Cava v Marshall

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 enable the issues to be resolved.
Background
The plaintiffs
Mr Cava has been a member of the Teaching Service since 1985. He has been employed at the School since 1989. As at 14^th August 2003 he taught four subjects and also occupied the promotional position of “students at risk” co-ordinator. He had contact with about 150 students out of the total school population of about 800 students. The terms of his appointment as both co-teacher and co-ordinator at the School were that he had tenure until 21^st January 2004.
On 13^th June he was sent by Mr Whitington appropriate documentation to complete so that he could again be considered for the position of co-ordinator and other leadership positions at the School or elsewhere. His expectation was that he would have the opportunity to obtain that position on merit and, if not successful, that he would be placed at the School or another school for a period of 10 years in accordance with the Teacher Placement Processes, Policies and Procedures (“the TPP Document”) to which I refer later.
Mr Cava has been a member of the AEU for many years. The AEU has a sub-branch at each school, including at the School. Each sub-branch has an executive which is elected by teachers at each school who are members of the AEU. Mr Cava has been a member of the sub-branch executive at the School for about 15 years. As at 15^th August 2003 he was the elected representative of the AEU on the Personal Advisory Committee at the School, the Student Representative Council Co-ordinator for the School, a member of the Occupational, Health, Safety and Welfare Committee (“OHSWC”) at the School from the end of the second term this year and the staff representative on the School Council. He had been the year level manager of Year 9 for two years.
Ms Chigros joined the Teaching Service in 1982. She had been a teacher for seven years before being employed at the School in 1990. Her service at the School has been continuous except for 1995 when she was seconded to a research job at Flinders University.
Her duties at the School included teaching society and environment classes as well as computing. In 2003 she was the Year 10 co-ordinator and the society and environment co-ordinator. The position of co-ordinator was a promotional position for the duration of Term 3. She had direct contact with about 150 students and responsibility for about 120 students in Year 10.
In about late 2000, her tenure as a teacher at the School was renewed. In accordance with the TPP Document she expected to remain at the School until the end of 2010.
Ms Chigros is a member of the AEU and had been a member of the elected sub-branch executive at the School for about 10 years. She was President of this sub-branch in 2003. As at 15^th August 2003 she was a member of the OHSWC in charge of the Year 10 Student Representative Council and a member of the School’s Drugs Strategy Committee and Information Technology Committee.
Mr Jones joined the Teaching Service in 1998 and had been a teacher at the School since that time. For the first four years he was engaged each year as a contract teacher. At the commencement of 2003 he acquired the status of a permanent teacher at the School. He teaches science at Years 8, 10 and 11 and health at Year 9. During 2002 and 2003 he was the Year Level Manager for Year 8. He had contact with about 130 students and had responsibility for all 225 Year 8 students. The effect of his appointment as a permanent teacher is that he had tenure for 10 years at the School.
According to Mr Jones, his appointment as a permanent teacher at the School meant that in the normal course, in accordance with the TPP Document, he would have remained at the School until January 2013.
He was a member of the AEU and an elected member of the sub-branch executive at the School since the beginning of 2003. As at 15^th August 2003 he was a peer support co-ordinator for Year 11 and a member of the OHSWC.
Mr Kennington joined the Teaching Service in 1986. He was employed at various schools and then at the School in 1994 where he remained until 15^th August 2003. His responsibilities in this year included teaching maths at Years 8, 10, 11 and 12 and legal studies at Year 11. He was the Year 12 co‑ordinator and had contact with about 200 students. When he was appointed to the School in 1994 he had tenure for 10 years. The terms of his appointment would have expired in January 2004. He intended to apply for a further appointment at the School and expected to be appointed for a further 10 years and to be able to continue in the position of co-ordinator. He is a member of the AEU and had been a member of the sub-branch Executive at the School for about 10 years. As at 15^th August 2003 he was a Student Representative Council facilitator and a member of the OHSWC at the School.
Mr Pope joined the Teaching Service in 1987 and after nine years in the country was employed as a teacher at the School during the last seven years. As at 14^th August 2003 he taught Society and Environment at Year 8, 9 and 10 and a Society and Environment Vocational class, Ancient Studies at Year 11 and Home Group at Year 9. In the normal course of his work, he had contact with about 180 students at the School.
His current appointment as a teacher at the School provided him with tenure for 10 years and in accordance with the TPP Document. He expected to remain at the School until the end of 2006.
He is a member of the AEU and has been a member of the Sub-branch Executive for the past three years. At 15^th September 2003 he was a member of the OHSWC and secretary of the Sub-branch.
When all of the plaintiffs joined the Teaching Service they completed and signed application forms which contained a standard statement that he or she agreed to serve, if required, in any part of the State. The applications of all of the plaintiffs were in evidence except that of Mr Cava, but I accept that he signed an application which included such an agreement.
Features of employment of teachers by the Department
The terms and conditions of teachers at the School are governed by the South Australian Education Staff (Government Pre-Schools, Schools and TAFE) Certified Agreement 2002 (“the Certified Agreement”) and the TPP Document. The Certified Agreement is between the Department, the AEU, the Community and Public Sector Union and employees employed in the classification in the Certified Agreement. It covers working conditions, the incidence of employment in the Teaching Service and of other matters including, in Clause 13, procedures for preventing and settling industrial disputes. It is registered at the Australian Industrial Relations Commission (“the A.I.R. Commission”) pursuant to the Workplace Relations Act 1996 (Cth). Clause 13.11 provides that when a dispute is not resolved in accordance with the procedures set out in Cl 13, the matter may be referred to the A.I.R. Commission by any party to the dispute and to the Certified Agreement. Clause 23 of the Certified Agreement provides that the placement of teachers in schools or positions will occur in accordance with the guidelines in the TPP Document provided, inter alia, that the priority is given to teachers filling vacancies is to be agreed between the Department and the AEU.
The relevant part of the TPP Document for present purposes provides that where a teacher is appointed to a metropolitan school “choice placement position”, the teacher has tenure for between three years and 10 years, except in certain conditions which are not relevant for present purposes.
Craigmore High School
The School is situated in the northern suburbs of Adelaide. It was opened in 1970. It has about 800 students and about 60 teaching staff. There are five main feeder primary schools with the remainder being drawn from other primary schools.
There is a leadership team at the School which is comprised of the Principal, Deputy Principal and two Assistant Principals, namely Mr Wauchope, Mr Whitington, Ms Warnock and Ms van der Zwaag.
Mr Wauchope took the position of Principal at the School from the beginning of 2003. He has been employed as a teacher for 29 years and has held leadership positions at schools during the past 10 years. Mr Whitington was appointed Deputy Principal of the School, also at the beginning of 2003. He has experience working in the State Office of the Department, as Acting District Superintendent in the Yorke District, as Principal of the Meningie Area School for five years and as Principal of two other country schools. His responsibilities at the School are human resource management, daily management of relief teachers and of the senior school, being Year 11 and above, and responsibility for student behaviour management. Ms van der Zwaag has held the position of an Acting Assistant Principal at the School since the beginning of 2002 and has been a teacher at the School for 11 years. She is a member of the AEU and attended Sub-Branch meetings. Ms Warnock has been an Assistant Principal of the School since the beginning of this year. She has been employed as teacher at the School for six years.
There have been difficulties at the School for some years. According to Mr Whitington, the School has had a reputation in the wider educational community and the local community as having difficulties with past leadership, poor performance, and inadequate development of staff knowledge of current curricular and other educational reforms. Ms Warnock deposed as to problems in the School in years preceding 2003 concerning teaching matters and safety issues. Mr Cashen states that the School was regarded as a difficult school for principals with a culture of conflict and resistance to change. There were considerable difficulties which hinder progress and reform, and the School’s South Australian Certificate of Education (“SACE”) results were poor. There were also complaints over power and responsibility at the School.
When Mr Wauchope became Principal of the School he presented to the staff various ideas for reform of the timetabling structure of curriculum, to implement quality assurance processes to improve student leaving outcomes, to develop and expand the curriculum and administrative technology resources and to promote a positive school culture of purpose and pride in the School. According to him, many matters required attention. Almost immediately he was met with strong opposition. As early as February 2003 documents appeared indicating that a number of staff did not have confidence in him. Other members of the leadership team encountered the same difficulties. There were aggressive and intimidating confrontations at staff meetings which, on occasions, involved offensive language. Mr Wauchope approached the district superintendent and sought an external review of the School.
The recent problems at the School were first brought to the attention of the defendant in about May 2003. He describes them in a general way as difficulties of the leadership team in the day to day operation of the School and in implementing change because of the persistent conflict with a group of staff at the School. There were concerns about the ongoing performance of the School in terms of retention rates and SACE results.
A review of the School was authorised by Mr Fletcher, the Executive Director of the Department.
The problems were alleged to be caused by the conduct of the plaintiffs which involved obstruction of the leadership team and confrontation. These allegations are denied by the plaintiffs.
The Review of the School
The Review was conducted in June and July 2003 by Ms Day, the Director of Schools and Children’s Services in the Department, Mr Chislett, Assistant Director of the Quality, Improvement and Effectiveness Unit in the Department and Ms Spencer, the Manager of the Quality, Improvement and Effectiveness Team. Ms Day was the chairperson of the Review Team.
On 26^th May 2002, before the Review commenced, Mr Fletcher provided a copy of the terms of reference and the processes to be used to Mr Gregory, then President of the AEU, at his request. Mr Gregory also sought a delay of two weeks in the commencement of the Review to which Mr Fletcher agreed.
The Review Team produced a report which was introduced into evidence. The terms of reference required a review of the curriculum at the School and student achievement levels. The Review Team received information from the administration, staff, groups of students, parents, the Council of the School, past principals of the School and district superintendents and a representative of Senior Secondary Assessment Board South Australia. Reports were received from the Occupational, Health, Safety and Welfare Unit and the Manager of the Interagency Student Behaviour Management Services. In all, 45 of the 60 members of staff were interviewed.
The Review Team reported that the attendance rate at the School was 86.6 per cent compared with the State average of 91.1 per cent, that its attendance dropped annually by 2.3 per cent over the same period that the State average dropped only one per cent, which indicated that on any given day in 2002, 110 students were absent from the School, the equivalent of 2 classes, as opposed to 72 students to be expected given the State average. The retention rates for the School were 38.3 per cent compared with the State rate of 69.5 per cent, and whilst retention rates were lower in the schools in the Elizabeth and Munno Para District than elsewhere, the School has had the lowest retention rate in the area for at least the last two years. Furthermore, the School is not classified as a “high disadvantage” school at which retention rates may be expected to be low. The Review Team reported that the retention rate at the School was very low and a serious concern. The School had the lowest retention rate in the metropolitan area over the last four years in comparison with other schools of the same status.
The School also had SACE results which were well below the State levels and those of similar schools. In four of the seven learning areas the chance of failing was greater on average than passing. In 2002 the SACE completion rate was 43.7 per cent, which was the lowest level for five years, compared with 53.3 per cent for “like schools” and 72.8 per cent for the State. The mean subject achievement score over each of the previous five years was lower in the School than in “like schools”. The Review Team concluded that this poor performance appeared to have become an established feature in the senior part of the School.
The Review Team reported that the low levels of retention and achievement within the same school is uncommon. Low retention should increase SACE success at Year 12. Using available statistics, it was suggested that the number of students in Year 11 in 2001 commencing SACE, which was 172, was reduced to 89 students in Year 12 by July 2002. While figures were not available at the time of the report, it was estimated that this figure could be reduced to 80-85 students by the end of the same year. Given the SACE completion rate of 43.7 per cent, the figures suggest that only 25% of students in the senior school who commenced SACE in Year 11 in 2001 achieved that qualification at the end of 2002. SACE is the only qualification available at the School.
The report contains recommendations to improve student welfare and the positions of students identified as being at risk academically, socially and behaviourally across the community of the School. It is unnecessary for present purposes to mention this part of the report and the recommendations. It is sufficient to say that problems in student welfare appear to have been identified and the recommendations address solutions to these problems.
A conclusion about these three areas of curriculum, retention and student welfare was summarised as follows:
“It is important to note the compound effects the combined issues around curriculum, student achievement, and student welfare has on the retention, attendance and engagement of students at Craigmore High School. Each of these factors contributes significantly to the current low retention and achievement levels at Craigmore HS but the combination of factors adds levels of complexity that will need continued and persistent support to address and improve at the school level.
This is further supported by the Staff Survey which shows only 14.6% of staff believe the school performs at its peak, and only 30.6% of staff believe that the school is flexible enough to undertake needed changes.”
Decision making at the School was also considered by the Review Team. They reported that staff, students and parents had commented upon inefficient and decisive power struggles over many years that hindered decision-making processes and inhibited the ability of the School to initiate and sustain change. They further reported that there were particular individuals within the School who actively lobbied, undermined and diverted energy from needed improvements within the School. Staff felt intimidated by this behaviour which had affected their willingness to participate in discussions. Low levels of trust and harassment were reported by some staff. A majority of staff said that the position was worse in 2003 but staff, previous principals and district superintendents reported that the same situation had existed over an extended period of time. A significant number of staff reported incidents of bullying and harassment to them from other staff members or having witnessed such conduct. AEU sub-branch meetings were said to be divisive and stressful. There were a significant number of claims of psychological injury to staff. Bullying and harassment from students to students and staff to students was also reported at high levels. Bullying by staff was reported as a reason for high levels of absenteeism and low retention rates.

The Review Team further reported that the School lacked coherent and common values, purpose and vision and is characterised by conflict, intimidation and division. Some families were applying for placement of their children in Year 8 at other schools in 2004. It was reported by the Review Team that the School had a long history of instability in leadership positions which affected teaching and learning in the School. They reported:
“The pervasive culture of perceived harassment and deliberate undermining of the authority of the [P]rincipal and leadership team has led to a number of individuals seeking transfers, taking extended leave and resigning from [the Department]”.
It may be seen that the Review Team identified serious problems at the School as to performance, retention, discipline and culture and, in a general way, attributed reasons for those problems. Ms Day was aware that the report was to be released publicly and therefore preserved the confidentiality of many sources of the information. The Review Team analysed data contained in records of the School, administered or considered, surveys of staff, students and parents, conducted interviews with randomly selected staff and any other member of staff who wished to be interviewed, conducted interviews with the Council and former principals of the School and district superintendents, the leadership team of the School and other relevant persons and considered reports including reports from the OHSWC Unit at the School.
Occupational Health Safety and Welfare
Mr Duffield, who is the elected Occupational Health and Safety and Welfare Representative for the School, on 4^th July 2003 gave a written notice to the Principal asserting that a hazard existed at the School. It was asserted that the Occupational Health Safety and Welfare Act 1986 had been breached and he referred to s 19 (safe working environment, safe systems of work and supervision), s 20 (lack of consultation), s 34 (failure to consult) and s 56 (intimidation of employees) which were stated to be breaches of that Act. A summary of breaches was attached and the matters were required to be remedied by 4.00 pm on 25^th July 2003. In that summary, Mr Duffield claimed that most staff had “multiple OHS & W concerns as well as multiple health effects”. He went on to state:
“Additional numerous OHS & W concerns and associated health effects have been expressed personally to me as the OHS & W Representative but have NOT been recorded in this OHS & W Survey Summary.”
I need not set out the detail of the Summary. It asserts widespread consequences of concerns at the School including effects on psychological health, stress, anxiety, depression, frustration, anger, various illnesses and concerns for physical safety, and symptoms including disturbed sleep, tiredness, headaches, neck pain, unrest, nervousness and embarrassment. It appears that 82 such effects on health were recorded.
Section 19 of that Act casts upon an employer an obligation to ensure, so far as it is reasonably practical that, while at work, each employee is safe from injury, risk to health and, inter alia, to provide a safe working environment and safe systems of work. Section 5 provides that this Act binds the Crown. Section 4(4) provides, inter alia, that the general well-being of employees while at work, and the prevention of work related injuries, are aspects of occupational health, safety and welfare.
As will be seen, when the defendant wrote to the plaintiffs on 15^th August 2003, notifying them of their transfer, he informed each of them that the conflict at the School had “created significant occupational health and safety issues for all staff and possibly students”.
The evidence of Ms Day, Mr Tierney and members of the leadership team at the School, as set out in their affidavits, establishes that members of staff were suffering considerable stress and some indicated that they may not be able to continue to discharge their duties if the crisis was not resolved. Mr Cashen, the District Superintendent, expressed the view that the Principal and the leadership team experienced considerable stress during the year which intensified during June and July 2003. The defendant had been informed accordingly. All of the information before him justified what he wrote to each of the plaintiffs.
In reaching that conclusion I am not saying anything about whether the allegations about each of the plaintiffs are true.
On 30^th July there was a meeting of the OHSWC meeting at the School which was attended by Mr Phillips, who is a senior policy adviser within the Office of Learning and Service Delivery in the Department, and Mr Miller, who is an Occupational Health and Safety Adviser in the Department. Mr Phillips described the meeting as the most threatening meeting he had attended. The meeting was also attended by a number of staff at the School, including the Principal and the plaintiffs, Mr Cava, Mr Jones, Mr Kennington and Mr Pope. A report of the meeting prepared by Mr Phillips and a copy of the minutes of the meeting were placed before me. It is plain from these documents that the meeting was acrimonious and unpleasant. Criticisms were made of the Principal and others. Some remarks were offensive. The meeting did not resolve any of the allegations that had been made which indicates that as matters stood at that time, the leadership team, the staff and the representatives of the Department could not resolve them. It is also evidence that the crisis was likely to continue and exacerbate if all of the personalities then involved continued at the School.
The events at this meeting were reported to the defendant. I have not made any findings about the conduct of any of the plaintiffs at this meeting. I accept that the defendant reached conclusions, adverse to the plaintiffs who attended the meeting, which were open to him on the information which he received.
The default notice and the events of this meeting are of considerable importance in view of the obligations of the defendant pursuant to the Occupational Health Safety and Welfare Act.
I mention that towards the end of the review, a default notice was issued on 28^th July 2003 by the Occupational Health Safety and Welfare Representative at the School. A meeting of the OHSWC at the School was held on 30^th July 2003 to discuss a strategic plan and the issues raised in the notice.
Response to the Report
The report of the Review Team was presented to Mr Fletcher and to the defendant who required information as to whether the problems at the School were long standing. The Review Team then interviewed former principals, superintendents and members of staff and ascertained that the problems were long standing.
Ms Day and Mr Fletcher sent a minute to the defendant dated 15^th August 2003 in which they summarised in brief terms the report of the Review Team. They said that during the review individuals, meaning the plaintiffs, were the major source of concern regarding the difficulties at the School and that they needed to be transferred from the School. They were resisting change and affecting the wellbeing of the staff and students and the ability of the Principal, and the rest of the leadership team to conduct their duties in an effective way. The plaintiffs were regarded as being influential in affecting the negative behaviour of other staff. They stated that the plaintiffs had deliberately attempted to control the agenda of change at the School by interfering with the discharge of duties by the Principal and the leadership team and other staff. It was the view of the Review Team, the current District Superintendent and the Principal, that the conduct of the plaintiffs was motivated by a sense of power and control, and a protection of professional ineptitude from any planned leadership intervention. Professional misconduct was attributed to the plaintiffs because of allegations by staff of staff-to-staff bullying and harassment. They had made a concerted attempt to undermine the leadership of the School, which had also occurred with previous leadership teams.
Ms Day and Mr Fletcher went on to say that the School was “now in absolute crisis and in danger of collapse”. Many claims had been made by staff alleging psychological injury and claims had been made for worker’s compensation. Staff, including senior staff, were absent due to stress. They reported to the defendant:
“It was obvious to senior officers present [at a meeting] that unless strong and immediate action was taken, more staff would report work related injuries and that the leadership team would collapse.”
An Occupational, Health, Safety and Welfare Officer of the Department met with staff.
Mr Tierney entered the Teaching Service in 1965 and has held various positions as teacher, senior, deputy principal and principal. On 11^th August 2003 he was appointed as a “peer” Principal at the School. He was asked to look at issues at the School. He spoke to staff and students and observed meetings, classes and the general environment of the School. He looked at documentation and data provided by the School and considered a draft of the report of the Review Team. His observations were supported by matters set out in the draft report. He stated that his first impression of the leadership team at the School was that the members were “teetering on the edge of survival”.
On 12^th August 2003 he met with Mr Fletcher and other senior officers of the Department and discussed the situation at the School. He was instructed to discuss with the leadership team at the School the possibility of transferring some teachers who were seen as the cause of various problems, namely the plaintiffs. He did so on the next day and was informed that they had difficulty in continuing in their work if the current situation was to continue. He observed that they were affected and distressed by the situation of conflict at the School. He was told by them that they could not last much longer and that transfer of some of the teachers would assist them and the School.
Mr Tierney attended various meetings at the School at this time involving staff which were unpleasant and at which acrimonious allegations were made. Some of the plaintiffs, if not all of them, attended these meetings.
On 14^th August Mr Tierney again met with senior officers of the Department and related his observations to them. He told them that the leadership team appeared very shaky and he doubted it would survive unless some action was taken quickly to improve the situation. He said that the leadership team suffered “frustration, fury and powerlessness”. They considered that they were under constant harassment and could not achieve what they considered desirable for the benefit of the School and they believed they were the subject of a deliberate campaign by the plaintiffs.
I return to the minute from Ms Day and Mr Fletcher to the defendant. They stated that more than 100 students had left the School since the start of the year 2003. On Monday 11^th August, 217 students were absent. On the following Tuesday 187 students were absent and on the Wednesday 238 students were absent. The highest rate of absenteeism occurred on Fridays. They reported assertions by students of violence by teachers. Senior AEU officers had indicated that the Principal had been targeted and warned of potential industrial action. They also reported other incidents at the School where the plaintiffs had confronted Mr Wauchope and caused him distress and had criticised Ms Warnock. Other serious allegations were made against the plaintiffs of disputation and defiance.
Ms Day and Mr Fletcher recommended to the defendant that all of the plaintiffs be transferred to other schools effective as on 11^th August 2003. I do not think this date is correct. I expect it should be 18^th August 2003. Advice was sought from the Crown Solicitor’s Office whether the defendant had the power to make such transfers. Other recommendations were made as to the provision of assistance to the leadership team which need not be mentioned for present purposes. It was recommended that each of the plaintiffs be handed letters advising of the transfers at the end of the day at the School on Friday, 15^th August 2003, and that the President of the AEU be briefed at about that time.
The defendant met with senior officers, including Ms Day and Mr Fletcher at various times over the few days preceding 15^th August 2003.
He decided to accept the recommendation to transfer the plaintiffs. He states that the reasons for doing so are the conflict at the School between the plaintiffs and the leadership team had become more intense during July and August 2003, the inability of the plaintiffs to work productively and co‑operatively with the leadership team, and the health and safety of all members of staff, and in particular the leadership team. He had been informed that the District Superintendent had reported serious concerns for the health and welfare of the staff and the inability of the leadership team to continue in their roles without jeopardising their health and wellbeing. He had received considerable information from members of the Review Team as to the role of the plaintiffs in the problems at the School. He accepted that there was a breakdown in the relationship between the leadership team and the plaintiffs.
I have not mentioned most of the evidence about that matter because I have refrained from attempting to make findings about disputed facts merely from affidavit evidence. Many allegations are made in these proceedings against the plaintiffs of a serious nature which are denied by them. I have only considered what information was before the defendant when he made the relevant decision to transfer each of the plaintiffs. I concluded that the information before him was that the School was in crisis and that urgent action had to be taken to prevent exacerbation of the various problems which I have discussed.
I have not mentioned the evidence of actions taken by the plaintiffs at the School against the Principal and other members of the leadership team and of a threat to strike. The defendant was informed of these matters.
As has been seen, the defendant caused enquiries to be made by senior officers of the Department and by an experienced former principal. He discussed matters with them. He received strong recommendations based upon conclusions reached by all who had made the enquiries. He reached the conclusion from the Review Report, the minute and the information otherwise given to him that there was no reason to apprehend that the Principal and other members of the leadership team were not carrying out their duties appropriately. He accepted that the Principal has a statutory responsibility under the Act and Education Regulations 1997 for the management, organisation and administration of the School and the welfare and development of the students. He believed that the Principal was obstructed in discharging that responsibility by the plaintiffs. He accepted that it was his duty to ensure that statutory responsibility was properly exercised. He rejected the option of making changes to the leadership of the School given the past instability of leadership and the advice given to him that it was difficult to attract teachers to leadership positions at the School. He concluded that transferring the plaintiffs was the least disruptive option at that time and that he needed to act swiftly and minimise the likely repercussions.
The defendant further stated in his affidavit:
“I also came to the view that I needed to act swiftly and minimise the repercussions which were likely to occur as a result of my decision, and that to raise my concerns with the plaintiffs, and to provide them with the opportunity to address my proposed transfer of them, would result in a situation which would put the leadership team at serious risk in terms of their health and wellbeing, and would jeopardise the day to day operation of the school. I considered that it was likely that the applicants would create difficulties for the principal and leadership team during any period during which discussions could take place and bring out organised opposition to their transfers. I considered the situation would be untenable for the leadership team, staff and students in general. I therefore felt that I had no option but to act swiftly as the circumstances were critical. I was also aware of the administrative appeal processes available under the Education Act if my decision was disputed.”
The transfers
The defendant transferred each of the plaintiffs from the School to other positions in the Teaching Service and purported to do so pursuant to s 15C of the Act which provides:
“Transfer
15CThe Director-General may transfer officers between positions in the teaching service but not so as to -
(a) reduce an officer’s salary without the officer’s consent; or
(b) effect promotion of an officer to a position at a higher classification level.”
Letters were written by the defendant to each of the plaintiffs on 15^th August 2003. I set out in full the letter written to Mr Cava:
“As you may be aware an external review has recently been conducted of Craigmore High School, due to serious ongoing concerns about student retention, attendance and achievements. The conclusions of this review are alarming and raise serious and urgent issues if the viability of the school and the welfare and education of the students are to be addressed. It appears that the situation has been ongoing and I consider that the matter has now reached a crisis point.
As Chief Executive of the Department I consider that I must now intervene and exercise my powers and responsibilities as Chief Executive under the Education Act to address the problem.
I have reached the view that a significant aspect of the problem relates to the fact that the decision making processes of the school have become unreasonably cumbersome and ineffective. There appears to be a climate of conflict which has created significant occupational health and safety issues for all staff and possibly students. The management team has been unable to institute reforms to address critical issues and the school is at a stage where not only extensive long term problems need to be addressed, but the day to day operation of the school is in jeopardy. It appears that a number of staff find it impossible to work productively and cooperatively with the administration team.
It is likely there are a number of complex historical reasons for this but my concern at this time is to return the school to a functioning level immediately. I therefore must take action.
I find it necessary to exercise my powers at this time and in this manner.
I therefore inform you that you have been transferred to Banksia Park High School as from Monday 18 August 2003.
I acknowledge that this change will be difficult for you and there may well be matters which you wish to address concerning your new placement. I therefore invite you to contact and meet with the Superintendent Site Staffing Services, Mr Wayne Jupe to discuss any issues concerning the new placement. I have attempted to keep in mind your home location and your areas of expertise when coming to this decision. Please be aware that this is a temporary placement as there are no suitable A vacancies at this time. Accordingly it is necessary for you to lodge a placement form for 2004 if you have not already done so.
I also indicate that counselling facilities will be made available to you and that you should contact Leon Johns on 8226 1402 in order to access those facilities.
In the interest of ongoing student learning, I direct you to provide the principal, Des Wauchope with your records of student assessment plans for SACE students and school belongings, including keys you may have, by Friday 22 August 2003.
In the meantime I direct you not to attend at the Craigmore High School without the prior permission of the District Superintendent Mr Cashen. I note that you are a parent of a child who attends the school, and I do not wish to restrict your access as a parent. I request that you contact Mr Cashen about what access you will require in this regard.
In relation to the ongoing operation of the school I have arranged for a number of immediate strategies to be put in place in the school as well as an ongoing investigation into the concerns. I will be requiring updated reports on an ongoing basis to ensure the viability and improvement of conditions at the school.”

Mr Cava was given tenure in a separate letter from 18^th August 2003 to 21^st January 2004 which accords with his tenure prior to the transfer.
The letters written to the other plaintiffs were in the same terms, except that the sentences in the penultimate paragraph of the letter to Mr Cava regarding his being a parent of a child at the School were not included in the other letters, and that each of them were transferred to different schools. Mr Pope was given tenure until 21^st January 2004.
Mr Cava, Mr Jones and Mr Kennington and Mr Pope were handed the letters to them at about 3.20 pm on 15^th August 2003 whilst at the School. Ms Chigros received the letter to her at about 5.15 pm on that day. No evidence is before me of the tenure of the plaintiffs other than Mr Cava and Mr Pope. Mr Cava lived at Craigmore. Ms Chigros lived at Woodville Park and was transferred to Seaton High School without a position being specified as she was on leave due to illness. Mr Jones lived at Ridgehaven and was transferred to Glenunga International High School. Mr Kennington lived at Lewiston and was transferred to Windsor Gardens Vocational College. Mr Pope lived at Hillbank and was transferred to The Heights Secondary School which is situated at Modbury Heights. None of the salaries of any of the plaintiffs was reduced. None of the plaintiffs had any forewarning of the letters or transfers. None of them were consulted about the transfers or given an opportunity to be heard about them. No matters were ever put to any of them about their conduct or performance. None of them had been informed that any conduct on their part had inhibited the ability of staff at the School to work productively and co‑operatively, or had inhibited the ability of the School to engage in cultural change and reform. The AEU did not receive a copy of the report of the Review Team.
Response to the transfers
All of the plaintiffs have complied with the direction not to return to the School. They all received a further letter from the defendant dated 18^th August 2003 providing further reasons for the transfers. I mention only a few matters. He informed them that he had information that for a considerable period there had been major issues at the School and that over a significant period a number of leadership teams had attempted to initiate reform aimed at improving student outcomes which initiatives had been thwarted by some staff. He would not allow that situation to continue. He stated that the conduct of each of the plaintiffs over a number of years had contributed to a culture that was unable to accept necessary change. Transfer of staff who had been unable to work co-operatively with management in the reform agenda was necessary. Each plaintiff was informed that further information about the defendant’s decision could be obtained from the District Superintendent, Mr Cashen.
On 19^th August 2003 a notification of an alleged industrial dispute was filed in the A.I.R. Commission by the AEU seeking intervention by that Commission pursuant to Cl 13 of the Certified Agreement. Clause 13.11 provides that a matter which has not been resolved pursuant to these procedures under the Certified Agreement may be referred to the A.I.R. Commission. Ms Waugh was President of the AEU since the resignation of Mr Gregory in June 2003. She wrote to Ms Evans, the Executive Director of a relevant section of the Department on 15^th August, after she had heard about the transfers requesting that the transfers not occur because they contravened Cl 23 of the Certified Agreement. She also requested that the Review Report be immediately provided to the AEU and a process of consultation between staff at the School, the AEU and the Department be agreed and further, that any recommendations of the Review Team and the consultation process be agreed by the AEU prior to implementation. Clause 23 of the Certified Agreement provides that the placement of teachers in schools will occur in accordance with the TPP Document. The defendant responded to that letter by a letter on the same date. He informed Ms Waugh that he had directed the transfer of five staff, who are, of course, the plaintiffs, pursuant to his powers under the Act and Regulations. He briefly described his reasons. He made no mention of the requests which had been made by Ms Waugh, who then made the Notification to the A.I.R. Commission. She sought remedies in accordance with the requests in her letter to Ms Evans, and also, that the plaintiffs be afforded the principles of natural justice and procedural fairness in any review or consultation process that may ensue as a result of the review by the Review Team.
On 20^th August 2003 the AEU sent out a circular to its members relating to the transfers. Allegations were made against the defendant and action by members of the AEU was suggested. The defendant responded by sending a circular to all school principals and pre-school directors explaining the action he had taken and the reasons for that action as well as rebutting assertions in the AEU circular. It is unnecessary for present purposes to set out the contents of the circular or the response.
Conciliation proceedings occurred before the A.I.R. Commission on 21^st, 27^th and 29^th August 2003 and 2^nd September 2003. The dispute was not resolved. During the course of these proceedings the plaintiffs were granted special leave with pay subject to certain conditions. The conciliation process ended on 2^nd September 2003. Consequently the directions transferring the plaintiffs remain.
On 25^th August 2003 the defendant wrote to all of the plaintiffs in substantially the same terms providing further particulars of his reasons for transferring them from the School. He stated that his decision was based upon conduct, details of which were provided. I do not think it is necessary for present purposes to set out those particulars. There are serious allegations of misconduct which were said to have, in some cases, contributed to, and in some cases, caused, the problems at the School. I understand many of the allegations are probably denied by the plaintiffs, although in their affidavits they merely state that they do not consider that the letter adequately sets out the allegations against them and, without further particulars, they do not have the ability to properly respond.
According to each of the male plaintiffs, the action taken by the defendant in transferring him has caused damage to his reputation and his ability to further his career. Ms Chigros makes the same allegation. They state that the transfer of the five plaintiffs has caused damage to the welfare and education of the students at the School, particularly those students in the senior school who are preparing for Year 11 and Year 12 examinations and assessments.
I have considered the evidence of Mr Spreadbury, who is an Organiser employed by the AEU, that there were options open to the defendant other than the transfer of the plaintiffs. He states that implementation of the Performance Management Policy of the Department, the issuing of directions from compliance with the Public Sector Employees Code of Conduct and the application of disciplinary procedures pursuant to s 26 of the Act, if directions were not complied with, were all available. Also, the leadership team could have sought the assistance of various sections and personnel of the Department.
I expect that any of these procedures would have taken time and could not have adequately overcome the urgency of resolving the crisis at the School.
Summary
I make the following brief summary.
The evidence contained in the affidavits and the various documents which I have accepted establish that the defendant concluded, for good reason based upon the information before him:
1The School was in a state of crisis by the middle of 2003 which had developed over the year and became worse at the end of July 2003 and thereafter.
2 The conduct of the plaintiffs was a significant cause of that crisis.
3The members of the leadership team were suffering substantially from stress and their health was at risk.
4Many members of the staff also suffered stress and their health was also at risk.
5It was expected that the leadership team and a significant number of staff could not continue to discharge their duties if the crisis continued.
6If the crisis continued, the education of students at the School, particularly those undertaking Year 11 and Year 12, and their SACE qualifications would be severely curtailed.
7 Urgent action was required.
8The decision to transfer the plaintiffs was made appropriately and with justifiable urgency.
The processes for judicial review were commenced on 4^th September 2003.
The issues
The plaintiffs contend that they were denied procedural fairness and in consequence the decisions to transfer them are void. As I have said, they had no inkling of the directions of transfer before the letters were received by them. They were not informed of any allegations against them. They were not given a copy of the Review Report or any other material supplied to the defendant. They were not given the opportunity to make any representations to the defendant before he transferred them. The plaintiffs contend that the requirement to provide procedural fairness pursuant to the principles of natural justice does not have a fixed content. It takes its content from the circumstances in which the relevant exercise of discretion or statutory authority is occurring. It was submitted by Mr McRae, who appeared with Mr Hannon for the plaintiffs, that there is a requirement of procedural fairness when the defendant exercised the power under s 15C of the Act.
The defendant’s position is that in the circumstances the principles of natural justice do not apply. The defendant was not exercising powers of discipline or for penal purposes. He exercised the power of transfer in the situation of employment. Even if the principles of natural justice apply and procedural fairness should have been given to the plaintiffs, the remedy which each of them seeks in these proceedings, namely a declaration that the decision to transfer is void, is a discretionary remedy and should not be exercised in their favour in the circumstances, particularly as they do not now seek re-employment at the School. The plaintiff’s position on the matter of discretion is that the transfer has affected each of them significantly, in relation to security and length of tenure, and as to their general standing in the education community.
The Education Act
Before turning to the question of whether the principles of natural justice applied to the plaintiffs in the circumstances, it is appropriate to mention features of the Act.
Section 5 provides that an “officer” in relation to the Teaching Service means a teacher holding office in the Teaching Service, that a “teacher” means a person who gives, or is qualified to give, instruction in any course of, inter alia, secondary education and “the Teaching Service” is the service constituted under Part 3 of the Act.
Division 2 of Part 2 relates to the Education Department. Section 11 provides that the Education Department established under the Public Service Act 1967 continues in existence and establishes the office of Director-General of Education who is the Chief Executive Officer of the Department. Section 12(a) provides that the Director-General is responsible to the Minister for maintaining a proper standard of efficiency and competency in the Teaching Service.
Part 3 of the Act relates to the Teaching Service. Teachers are appointed to the Teaching Service by the Minister: s 15. The duties, titles and classification of teachers and positions in the Teaching Service are determined by the Director-General: s 15A. The Minister may appoint teachers to positions in the Teaching Service classified at promotional levels: s 15B. I have mentioned s 15C which gives the power to the Director-General to transfer teachers between positions in the Teaching Service subject to the qualifications which I have mentioned. Section 27 provides that if in the opinion of the Director-General, the nature and circumstances of any matter alleged against a teacher are such that the teacher should not continue in the performances of duties, the Director-General may suspend the teacher. A suspension may be made whether or not the officer has been charged with an offence.
Section 45(1) establishes The Teachers Appeal Board. It is comprised of a presiding member who is a member of the Industrial Court and is nominated by the President of the Court, members of a panel of employees in the Department and members of a panel of officers of the Teaching Service nominated by the AEU, members of a panel of employees in the Department of Further Education and members of a panel of officers of the Teaching Service under the Further Education Act 1976. For the purpose of hearing an appeal by an officer of the Teaching Service under the Act, the Teachers Appeal Board is constituted by a member of the Industrial Court, an employee member of the Department and a member of the panel appointed by the AEU as selected by the appellant: s 45.
The Teachers Appeal Board has wide powers. A person entitled to appear before the Board may be represented by counsel. Section 54 provides:
“54(1) In addition to the rights of appeal otherwise conferred on an officer by or under this Act, an officer may appeal to the Appeal Board against any administrative action or decision affecting the officer in relation to which a right of appeal is conferred by the regulations.
(2)Upon the hearing of any appeal under this section, the Appeal Board may give such orders and directions as it considers just in the circumstances of the case.”
Regulation 31 of the Education Regulations 1997 provides:
“31(1) If a teacher at any time considers that he or she has just cause of complaint against any officer of the Department when that officer is acting in the course of his or her duties, the teacher may appeal in writing to the Director-General for consideration of his or her case, and the Director-General shall notify the teacher in writing of his or her determination in that matter.
(2)Where the teacher is not satisfied with the determination of the Director-General notified to him or her in writing pursuant to subregulation (1), he or she may, within fourteen days of the receipt of that notification, appeal to the Appeal Board against the determination of the Director-General.”
Part 4 of the Act relates to the Registration of teachers. Section 107, which is contained in Part 10 of the Act, provides that the Governor may pass Regulations under the Act and has done so. They are the Education Regulations 1997. Section 107(2)(d) provides that regulations may be made with respect to:
“(d)the terms and conditions upon which officers of the Teaching Service or other persons employed under this Act shall hold office, their rights to leave of absence and any other privileges, their rights upon retirement from the teaching service and any other matter whatsoever affecting their employment;”
The Law
Mr McRae relied upon the well known observations of Mason J in Kioa v West (1985) 159 CLR 550. He said at 584:
“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn L.C. understood that this was the law when he spoke of the obligation to ‘fairly listen to both sides’ being ‘a duty lying upon every one who decides anything’: Board of Education v Rice [1911] A.C. 179, at p. 182. But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
‘...... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and is not subject to judicial review.’
(Salemi [No. 2] (1977) 137 C.L.R. 396 at p. 452.”
Mason J then considered the position where the decision in question is made under a statute and said that the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. He referred to Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 as per Kitto J at 503-504 and accepted that what is appropriate in terms of natural justice depends upon the circumstances of the case and include the nature of the enquiry, the subject-matter and the rules under which the decision-maker is acting. He went on to say at 585:
“In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No. 2] per Jacobs J.
When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.”
The plaintiffs contend that there is nothing to be found in s 15C, Part 3 or elsewhere in the Act which is a “strong manifestation of contrary statutory intention to exclude the duty to act fairly”.
Brennan J expressed the view that a legislative intention that the principles of natural justice apply “is an intention that the principles appropriate to the circumstances of the particular case should apply”: 612. He went on to say:
“The principles of natural justice have a flexible quality which, chameleon-like evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power”.
In Everingham v Director-General of Education and Minister of Education (1993) 172 LSJS 428, the Full Court considered whether the principles of natural justice applied to the circumstances where a teacher was suspended from duty without entitlement to salary. King CJ held that the decision to suspend affected the teacher directly and adversely. There was no intention in the legislation contrary to the application of the principles of procedural fairness. He went on to say:
“The content of the rules of procedural fairness as they apply to a suspension by virtue of s.27 are to be determined by the nature and purpose of the statutory power of suspension. Clearly it is a power which must be capable of prompt and decisive exercise pending determination of the truth of the allegations. The opportunity to be heard, which is required to be afforded, must necessarily be quite summary. It would not be proper to allow the suspension to be unduly delayed to enable the teacher to prepare an elaborate submission. The time allowed must necessarily be brief. An oral interview should not generally be necessary. It is not the occasion for a full answer to the allegations. The Director-General is not required, at this stage, to determine the truth of the allegations but only to determine whether the nature or circumstances of the matter alleged are such that the teacher should not continue to perform duties. Questions of hardship and the need to protect public funds may be pertinent to the question whether salary should be discontinued.”
He further held that opportunities to be heard subsequent to the suspension were not relevant and the decisions to suspend the teacher and to deprive her of salary were void and of no effect. In Everingham King CJ concluded that the observations of the Full Court of the Federal Court in Dixon v Commonwealth of Australia (1981) 61 ALR 173 were appropriate. In that case the Court considered the application of the rules of natural justice to the suspension without salary of a Commonwealth Public Servant under the Public Service Act 1922 and referred, with approval to the following passage of the judgment of the Court, at 182:
“The appellant was entitled to be heard on the question whether he should be suspended without salary during that interim period. It may well be that there is little that the appellant could have said or done that was likely to influence the decision on that question. It may well be that the decision would have been the same if he had been given the opportunity of being heard. The fact remains, however, that he was given no opportunity whatsoever of being heard on the question whether he should be suspended without salary.”

Mr McRae contends that this decision applies to the present case. Although the plaintiffs have not been deprived of salary, there has been deprivation of ongoing contractual expectations which were legitimately held. They are the expectations as to tenure at the School.
Mr McRae also referred to ss 5 and 6 of the Public Sector Management Act 1995 (SA) which provides:
“5In personnel management, public sector agencies will—
(a)    base all selection decisions on a proper assessment of merit; and
(b)     treat employees fairly and consistently and not subject employees to arbitrary or capricious administrative decisions; and
(c)     prevent unlawful discrimination against employees or persons seeking employment in the public sector on the ground of sex, sexuality, marital status, pregnancy, race, physical impairment or any other ground and ensure that no form of unjustifiable discrimination is exercised against employees or persons seeking employment in the public sector; and
(d)     use diversity in their workforces to advantage and afford employees equal opportunities to secure promotion and advancement in their employment; and
(e)     afford employees reasonable avenues of redress against improper or unreasonable administrative decisions; and
(f)    provide safe and healthy working conditions; and
(g)    prevent nepotism and patronage.
6Public sector employees are expected to -
(a)     treat the public and other employees with respect and courtesy; and
(b)     utilise resources at their disposal in an efficient, responsible and accountable manner; and
(c)     deal with information of which they have knowledge as a result of their work only in accordance with the requirements of their agencies; and
(d)     endeavour to give their best to meet performance standards and other organisational requirements; and
(e)     conduct themselves in public in a manner that will not reflect adversely on the public sector, their agencies and other employees; and
(f)    observe all relevant legislative requirements.”
It was submitted that each of the plaintiffs should have been given the opportunity to be heard before any decision to transfer was made. At 3.20 pm on 15^th August 2003, when the letters in all cases except that of Ms Chigros were handed to the plaintiffs, a notice could have been handed to them instead of the letter. That notice could have set out a summary of the allegations made against them by the defendant. The plaintiffs could have had the opportunity to respond within say, 24 or 36 hours, after which the defendant could make the decision relating to each of them.
The contention of the defendant is that a decision by him as the Director-General of Education to transfer a teacher from one school to another is not a decision which is appropriate for review pursuant to the principles and relevance to judicial review.
I have briefly mentioned the provisions of the Act relating to teachers employed in the Teaching Service. Division 1A of the Act which relates to classification of teachers and positions, appointments to promotional level positions and transfer of teachers between position. That Division was introduced into the Act by the Education (Teaching Service) Amendment Act 1996, but I accept the contention of Mr White that in any event the Director-General would have had the power to transfer teachers between positions in the Teaching Service without the express power in s 15C. At all events, the power is clearly stated in that section.
The Director-General not only has power to transfer teachers from school to school subject to the provision in s 15C but also from one position to another within a school. According to Mr Thompson, the Manager of Site Staffing Services in the Department, the TPP Document applies to 609 schools and about 13,000 teachers in South Australia. Obviously, in any one year there will be many decisions involving the transfer of teachers from one school to another and from one position to another within schools. It is difficult to see how the legislature, when enacting the Act, could have had in mind that judicial review would be an appropriate method for review of the decision regarding a dissatisfied teacher. The Teachers Appeal Board, which is a specialised tribunal, is a much more suitable forum for such review and provides a remedy.
The provisions of the Act relating to the Teachers Appeal Board are set out in Division 8 of Part 3 of the Act. Part 3 relates to the Teaching Service and each Division deals with a separate subject matter, appointment to the Teaching Service (Division 1), Classification, Promotion and Transfer (Division 1A), Retrenchment and Retirement of Officers (Division 2), Long Service Leave (Division 3), Retiring Age (Division 4), Discipline (Division 5), Reclassification (Division 6) and the Teachers Appeal Board (Division 8). There is no longer a Division 7 which before repeal related to the Teachers Salary Board and provided a mechanism for fixing remuneration for teachers. The structure of Part 3 of the Act indicates that there is a right of appeal to the Teachers Appeal Board from decisions of the Director-General about the matters set out in this Part except where an appeal is expressly prohibited. There is specific mention of a function of the Teachers Appeal Board in Division 2 and Division 5. The right of appeal to the Teachers Appeal Board is excluded in Division 6 presumably because a separate review process is established. There is no such exclusion with respect to the other Divisions and there is no reason to conclude that there is no appeal from a decision pursuant to Division 1A and in particular a decision to transfer a teacher pursuant to s 15C.
The defendant contends that pursuant to s 54 of the Act and Reg 31 the plaintiffs have a full right of appeal to the Teachers Appeal Board. The procedure is that they should request the defendant to reconsider his decision to transfer them and if he refuses to do so or makes the same decision which should be in the form of a determination, the plaintiffs may then appeal pursuant to Reg 31(2). I do not think it matters that the original decision is made by the defendant himself as the Director-General. The Teachers Appeal Board has expressed that view in two decisions. In Brooks v The Director-General of Education (T.A.B. 12/1995 12^th December 1995) a teacher was dissatisfied with a decision of the Director-General and requested him to reconsider it. He refused to do so and advised the teacher that he had declined to reverse his earlier decision. It was submitted by the Director-General that the general rights of appeal provided by s 54 of the Act and Reg 111 then in existence, which was in the same terms as Reg 31, did not apply to personal administrative acts or decisions of the Director-General. The Board comprised of Senior Judge Jennings and two other members concluded that the teacher did have a right of appeal to the Teachers Appeal Board:
“The Act clearly recognises that the Director-General, in performing administrative acts and decisions, is not necessarily infallible. That is why it has granted officers of the Department the right to seek an external review of his actions or decisions in the specific circumstances provided for by the Act. There is no reason to think that other personal administrative actions or decisions of the Director-General not specified in the Act are inherently less capable of being capricious or unfair to a particular teacher. If the Director-General stands to be corrected about the disciplinary action that he proposes to take as against a particular teacher, why should he not also be the subject of correction in respect of other actions taken against teachers that although not strictly disciplinary in nature are nonetheless detrimental and wrong.”
The Board followed a previous decision to the same effect in Everingham v The Minister of Education (27^th October 1989) and declined to follow contrary decisions by a differently constituted Teachers Appeal Board in Everingham v The Director-General of Education (17^th January 1992) and Robbins v Director-General of Education (30^th June 1995). The Board could see no reason to conclude that “any officer of the Department” in Reg 31(1) could not include the Director-General, and I agree. The Teachers Appeal Board took the same view in the later case of Wade v The Chief Executive Officer Department for Education and Children’s Services (T.A.B. 10/1995 1^st February 96). The presiding member was Senior Judge Jennings but the Teachers Appeal Board was otherwise differently constituted.
In Koh v State of South Australia & Anor (1989) 154 LSJS 38 at 43, 44 and 46, the Full Court, in the context of disciplinary proceedings against members of the Teaching Service, held that the nature of an appeal to the Teachers Appeal Board is a rehearing de novo and so the plaintiffs, if instituting an appeal, would present their cases on that basis. They would not have to show error on the part of the defendant in order to attract jurisdiction of the Teachers Appeal Board.
Mr McRae contended that there was no appeal to the Teachers Appeal Board because s 53 specifically prevents an appeal against a decision to transfer to another position in the Teaching Service. I reject that contention. Section 53 relates to appointments to promotional level positions in the Teaching Service. A promotional level is a classification level for a position declared by regulations to be a promotional level: s 5(1). It is unnecessary for present purposes to set out Reg 9 which relates to this matter. Section 53(2a) provides that s 53 does not apply to the transfer of a teacher between positions in the Teaching Service. Section 53(6) excludes an appeal against a provisional recommendation about appointment to a promotional position made by a committee established by the Minister of Education in certain circumstances. The exclusions provided by s 53(2a) does not prevent an appeal against a decision to transfer a teacher and does not have that effect.
It was also contended on behalf of the plaintiffs that an appeal by any of them in the Teachers Appeal Board is an appeal and is not a request for reconsideration of the decision to transfer. As I understand the contention, the remedy of an appeal is therefore inadequate. I reject that contention. As has been seen, the Teachers Appeal Board has wide powers. It could consider the merits of the decision to transfer and set aside that decision.
In my view, this appeal process is available to the appellants and should be a satisfactory process for all concerned. The appellants have a full right of appeal on the merits, which may also address any concerns about the process as to why the decision was reached. A Judge will preside and the Teachers Appeal Board may accurately be described as a specialist tribunal. There is no reason to suppose that there will be substantial delay in the commencement of the hearing before the Teachers Appeal Board. Reg 34(2) provides that the Teachers Appeal Board shall hear an appeal as soon as practicable and Reg 35 provides that the defendant shall delay any action against an appellant teacher until the Teachers Appeal Board has notified its determination of the appeal.
I have found support for this conclusion from decisions cited during the course of argument that the principles of natural justice need not apply where there is a right of appeal. In Twist v Randwick Municipal Council (1976) 136 CLR 106 the Council made a decision that the owner of a building was required to demolish the building and did not give him the opportunity to be heard before the decision was made. He had a right of appeal to a District Court but did not lodge an appeal within the prescribed time. He brought an action in the Supreme Court of New South Wales seeking a declaration that the Council’s order for demolition was invalid and unenforceable and that a decision to enter the land and carry out the demolition by the Council was null and void and of no effect on the grounds that the Council was bound by the rules of natural justice to have given the owner an opportunity to be heard on the question of whether the order should be made. Barwick CJ held that the common law rule that a statutory authority having power to effect the rights of a person is bound to hear him before exercising the power is both fundamental and universal but the legislature may displace the rule and provide for the exercise of such without any opportunity being afforded the affected person to oppose its exercise but that intention must be made unambiguously clear: 109-110. He went on to say at 110:
“The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice.”
He said that right of appeal before the order was carried out provided that opportunity. He acknowledged that the mere existence of a right of appeal may not satisfy the requirements of natural justice but held that it did so in the circumstances of that case because the District Court had to resolve a decision on the objective facts and could take nothing from the fact that the council had made an order. In other words, the appeal was a hearing de novo and the District Court had to make a decision on the merits. He held that there was no room for a declaration that the owner was entitled to be heard by the Council before the order was made. Mason J reached the same conclusion because the appeal was a full appeal on facts and law and the District Court would consider the matter afresh. He said that not every case where there was a right of appeal established the exclusion of the principles of natural justice, but in the circumstances held that the owner was not entitled to be heard before the Council made its decision. He said:
“With all this in mind I return to the specific question which has arisen here where the appeal provided for is an unrestricted appeal to a court involving a hearing de novo. The decision from which the appeal may be taken is one affecting public amenity and in some circumstances one affecting public safety. Subsection (2) recognizes that there may be an element of urgency in securing compliance with the council’s order by providing that in the event that the order is not obeyed ‘the council may with all convenient speed enter upon the building and the land upon which it stands and execute the order’.
Having regard to the subject matter of the section, the nature of the order which the council is empowered to make, the degree of urgency which may attend the execution of the order and more particularly the comprehensive nature of the appeal to a District Court judge, I am of opinion that s. 317B (5) should be read as providing the exclusive remedy available to an owner who wishes to challenge the validity or correctness of an order made under s. 317B (1).”
The other member of the Court, Jacobs J, regarded the wide provision for appeal as an indication of legislative intention contrary to the application of the rules of natural justice as the appeal was to a judicial body and the determination had to be made upon the evidence at the hearing of the appeal: 119.
I think the decision in Twist assists in the present case. The observations of Mason J are apposite. The decisions of the defendant affected the public interest although not amenity and safety. However, there were the issues of occupational health and safety and of the wellbeing of the students at the School and it was very much in the public interest that the problem be resolved promptly which could occur in the appeal process. Questions of urgency could also be reasonably accommodated in that process. Also, the Teachers Appeal Board is, as I have said, presided over by a Judge who is experienced in industrial matters and, together with other members of the Teachers Appeal Board, constitutes a specialist tribunal.
The next case is The Queen v Marks & Ors; Ex Parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471. There was a demonstration dispute between two trade unions, each seeking a determination from the Conciliation and Arbitration Commission that it should have exclusive representation of a particular group of workers. That issue was resolved against the union named in the title of the case (“the BLF”). The BLF asserted that there had been a denial of natural justice in the proceedings because the Deputy President of the Commission who heard the matter had consulted another member of the Commission about an aspect of the matter. Mason, Aickin and Wilson JJ held that there was no denial of natural justice but even if the consultation did amount to such, judicial review did not lie because there was a full right of appeal on fact and law to the Full Bench of the Commission under the relevant legislation: see Mason J at 484 where he followed the decision in Twist.
Murphy, Aickin and Wilson JJ agreed with this conclusion of Mason J and Brennan J held that in the circumstances there was no denial of natural justice.
In Marine Hull & Liability Insurance Co Ltd v Hurford & Anor (1986) 10 FCR 476 an insurer (“Marine Hull”) complained about a decision of the Acting Treasurer, Mr Hurford, that it could not issue any new insurance policies because of its capacity to meet liabilities which might arise under the policies in question. The Acting Treasurer did not give Marine Hull an opportunity to be heard before making the decision. Marine Hull could ask the Treasurer to reconsider and then, if dissatisfied, could appeal to a tribunal established under the Insurance Act 1973 (Cth). Both Fox and Davies JJ held that in the circumstances there was no denial of natural justice. Morling J concluded that the procedure whereby the Acting Treasurer could be asked to consider the decision and there was a right of review of the decision by the Administrative Appeals Tribunal. That review was by a Tribunal and not a Court was not regarded by Morling J as a matter of significance.
Kirby J in Boral Gas (NSW) Pty Ltd v Magill & Anor (1993) 32 NSWLR 501, at the commencement of a discussion of the principles relating to judicial review of administrative decisions, said at 508:
“It has long been held a principle in the provision of relief by way of the prerogative writs that the relief will commonly be withheld if there is another ‘equally effective and convenient remedy’.”
He cited Lord Widgery CJ in R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720 at 728 and Wilson J and Dawson J in R v Ross Jones; Ex Parte Green (1984) 156 CLR 185 at 214. His Honour went on to acknowledge that the mere existence of an alternative statutory remedy is not necessarily fatal to the provision of the prerogative relief but his analysis of the cases suggests that prerogative relief may be given in cases where a statutory alternative is not as “convenient, beneficial and effectual”: 508 citing R v Paddington Valuation Officer; Ex Parte Peachey Property Corporation Ltd [1966] 1 QB 380 at 400. Kirby J acknowledged the proper place of the specialised tribunal, which may have a supervision advantage over a court from which prerogative relief is sought: 511 and Ballam v Higgins (1986) 17 IR 131.
I return to the decision of the Full Court in Everingham which is binding upon me. There are sound reasons to distinguish that decision. The applicant was the subject of disciplinary action. She had been suspended without salary which obviously affected her adversely. The immediate issue concerned the teacher and whether she should continue in her work pending resolution of the allegations against her. Whilst it must be acknowledged that the teacher’s poor health, which was in issue, could affect students, it was a matter which could be considered and resolved without urgency. The circumstances in Everingham are accommodated by the observations of both Mason J and Brennan J in Kioa. The response of the Director-General who exercised the statutory power of supervision could do so by the application of procedural fairness without compromising the efficacy of the power which he had to exercise or the interests of others in an immediate sense.

The plaintiffs in the present case were not the subject of disciplinary proceedings. They are not deprived of salary. The School was in crisis, the defendant believed that they were largely responsible and there were serious occupational health and safety issues at the School. The appeal procedures could accommodate the fair resolution of any issues raised by the plaintiffs and their existence indicates that in circumstances such as in the present case, there was a legislative intention to exclude the principles of natural justice.
It is submitted by the defendant that it is significant that his decision to transfer the plaintiffs was made in the context of their employment. In Australian National University v Burns (1982) 43 ALR 25, the employment of the respondent by the University as a professor was terminated on the ground of incapacity. He sought a statement in writing from the Council of the University setting out its findings and decision and reasons for decision which was refused. The respondent applied to the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Judicial Review Act”) for an order that he was entitled to make the request. Such an order was made at first instance and the University appealed. The issue on the appeal was whether the decision of the University was a decision of an administrative character made under an enactment within the meaning of s 3 of the Judicial Review Act. Under the legislation relating to the University, the Council was empowered to appoint academic staff such as the respondent and had the entire control and management of the affairs and concerns. Bowen CJ and Lockhart J, with whom Sheppard J agreed in this aspect of the case, held that the decision to dismiss the respondent was not taken pursuant to the legislation governing the University but pursuant to the contract of engagement between the parties and their respective rights under the contract may be enforced in courts of competent jurisdiction and not otherwise: 32. The power of judicial review did not arise in that case because the dismissal was not a decision of an administrative character made under an enactment as required by s 3 of the Judicial Review Act.
In Sellars v Woods & Anor (1982) 45 ALR 113 the Federal Court was concerned with an application by a police officer for an order of review of a decision transferring him from one position to another. Fisher J followed Burns and held that the decision of transfer, although administrative in character, was not a decision under an enactment, but under or pursuant to the engagement of the police officer.
The same approach was taken in Bayley v Osborne (1984) 4 FCR 141.
I have not regarded these decisions of much assistance. They acknowledge that the decisions were administrative in nature but were not reviewable because they were not made under an enactment, as required by the Judicial Review Act, but pursuant to a contract of employment.
In Brophy v Mapstone (1984) 56 ALR 135 the Full Court of the Federal Court of Australia held that a branch council of a trade union had the right to dismiss an employee for misconduct for any or no reason without complying with the rules of natural justice and in doing so followed Ridge v Baldwin [1964] AC 40 per Lord Reid at 65. In R v East Berkshire Health Authority; Ex parte Walsh [1985] 1 QB 152 a nurse employed by a health authority under a contract was dismissed for misconduct and sought judicial review to quash the dismissal on the grounds that it was made without power and there had been a breach of the rules of natural justice. The Court of Appeal held that the nurse was employed under a contract of employment and judicial review was not available as the nurse was not seeking to exercise a public law right. It was held “that employment by a public body does not per se inject any element of public law”: per Sir John Donaldson MR at 164, see also Purchas LJ at 178.
Thorpe v South Australian National Football League (1974) 10 SASR 17 concerned the termination by the League of the contract of employment of its General Manager. Jacobs J held that the relationship between the parties was an ordinary relationship of master and servant and that the employment was of indefinite duration and terminable by either side on reasonable notice. There was no obligation to give the General Manager the opportunity to be heard before he was dismissed.
The defendant’s contention is that the plaintiffs were employed under a contract of employment. This is not a case of termination of that contract by dismissal. It is not a case of suspension. There is no aspect of discipline. I have mentioned that when the plaintiffs joined the Teaching Service, they signed an application form which contained the statement that he or she agreed to serve, if required, in any part of the State. Reg 8(5) provides that before appointment as a teacher, an applicant shall undertake in writing to serve if required in any part of the State at any period of his or her service. The Regulations came into operation on 28^th August 1997 after all of the plaintiffs, except Mr Jones, joined the Teaching Service but earlier regulations contained the same provision: Reg 41(5) of the Education Regulations 1976.
If I was not bound by the decision in Everingham, I would be inclined to the view that the principles of natural justice are excluded because the plaintiffs are engaged under contracts of employment as members of the Teaching Service. However, Everingham is an employment case and, as has been seen, the principles of natural justice were held to apply to the extent therein expressed. Although I have considered it appropriate to distinguish Everingham from the present case, because the power exercised was supervision without salary which was substantially detrimental to the teacher and the application of the principles would not have had a significantly adverse effect on others, it is nonetheless an employment case. Even though the employment cases which I have mentioned do not appear to have been brought to the attention of the Court, it was held that, in the circumstances, the teacher should have been given the opportunity to be heard before she was suspended. I think I must accept, for present purposes, that the employment cases, to which I was referred, should not be followed.
I therefore conclude that the Education Act does not exclude the principles of natural justice merely because the plaintiffs were in employment.
However, I am of the opinion that the Act does not require the application of the principles of natural justice in all of the circumstances when the Director-General makes a decision which has some effect upon a member of the Teaching Service and, in particular, these principles have no application in the present circumstances for the following reasons:
1The size of the Teaching Service and how it must operate necessarily requires that teachers will commonly be transferred from school to school and from position to position within a school in the interests of the efficient and effective delivery of education services.
2Unless there is some punitive aspect to a transfer, such as a demotion or, in effect, a suspension from duty, or the decision is plainly unreasonable, the principles do not apply when a decision is made pursuant to s 15C.
3The Director-General must be free to exercise the power under s 15C when it is in the best interests of the school, staff and students to do so and urgent action is required without the application of the principles of natural justice.
Discretion
Mr White contended that even if the decisions made by the defendant in relation to the plaintiffs are open to judicial review, I should decline to grant such review in the circumstances in the exercise of discretion.
A state of crisis existed at the School. The plaintiffs had been identified to the defendant by the Review Team and others as significant contributors to that state of crisis. Urgent action was required.
The plaintiffs have not attended at the School since 15^th August. They have not accepted the directions as to their new positions but they do not seek re‑engagement at the School. Their employment in the Teaching Service has continued without loss or reduction in salary. I accept Mr White’s contention that none of the plaintiffs have lost tenure of employment. They have lost tenure of placement at the School but not otherwise.
As has been seen, each of the plaintiffs was invited by the defendant, in the letter of 15^th August 2003 to discuss any issues concerning the new placement with the Superintendent Site Staffing Services, Mr Jupe and counselling services were made available. Their placements were temporary, presumably until vacancies suitable for each of them became available. It was submitted on behalf of the defendant that as the plaintiffs did not seek an order for their return to the School, that the offer for assistance from Mr Jupe could still be accepted and that there is no utility in the order which the plaintiffs now seek. To have an opportunity to be heard by the defendant now about the transfers would have no purpose. They have had the opportunity to discuss their new placements with Mr Jupe after the transfers were made and that opportunity continues.
I accept those contentions. There is no utility, in the circumstances, in making an order that the decisions of the defendant to transfer the plaintiffs be quashed, particularly as reinstatement at the School is no longer sought.
According to Mr Spreadbury, each of the plaintiffs will be significantly disadvantaged as a result of the decision to transfer them. I accept his evidence that they have been transferred to short term temporary vacancies until 21^st January 2004 and that Ms Chigros, Mr Jones and Mr Pope have lost entitlement to the balance of their respective “A” vacancies, meaning tenure in their placements at the School for the balance of those placements. I need not set out the balance of his evidence relating to the disadvantages to the plaintiffs in detail. A brief summary will suffice. He asserts that they have lost the opportunity to apply for School Choice Processes this year. However, as has been seen from the letter which the defendant wrote to each of the plaintiffs informing them of the transfer, the new positions are temporary as no suitable “A” vacancies were available at the time. They were advised to lodge placement forms for 2004 if they had not already done so. There is no suggestion in those letters that placements could not be made for 2004.
Mr Spreadbury asserted that there is no guarantee that comparable placements will be available in the future and that the plaintiffs may become “supernumerary” and may not be engaged in teaching in their areas of expertise. The evidence does not enable any finding to be made about the future, but if a serious disadvantage of that nature may arise, the Teachers Appeal Board may have regard to that matter should there be appeals and the decision to transfer and the position to which transferred are called into question.
I accept that the plaintiffs have probably suffered disadvantage because of media publicity about the transfers, but the reasons for the transfers may be ventilated in the appeal process and any misreporting or inaccurate speculation may be corrected. If there has not been any misreporting or inaccuracy, there is no relevant disadvantage. It is too early to say if any of the plaintiffs have lost the chance of promotional positions or appointments as co-ordinators which some of them held at the School.
I do not regard these matters as justifying the exercise of discretion to grant judicial review.
Lastly, on the matter of discussion, the defendant contends that there should not be an order as now sought by the plaintiffs in view of the other remedies available to them. I have mentioned the right of appeal to the Teachers Appeal Board. That remedy is available. As I have said, the Teachers Appeal Board is a specialised tribunal and may fully investigate the decisions to transfer the appellants for the reasons for those decisions and whether they were justified. That is a matter which, in itself, justifies the refusal to exercise the jurisdiction in the exercise of discretions.
The defendant contends that the proceedings in Australian Industrial Relations Commission, commenced by the AEU on behalf of the plaintiffs, is another reason to decline to exercise the jurisdiction in the exercise of discretion. The matter came before Deputy President Parsons who made suggestions as to the resolution of the dispute. Those suggestions and other suggestions were not accepted by the AEU on behalf of the plaintiffs and on 3^rd September 2003, orders were made giving the AEU leave to withdraw the notification of the dispute.
It was submitted that the Commission was an appropriate forum to resolve the issues between the plaintiffs and the defendant and that it could do so promptly and in a practical manner. The fact of the plaintiffs having abandoned that process is relevant to the exercise of the discretion whether to grant the relief sought by the plaintiffs. I reject this submission. It was accepted during the course of argument that whilst the Commission had extensive powers of mediation and conciliation, it did not have full powers of arbitration. I have merely accepted that submission and, for present purposes, it has not been necessary to reach a conclusion about the extent of the arbitral powers of the Commission.
If there had been a discretion to exercise, I would exercise it by refusing to grant judicial review.
I dismiss the application.

[2003] SASC 371

29 October 2003