Mr Cuvegen's registration, reinstate Mr Cuvegen.

...

Suspension without pay

On the basis that there are no grounds to take action against Mr Cuvegen, section 2.4.64(7) applies and imposes an obligation on the delegate to remove the suspension, restore Mr Cuvegen's salary and back pay him to the date of the suspension.[22]

The letter acknowledged that the Department could not reinstate Mr Cuvegen until the VIT withdrew the suspension of his registration.

18 On 12 March 2020, Holding Redlich sent a letter to MinterEllison attaching a letter from VIT dated 10 March 2020 which advised that the suspension had been revoked.[23] The VIT letter indicated that while the suspension of Mr Cuvegen's registration was no longer in force, Mr Cuvegen was not a registered teacher as he had not completed an application to renew his registration. The letter to MinterEllison stated:

In anticipation that Mr Cuvegen's application to renew his registration will be successful, we believe it is now time for the Department to:

• Formally conclude the Investigation under Part 2.4 of the Education and Training Reform Act 2006 (Vic);
• Restore Mr Cuvegen's salary and back pay him to the date of the suspension; and
• Commence the process of reinstating Mr Cuvegen in his former position.[24]

19 A similar request was repeated in a letter sent by Holding Redlich on 19 May 2020 which stated that the VIT had advised that Mr Cuvegen's registration had been restored.[25] This letter also inquired as to 'what steps [the Department] has taken to expedite our client's return to work, that he be restored to the payroll and that he receives his salary back paid to the date of the purported suspension'.[26] Ultimately, VIT granted Mr Cuvegen conditional registration as a teacher on 29 May 2020.[27]

20 On 9 July 2020 a delegate of the Secretary other than Mr Gniel determined that as Mr Cuvegen's registration was no longer suspended, it was no longer appropriate for him to be suspended without pay.[28] The delegate determined that the suspension without pay be concluded from 29 May 2020, the date Mr Cuvegen's teacher registration was renewed, and that he receive backpay for the period from 29 May 2020. However, the delegate determined that concerns remained regarding Mr Cuvegen's conduct and that he would continue to be suspended with pay, pursuant to s 2.4.64 of the ETR Act. The delegate concluded that in addition to ongoing concerns regarding the alleged conduct which resulted in the criminal charges, there was also a concern relating to a threatening conversation with the Principal of Glenroy Secondary College. In light of these concerns, the delegate considered that grounds for action against Mr Cuvegen might exist under div 10 Misconduct, under s 2.4.60 of the ETR Act. The delegate determined that Mr Cuvegen be suspended with pay until the completion of a misconduct inquiry conducted under the Misconduct Provisions of the ETR Act.[29]

21 On 28 July 2020 Holding Redlich wrote to MinterEllison citing s 2.4.64(7) of the ETR Act. This section provides that if grounds for action against an employee are not established, the Secretary must remove any suspension imposed in respect of those grounds and ensure that the employee is paid any salary or wages due in respect of the period of the suspension.[30] In a letter from MinterEllison dated 25 August 2020 the Department contended s 2.4.64(7) does not apply to a suspension without pay under s 2.4.64(1)(b).[31]

22 In a letter dated 25 August 2020, the Department advised Mr Cuvegen that a misconduct inquiry was being initiated against him.[32] The letter stated that the withdrawal of the charges against Mr Cuvegen did not preclude consideration of whether there might be grounds for action under pt 2 div 10 of the ETR Act. The inquiry commenced on 26 August 2020[33] and was ongoing at the time of the trial of the proceeding.[34]

23 The ETR Act provides a framework governing the regulation of the teaching profession in Victoria and the maintenance of standards of professional practice for the teaching profession.[35] It also governs the employment in the teaching service of government school teachers and other persons.[36]

24 Section 1.2.1 is headed 'Principles underlying the enactment of this Act'. It lists various principles that Parliament has had regard to in enacting the ETR Act, including the values of openness and tolerance,[37] that information concerning the performance of education and training providers should be publicly available,[38] and that a school community has a right to information concerning the performance of its school.[39]

25 Part 2.2 of the ETR Act is entitled 'Government schools'. It establishes the government school system and provides that government schools are established by the Minister.[40]

26 Part 2.4 of the ETR Act is entitled 'Government teaching service', and regulates the government teaching service. It provides that teachers, persons engaged or employed as teacher aides and other staff are employed by the Secretary on behalf of the Crown in the teaching service.[41] Section 2.4.3(3) provides that the Secretary may, inter alia, suspend employees from duty with pay and do anything else authorised by pt 2.4.[42]

27 Division 9 of pt 2.4 is headed 'Dismissal and suspension' and concerns the dismissal and suspension of disqualified and unregistered teachers. Within div 9 is s 2.4.59 which is entitled 'Suspension and dismissal of unregistered teachers'. It provides as follows:

(1) This section only applies to employees in the teaching service who are required to be registered as a teacher under Part 2.6.

(2) If an employee in the teaching service is refused registration under Part 2.6 or has had his or her registration suspended or cancelled under that Part, the Secretary may suspend the employee without pay from duty in the teaching service for the period that the employee's registration is refused, suspended or cancelled.

(3) A suspension under subsection (2) continues at the Secretary's discretion until -

(a) the employee is registered under Part 2.6; or

(b) the employee is dismissed or removed from the teaching service.

...

28 Division 10 of pt 2.4 is headed 'Misconduct' and it relates to misconduct by teachers and action that may be taken if misconduct is established.

29 Section 2.4.60 is entitled 'Grounds for action' and it identifies the grounds that warrant the Secretary taking action against an employee. It provides as follows:

(1) The Secretary, after investigation, may take action under this Division 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 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

...

(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).

30 Section 2.4.61 is entitled 'Action against an employee' and identifies the type of disciplinary action that can be taken against an employee when the Secretary is satisfied that there are grounds for doing so. It includes a reprimand, a fine, a reduction in classification or termination of employment.[43]

31 Section 2.4.64 is entitled 'Suspension from duty' and provides as follows:

(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.

(3) If the Secretary takes action against an employee who then appeals to a Disciplinary Appeals Board or a court or tribunal, the Secretary may suspend the employee from duty, with or without pay, until the final determination of the appeal.

(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.

...

(7) If grounds for action against an employee are not established, whether on appeal or otherwise, the Secretary must -

(a) immediately remove any suspension imposed in respect of those grounds; and

(b) ensure that the employee is paid any salary or wages due in respect of the period of suspension, together with any allowances that the Secretary thinks fit.

(8) The Secretary must not pay any allowances under subsection (7)(b) unless the employee has applied to the Secretary for payment of those allowances.

32 Section 2.4.65 is entitled 'Investigation' and regulates an investigation conducted in connection with an inquiry under div 10. It provides as follows:

(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.

(3) The Secretary may request the nominated investigator to conduct further investigation and provide a further report to the Secretary at any time during an inquiry under this Division.

33 Section 2.4.66 is entitled 'Employee may make submissions' and provides that the Secretary must give to an employee against whom it is alleged there are grounds for action notice in writing that they may make submissions in writing to the Secretary addressing the alleged grounds and any action that may be taken. The Secretary must consider the submissions made before determining the issue to which the submission relates.

34 The VIT is governed by pt 2.6 of the ETR Act. Division 3 of this Part deals with the registration of teachers. Divisions 8 and 8A of pt 2.6 empower the VIT to suspend a teacher's registration. VIT relied upon s 2.6.28 to suspend Mr Cuvegen's registration on an interim basis after forming the view that he posed an unacceptable risk of harm to children and that suspension was necessary to protect children.[44]

35 Finally, s 5.3.3 of the ETR Act provides that the Secretary may delegate her powers. It is common ground that the Secretary delegated her powers to Mr Gniel.

36 Before considering Mr Cuvegen's challenge to the suspension decision, it is necessary to address three preliminary issues:

(i) whether Mr Cuvegen should be granted an extension of time under Order 56.02(3);

(ii) whether four paragraphs in the affidavit of Mr Gniel are inadmissible; and

(iii) the source of power underpinning the suspension decision.

37 Rule 56.02 of the Rules stipulates the time for commencing of a proceeding under Order 56. It provides:

(1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.

(2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.

(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances.[45]

38 The suspension decision was made on 2 July 2019 and communicated to Mr Cuvegen on 3 July 2019. Mr Cuvegen filed his Originating Motion on 18 December 2019, outside the 60 day period prescribed by r 56.02(1). Mr Cuvegen seeks an extension of this 60 day period.[46] For the reasons which follow, I grant Mr Cuvegen's application for an extension of time.

39 On 23 August 2019 within the 60 day period, Holding Redlich wrote to Mr Gniel.[47] After outlining the alleged unlawfulness of the decision, the email states:

For the reasons articulated above, your decision was ultra vires and otherwise attended by jurisdictional error. The decision is therefore void and would be quashed by the Supreme Court if judicial review were sought.

In this respect, we note that there is a 60-day period for which to seek judicial review of your decision. Given this time period, we require confirmation from you in writing by no later than close of business, Wednesday, 28 August 2019, that you have rescinded your decision and that you will reinstate Mr Cuvegen's wages (including making the necessary back-payments in respect of the period since 2 July 2019) until such time as you remake the decision according to law. Naturally, Mr Cuvegen would expect to be heard again when you seek to remake your decision.

If we do not receive this confirmation or we otherwise hear nothing from you, Mr Cuvegen ... will seek judicial review of your decision in the Supreme Court of Victoria.[48]

Mr Cuvegen was not idly sitting by while the 60 days elapsed. Holding Redlich actively engaged with the Department in seeking to resolve the dispute.

40 The Department did not object to the extension of time being granted, both in the lead up to and during the substantive hearing. On 30 August 2019, MinterEllison advised Holding Redlich that the Department 'will not object to an extension of time for your client to file an application for judicial review, if such proceeding is issued within 5 working days of that response'.[49] On 18 November 2019 MinterEllison confirmed in an email that they were still seeking instructions and apologised for their delay in responding to previous correspondence dated 13 November 2019 from Holding Redlich. MinterEllison wrote:

We would be grateful if you would please refrain from filing any proceeding on behalf of your client until our client has had an opportunity to provide that response, so the parties do not incur unnecessary costs.[50]

41 The Department's consent to an extension of time was repeated in an email dated 5 October 2020: '[a]s previously indicated, our client does not object to your client having an extension of time. However, we understand that the Court will require that a formal application be made before the extension is granted'.[51] On 21 October 2020 Mr Cuvegen filed a summons seeking an extension of time under r 56.02. The application was adjourned and heard during the substantive hearing.[52]

42 In Mann v Medical Practitioners Board of Victoria,[53] Osborn J stated in relation to the phrase 'special circumstances' in r 56.02(3):

Whether special circumstances exist is a question to be determined by reference to the whole of the circumstances of a particular case. It is essentially a question of characterisation of the particular case.[54]

This statement of principle was endorsed by the Court of Appeal.[55]

43 In Madafferi v Chief Commissioner of Police, I stated:[56]

The inquiry as to whether special circumstances exist is not confined to the circumstances relating to the failure to commence a proceeding within the prescribed 60 day period. In deciding whether or not special circumstances exist, the court can consider all of the circumstances of a particular case. Matters to be taken into account include the length of the delay, the reason for the delay, any prejudice to the defendants, whether the plaintiff has an arguable case and the public interest in the finality of the litigation.[57]

44 In Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2),[58] the phrase 'special circumstances' was described as being:

of considerable width, generality and flexibility. [The words] defy an exhaustive definition, and do not warrant specific limitation. The concept encompasses an infinite and unforeseeable range of circumstances. Provided such 'special circumstances' exist, the gateway may be opened to ensure that a plaintiff is not shut out from making an application for judicial review in cases where an extension of time should be granted in the interests of justice.[59]

45 The Department's consent, in the circumstances of the present proceeding, to the extension of time constitutes a special circumstance.[60] The granting of an extension of time is also supported by the fact that Mr Cuvegen has an arguable case. In this regard, the Department concedes that Mr Cuvegen was not given an opportunity to make submissions on the criterion of community trust.[61] Further, the Department does not submit that it will be prejudiced by the granting of an extension of time.

46 A further preliminary issue relates to the admissibility of four paragraphs in the affidavit of Mr Gniel dated 5 February 2021. The affidavit was created for the purposes of this proceeding. It did not exist when Mr Gniel made the suspension decision. Mr Cuvegen objected to the admissibility of parts of this affidavit. During the hearing Mr Kelly confined his objections to paragraphs [15], [29], [31] and [33].[62] After hearing the submissions of both parties, I reserved my decision on the admissibility of Mr Gniel's affidavit.[63] Before addressing the specific objections to Mr Gniel's affidavit, I shall refer to two lines of authority. First, authorities which have considered the admissibility in judicial review proceedings of material which was not in existence at the time the relevant decision was made. Second, authorities which have considered the admissibility of evidence relevant to the question of materiality.

47 Material which was not before a decision-maker when the decision was made will generally not be admissible in judicial review proceedings.[64] In Attorney-General (NT) v Minister for Aboriginal Affairs,[65] Lockhart J stated:

In the case of some grounds of review (for example, if the decision-maker failed to take into account a relevant consideration) (s 5(2)(b) of the Judicial Review Act) or took into account an irrelevant consideration (s 5(2)(a)) it is difficult to see the relevance of material not before the decision-maker. Other grounds of review (for example, unreasonable exercise of the power (s 5(2)(g)) will generally, lead to the evidence consisting primarily of the material before the decision-maker.

Where the ground relied upon is error of law (s 5(1)(f)) the trend of judicial opinion is that the evidence before the Court is confined to the material before the decision-maker.[66]

48 This passage was cited with approval by Sackville J in McCormack v Commissioner of Taxation:[67]

As Lockhart J's analysis indicates, the admissibility of evidence on an application of judicial review of an administrative decision will depend upon the ground of review and the circumstances of the case. It has been held, for example, that evidence may be admitted where it supports a claim that the applicant has been denied procedural fairness (Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088; (1998) 86 FCR 483 (Weinberg J)); or that the decision-maker lacked jurisdiction to make the decision because jurisdiction was dependent on an actual state of facts which did not exist ...; or that the decision-maker based the decision on a finding of a particular fact which did not exist ...[68]

49 In East Melbourne Group v Minister for Planning ('East Melbourne Group'),[69] Ashley and Redlich JJA stated that attempts to 'rewrite history' should be rejected, and that attempts to use 'a late-made document to remedy a manifest flaw in stated reasons will only be permitted in very exceptional circumstances':[70]

There is a considerable inhibition upon recourse to what may be called 'other material' where challenge is made to an administrative law decision in which the decision-maker has stated reasons for decision. The general principle is that a court, when considering the lawfulness of a decision, may admit evidence in quite limited circumstances so as to elucidate, but not fundamentally collide with, the reasons stated by the decision-maker.[71]

Although dissenting, Warren CJ accepted that in limited circumstances, additional evidence could be admitted to 'elucidate, correct or add to official reasons, but not to alter or contradict them'.[72]

50 In Foster v Secretary to the Department of Education and Early Childhood Development for the State of Victoria[73] an application was made by a teacher under Order 56 challenging a disciplinary decision made by the Department. Kyrou J (as his Honour then was) admitted affidavit evidence by the Secretary's delegate and permitted his cross-examination. Kyrou J noted: 'The basis upon which Mr Watterson 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'.[74] The evidence addressed how the delegate's view was formed and what continued to be his view in relation to the characterisation of serious misconduct.

51 In Topouzakis v Greater Geelong City Council,[75] Emerton J relied on East Melbourne Group to admit the affidavit evidence of the defendant decision-maker[76] in circumstances where the original decision letters provided to the plaintiff did little more than communicate the decision without addressing any real explanation.[77] In Scott and Bird v Commissioner of State Revenue (Qld)[78] Bond J relied upon East Melbourne Group to admit the affidavit evidence of the Commissioner's delegate for the purpose of elucidation.[79]

52 In Herald and Weekly Times Ltd v Correctional Services Commissioner,[80] which pre-dated the East Melbourne Group authority, Eames J permitted the decision-maker's affidavit and cross-examination, including on the factors considered and views formed, to be admitted into evidence on the basis that they expand or elucidate the reasons for her decision.[81] This was on the basis of the UK decision of R v Westminster City Council; Ex parte Ermakov.[82] His Honour held:

The question of whether the new information is reliable and accurate as to the reasons which actually motivated the decision is a matter which the court can readily assess. If I concluded that these were indeed relevant considerations, that they had been taken into account at the time but had, for whatever reason, not been identified to the applicant at the time, then there would be an air of unreality if I was to disregard those considerations.

...

I conclude, that there are no principles of law nor considerations of policy which in this case would necessitate a refusal to consider the additional evidence which expands or elucidates the reasons for decision of the Commissioner and the facts to which she made reference at the time of reaching her decision. Accordingly, I have had regard to this evidence both in the affidavit and oral evidence of the Commissioner. The importance, weight or credibility which I attach to the additional material are matters I have addressed in these reasons for decision.[83]

53 The authorities set out above support two propositions. First, material which is not in existence at the time a relevant decision is made, may in certain circumstances be admissible in judicial review proceedings. Second, evidence which elucidates the reasons stated by the decision-maker is a category of evidence which may be admissible in judicial review proceedings.

54 An error is jurisdictional only if it is material, in the sense that it has deprived the applicant of the realistic possibility of a successful outcome.[84] In Minister for Immigration v SZMTA ('SZMTA')[85] the plurality stated that where 'materiality is put in issue in an application for judicial review ... it is a question of fact in respect of which the applicant for judicial review bears the onus of proof'.[86] In MZAPC v Minister for Immigration and Border Protection ('MZAPC') the plurality concluded that the applicant in judicial review proceedings 'unwaveringly' bears the onus of proving materiality by admissible evidence on the balance of probabilities.[87]

55 Materiality is a question of fact 'to be determined by inferences drawn from evidence adduced on the application'.[88] In SZMTA the plurality held that in order 'to inform curial determination' in relation to whether the relevant Tribunal's decision 'could realistically been different if the relevant breach had not occurred, evidence of the content of the document or information is relevant and admissible'.[89] In MZAPC, the plurality noted that in applications 'for judicial review of an administrative decision, the decision-making process in fact engaged in by the decision-maker will inevitably need to be proved by inferences drawn from admissible evidence to the extent that it is in controversy'.[90]

56 The Department submits that Mr Gniel's affidavit is relevant to the question of whether the conceded denial of procedural fairness was material. It submits that the failure to afford Mr Cuvegen with an opportunity to make submissions did not deprive him of the realistic possibility of obtaining a different outcome.[91] The Department submits that the affidavit is relevant to the question of how Mr Gniel approached the criterion of community trust and the extent to which any submissions made by Mr Cuvegen could have resulted in a realistic possibility that a different decision could have been made.

In exercising my power to suspend an employee from duty, I considered that part of my role was to uphold the good name of public education, pursuant to the ETR Act. As a result, whenever I made a decision of that kind, I would think about what the community would expect me to do in the relevant circumstances (including whether the community would regard paying the salary of a suspended employee as being an appropriate use of public money). In this way, whenever I made a decision to suspend an employee from duty, I thought about whether my decision would have any impact on the community's trust in the Department. By this I mean not only the community's trust in the Department itself, but also the community's confidence in Government schools.[92]

58 Paragraph [15] is to be read in conjunction with paragraphs [21] and [22] of Mr Gniel's affidavit which provide:

My letter of 2 July 2019 includes the following sentence:

'I am also concerned that community trust in the Department would be compromised if you remained in receipt of salary whilst you are the subject of serious criminal charges and your teacher registration is suspended.'

In this sentence I was referring to the trust placed by the community in the Department (and Government schools). As noted in paragraph 15 above, whenever I made a decision to suspend an employee from duty, I would consider whether my decision would have any impact on that community trust.[93]

59 Mr Kelly objected to the second sentence onwards of paragraph [15]. He submitted that the sole relevance of the paragraph is the identification of a discrete additional reason for the decision which is a different account of the true reasons.[94] He further submitted that Mr Gniel did not hold the belief that the matter would become public and that he was hypothesising in relation to what could happen,[95] and that this rationalisation differs from the reasoning as it appears on the 2 July 2019 suspension decision letter.

60 Paragraph [29] relates to the 23 August 2019 letter from Holding Redlich regarding the confidential nature of suspension decisions:

Had this submission been drawn to my attention on 2 July 2019 before I made the decision to suspend without pay, it could not have made a difference to my decision. That is because: (a) I do not agree with the factual assertions in it; and (b) I was not concerned with whether the community actually knew about the particular case (and was therefore 'privy to' it), but with my assessment of what the community would expect of me in making the decision (taking into account the community's likely reaction to the decision should it ever become public knowledge).[96]

Mr Kelly submitted that while the first sentence relates to the issue of materiality, the rest of the paragraph is an attempt to give an account of the true reasons for the decision,[97] such that it ought not be admissible.

More importantly, in considering the question of community trust I was not referring to the community having actual knowledge of my decision. I was making an assessment on a broader question of community expectations: what the community would expect me to do, given the facts of the case. That assessment didn't depend on whether there had been any actual publicity about the case. Rather, it involved an assessment of how I thought the community would be likely to react should my decision become public at some stage.

Mr Kelly similarly submitted that paragraph [31] seeks to impermissibly add to the reasons.[98]

62 I reject Mr Cuvegen's objection to the admissibility of paragraphs [15], [29] and [31] of Mr Gniel's affidavit. These paragraphs are admissible as an elucidation of Mr Gniel's stated concern that community trust in the Department would be compromised if Mr Cuvegen remained in receipt of salary whilst the subject of serious criminal charges.

63 Paragraph [33] provides as follows in relation to the 23 August 2019 letter regarding the compromising of the community's trust:

Had this submission been drawn to my attention on 2 July 2019 before I made the decision to suspend without pay, it could not have made a difference to my decision. That is because I fundamentally disagree with the submission. My view was, and still is, that the community would expect that a person would not continue to receive a publicly-funded salary while: (a) facing allegations as serious as those which were alleged against the Plaintiff; and (b) being unable to undertake teaching or non-teaching duties at any Government school.[99]

Mr Kelly submitted that while the first two sentences relate to the materiality inquiry, the third sentence in paragraph [33] impermissibly seeks to add to the reasons for the decision to suspend without pay.[100]

64 Paragraph [33] goes beyond elucidation of Mr Gniel's understanding of the concept of community trust. The evidence relates to the question of whether the Department's failure to provide Mr Cuvegen with an opportunity to make a submission on the community trust criterion was a material breach of procedural fairness. Although the evidence is relevant to the question of materiality, its probative weight is significantly diminished by two factors. First, the delay of approximately 18 months between the suspension decision of 2 July 2019 and Mr Gniel swearing his affidavit on 5 February 2021. Second, the affidavit was created solely for the purpose of the judicial review proceedings. The evidence is unfairly prejudicial to Mr Cuvegen. This prejudice substantially outweighs the probative value of the evidence. I rule the evidence inadmissible under s 135 Evidence Act 2008.

65 The ETR Act contains two discrete sources of power to suspend a teacher without pay. Sections 2.4.59 and 2.4.64 both provide the Secretary with a discretion to suspend an employee without pay if certain requirements are met. Mr Cuvegen submitted that the Department relied on s 2.4.64 of the ETR Act to suspend him without pay,[101] while the Department contended that the source of power relied upon was s 2.4.59. For the reasons that follow, I reject the Department's submission. The suspension decision was made pursuant to s 2.4.64. However, whether the source of power was s 2.4.59 or s 2.4.64 is not determinative of Mr Cuvegen's challenge to the suspension decision. Both parties accept that Mr Gniel did have power to make the suspension decision.[102] Nevertheless, for the sake of completeness, I shall address the competing contentions of the parties.

66 Section 2.4.59 entitled 'Suspension and dismissal of unregistered teachers' provides as follows:

(1) This section only applies to employees in the teaching service who are required to be registered as a teacher under Part 2.6.

(2) If an employee in the teaching service is refused registration under Part 2.6 or has had his or her registration suspended or cancelled under that Part, the Secretary may suspend the employee without pay from duty in the teaching service for the period that the employee's registration is refused, suspended or cancelled.

(3) A suspension under subsection (2) continues at the Secretary's discretion until -

(a) the employee is registered under Part 2.6; or

(b) the employee is dismissed or removed from the teaching service.

67 Section 2.4.64 entitled 'Suspension from duty' provides as follows:

(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.

(3) If the Secretary takes action against an employee who then appeals to a Disciplinary Appeals Board or a court or tribunal, the Secretary may suspend the employee from duty, with or without pay, until the final determination of the appeal.

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

68 Both sections were referred to in the 29 May 2019 and 2 July 2019 letters which informed Mr Cuvegen of the decision to suspend him with pay and without pay, respectively.

69 Mr Gniel's letter dated 29 May 2019 is entitled 'Notification of proposal of suspension from duty with pay and proposal of suspension from duty without pay: section 2.4.64 of the Education and Training Reform Act 2006'.[103] After quoting s 2.4.59(2) and outlining the inappropriateness for a person who is the subject of serious charges to be on duty in a Victorian school, Mr Gniel recorded that he was suspending Mr Cuvegen from duty with pay from the date of the letter. Mr Gniel further recorded that '[d]ue to the decision of VIT to suspend your registration I am considering suspending you from duty without pay for the period in which the suspension is in effect pursuant to section 2.4.59 of the Act'. He then quoted s 2.4.64 of the ETR Act before inviting Mr Cuvegen to make submissions as follows:

You are invited to provide me with a written submission in response to my proposal to suspend you from duty without pay. In this submission you are invited to address how you believe you will be affected by the proposed action so that I can give proper, genuine and realistic regard to the impact of any suspension decision on you.[104]

70 Mr Gniel's letter dated 2 July 2019 is entitled 'Notice of suspension from duty without pay: s.2.4.59 & s2.5.64 of Education and Training Reform Act 2006'. After relaying the facts, Mr Gniel wrote:

I have therefore determined to suspend you from duty without pay with immediate effect from the date of this letter until such time as an inquiry under Division 10 of the Act into your alleged conduct has been completed.

I have suspended you without pay pursuant to section 2.4.64 of the Education and Training Reform Act 2006 (Vic).[105]

Section 2.4.59 of the ETR Act is not otherwise mentioned in this letter as enlivening Mr Gniel's discretion to suspend Mr Cuvegen from duty without pay.

71 Mr Pizer QC, who appeared with Ms Ellyard for the Department, submitted that although the 2 July 2019 letter makes an express reference to s 2.4.64 and refers to the suspension's duration by reference to the language of s 2.4.64, this is an error.[106] He submitted that if reliance upon the factor of community trust impugned the exercise of the power under s 2.4.64, then the Department can nevertheless fall back on s 2.4.59 such that the decision would be saved from invalidity.[107]

72 The duration of the suspension without pay is determinative of the source of power relied upon by Mr Gniel. Section 2.4.59 permits a suspension without pay for a finite duration of time - for the time during which the employee's registration is refused, suspended or cancelled. A suspension pursuant to s 2.4.64 continues until the Secretary has made a determination whether or not to take action against the employee under the div 10 misconduct procedures. Mr Gniel's statement that Mr Cuvegen's suspension without pay will continue 'until such time as an inquiry under Division 10 of the Act into [Mr Cuvegen's] alleged conducted has been completed' is consistent with s 2.4.64 being the source of power to make the decision.

73 If I am wrong and the source of power was s 2.4.59, it does not follow that Mr Cuvegen's challenge to the Department's suspension decision must fail. Mr Cuvegen does not challenge the suspension decision on the ground that Mr Gniel relied upon the wrong source of power. Mr Cuvegen accepts that the Department had the power to suspend his registration without pay under both s 2.4.59 and s 2.4.64. Rather, Mr Cuvegen seeks to impugn the decision by reference to three grounds of review, as set out below.

74 Mr Kelly submitted that the Department's decision to suspend Mr Cuvegen without pay was so irrational and/or unreasonable as to constitute jurisdictional error. There are two limbs to this submission. First, Mr Kelly submitted that no reasonable authority could have made the suspension decision.[108] I will refer to this as the first limb of Mr Kelly's submission. Mr Kelly submitted that there is no evident justification for Mr Gniel rejecting the matters raised in Mr Cuvegen's written submission dated 3 June 2019.[109] He argued that the 'sole reason given' by Mr Gniel was that community trust in the Department would be compromised if Mr Cuvegen remained in receipt of salary while being the subject of serious criminal charges and while his registration was suspended.[110] Second, Mr Kelly submitted that whether or not the community trusts the Department is irrelevant to the consideration of whether to suspend with or without pay, thereby constituting legal unreasonableness.[111] I will refer to this as the second limb of Mr Kelly's submission. For the reasons that follow, I reject both the first and second limbs of the legal unreasonableness ground.

75 The suspension decision was made pursuant to s 2.4.64 ETR Act. It is an implied condition of the statutory conferral of power that it must be exercised 'within the bounds of reasonableness'.[112] It is necessary to look at the scope and purpose of the statute that confers the discretion in order to identify whether the relevant decision complies with the standard of reasonableness as indicated by the statute's construction, or whether the statutory power has been abused.[113]

76 The plurality in Minister for Immigration and Citizenship v Li held that a decision is unlawful by reason of legal unreasonableness if there is no evident and intelligible justification for the decision.[114] Where reasons are provided, they will be a focal point for the assessment of whether a decision was beyond power because it was legally unreasonable.[115] The High Court further confirmed that it would be a 'rare case' to find that a discretionary power was exercised unreasonably where the reasons demonstrate a justification for the exercise of power.[116] The test for legal unreasonableness is a stringent one.[117]

77 A decision will not be unreasonable if it lies within the scope of rational decision-making, 'if there is room for a logical or rational person to reach the same decision on the material before the decision maker'.[118] In judicial review proceedings it is not the Court's function to undertake a review of the merits of an exercise of discretionary power: 'a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker'.[119]

78 The brief reasons provided in the 2 July 2019 decision letter, further elucidated by the affidavit of Mr Gniel dated 5 February 2021, are the focal point for the assessment of whether the suspension decision was legally unreasonable. The question is whether the reasons disclose an evident and intelligible justification for the Department's decision.

79 Mr Kelly submitted that no reasonable decision-maker could have made the suspension decision. He submitted that the following circumstances inform the reasonableness of the suspension decision:

1. Mr Cuvegen's registration had been suspended meaning that he could not work as a teacher for any other employer.

2. Assuming that Mr Cuvegen ... then aged 56; a teacher in government schools since 1988, could obtain work with another employer he could not do so as of right and would have had to seek permission of the Department to do so.

3. The alleged conduct the subject of the charges occurred outside of a school setting and the Department had no direct knowledge of it and no reason to believe Mr Cuvegen would be found guilty.

4. Mr Cuvegen had notified the Department of his innocence and intention to contest the charges and the Department had no reason to believe otherwise.

5. The Department knew the matter was listed for contest mention on 18 July 2019 and the future date of a contested hearing was uncertain.

6. Mr Cuvegen informed the Department that he had a dependent son and a mortgage to pay and insufficient savings to support himself. He said that he was at risk of losing his family home.[120]

80 I do not accept that the matters set out above constitute all of the matters relevant to an assessment of the reasonableness of the suspension decision. Three additional matters are relevant. First, the criminal charges alleged were serious and violent offences. Second, VIT's suspension of Mr Cuvegen's registration was due to a belief that he posed an unacceptable risk of harm to children and the suspension was deemed necessary to protect children. Third, if Mr Cuvegen was suspended with pay his salary would be paid out of public funds.

81 Section 2.4.64(1)(b) of the ETR Act contemplates that the Secretary may suspend an employee without pay where they have been charged with a criminal offence punishable by imprisonment or a fine. The exercise of the power to suspend without pay is not contingent on the relevant conduct having occurred in a school setting, or the Department having reason to believe that an employee will be found guilty.

82 The ETR Act confers on the Secretary or her delegate a wide discretion as to whether an employee should be suspended with or without pay under s 2.4.64. There are no prescribed indicia that the Secretary must consider under that provision. The Secretary can determine what factors ought to be considered and the weight to be assigned to those factors. Reasonable minds might differ about the relevant factors and the ultimate decision as to whether an employee should be suspended with or without pay.[121]

83 I reject Mr Cuvegen's submission that that the 'sole reason' given by Mr Gniel for the suspension decision was that community trust would be compromised. Mr Gniel stated in the 2 July 2019 decision letter that '[he] is also concerned that community trust in the Department would be compromised'. The use of the word 'also' indicates that community trust was an additional consideration justifying the decision to suspend Mr Cuvegen without pay. Other considerations included the suspension of Mr Cuvegen's registration, the serious nature of the charges, and the fact that VIT deemed Mr Cuvegen posed an unacceptable risk of harm to children such that the suspension was necessary to protect children. All of these considerations provide intelligible justifications for the suspension decision.

84 Mr Gniel's statement in relation to community trust reads as follows:

I am also concerned that community trust in the Department would be compromised if you remained in receipt of salary whilst you are the subject of serious criminal charges and your teacher registration is suspended.[122]

85 Mr Kelly submitted that there is no logical connection between the nature of the charges and the payment of a salary.[123] He submitted that, as a result, the suspension decision was invalid due to legal unreasonableness. He also submitted that the views of the community as hypothesised by Mr Gniel involved an assumption of guilt and a willingness to subject an accused to financial hardship while awaiting trial.[124] Mr Kelly submitted that, as such, the suspension decision was irrational. I reject these submissions. There is a logical connection between the trust the community reposes in the State and the need to avoid risk to students. This provides a legitimate justification for suspending a teacher. By extension, there is a logical connection between the trust that the community places in the Department and the potential for that trust to be eroded should it become known that notwithstanding serious charges and the fact that VIT deemed Mr Cuvegen a risk to children, he would continue to be paid a salary from public funds. The suspension decision was not unreasonable as 'there is room for a logical or rational person to reach the same decision'.[125]

86 I reject the submission that there is no evident and intelligible justification for dismissing the matters raised in Mr Cuvegen's submission dated 3 June 2019.[126] In this submission, Mr Cuvegen emphasised his innocence and his intention to contest the charges. However, it was reasonable for Mr Gniel to weigh these considerations against the serious nature of the charges and the fact that the VIT formed the view that Mr Cuvegen posed an unacceptable risk to children and that the suspension was necessary to protect children. These factors, together with Mr Gniel's concern that community trust in the Department would be compromised if Mr Cuvegen remained in receipt of salary whilst the subject of serious criminal charges with his teacher registration suspended, constitute an intelligible justification for dismissing the matters raised in Mr Cuvegen's written submission.

87 I reject the first limb of Mr Cuvegen's submission that no reasonable authority exercising the discretion could have come to the decision to suspend without pay. I also reject the second limb of the submission that whether the community trusts the Department is irrelevant to the consideration of whether to suspend with or without pay. For the reasons set out below in respect of the second ground, the issue of community trust was not an irrelevant consideration.[127]

88 Mr Cuvegen submits the Department took into account an irrelevant consideration when it considered the factor of community trust in the Department being eroded.

89 The determination of what considerations a decision-maker must not take into account when exercising a statutory power is a question of law which must be answered as a matter of construction of the statute which created the power, including by implication from the statute's subject matter, scope and purpose.[128] In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[129] Mason J stated:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.[130]

90 An irrelevant consideration is one which, as a matter of construction of the relevant statute, the decision-maker cannot permissibly take into account. Mr Cuvegen submits that by implication, on a proper construction of the ETR Act, consideration of community trust is an irrelevant consideration for the purposes of exercising the statutory discretion to suspend an employee without pay.[131]

91 The consideration of community trust is not expressly referred to in the ETR Act. As such, it is not an expressly prohibited irrelevant consideration. It is necessary to determine whether by necessary implication of the ETR Act Mr Gniel was prohibited from taking this factor into account.

92 Mr Kelly submitted that the prescribed purposes of the ETR Act in s 1.1.1 do not support a finding that maintaining 'community trust', 'upholding the good name of public education' or ensuring 'community confidence in government schools' are purposes of the Act.[132] Mr Kelly submitted that by implication from the subject matter, scope and purpose of the ETR Act and div 10 that the 'community's thoughts about the exercise of the discretion are extraneous and outside the range of permissible considerations that the legislature intended'.[133]

93 I reject the submission that the ETR Act impliedly prohibits consideration of community trust. There is nothing in the subject matter, scope or purpose of the Act which impliedly limits or prevents the Secretary from having regard to community trust in the Department being eroded.

94 The Government school system is established by pt 2.2 of the ETR Act. The Government teaching service is established by pt 2.4. Government schools are established by the Minister, and teachers are employed by the Department on behalf of the Crown. Teachers' salaries are paid from public funds. It is implicit in these provisions that powers conferred by the ETR Act are exercised on behalf of the community. Section 1.2.1(c) provides that information concerning the performance of education and training providers should be publicly available. Section 1.2.1(e) provides that a school community has a right to information concerning the performance of its school. These provisions facilitate the public at large and individual school communities engaging with the public education system. I reject the submission that, by necessary implication, concern about community trust and community expectations is an impermissible, irrelevant consideration.

95 Mr Cuvegen contends that he was denied procedural fairness by not being given a fair opportunity to make submissions about the factor of community trust prior to the 2 July 2019 suspension decision being made.

96 Section 2.4.64(4) of the ETR Act requires the Secretary to give the employee an opportunity to make a submission in writing addressing whether suspension without pay should occur before deciding whether to suspend the employee from duty without pay.[134] This statutory obligation to afford procedural fairness subsists concurrently with an obligation to afford procedural fairness under common law, which is not excluded under the ETR Act expressly or by implication.[135]

97 In the letter dated 29 May 2019 notifying Mr Cuvegen of the decision to suspend with pay, Mr Gniel invited Mr Cuvegen to make submissions in relation to the proposal to suspend without pay:

You are invited to provide me with a written submission in response to my proposal to suspend you from duty without pay. In this submission you are invited to address how you believe you will be affected by the proposed action so that I can give proper, genuine and realistic regard to the impact of any suspension decision on you.[136]

98 The Department conceded that although the letter of 29 May 2019 referred to the preservation of community trust, that statement was in reference to the decision to suspend Mr Cuvegen with pay. Consequently, Mr Cuvegen was not placed on notice that community trust would be taken into account when deciding whether to impose a suspension without pay.[137] Accordingly, the Department accepts that:

(a) Mr Cuvegen was not told that Mr Gniel would be taking the consideration of community trust into account in making the decision to suspend Mr Cuvegen's registration without pay; and

(b) Mr Cuvegen was therefore not given an opportunity to make submissions on that issue.[138]

99 In Minister for Immigration and Border Protection v SZSSJ[139] the High Court stated in relation to the obligation to afford an applicant with an opportunity to be heard:

Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.[140]

100 The Department submits that the failure to provide Mr Cuvegen with a fair opportunity to be heard regarding the community trust factor was not a 'material' breach and does not amount to jurisdictional error.[141]

101 In MZAPC, the plurality explained that in order to understand the concept of materiality, it is necessary to first understand the concept of jurisdictional error. This concept 'is the product of acceptance of propositions embraced incrementally in decisions' of the High Court.[142] The plurality described jurisdictional error in the following terms:

To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid.

The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation.[143]

102 Statutes are ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.[144] This principle recognises that the legislature is not likely to have intended that a breach that results in no 'practical injustice' will deprive a decision of statutory force.[145]

103 In Hossain v Minister for Immigration and Border Protection,[146] the plurality observed that a failure to comply with a condition of a conferral of statutory decision-making authority will not ordinarily meet the threshold of materiality 'if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made'.[147] In SZMTA the majority held that 'a breach is material to a decision only if compliance could realistically have resulted in a different decision'.[148] In other words, a breach is material if it operates to deprive the applicant of the realistic possibility of a successful outcome.[149]

104 In SZMTA the majority held that in cases where materiality is in issue:

the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.[150]

105 This approach was endorsed by the plurality in MZAPC:

Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred - as distinct from what would have occurred - had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden on the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

There is no reason to consider that the burden placed on the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with the condition that has been breached is significantly more onerous than the burden indisputably borne by the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied that the condition has in fact been breached.[151]

106 In CNY17 v Minister for Immigration and Border Protection[152] Kiefel CJ and Gageler J stated that the determination of materiality by a court involves 'a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted' in a decision lacking in statutory authority and which is thus invalid.[153] In BDY18 v Minister for Immigration and Border Protection,[154] the Full Court of the Federal Court described the assessment of materiality as 'backward looking' and one which 'concerns what the decision-maker did in the particular case'.[155]

107 It is necessary to determine the 'basal factual question' of how the suspension decision was made, and in particular, the way in Mr Gniel considered the factor of community trust.[156] Mr Gniel provided Mr Cuvegen with an opportunity to make submissions about the proposal to suspend him without pay on 29 May 2019. Mr Cuvegen filed written submissions on 3 June 2019. Mr Gniel then made the decision to suspend without pay on 2 July 2019. In the decision letter, Mr Gniel referenced the VIT's suspension of Mr Cuvegen's registration on an interim basis, citing Mr Cuvegen's 'failure to be a positive role model in the community, and [his] failure to respect the rule of law and provide a positive example in the performance of civil obligations'.[157] Mr Gniel also referenced the fact that the VIT had formed a reasonable belief that Mr Cuvegen posed an unacceptable risk of harm to children and that the suspension was necessary to protect children. In the subsequent paragraph, Mr Gniel wrote:

Furthermore, on the question as to whether you should be suspended without pay by the Department, I have considered the matters raised in your submission including the current financial commitments you outlined. These matters do not persuade me that you should not be suspended without pay. I am also concerned that community trust in the Department would be compromised if you remained in receipt of salary whilst you are the subject of serious criminal charges and your teacher registration is suspended.

I have therefore determined to suspend you from duty without pay with immediate effect from the date of this letter until such time as an inquiry under Division 10 of the Act into your alleged conduct has been completed.[158]

108 Mr Cuvegen submits that the community trust factor was Mr Gniel's 'sole stated justification' such that it was his 'primary consideration',[159] whereas the Department submits that community trust merely provided 'additional but unnecessary support to a decision that had by then been made'.[160]

109 Contrary to Mr Cuvegen's submission, the 2 July 2019 letter demonstrates that Mr Gniel relied upon several matters in reaching the suspension decision. The inclusion of the transitional term '[f]furthermore' evidences that the preceding paragraph also contains justifications relied upon by Mr Gniel in his decision to suspend without pay. This includes Mr Cuvegen's registration being suspended on an interim basis, with the VIT referring to Mr Cuvegen's failure to be a positive role model in the community, to respect the rule of law and provide a positive example. A further justification provided was that the VIT had formed a reasonable belief that Mr Cuvegen posed an unacceptable risk of harm to children and that the suspension was necessary to protect children. In the following paragraph, Mr Gniel's statement that he was not persuaded by Mr Cuvegen's written submission dated 3 June 2019 constituted another justification. Finally, Mr Gniel wrote that he was 'also' concerned about community trust in the Department being compromised if Mr Cuvegen were to receive salary whilst being the subject of serious criminal charges and while his registration was suspended. The use of the word 'also' supports a finding that the community trust consideration was an 'additional' factor.

110 Mr Cuvegen has sought to characterise the concept of community trust as referring to actual knowledge on the part of the community, or an actual view relating to the facts of this proceeding.[161] Mr Kelly referred to community trust as being 'an actual state of mind'.[162] This can be contrasted with the Department's submission that the community trust consideration involved the perception of what the community's expectations would be, were they to come to know of the facts of the case, and how they would expect Mr Gniel to act regardless of whether they knew about the case or not.[163]

111 Mr Cuvegen bears the evidential onus of proving on the balance of probabilities all the historical facts necessary to enable the Court to be satisfied that a different decision could have been made if he had been invited to make a submission in respect of the community trust criterion.[164]

112 Mr Gniel's approach to the criterion of community trust is relevant to the materiality inquiry. Mr Cuvegen's registration was suspended by the VIT, which had formed the view that he posed an unacceptable risk of harm to children and that the suspension was necessary to protect children. This was due to Mr Cuvegen being the subject of serious criminal charges, some of which were violent in nature. I accept Mr Gniel's evidence in paragraphs [15], [29] and [31] of his affidavit that community trust refers to the community's expectations and perception, such that it is highly unlikely that any submission advanced by Mr Cuvegen could have resulted in a realistic possibility that a different decision could have been made. Mr Cuvegen has not identified anything he could have said to Mr Gniel which could have had a realistic possibility of changing his position that the community may have an adverse perception of the Department if a teacher, whose registration was suspended due to concerns that he posed a risk of harm to children, continued to receive a salary drawn from public funds.

113 Mr Cuvegen's evidence is comprised of two affidavits of Mr David Shaw, the first dated 18 December 2019 with eight exhibits and a second affidavit affirmed 21 October 2020 with two exhibits.[165] He also relied upon the unsworn affidavit of Ms Jennifer Bourke dated 3 December 2020 and its 22 exhibits.[166] Mr Cuvegen has not led any evidence addressing submissions he may have made to Mr Gniel in relation to the community trust factor. In response to a question from the Bench about what Mr Cuvegen could have said which could have realistically resulted in a different decision, Mr Kelly submitted:

Well, he could say that the community are good people, that they don't prejudge people who are accused of crimes, that they don't want innocent people to be subjected to hardship, that they would be very disappointed with a bureaucrat that would do that, that there might be some additional factors that are relevant to informing community trust. Alternatively, I suppose one could also say, 'Well, if the community hold the other view and you find that, then that's a biased view and, in these circumstances, you can't take account of prejudicial community views'. That would be the opposite. But one can certainly make any number of submissions about the content of that, and of course, then there's also the argument about confidentiality as well and whether or not the matter would become public, and Your Honour's treatment of that might depend in part on whether or not you admit Mr Gniel's evidence in the disputed paragraphs, but it would be possible for Mr Cuvegen to have offered undertakings that he would keep the matter confidential.[167]

114 This submission does not discharge Mr Cuvegen's onus of proving on the balance of probabilities that there was a realistic possibility that a different decision could have been made had he been given an opportunity to make a submission. Mr Kelly's reference to confidentiality and whether the public would have knowledge that Mr Cuvegen continued to be paid, does not engage with Mr Gniel's perception of community trust. That perception was not dependent upon the community having actual knowledge of the circumstances relating to Mr Cuvegen's suspension. The foreshadowed submission that 'the community are good people, they don't prejudge people who are accused of crime', is highly unlikely to have altered Mr Gniel's decision. Mr Gniel gave evidence that 'the clear reason' for suspending Mr Cuvegen without pay was the fact that Mr Cuvegen's registration as a teacher had been suspended by VIT on the grounds that he posed an unacceptable risk to children.[168] Mr Gniel also gave evidence that when he made the suspension decision he had been provided with a Briefing Note which set out details of Mr Cuvegen's alleged offending.[169] The Briefing Note included the following details of the alleged offences:

[Mr Cuvegen] has been charged with a number of offences after allegedly going to the house of an elderly couple with his son, in relation to a dispute with the couples' son believed to be over drugs or money. He carried a walking stick believed to have been fashioned into some kind of weapon.

The charges are: Wilful Damage/Injure Property; Criminal Damage (Intent to Damage/Destroy); Carrying Dangerous Article in Public Place; Possess Dangerous Article in Public Place; Unlawful Assault; Recklessly Cause Injury; Threat to Inflict Serious Injury and Assault in Company.[170]

115 The question of whether Mr Cuvegen has discharged the onus of proving on the balance of probabilities that there was a realistic possibility that a different decision could have been made had he been given an opportunity to make a submission on the community trust criterion falls to be determined as a matter of reasonable conjecture within the parameters set by historical facts. A significant historical fact is VIT's suspension of Mr Cuvegen's registration as a teacher on the basis that he posed an unacceptable risk of harm to children. In light of the weight which Mr Gniel attached to the VIT's suspension decision and the basis of that decision (that Mr Cuvegen posed an unacceptable risk of harm to children), coupled with the serious nature of Mr Cuvegen's alleged offending, there was no realistic possibility that Mr Gniel could have made a different decision had Mr Cuvegen been given an opportunity to make a submission on the community trust criterion.

116 Mr Cuvegen contends that there is no requirement on an applicant 'to detail the precise submissions that would have been made if adequate notice had been given'.[171] I accept this contention. However, the evidential onus which lies 'unwaveringly' on the applicant must still be met.[172] Mr Cuvegen further submitted that the 23 August 2019 letter from Holding Redlich to the Department[173] could be relied upon as evidence of what he could have submitted to the Department about the community trust criterion.[174] However, this does not assist his case. The 23 August 2019 letter characterises the community trust factor as referring to the community's actual knowledge and actual state of mind, which I have rejected. For example, the letter notes that as the circumstances of the case remain 'strictly confidential', these are not matters that the community would be 'privy to'. However, this fails to engage with the way in which Mr Gniel characterised the community trust criterion, namely his perception of how the community would expect decisions to be made about whether to continue to pay the salaries of persons whose teaching registration is suspended, who are the subject of serious criminal charges, and who have been deemed to pose an unacceptable risk of harm to children by the VIT.

117 I am not satisfied of the realistic possibility that a different decision could have been made had Mr Cuvegen been given an opportunity to make a submission on the community trust criterion. The Department's failure to accord Mr Cuvegen procedural fairness was not material and did not constitute jurisdictional error.

118 I reject the three grounds advanced by Mr Cuvegen in support of his application for judicial review. He is not entitled to an order for certiorari quashing the decision nor is he entitled to backpay for the period July 2019 to 29 May 2020.

1. An extension of time pursuant to r 56.02(3) be granted.

120 I shall provide the parties with an opportunity to make submissions in respect of the costs of the proceeding.

[1] Plaintiff, 'Plaintiff's Submissions', 16 February 2021, [6].

[2] Plaintiff, 'Plaintiff's Submissions in Reply', 13 April 2021, [33].

[3] Plaintiff, 'Plaintiff's Submissions', 16 February 2021, [47].

[4] Defendant, 'Defendant's Outline of Submissions', 16 March 2021, [13].

[5] Exhibit JBLB-4 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[6] Defendant, 'Defendant's Outline of Submissions', 16 March 2021, [2].

[9] Exhibit SG-1 to the Affidavit of Stephen Ian Gniel, sworn 5 February 2021.

[10] Exhibit DS-1 to the Affidavit of David Shaw, affirmed 18 December 2019.

[13] Exhibit JBLB-4 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[14] Exhibit DS-2 to the Affidavit of David Shaw, affirmed 18 December 2019.

[15] Exhibit DS-3 to the Affidavit of David Shaw, affirmed 18 December 2019.

[16] Exhibit DS-4 to the Affidavit of David Shaw, affirmed 18 December 2019.

[17] Exhibit DS-5 to the Affidavit of David Shaw, affirmed 18 December 2019.

[18] Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020, [14].

[19] Plaintiff, 'Originating Motion for Judicial Review', filed 18 December 2019.

[20] See attachments to Exhibit JBLB-9 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[21] See Exhibit JBLB-9 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020, CB113.

[22] Exhibit JBLB-9 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[23] Exhibit JBLB-10 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[25] Exhibit JBLB-12 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[27] Defendant, 'Defendant's Outline of Submissions', 16 March 2021, [10]; see also Exhibit JBLB-14 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[28] Exhibit JBLB-15 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[30] Exhibit JBLB-17 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[31] Exhibit JBLB-20 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[32] Exhibit JBLB-21 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[33] Exhibit JBLB-22 to the Affidavit of Jennifer Beth Lydia Bourke, unsworn 3 December 2020.

[34] Transcript of Proceedings, T 125 L 10-14 (18 May 2021).

[35] Education and Training Reform Act 2006 (Vic) s 1.1.1(f) ('ETR Act'); see also Secretary to the Department of Education and Training v Paul [2020] VSCA 280, [19].

[44] Transcript of Proceedings, T 41 L 2 (18 May 2021).

[45] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.02.

[46] Plaintiff, 'Originating Motion for Judicial Review', filed 18 December 2019.

[47] Exhibit DS-3 to the Affidavit of David Shaw, affirmed 18 December 2019.

[49] Exhibit DS-5 to the Affidavit of David Shaw, affirmed 18 December 2019.

[50] Exhibit DS-7 to the Affidavit of David Shaw, affirmed 18 December 2019.

[51] Exhibit DS-9 to the Affidavit of David Shaw, affirmed 20 October 2020.

[52] Transcript of Proceedings, T 66 L 8-31 (18 May 2021).

[53] [2002] VSC 256.

[55] See Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [57], [72].

[56] [2017] VSC 652.

[57] Ibid [40], citing Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [57], [72]; Lazarevic v Victoria Police [2014] VSC 497; Kocak v Wingfoot Australia Partners Pty Ltd & Goodyear Tyres Pty Ltd [2011] VSC 285 [29].

[58] [2009] VSC 426; (2009) 26 VR 172.

[60] See Blacker v Boss Trailers [2017] VSC 538 where the defendant similarly consented to the extension of time being granted.

[61] See Defendant, 'Defendant's Outline of Submissions', 16 March 2021, [74].

[62] Transcript of Proceedings, T 7 L 2-8, L 24, T 9 L 5-10, T 12 L 7-12, L 14-25 (18 May 2021).

[63] Transcript of Proceedings, T 7 L 9-17 (18 May 2021).

[64] Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, 564 [454]; Attorney-General (NT) v Minister for Aboriginal Affairs [1989] FCA 159; (1989) 23 FCR 536.

[65] [1989] FCA 159; (1989) 23 FCR 536.

[67] [2001] FCA 1700; (2001) 114 FCR 574.

[68] Ibid 587 [38]; see also Chandra v Webber [2010] FCA 705; (2010) 187 FCR 31, [40].

[69] East Melbourne Group v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605 ('East Melbourne Group'), citing R v Westminster City Council; Ex parte Ermakov [1995] EWCA Civ 42; [1996] 2 All ER 302.

[70] East Melbourne Group (n 69) 677 [311] (Ashley and Redlich JJA).

[71] Ibid 676 [309] (Ashley and Redlich JJA).

[73] [2008] VSC 504; (2008) 30 VAR 243.

[74] Foster v Secretary to the Department of Education and Early Childhood Development for the State of Victoria [2008] VSC 504; (2008) 30 VAR 243, 247 [14] ('Foster').

[75] [2014] VSC 87.

[78] [2016] QSC 132.

[80] [2001] VSC 329.

[82] [1995] EWCA Civ 42; [1996] 2 All ER 302.

[83] Herald and Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329, [38], [42].

[84] Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123, 134-5 [30] ('Hossain'); Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 445 [45] ('SZMTA').

[85] [2019] HCA 3; (2019) 264 CLR 421.

[87] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, 449 [3], 458 [60] ('MZAPC').

[91] Transcript of Proceedings, T 17 L 3-14 (18 May 2021).

[92] Affidavit of Stephen Ian Gniel, sworn 5 February 2021, [15].

[94] Transcript of Proceedings, T 7 L 3-8, T 8 L 1-4 (18 May 2021).

[95] Transcript of Proceedings, T 8 L 5-19 (18 May 2021).

[96] Affidavit of Stephen Ian Gniel, sworn 5 February 2021, [29].

[97] Transcript of Proceedings, T 9 L 8-10 (18 May 2021).

[98] Transcript of Proceedings, T 12 L 11-12 (18 May 2021).

[99] Affidavit of Stephen Ian Gniel, sworn 5 February 2021, [33].

[100] Transcript of Proceedings, T 12 L 14-23 (18 May 2021).

[101] Plaintiff, 'Plaintiff's Submissions', 16 February 2021, [7].

[102] See Transcript of Proceedings, T 41 L 25-30, T 82 L 15-19 (18 May 2021).

[103] Exhibit DS-1 to the Affidavit of David Shaw, affirmed 18 December 2019.

[105] Exhibit DS-2 to the Affidavit of David Shaw, affirmed 18 December 2019.

[106] Transcript of Proceedings, T 88 L 1-7 (18 May 2021).

[107] See Transcript of Proceedings, T 89 L 22-25 (18 May 2021).

[108] Plaintiff, 'Plaintiff's Submissions', 16 February 2021, [16].

[111] Ibid [22], [24], citing Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332, 365-6 [72] ('Li').

[112] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, 564 [53] (Gageler J); see also 575 [89] (Nettle and Gordon JJ) ('SZVFW'); Li (n 111) [63].

[113] SZVFW (n 112) 549 [4] (Kiefel CJ), 572-3 [80] (Nettle and Gordon JJ).

[117] Ibid 551 [11]; Li (n 111) 377-8 [113] (Gageler J); Secretary to the Department of Education and Training v Paul [2020] VSCA 280, [106].

[118] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 649 [135] ('SZMDS').

[119] Li (n 111) 363 [66] (Hayne, Kiefel and Bell JJ).

[120] Plaintiff, 'Plaintiff's Submissions', 16 February 2021, [15].

[121] See, eg, Mackenzie v Head, Transport for Victoria [2020] VSC 328, [134].

[122] Exhibit DS-2 to the Affidavit of David Shaw, affirmed 18 December 2019.

[123] Transcript of Proceedings, T 47 L 1-3 (18 May 2021).

[124] Plaintiff, 'Plaintiff's Submissions', 16 February 2021, [28].

[125] SZMDS (n 118) 2010) 649 [135].

[126] Plaintiff, 'Plaintiff's Submissions', 16 February 2021, [19]-[20].

[127] Cf East Melbourne Group (n 69) 647-8 [183].

[128] See Australia Pacific LNG Pty Ltd v Treasurer, Minister for Aboriginal and Torres Strait Island Partnerships and Minister for Sport [2019] QSC 124, [191].

[129] (1986) 162 CLR 24.

[131] Transcript of Proceedings, T 50 L 10-14, L 17-22 (18 May 2021).

[132] Plaintiff, 'Plaintiff's Submissions', 16 February 2021, [40].

[134] ETR Act s 2.4.64(4); see also Foster (n 74) 259 [42].

[135] See Foster (n 74) 260-1 [48].

[136] Exhibit DS-1 to the Affidavit of David Shaw, affirmed 18 December 2019.

[137] Defendant, 'Defendant's Outline of Submissions', 16 March 2021, [73].

[139] [2016] HCA 29; (2016) 259 CLR 180.

[140] Ibid 207 [83]. See also Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 629; AYX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 99, [33]; SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145, [37]-[38], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 590-1.

[141] Defendant, 'Defendant's Outline of Submissions', 16 March 2021, [75].

[143] Ibid 452 [29]-[30] (citations omitted).

[144] Ibid 453 [31], citing Hossain (n 84) 134 [29]-[30].

[145] Ibid 453 [32], citing Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 13-14 [37].

[151] MZAPC (n 87) 454 [38]-[40] (emphasis added) (citations omitted).

[152] [2019] HCA 50; (2019) 268 CLR 76.

[154] [2020] FCAFC 24; (2020) 273 FCR 170.

[157] Exhibit DS-2 to the Affidavit of David Shaw, affirmed 18 December 2019.

[159] Plaintiff, 'Plaintiff's Submissions', 16 February 2021, [23].

[160] Transcript of Proceedings, T 84 L 18-19 (18 May 2021).

[161] Plaintiff, 'Originating Motion for Judicial Review', filed 18 December 2019.

[162] Transcript of Proceedings, T 43 L 20 (18 May 2021).

[163] Defendant, 'Defendant's Outline of Submissions', 16 March 2021, [28].

[164] SZMTA (n 84) 445 [46]; see also MZAPC (n 87) 454 [38]-[40].

[165] Exhibit P-1; Exhibit P-2; Transcript of Proceedings, T 3 L 21-31 (18 May 2021).

[166] Exhibit P-3; Transcript of Proceedings, T 5 L 1-8 (18 May 2021).

[167] Transcript of Proceedings, T 64 L 23-31, T 65 L 1-10 (18 May 2021).

[168] Transcript of Proceedings, T 38 L 16-18 (18 May 2021).

[169] Transcript of Proceedings, T 37 L 1-14 (18 May 2021).

[170] Exhibit SG-3 to the Affidavit of Stephen Ian Gniel, sworn 5 February 2021.

[171] Plaintiff, 'Plaintiff's Submissions in Reply', 13 April 2021, [28].

[172] See also MZAPC (n 87) 458 [60].

[173] Exhibit DS-3 to the Affidavit of David Shaw, affirmed 18 December 2019.

[174] Transcript of Proceedings, T 109 L 5-7 (18 May 2021).