Legal Research
Cases
Cava v Marshall

Cava v Marshall

Case [2003] SASC 371 29 October 2003

Administrative Decision-Making

Administrative Law

Education Law

Type to search within this case.

CAVA & ORS v MARSHALL
[2003] SASC 371
Civil

MULLIGHAN J The five plaintiffs, Nicola Cava, Annette Chigros, Michael Jones, Duncan Kennington and Dale Pope are all school teachers registered under the Education Act 1972 (“the Act”) and employed by the Education Department. The defendant is the Director-General of Education and is the Chief Executive Officer of the Department.
The plaintiffs are members of the Teaching Service constituted under Part 3 of the Act and carried on duties as teachers at Craigmore High School (“the School”) until 15^th August 2003 when the defendant transferred them to other schools. He wrote a letter to each of the plaintiffs on that day, which was delivered on the same day. The plaintiffs were not aware of any decision to transfer them prior to the decision being made and implemented. They have brought this action seeking judicial review of the decision of the defendant in the nature of certiorari. They each seek orders that the decision relating to them be set aside so that they may be given procedural fairness and an opportunity to be heard as to the positions to which they are to be transferred. They do not seek an order re-employing them at the School.
Evidence
Each of the parties has filed his or her own affidavit setting out matters of fact relating to the application. Also, as part of the defendant’s case, affidavits of Judith Day, the Director of Schools and Children’s Services in the Department, Des Wauchope, the Principal of the School, Peter Whitington, the Deputy Principal at the School, Jolante van der Zwaag, the Acting Assistant Principal at the School, Lucinda Warnock, an Assistant Principal at the School, Phillip Cashen, the District Superintendent of the Department for the Elizabeth Munno Para District, Peter Phillips, a senior policy advisor within the Office of Learning and Service Director at the Department, Patrick Terrence Tierney, a Peer Principal employed by the Department at the School and Barry Thompson, the Manager of Site Staffing Services in the Department, were all filed. The defendant provided an affidavit of Katherine Mary Grant, a teacher who taught at the School. Many of these affidavits proved various exhibits which were also part of the evidence. The plaintiffs filed an affidavit of Howard Spreadbury, an Organiser of the South Australian Branch of the Australian Education Union (“AEU”) and Christine Waugh, the President of the AEU.
Objection was taken by the plaintiffs to some of the matters set out in the affidavits. I ruled on those objections. I intimated that I would find the relevant facts for the purpose of resolving the issues raised by this application and that I did not think it would be necessary to resolve any disputes as to matters of fact. Further consideration of the matter has confirmed that view. Furthermore, it has not been necessary, for present purposes, to make any findings of fact adverse to any of the deponents of these affidavits. A sufficiently common substratum of fact exists to…

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 Cava v Marshall

Details

AGLC: Cava v Marshall [2003] SASC 371
Case: [2003] SASC 371
Decision Date: 29 October 2003

CaseChat Overview and Summary

The plaintiffs are teachers employed by the Education Department of the State of South Australia. The defendant is the Director-General of the Department. The plaintiffs brought proceedings for judicial review of the decision of the defendant to transfer them from their positions at Craigmore High School to other schools. The defendant contends that the decision to transfer the plaintiffs was made appropriately and with justifiable urgency in order to deal with a crisis at the School and to protect the health of the staff at the School. The plaintiffs contend that they were denied procedural fairness in consequence of which the decisions to transfer them are void. The defendant contends that the decision to transfer the plaintiffs was not made pursuant to the principles of natural justice because it was a decision about their employment and was a matter of urgency. The defendant contends that the provisions of the Education Act 1972 provide for an appropriate remedy in the form of an appeal to the Teachers Appeal Board and that the principles of natural justice are excluded in the circumstances. The defendant also contends that even if the principles of natural justice were to apply, the relief sought should not be granted in the exercise of discretion. The issues were whether the principles of natural justice applied to the decisions of the defendant and whether the relief sought should be granted in the exercise of discretion. The appeal process was available to the plaintiffs and was an appropriate and sufficient remedy. The principles of natural justice were excluded in the circumstances in which the decisions were made. In the exercise of discretion, the relief sought should not be granted. The application was dismissed.

Orders