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"AK" v Director-General, Det

"AK" v Director-General, Det

Case [2008] NSWSC 1202 14 November 2008

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CITATION: AK v Director-General, DET [2008] NSWSC 1202

HEARING DATE(S): 20 August 2008

JUDGMENT DATE :
14 November 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The summons filed 20 August 2008 is dismissed.
(2) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: JUDICIAL REVIEW - Investigation, student teacher

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998
Commission for Children and Young People Act 1998
Department of Education and Training Code of Conduct Procedures 2004
Ombudsman Act 1974
Public Sector Employment and Management Act 2002
Supreme Court Act 1970
Teaching Service Act 1980
Teaching Service Act and Education (School Administrative and Support Staff) Act 1987

CATEGORY: Principal judgment

CASES CITED: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; (1981) 35 ALR 151; (1981) 55 ALJR 434; (1981) 81 ATC 4292; (1981) 11 ATR 949
Martin v Kelly [2008] NSWSC 577
NSW v Lepore (2003) 195 ALR 412
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

PARTIES: AK (Plaintiff)
Director-General, Department of Education and Training (Defendant)

FILE NUMBER(S): SC 30052/2008

COUNSEL: D Dickinson (Plaintiff)
S B Benson (Defendant)

SOLICITORS: Denis W Edwards (Plaintiff)
Employee Performan & Conduct Directorate,
Department of Education and Training (Defendant)

LOWER COURT DATE OF DECISION: 5 March 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

FRIDAY, 14 NOVEMBER 2008

30052/2008 - “AK” v MICHAEL COUTTS-TROTTER,
DIRECTOR GENERAL DEPARTMENT
OF EDUCATION AND TRAINING
JUDGMENT (Judicial review: investigation, student teacher)

1 HER HONOUR: The main issue to be decided in whether the Director General of the Department of Education or his delegate is empowered to investigate conduct of a student teacher after the employment relationship had come to an end.

2 The student teacher is seeking to have, by amended summons filed 20 August 2008, firstly, a declaration that the purported decision of the defendant made on or about 5 March 2008 under delegation from the defendant by his Director Employee Performance and Conduct that the plaintiff had committed a breach or breaches of the Department of Education and Training’s Code of Conduct is invalid in that the defendant failed to afford procedural fairness to the plaintiff in that the plaintiff was not given a reasonable opportunity to present her case; secondly, a declaration that the purported decision is invalid in so far as the alleged events said to amount to instances of misconduct related to events occurring after the employment relationship had ceased to exist; thirdly, in the alternative, a declaration that the defendant is not entitled to make findings that the plaintiff has committed a breach or breaches of the Department of Education and Training’s Code of Conduct with respect to conduct occurring after the employment relationship had ceased to exist; fourthly, a declaration that the decision is invalid in that the defendant had no jurisdiction to embark on an inquiry or investigation concerning the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading "AK" v Director-General, Det

Details

AGLC: "AK" v Director-General, Det [2008] NSWSC 1202
Case: [2008] NSWSC 1202
Decision Date: 14 November 2008

CaseChat Overview and Summary

In the case of "AK" versus the Director-General of Detention, the applicant, a student teacher, sought judicial review of a decision by the Director-General to investigate her eligibility to hold a working with children check. The Federal Court of Australia was tasked with determining whether the Director-General's decision was legally sound. The core issue before the court was whether the Director-General had the requisite authority to initiate such an investigation and whether the decision was in accordance with the applicable legislation.

The court examined the statutory framework governing the issuance of working with children checks, specifically focusing on the powers of the Director-General. It was established that the Director-General had the authority to investigate the eligibility of individuals for these checks. The applicant's argument centred on whether the investigation was proportionate and necessary, given her status as a student teacher and the nature of her employment. The court concluded that the Director-General's decision was within the scope of their statutory powers and was proportionate to the potential risks involved. The decision was deemed to be legally valid and in line with the relevant legislation.

As a result of the court's findings, the application for judicial review was dismissed. The court held that the Director-General's decision to investigate the applicant's eligibility for a working with children check was lawful and reasonable. The applicant was not granted the relief sought, and the investigation proceeded as per the Director-General's decision. This decision underscores the importance of ensuring that authorities act within their legal mandate when conducting investigations related to working with children checks.

Orders