Andrew Strickland v Garth Thompson, Madeline Wooley, Maude Hutchinson and William Gerard Smith No. SCGRG 95/212 Judgment No. 5073 Number of Pages 7 Judicial Review Jurisdiction

[1995] SASC 5073

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Judicial review - jurisdiction - whether Teachers' Appeal Board had jurisdiction to hear appeal - true nature of appeal - whether appeal against reclassification or appeal as to interpretation of Award - decision of Board holding that it had jurisdiction quashed - declaration that the Board does not have jurisdiction. Technical and Further Education Act 1975 regs.11 and 32A.

HRNG ADELAIDE, 10 May 1995 #DATE 10:5:1995 #ADD 26:6:1995

Counsel for plaintiff:                 Mr M Walter

Solicitors for plaintiff:             Crown Solicitor's Office

Counsel for defendant William Smith:    Mr D Barnfield

Solicitors for defendant William Smith: Barnfields

ORDER
Application allowed.

JUDGE1 DEBELLE J The fourth defendant, Mr Smith, is employed by the Department of Employment Training and Further Education. He is an Advanced Skills Lecturer 1. On 1 March 1993, he applied for reclassification to Advanced Skills Lecturer 2. His application was rejected. It is unnecessary to examine the detailed grounds upon which his application failed. Suffice it to say that, the Classification Committee, which is the body appointed to consider applications of this kind, has adopted an interpretation of the relevant award called `The DETAFE (Educational Staff) Interim Award' which it says justifies its refusal. The Committee's interpretation is that it is necessary to have certain academic qualifications if one is to be reclassified as an Advanced Skills Lecturer 2.

2. The letter advising that the Classification Committee had refused his application was dated 1 June 1993. After he received that letter, Mr Smith engaged in a course of correspondence with different officers of the Department expressing in that correspondence his view that the Classification Committee had incorrectly interpreted the award. The correspondence extended over a period of almost 12 months. Ultimately Mr Smith received a letter dated 11 May 1994 from Mr Mitchell the manager of the Human Resources Division of the Department, upholding the interpretation of the Classification Committee.

3. On 26 May 1994, Mr Smith lodged an appeal to the Teacher's Appeal Board ("the Board"). The appeal took the form of a short letter instituting the appeal. Enclosed with that letter was a document setting out the grounds of his appeal. Mr Smith's letter of appeal was in these terms, `I wish to lodge an appeal against the Department of TAFE, based on errors and injustices in applying the new interim award.' In the accompanying letter setting out his grounds, Mr Smith included under the heading `Particulars of Appeal', the statement that his appeal was `an attempt to have part of the Award applied correctly either in theory or in practice'. Later in that same letter under the heading `Grounds' he said `The Classification Committee is in error in applying parts of the Award. The Committee is inconsistent in applying and interpreting the Award. It is in error regarding the Recognition of Prior Learning for TAFE staff. There are sections written in plain English which the Department refuses to recognise. This is not an appeal which concerns an appointment. It concerns the application of the Award.'

4. At a hearing before the Board on 24 November 1994, the plaintiff contended that the Board had no jurisdiction to hear the appeal. After hearing argument, the Board ruled that it had jurisdiction. The Board then adjourned further consideration of the appeal. On 14 February 1995, the plaintiff applied to this court for an order in the nature of a certiorari, quashing the decision of the board. The plaintiff also seeks a declaration that the Board did not have jurisdiction to determine Mr Smith's appeal. The Board has indicated that it will abide the order of the court.

5. Appeals to the Board are governed by Regulation 32A of the regulations made under the Technical and Further Education Act, 1975. The relevant provisions of Regulation 32A provide:
    '(1) Where an officer of the teaching service -
    (a) has been aggrieved by an administrative act or decision
    of the Director-General or any other employee in the
    Department directly affecting the officer
    (b) has, by writing, within 28 days after the date of the
    act or decision, requested the Director-General to review
    the act or decision;
    and,
    (c) is aggrieved by an act or decision of the
    Director-General resulting from the request or review.
    the officer may, by writing, appeal to the Appeal Board
    against the act or decision of the Director-General
    resulting from the request or review.

(2) Where an officer requests a review as referred to in
    subregulation (1) -
    (a) the Director-General must notify the officer in writing
    of the Director General's acts or decisions resulting from
    that request or any such review;
    and
    (b) any appeal by the officer to the Appeal Board against
    any act or decision of the Director-General resulting from
    the request or review must be made within 14 days after
    receipt of that notification.

(2a) Upon the hearing of a appeal under this regulation, the
    Appeal Board may give such orders and directions as it
    considers just in the circumstances of the case.

(3) Any act or decision which concerns an appointment of an
    officer including an appointment of an officer to a higher
    classification shall not be subject to appeal except as
    provided in regulation 11.'

6. It will be noticed that Regulation 32A(1), establishes a grievance procedure whereby an officer of the Department who is aggrieved by an act or decision that directly affects him may request the Director-General to review the matter and, if the officer is not satisfied by that review, the officer may appeal to the Board. However, subregulation (3) of Regulation 32A restricts the right of appeal. Central to the determination of the issues in this application, is the proper construction of subregulation (3) of Regulation 32A. Before examining the terms of Regulation 11, it is convenient to refer to the relevant terms of the award.

7. The award was made on 8 September 1992. It sets out the usual kinds of provisions relating to the terms and conditions of service. There are three schedules to the award. It is convenient first to refer to Schedule 3, which contains transitional provisions. For present purposes it is necessary only to refer to paras.1, 2 and 3 of Schedule 3, which respectively provide that, 'Officers classified as Lecturer Class II, on 8 September 1992 shall be translated to the Lecturer range at their current salary step', 'Officers classified as Lecturer Class I on 8 September 1992 shall translate to the ASL
1 classification on that date,' and that 'Officers classified on 1 February 1993, shall translate to Principal Lecturer classification.'

8. Schedule 1, which refers to salaries, sets out a list of classifications of educational staff. There are seven main classifications which are relevant for present purposes. They are Lecturer's Assistant, Lecturer, Advanced Skills Lecturer 1, Advanced Skills Lecturer 2, Principal Lecturer, Educational Manager and College Director.

9. Before the award came into force, there were two classes of lecturer, Class II and Class I. The position of an Advanced Skills Lecturer 1 and 2 were new positions created by the award. The positions Lecturer Class II and Lecturer Class I no longer obtain under the award. Hence the need for the transitional provisions to which I have already referred. When the award came into force on 8 September 1992, Mr Smith was a Lecturer Class I. By virtue of the transitional provisions in Schedule 3 of the award he was immediately translated to the classification Advanced Skills Lecturer 1.

10. Clause 4 of Schedule 1 of the award, by implication, provides that an Advanced Skills Lecturer 1 may apply for reclassification as an Advanced Skills Lecturer 2. It sets out the criteria which must be satisfied. The issue between Mr Smith and the Department is the proper interpretation of these criteria. It is the interpretation of those criteria by the Classification Committee which has led to the rejection of his application for reclassification as Advanced Skills Lecturer 2.

11. When the matter came on before the Board on 24 November 1994, the plaintiff submitted that by virtue of the combined operation of Regulation 32A(3) and Regulation 11, the Board had no jurisdiction. Regulation 11 provides:
    '(1) Where an officer is appointed to the position of
    Lecturer Class II, and
    (a) has been appointed at or reached the maximum salary
    increment applying to that position; and
    (b) has given one year's satisfactory service as certified
    by the Principal of his College or, where there is no
    principal, as certified by his Head of School and the
    appropriate regional superintendent; and
    (c) has satisfied the normal academic requirements for
    appointment as a Lecturer Class I as set out in
    Administrative Instructions for the time being in force;
    he may apply for reclassification to the position Lecturer
    Class I.

(2) Where an officer is appointed to the position of Head of
    School Class II and has given three years' satisfactory
    service as certified by the Principal of his College or,
    where there is no Principal, by the appropriate regional
    superintendent, he may apply to the Minister for
    reclassification to the position of Head of School Class I.

(3) Where an application made under subregulations (1) or
    (2) of this regulation is refused by the Minister, the
    officer may appeal against the Minister's decision to the
    Appeal Board.'

12. The plaintiff's submission was rejected by the Board which held that it had jurisdiction. It is that decision which the plaintiff challenges in these proceedings. As the issue goes to jurisdiction, it is plainly a matter which is appropriate for judicial review.

13. The plaintiff submits that the meaning of reg.11 has a twofold consequence in respect of the purported appeal by Mr Smith. It says first that it does not apply to Mr Smith because, as at 8 September 1992, he already held the position of Lecturer Class I which by virtue of the award was translated to Advanced Skills Lecturer 1. It says, secondly, that in any event the positions Lecturer Class II and Lecturer Class I no longer exist, and for that reason also the terms of reg.11 have no application in the present circumstances. Whatever work there is left for reg.11 the plaintiff says it does not apply in the present circumstances. Expressed in other terms, the plaintiff says that Mr Smith is, as it were, on the horns of a dilemma. The regulation does not apply first for the reason that as at 8 September 1992 he was already a Lecturer Class I, and, secondly, it only applies to positions which no longer exist.

14. In my view the contention of the plaintiff is correct. It is clear that the intention of reg.11 is to restrict the circumstances in which an officer who is aggrieved by the refusal of reclassification might appeal. That too is also the intention of regulation 32A(3). Mr Smith did hold the position of Lecturer Class I. However the matter is viewed, he had already achieved a status which precluded him from relying on para.1 of reg.11.

15. Mr Barnfield, who appeared for Mr Smith, submitted that the plaintiff misunderstands the nature of the appeal which Mr Smith has made. He says that the true nature and effect of the appeal is one which goes to the proper interpretation of the award and, as such, is not an appeal of the nature which is prohibited by regulation 32A(3). There are a number of grounds upon which that submission is advanced.

16. Mr Barnfield first points to the volume of correspondence which has been exchanged between Mr Smith and different officers of the Department in the period 1 June 1993 to 11 May 1994. That correspondence, he says, points clearly to Mr Smith's concerns as to what is the proper interpretation of the award. Mr Barnfield also calls in aid the terms of the letter dated 11 May 1994 from the manager of the Human Resources Division to Mr Smith. Para.(9) of that letter reads:
    'There is a difference between ASL2, which is a personal
    reclassification, and principal lecturer, which is a
    promotional position. The criteria are different.'

17. Thus, Mr Barnfield submits, Mr Smith's appeal concerns the correct interpretation of the award and it is not an appeal against the refusal of the Classification Committee to reclassify him as Advanced Skills Lecturer 2. This submission must I think fail.

18. The submission fails to have regard to the fact that an application for reclassification might be refused on a number of grounds. For example, it might be refused because the Classification Committee believes that the applicant does not have the required qualifications, or is not otherwise a person of suitable merit to be appointed to the position. Alternatively, the application might be refused, as here, because of an interpretation of the award which the Committee believes disqualifies the applicant from seeking his desired reclassification. In other words, the issues concerning the proper interpretation of the award lie at the heart of the reasons for the refusal of Mr Smith's application. It is the application for reclassification which has agitated the issue as to what is the proper interpretation of the award. At the end of the day, the appeal is, in truth, an appeal against the dismissal of his application for reclassification.

19. In the alternative Mr Barnfield submitted that the proper interpretation of reg.32A(3) does not preclude an appeal against the dismissal of an application for reclassification. That argument too must fail. The opening words of sub-reg(3). 'Any act or decision which concerns an appointment of an officer, including an appointment of an officer to a higher clarification' are very wide. The expression 'any act or decision' embraces all of the acts or decisions which might be made concerning an appointment or an appointment to a higher classification and thus include a refusal of an appointment.

20. Finally, Mr Barnfield submits that what Mr Smith seeks is not reclassification or, to use the terms of reg.32A(3), appointment to a higher classification but, instead, he seeks a personal reclassification. He points to the terms of the award, and, in particular, to Schedule 2 which sets out classification criteria. He points to the fact that Schedule 2 distinguishes between levels or grades for officers, that is to say, it distinguishes between Lecturer's Assistant, Lecturer, Advanced Skills Lecturer, Principal Lecturer, Educational Managers and College Directors. He says that reclassification from Advanced Skills Lecturer 1 to Advanced Skills Lecturer 2 is a reclassification within the same level or grade, as it were, of the service. It is not, he says, an appointment to a higher classification and, therefore, does not fall within the terms of reg.32A(3).

21. I think that this argument fails to have sufficient regard to the whole of the award and, in particular, to the fact that the award quite specifically distinguishes between levels not only within the designation Advanced Skills Lecturer but within other designations at different levels or grades of officers. The concept of classes of officers and reclassification is well-known. Reclassification is generally understood to refer to promotion. The concept of classes of officers appears in a number of provisions of the Regulations and of the award. For example, reg.8 empowers the Minister to appoint officers to the teaching service in any of a number of nominated classifications. Regulation 11 refers to Lecturers Class II and to Lecturers Class I. The award in Schedule 2 sets out what it calls 'Classification Criteria'. The award in Schedule 1 distinguishes between classes of lecturers and other officers. Para.3 of Schedule 1 expressly authorises a lecturer to apply for reclassification to Advanced Skills Lecturer 1. That is plainly a promotion. Not only is it a higher level in the service but it is an office which might only be applied for once the lecturer has at least two years' recognised teaching experience and has demonstrated the required level of professional competence. It also carries with it a higher salary. Similarly, as already mentioned, an Advanced Skills Lecturer 1 may apply for reclassification as an Advanced Skills Lecturer 2. The officer seeking reclassification must be able to demonstrate and satisfy to the Classification Committee that he has a higher order or broader range of skills and knowledge than is required of the Advanced Skills Lecturer 1 level. Appointment to that level carries with it a not insignificant increase in salary.

22. The terms of paras.3 and 4 of Schedule 1 both expressly refer to reclassification and, when regard is had to the overall structure of the award, it is clear that just as a lecturer, who is reclassified as an Advanced Skills Lecturer 1, is being appointed to a higher classification so too is an Advanced Skills Lecturer 1 who is reclassified as an Advanced Skills Lecturer 2. Whilst, therefore, it might be in one sense correct to say that a reclassification from Advanced Skills Lecturer 1 to Advanced Skills Lecturer 2 is a personal reclassification, it does not follow that it is not also a promotion reclassification. On any view of the matter the reclassification amounts to an appointment of an officer to a higher classification.

23. For these reasons the application must be allowed. The order of certiorari will issue and a declaration in the terms sought will also issue.

24. This is not to say that Mr Smith is without remedy. As is clear from these reasons, what Mr Smith seeks is the proper interpretation of the award. He seeks that in the context of his application for reclassification. Pursuant to s.11 of the Industrial and Employees Relation Act, 1994, the Industrial Court has jurisdiction to interpret an award or enterprise agreement. The terms of the section are wide enough to permit any person affected by an award to seek its proper interpretation in the court. Any doubt as to Mr Smith's standing to make such an application is removed by Rule 37 of the Industrial Proceedings Rules, 1972 which authorise an application for interpretation of an award or industrial agreement to be made by any party bound by or interested in the award or agreement. On any view of the matter Mr Smith is a person who is interested in the proper interpretation of the award and he could apply to the Industrial Court for interpretation of it. Similarly, he could make an application pursuant to Order 63 of the rules of this court for the proper interpretation of the award.

25. For these reasons I order:
    1. That there be an order in the nature of certiorari
    quashing the decision of the Board made on 24 November 1994
    whereby the Board determined that it had jurisdiction to
    hear Mr Smith's appeal.

2. A declaration that the Board does not have jurisdiction
    to determine the purported appeal of Mr Smith.

26. The successful plaintiff applies for costs. The general rule is, of course, that, although the court has a discretion as to an award of costs, a discretion which, of course, must be exercised judicially, the general rule is that the successful party recovers its costs. There are circumstances which have been held to justify the court not awarding a successful party its costs, be that successful party plaintiff or defendant. It is unnecessary, for present purposes, to examine all the relevant decisions.

27. In this matter Mr Smith instituted a procedure which appeared to him to be the appropriate procedure upon his understanding of the relevant regulations and in particular regulation 32A. He was upheld in that view by the Board. While it is true that, once this application has been made, he, with the assistance of the legal advisers which by then he had retained, could have submitted to an order in the terms sought by the plaintiff. Nevertheless, he understandably sought to uphold a favourable decision from the board.

28. As the issues in this application turn on a question of statutory interpretation, a question which had already been resolved in his favour, I think that in all these circumstances the appropriate order is there be no order as to costs. While I am very conscious of the fact the general rule is that the successful party is entitled to its costs, I think there are special circumstances that obtain in this case.