Crook v The Victorian Institute of Teaching

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 04880

DAVID JOSEPH CROOK	Plaintiff
v
GARRY SALISBURY, ROWLAND RICHARDSON and MARILYN MOONEY (as constituting the Formal Hearing Panel of the Victorian Institute of Teaching) in respect of proceeding 147 on 18 March, 31 March and 1 April 2014	Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2015
DATE OF JUDGMENT:	20 May 2015
CASE MAY BE CITED AS:	Crook v The Victorian Institute of Teaching
MEDIUM NEUTRAL CITATION:	[2015] VSC 208

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ADMINISTRATIVE LAW – Judicial review – Supreme Court (General Civil Procedure) Rules 2005, Order 56 – Application for order in the nature of certiorari quashing orders made by Formal Panel of the Victorian Institute of Teaching finding the plaintiff guilty of serious misconduct and not fit to teach – whether the plaintiff was denied procedural fairness – the use of witness screens.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Dr I R L Freckelton QC	Victorian Institute of Teaching

HER HONOUR:

Introduction

The plaintiff, David Joseph Crook, became a registered teacher with the Victorian Institute of Teaching (‘the Institute’) on 1 October 2007.

By letter dated 10 September 2012, the principal of St Michael’s School (‘the school’), Daylesford, Mr Chris Pollard, notified the Institute of action taken in relation to alleged misconduct of the plaintiff. The plaintiff’s employment at the school had been terminated on 6 September 2012.

The allegations were referred to the Institute’s Disciplinary Proceeding Committee (‘the Committee’) and the Committee decided to conduct an investigation.

On 28 August 2013, the Committee referred the matter to a formal hearing.

A formal hearing notice dated 4 November 2013 was served on the plaintiff on 6 November 2013 and subsequently an amended formal hearing notice (‘the Notice’) dated 14 February 2014 was served on the plaintiff.

The formal hearing proceeded on 18 March, 31 March, and 1 April 2014.

The plaintiff was entitled to be, but was not, legally represented at the formal hearing.

The defendant that heard the formal hearing comprised Garry Salisbury, Chairperson, Rowland Richardson and Marilyn Mooney, (‘the defendant’).

The defendant found that all the allegations were established and, on 28 April 2014, found the plaintiff guilty of serious misconduct and not fit to teach.

On 14 July 2014, pursuant to s 2.6.46(j) of the Education and Training Reform Act 2006 (Vic) (‘the Act’), the defendant determined to cancel the plaintiff’s registration from that date. Further, pursuant to s 2.6.46(k) of the Act, the defendant determined to disqualify the plaintiff from applying for registration for a five year period.

The plaintiff now brings an application for judicial review pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

The grounds of review set out in the amended originating motion dated 30 October 2014 are as follows:

(1)That the use of visually divisive screens grossly adversely affected the plaintiff’s capacity to adequately defend the matter.
(2)That, inter alia, the breach of proper practice in using a more visually divisive screen as such was so serious a breach of proper judicial enquiry and protocol as to render the panel members clearly extremely bias against the plaintiff and unsuitable to perform such judicial responsibilities.
(3)The Victorian Education and Training Reform Act 2006 s 2.6.48(d) states: ‘the hearing panel is bound by the rules of natural justice’.
(4)That VIT’s failure to provide a directions hearing for the said matter heard in April 2014 prevented the inclusion of relevant material being properly submitted and thereby appropriately examined or authenticated prior to the hearing proper.

The plaintiff seeks:

(a)a declaration quashing the decision of the defendant made on 14 July 2014;
(b)an injunction requiring the Institute to hear the matter again and produce a new decision upon the evidence of that hearing;
(c)an injunction prohibiting the use of what he terms ‘a visually divisive screen’ used by the defendant which he states ‘disabled the plaintiff’s — as self-represented — view of those examined and cross-examined’; and
(d)an injunction ordering the Institute to hold a directions hearing prior to the rehearing which he seeks.

The plaintiff did not make any written submissions in support of those grounds. Rather, he relied on oral submissions, except for the fourth ground of review, in respect of which he did not make any submissions.

The plaintiff relies on two affidavits which are essentially the same, affirmed 12 September 2014 and 30 October 2014.

The defendant relies on the affidavit of Geoff Coates sworn 21 November 2014 and written submissions dated 2 March 2014.

Background to the formal hearing

As discussed, by letter dated 10 September 2012 and further documentation provided shortly thereafter, the school notified the Institute, pursuant to s 2.6.31 of the Act, of action taken against the plaintiff as a registered teacher.

At the time, the plaintiff was employed by the school as a performing arts teacher, under a fixed term contract.

On 24 October 2012, the Institute authorised an investigation into the information received from the school pursuant to s 2.6.31 of the Act.

On 28 August 2013, the Committee considered a post-investigation report and determined to refer the matter to a formal hearing pursuant to s 2.6.34(1)(e) of the Act.

The formal hearing commenced on 18 March 2014 and was adjourned to 31 March 2014.

The Notice

In summary, omitting the particulars, the allegations contained in the Notice dated 14 February 2014 were that whilst employed as a registered teacher at the school between 16 July 2012 and 6 September 2012:

(a)the plaintiff failed to demonstrate collegiality in that he did not treat his colleagues at the school with courtesy and respect;
(b)the plaintiff failed to provide opportunities for all students to learn in that he did not maintain a safe and challenging learning environment. The plaintiff also failed to respect students’ individual differences; cater for their individual abilities; and he failed to communicate appropriately with students;
(c)the plaintiff failed to treat students with courtesy and dignity in that he intimidated, embarrassed and humiliated students;
(d)the plaintiff failed to maintain objectivity in his relationships with students and parents of the school in that he drew them into his personal agenda; and
(e)whilst employed as a registered teacher at three previous schools: Holy Cross Primary School (2008–2012); Bacchus Marsh Secondary College (February 2008); and Daylesford Primary School (22 April 2008 – 16 June 2008): the plaintiff failed to behave in an acceptable manner as a registered teacher in that his conduct at these schools was consistent with the conduct described in the above allegations.

Before the commencement of the formal hearing, the defendant and the plaintiff had the hearing book before them. The hearing book contained witness statements of Bronwyn Gallagher dated 29 August 2013; Kym Rouse dated 11 February 2014; and Rebecca Conroy dated 18 June 2013. It was anticipated that amongst other witnesses to be called by the Institute, Ms Gallagher, Ms Rouse and Ms Conroy were to give evidence.

The formal hearing

The formal hearing commenced on 18 March 2014. Mr Rodney Hepburn appeared as Counsel Assisting. The plaintiff appeared in person.

Mr Coates, who attended the formal hearing on 18 March 2014, deposes:

At the commencement of the Formal Hearing, appearances were requested by Mr Salisbury. Prior to giving his appearance the Plaintiff made remarks about the Defendant, including Ms Mooney’s failure to smile and the tardiness of the Defendant in commencing the Formal Hearing. The Formal Hearing commenced at 10.25 am.[1]

[1]Exhibit GC-01, 1, LL 15–25.

The reasons given for the formal hearing being adjourned was because of the plaintiff’s behaviour.[2]
[2]Exhibit GC-01, 1, LL 28–31.

The matter was relisted for 31 March, 1 and 2 April 2014. The formal hearing was concluded on 1 April 2014.

On 31 March 2014, the formal hearing continued. Mr Hepburn again appeared as Counsel Assisting the defendant. The plaintiff again appeared in person. The Institute called a number of witnesses. The first witness called by the Institute to give evidence was Mr Christopher Pollard and the second was Mr Paul Johns.

Following Mr Johns’ evidence, Counsel Assisting made an application on behalf of the Institute, for the use of a screen to separate the witness box from the bar table. The three witnesses were Ms Gallagher, Ms Rouse and Ms Conroy.

The transcript of the hearing records:

MR HEPBURN:        If I can make another application, Sir. The following three witnesses would prefer that the hearing room screen be used to separate the witness box from Mr Crook, and if there were no objections so if I could ask the screen be placed …
MR CROOK:I object to that absolutely.
CHAIRMAN:           Mr Hepburn, can you just give us a brief outline of …
MR HEPBURN:        Yes. The following three witnesses have intimidated [intimated] that they’re only willing to give evidence behind a screen, they feel intimidated by Mr Crook, and the Institute has no objections to that taking place. It means that they’ll still be able to hear Mr Crook’s questions, but since the witness is directing the answers to the Panel there should be no objection and to the screen being put in place.
CHAIRMAN:           All right. Well, I think we’ll agree to that request. So could the screen be put into place? Yes, just a procedural matter. Getting the witnesses into the room?
MR HEPBURN:        Yes, the witnesses can enter the room and sit there in the witness box. That’s fine.
CHAIRMAN:           They’ll walk straight across there?
MR HEPBURN:        Yes, that’s right.
MR CROOK:I might remind the — I might ask the court, um, before I comment on this — and I haven’t been given a chance to comment on this — this is utterly outrageous. It is utterly outrageous.
CHAIRMAN:           We’ll make a note of that, Mr Crook.
MR CROOK:It’s a disgrace. It’s an utter — it’s a disgrace.
CHAIRMAN:           All right.[3]

[3]Exhibit GC-03, 128 LL 1–31.

The witness screen was then implemented and two of the witnesses, Ms Gallagher and Ms Rouse, gave their evidence behind it on 31 March 2014. The effect of the witness screen was that the witness and the plaintiff could no longer see each other. The witness remained in sight of the panel members. On 1 April 2014 Ms Conroy gave her evidence. The plaintiff did not attend the formal hearing on 1 April 2014.

Prior to the commencement of the formal hearing on 1 April 2014, the plaintiff provided Mr Coates with a document entitled ‘Submissions to the Victorian Institute of Teaching to The Panel Hearing The Matter VIT v David Crook, 01/04/2014, David Joseph Crook’. The plaintiff’s submissions were provided to the defendant.

The plaintiff’s submissions stated:

1.That the Panel members immediately disqualify themselves on the ground of apprehended bias. Bias arises out of:
·allowing the screen to be used to shield adult witnesses from myself being self-represented.
·not allowing me to cross-examine other witness statements of Mr Pollard (Mr Hepburn made the application that this be allowed on ‘natural justice’ grounds and only then was it allowed).
·vacating the original hearing on 18/03/14 which was set down for 18–20 March on false grounds that I was ‘interrupting’ and not ‘calm’.
I have the greatest possible contempt for the members of and it makes me ill to be in the same space as them. I certainly cannot address them any more, in any context, except instruct them to stay well away from me!

2.That a new hearing be set down with a new panel of members. That the new hearing time/dates be coordinated with me prior to being set down.
3.That in such a new hearing screens be not permitted to shield witnesses from me as a self-represented party in accordance with the legal principle that I have the right to ‘face my accuser’. I have never at any stage been afforded that right with those individuals.
4.That due process be followed by allowing my proper and mandated responses to all allegations which arose on 14/2/2014: that is, I be allowed the opportunity to respond to those statements which are being relied on which are not from St Michael’s Catholic Primary School, Daylesford and were only presented to me after 14/2/14.
If these submissions are not allowed, and any decision arises which is adverse to me as a result, I will immediately apply to the Supreme Court of Victoria for a ruling on these matters: principally on the abuse of screens for the cross-examination of witnesses.
If such a course of action is necessary and successful and the consequential expected substantive delay results prior to a fair hearing, I will be submitting that any panel err in my favour in regards to probable deficiencies in the evidence due to claims of memory lapses —
D.J. CROOK[4]

[4]Exhibit GC-04.

At the commencement of the formal hearing on 1 April 2014, Counsel Assisting made oral submissions in response to the plaintiff’s submissions. The submissions made by Counsel Assisting were:

MR HEPBURN:        … I’ll make some comments on it and the panel can then make the ruling as to point 1 of Mr Crook’s submissions on the use of the screen, this is requested by the witnesses who felt intimidated by Mr Crook, and it is used in almost all jurisdictions, although some jurisdictions now have technology for witnesses to appear by — via screen, and it’s not something that the panel need concern themselves. The Chairpersons made a ruling that the screen could be utilised to protect the witnesses, and it was a fair ruling, and my submission is that it should not be regarded as pertinent to any ruling that the panel wish to make today. …
CHAIRMAN:           Thank you, Mr Hepburn. I’ll ask my Panel members if they would like to make any comment on the accusation of apprehended bias.
MS MOONEY:         No I think I answered that on the …
CHAIRMAN:           The first day?
MS MOONEY:         The first day, and no, I — I have no …
CHAIRMAN:           Nothing to add.
MS MOONEY:         … No bias or anything to add to that initial statement.
CHAIRMAN:           All right.
MR RICHARDSON: And I’ve nothing to add.
CHAIRMAN:           I have no further comments to make on the earlier statements that I made.
MR HEPBURN:        Thank you sir. And probably at this time I’d ask the Panel to make a ruling on whether they wish to continue the hearing or if they wish to consider anything that Mr Crook has said in his submissions.
CHAIRMAN:           No, we’ve read these submissions, and there’s no matters that we wish to — that would suggest to you that we should stop the hearing. So we will continue …[5]

[5]Exhibit GC-05, 184 L 31, 185 LL 1–12, 12 and L 31, 187 LL 13–31, 188 L 1.

The Institute proceeded to call its remaining witnesses on 1 April 2014.

The Institute sent the defendant and the plaintiff a letter dated 4 April 2014. The letter:

(a) informed the defendant that its case against the plaintiff had concluded;

(b)enclosed the Institute’s closing submissions, prepared by Counsel Assisting; and
(c)invited the plaintiff to provide any final written submissions by 22 April 2014.[6]

[6]Exhibit GC-09.

The defendant received a copy of the plaintiff’s submissions on 22 April 2014.[7]
[7]Exhibit GC-04.

On 5 June 2014, the plaintiff was informed in writing by the defendant of the findings of the formal hearing, including the findings against the plaintiff of serious misconduct and unfitness to teach. The letter also invited the plaintiff to provide any submissions as to determination, within 28 days of the receipt of the letter.[8]
[8]Exhibit GC-10.

On 16 June 2014, the Institute received correspondence from the plaintiff indicating his intentions to appeal the defendant’s decision in the Supreme Court of Victoria.[9]
[9]Exhibit GC-11.

On 14 July 2014, the defendant determined to cancel the plaintiff’s registration with the Institute, and to disqualify him from applying for registration for a five year period.

On 15 July 2014, the defendant provided the plaintiff with its written reasons (‘the Reasons’).[10] The defendant also provided the plaintiff with information regarding his right to apply to the Victorian Civil & Administrative Tribunal for review of the decision.[11]
[10]Exhibit GC-15.
[11]Exhibit GC-14.

In its Reasons, the defendant considered the plaintiff’s submissions in relation to the application made by Counsel Assisting on behalf of the Institute for the three witnesses to give their evidence behind the witness screen. The Reasons state:

Natural Justice
The Panel was conscious of the fact that Mr Crook was self-represented in these proceedings and further that he had absented himself from the proceedings after the first day. Subsequently, a submission provided by Mr Crook which, although it touched on many different matters, could fairly be said to have challenged the fairness of the proceedings.
In light of that the Panel considers that it should address the submission that it had not acted fairly and followed the rules of natural justice. The Panel noted that –
· Mr Crook had been notified of the hearing in a timely manner and the Institute had complied with its obligations under the Act including the provision of details of the allegations and the evidence to be called in support of them.
·     Mr Crook did not make effective use of the opportunity to seek advice, engage representation, prepare affidavits, produce witness or continue at the hearing to cross-examine all witnesses or give evidence on his own behalf.
·     Mr Crook chose not to attend the hearing after the first day.
·     Three female witnesses requested the use of a screen between Mr Crook and themselves because of their fears of intimidation and bullying. The Panel concluded that this was highly likely given his behaviour with earlier witnesses. The screens shield the witness from direct confrontation but otherwise no impediment to asking questions of the witnesses who were present to give evidence. The screens are commonly used in Courts and Tribunals and their use here did not in the Panel’s opinion cause any significant difficulty in receiving and evaluating the evidence. As it was, Mr Crook made a number of abusive and offensive remarks to these witnesses. The Panel considered it could balance the need to ensure the welfare of the witnesses while providing a fair hearing for Mr Crook.
·     Mr Crook was repeatedly warned about his behaviour towards witnesses which the Panel considered to have a very real possibility of giving rise to intimidation and harassment of witnesses. Some witnesses were discharged after his behaviour became unacceptable because of the risk it posed both to the wellbeing of the witness and the quality of the evidence.
·     The Panel members considered that they had no conflict of interest or bias in this matter notwithstanding a number of abusive remarks directed towards them. While the remarks were in many instances highly offensive, the Panel were aware that this needed to be disregarded in the assessment of the allegations.
·     The Panel provided Mr Crook with assistance before and during the hearing in order for him to be able to present the best possible case and to accede to request, where it was reasonable to do so, which he made as to the running of the matter.

· The Panel determined that it would receive the evidence of Ms Malesevic as had been requested by Mr Crook in support of his case, notwithstanding his withdrawal from the proceeding.[12]
[12]Exhibit GC-15, 43–45.

The plaintiff’s submissions

In summary, the plaintiff relies on four grounds in his application for judicial review:

(a)the use of visually divisive screens grossly affected the plaintiff’s capacity to adequately defend the matter;
(b)in using the visually divisive screens the defendant breached proper practice and the breach was of such a serious nature in relation to proper judicial inquiry and protocol as to render the panel members biased against the plaintiff and unsuitable to perform their judicial responsibilities;
(c)pursuant to s 2.6.48(d) of the Act, ‘the hearing panel is bound by the rules of natural justice’; and
(d)the defendant’s failure to provide a directions hearing in April 2014 prevented the plaintiff from submitting relevant material.

As discussed, the plaintiff did not pursue the fourth ground.

The plaintiff relied on his oral submissions and his affidavits sworn 12 September 2014 and 30 October 2014.

The affidavits contain a mixture of evidence and submissions. There were no objections to the plaintiff’s affidavits or his reliance on them.

It is convenient to set out in some detail the contents of the plaintiff’s affidavit affirmed 30 October 2014:

…
6.On the first day of the ‘hearing’ proper on March 31 I cross-examined the first two witnesses, Mr Chris Pollard and Mr Paul Johns who presented for examination and cross-examination as normal.
7.However, I was prevented on several occasions pursuing a reasonable and appropriate line of questioning with those witnesses.
8.Immediately following such on that same day, counsel for VIT, Mr Rodney Hepburn then made an application to the VIT panel members charged with deciding the matter (Garry Salisbury, Rowland Richardson, Marilyn Mooney) to use a partition type screen to prevent the following witnesses seeing myself and/or vice versa. At that time I recall Mr Hepburn using the word ‘intimidation’ or ‘intimidated’ or some such grammatical construct of that word. I clearly recall that no details whatsoever were provided by Mr Hepburn or other to qualify that alleged assessment in any way.
9.I strenuously and vehemently opposed the use of such but the Panel did not permit me to make submissions regarding my objections to the use of such a screen.
10.The Panel Chairperson, Mr Salisbury, permitted the use of [the use] of the visually divisive screen placed between the witnesses giving evidence and myself as a self-represented defendant.
11.The sound-recorder was fitted in a box directly opposite the witness box between the bench and the bar table then moved across to the witness box and moved a partition screen that was in the room and next to the witness box and placed it in front of the witness box so I could not see the witness and that she could not see me.
12.I remained both completely shocked and highly offended at this gross and indecent act perpetuated by VIT against me in an exercise of justice but was fully unable to process this breach [breech] of proper procedure until I had attempted to cross-examine Ms Bronwyn Gallagher who was the first to be screened.
13.It was a very difficult thing to do to cross-examine somebody in such a context because either party is restricted [form] looking at the other. I was unable to establish eye contact and vice versa. I was unable to make any kind of assessment regarding the witness’s physical reactions to my questions and her behaviour when she responded or not.
14.The initial shock of this physical screening of the witness and me manifested itself in me becoming momentarily breathless and as my cross-examination of Ms Gallagher wore on I became more frustrated then I became very angry indeed.
15.I remember thinking that such use of a screen was completely out of my range of experience as a person who is familiar with judicial proceedings.
16.The Panel members provided no explanation for the use of the screens whatsoever.
17.No argument about the use of the screen was had or allowed.
18.At a point I began to cross-examine Ms Gallagher on her lie that I had called her a ‘dog’ in the supermarket. Ms Gallagher responded, ‘You said it under your breath’. I began to try to solicit the precise meaning of her claim here when Mr Salisbury dismissed Ms Gallagher.
19.Upon seeing citing the mendacious [Mr Gallagher] appear from behind the screen I declared in no uncertain terms that she was a ‘filthy lie’. I realised shortly following precisely why such screens are not used in court proceedings as such use, inter alia, actually creates an unnecessary atmosphere and tension and distress that can lead to such informal outbursts.
20.At that point I determined that VIT deliberately used the partition screen to dehumanise me and make it difficult for me to defend this matter. I determined the use of such was counterproductive to the exercise of justice, and I refuse to participate in the ‘kangaroo court’ as I declared it was, any further and I left the proceedings.
21.I recall that [that] Ms Kym Rouse was being examined at that time.
22.However, I could not be sure that it was Kym Rouse being examined as I did not see her go into the witness box.
23.The appalling manner in which the Panel had dealt with this matter had so disgraced interest in basic tenets of justice in my eyes that I no longer felt that I could be in the same room as them.
24.After contemplating the matter over night and discussing it with a trusted friend and colleague, I decided to draft some written submissions … which I handed personally to VIT the following morning.
25.In these submissions, inter alia, I sought both a disqualification of the Panel and the removal of the screens.
26.Such was no effect and the matter apparently proceeded without me, and my submissions were not addressed in any way.
…
29.The decision refers to the use of screen and justifies the use of a screen with reference to ‘intimidation’. However, no evidence whatsoever is provided by VIT or Mr Hepburn, or the three screened witnesses regarding ‘intimidation’.
30.Indeed, the singular reference pertaining to any kind of ‘evidence’ regarding alleged intimidation occurs at page 24, paragraph 1 of the decision where it was cited that apparently according to Ms Rebecca Conroy, ‘she felt intimidated by him; he was much bigger than her’.
…
32.I was in no way intimidating in regard to the cross-examination of Mr Chris Pollard or Mr Paul Johns.
33.In any case, the proposition that partition screens used to protect the witness being examined seeing one another is a means to counter the intimidation of witnesses under cross-examination is patently absurd and has no reasonable foundation.
34.In the decision … at page 43, the Panel has asserted that ‘Screens are commonly used in Courts and Tribunals …’ which is untrue and is not supported by any example or evidence whatsoever.
35.In the State of Victoria, screens are only generally permitted in the following circumstances:
(a)to shield an alleged victim of rape from the accused, if requested;
(b)for certain ‘vulnerable’-medically certified witnesses;
(c)in certain cases where minors are witnesses.

36.To use such screens in any other circumstances runs contrary to the long established basic and fundamental tenets of our justice system concerning both one’s right to face one’s accuser and the principles of habeas corpus.
37.The right to face one’s accuser is a literal right and is a raison d’etre of our justice system. This principle needs to be kept firmly in check and should only ever be compromised in very particular circumstances such as outlined in paragraph 27[13] here. One may reasonably ask why such a compromise of this principle might end? Could it be permissible for a Panel Chairperson to insist on a litigator wearing a mask or a balaclava, for instance?
38.The principles of ‘habeas corpus’, or ‘bringing a person before the court’ is also a literal requirement. In such mechanisms the screens are used to prevent the litigator and accuser seeing one another, the very necessity of litigators being in the same room at the same time comes into serious question. Indeed, even when it is logistically very difficult to bring a serious accused before the criminal court for a bail application for instance, video-link is often used and it is integral to the proceedings that the accused and accusers (and/or their representatives) can see one another.
39.This principle of human beings facing one another in legal disputes has its foundations in a basic understanding of human psychology as well as such an understanding of the processes for properly gathering and assessing evidence. To alter this in any way apart from those ways specified herein at paragraph 27 risks the matter descending into the chaos that VIT hearing on 31 March, 2014 descended into.[14]

[13]It appears that the plaintiff is actually referring to paragraph [35].

[14]Plaintiff’s affidavit affirmed 30 October 2014, [6]–[39].

The plaintiff expanded upon his affidavits in oral submissions. The plaintiff contended that the defendant’s decision to use the witness screen severely affected his capacity to conduct his defence. The plaintiff submitted that he was unable to properly assess the witnesses’ responses to questions because he was unable to see the witnesses’ facial and body responses. Accordingly, he was put at a disadvantage. The plaintiff said that he felt he would have been assisted in his understanding of the witnesses’ responses if he could have observed them and if they could have demonstrated what they meant. For example, the plaintiff referred to Ms Gallagher’s evidence that he was hypervigilant. The plaintiff submitted that it would have been best if Ms Gallagher could have demonstrated what she meant. The plaintiff referred to the transcript of the formal hearing at page 136 line 15, where Ms Gallagher referred to the plaintiff being hypervigilant. Ms Gallagher said:

… Well, during the interview you were sitting with your hands on your lap and you were moving from side to side. You were very red and you were sweating. You seemed nervous, which people can be in an interview. By hypervigilant I mean you kept going over and over, um, what I perceived to be the same thing, but I thought, well, you were wanting to make sure you knew what the job was…[15]

[15]Exhibit GC-03, Transcript of Proceedings of the plaintiff’s Formal Hearing heard 31 March 2014, 136, LL 14–21.

The plaintiff submitted that he did not know what Ms Gallagher meant by ‘moving side to side’ and that he was not able to ask her to demonstrate.[16]
[16]Transcript of Hearing, 16 April 2015, 33, LL 8–14.

The plaintiff also submitted that he was not able to properly assess the credibility of witnesses because he was not able to see them when they gave evidence.

The plaintiff made a submission to the effect that he had lost his confidence in the defendant after the decision to allow the witness screen. He contended that his behaviour deteriorated after the decision was made on 31 March 2014 to allow the witness screen. He contended that before the decision to use the witness screen was made he ‘did not put a finger out of place despite some rather pathetic accusations from Mr Salisbury …’[17]
[17]Ibid 39 LL1–5.

The plaintiff submitted that after the introduction of the witness screen he lost total respect for the defendant and the matter degenerated into the plaintiff ‘actually throwing verbal rotten tomatoes at the Panel, and the participants and rightfully so’.[18]
[18]Transcript of Hearing, 16 April 2015, 136 LL 7–10.

The plaintiff referred to the fact that the decision to use the witness screen was made ‘without any argument, without any reasons, without any forewarning’.[19]
[19]Ibid 39 LL 13–14.

The plaintiff said that the circumstances in which the decision to use the witness screen was made, traumatised and dehumanised him and resulted in him walking out of the hearing, declaring the defendant corrupt.[20]
[20]Ibid 39 LL 15–26, 41 LL 2–3.

The plaintiff described feeling blindfolded and disabled by the witness screen.[21]
[21]Ibid 40 LL 1–2.

The plaintiff submitted that the defendant’s decision to use the witness screen was made to dehumanise him and make it difficult for him to cross-examine the three witnesses.[22]
[22]Ibid 41 LL 5–6.

The plaintiff also submitted that after he provided his submissions on 1 April 2014, the defendant still failed to make changes. That is, they failed to remove the witness screen, and thereby failed to afford him the opportunity to be present for the remainder of the formal hearing. The plaintiff submitted that the panel members had made up their mind.[23]
[23]Ibid 48 LL 25–6.

Finally, the plaintiff argued that the defendant made its decision to allow the witness screen in the absence of any evidence to support the assertion that he had behaved in an intimidating manner towards the three witnesses.[24]
[24]Ibid 49 LL 5–6.

The defendant’s submissions

The defendant referred to s 2.6.48 of the Act which states in relation to the procedure of a formal hearing:

2.6.48 At a hearing of a hearing panel –
(a)Subject to this Part, the procedure of a hearing panel is in its discretion;
(b)The proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit;
(c)The hearing panel is not bound by rules of evidence but may inform itself in any way it thinks fit; and
(d)The hearing panel was bound by rules of natural justice.
(Emphasis added.)

The defendant submitted that:

(a)as a matter of principle the defendant was entitled to make arrangements to facilitate witnesses giving evidence;
(b)relying on Jarvie v Magistrates’ Court of Victoria,[25] there is no equivalent in Australian law to the right to confront one’s accuser under the Sixth Amendment to the United States Constitution;
[25][1995] 1 VR 84, 88.
(c)relying on the decision of R v Strawhorn,[26] to the extent that there is a right to confront one’s accuser in the court room under Australian law, it ‘is not an immutable right as the very existence of the video-link legislation makes clear. A balancing exercise must be undertaken in which the rights of the accused, particularly to a fair trial, must be balanced against public interest considerations which point to the desirability of utilising the video-link technique. In regard to the latter, the right of a witness to give evidence in an environment free from risk of personal harm must also be placed in the scales’;[27]
[26][2004] VSC 415.
[27]Ibid [3] (Coldrey J).
(d)permission has been given to a witness to give evidence from behind a witness screen in a number of circumstances, such as where it is feared that an accused person will intimidate a witness.[28] It is recognised, however, that the human dimension of presence remains an important ingredient of the criminal trial process;[29]
[28]R v Goldman [2004] VSC 165, [13] (Redlich J).
[29]Ibid [13].
(e)‘The jurisprudence in relation to ‘a right to confront one’s accuser’ exists in respect of criminal trial and does not per se apply to disciplinary proceedings’;[30]
[30]The defendant’s outline of argument, 2 March 2015, [17].
(f)the defendant appropriately made arrangements for the use of a witness screen after observing the plaintiff in the course of the formal hearing to be intimidating and offensive, and after being informed that three witnesses felt intimidated by the plaintiff and were ‘only willing to give evidence behind a screen’;[31]
(g)the use of a witness screen is common in the criminal jurisdiction and has been used in disciplinary proceedings.[32] The function of a witness screen is to protect witnesses and facilitate their giving evidence without the fear of being intimidated. In this case, the witness screen allowed the witnesses’ demeanour and conduct to be observed by the defendant and was justified by the conduct of the plaintiff;
(h)the plaintiff has not put any evidence before the Court that he was disadvantaged by the procedure, other than in his affidavit where he deposes that —
It was a very difficult thing to do to cross-examine somebody in such a context because either party is restricted from looking at the other. I was unable to establish eye contact and vice versa. I was unable to make any kind of assessment regarding the witness’s physical reactions to my questions and her behaviour when she responded or not;[33]

(i)the plaintiff knew the identity of the witnesses and was able to cross-examine them and make submissions about their evidence; and
(j)the plaintiff was not materially or unfairly disadvantaged by the use of the witness screen, in that the panel members had every opportunity to observe the witnesses and draw suitable inferences.

[31]Transcript of hearing 128–9, Exhibit GC-03 to the affidavit of Geoff Coates, 21 November 2014.

[32]B v Disciplinary Tribunal [1994] 1 NZLR 95, 105.

[33]Plaintiff’s affidavit 11 September 2014, [9].

The defendant argued that the plaintiff had engaged in harassing and intimidating behaviour at the formal hearing on 31 March 2014 prior to the application for the witness screen, and it was therefore appropriate to accede to the witness screen application.

The defendant referred to specific examples of the plaintiff’s conduct before the defendant which it is submitted led to the defendant forming the view that the witness screen was appropriate to protect the witnesses. Counsel for the defendant noted that the plaintiff’s conduct in the course of the formal hearing was to be understood in the context of the case, the allegations which concerned inappropriate heckling, intimidating and threatening behaviour. In summary, counsel submitted that prior to the witness screen application the plaintiff:

(a)behaved in a contemptuous manner and used a disrespectful tone towards the defendant;[34]
[34]Transcript 31 March 2014, 81 LL 25–31.
(b)made exuberant and loud protestations when airing his view about matters;[35]
(c)threatened to appeal the defendant’s decision in an apparent attempt to encourage the defendant to do what he wanted;[36]
(d)persisted in asking irrelevant questions in the course of the formal hearing despite the Chairman reminding him that his questions were not relevant;[37]
(e)refused to behave in a proper way before the defendant and was cautioned by the Chairman not to raise his voice;[38]
(f)was not co-operative in the course of the formal hearing in that he talked over witnesses and interrupted witnesses’ responses in the course of cross-examination;[39]
(g)caused Counsel Assisting to make an objection in the course of the formal hearing when the plaintiff was cross-examining Mr Pollard. Counsel Assisting expressed a concern that the plaintiff was harassing the witness;[40]
(h)did not co-operate with the defendant’s directions which ultimately led to the defendant discharging Mr Pollard from the witness box;[41]
(i)engaged in repetitive questioning during his cross-examination of Mr Pollard;[42] and

(j)was at various times intransigent, sarcastic and disrespectful towards the Chairman.[43]

[35]Ibid 82 LL 13–79.

[36]Ibid 82 LL 18–26.

[37]Transcript 31 March 2014, 83 LL 29–31, 84 LL 1–10.

[38]Ibid 84 LL 11–16.

[39]Ibid 84 LL 17–23.

[40]Ibid 85 LL 6–13.

[41]Ibid 85 LL 14–28.

[42]Ibid 88 LL 2–4.

[43]Ibid 89 LL 2–13.

The defendant submitted that in light of the plaintiff’s conduct prior to the witness screen application, along with submissions made in support of that application, it was open to the defendant to allow the witnesses the protection of a screen behind which they would give their evidence. The defendant submitted that it is not obliged to follow formal procedures. Given the defendant’s experience of the plaintiff’s behaviour towards witnesses and panel members, it was entirely understandable that it might readily accept that witnesses were fearful of, and intimidated by, the plaintiff.

The defendant submitted that its obligation was to accord justice to everybody including the witnesses who ought not to be treated in the belittling and intimidating way that the plaintiff had treated earlier witnesses.

Counsel submitted that the defendant had the benefit of hearing the plaintiff and observing his conduct first hand. It was submitted that the defendant was in a superior position to gauge the atmosphere of the hearing, the tone, the loudness, and the offensiveness of what took place, and to evaluate how the plaintiff was likely to behave. In addition, counsel submitted that the defendant had before it the witness statements of the three witnesses. At paragraph 1 of Ms Gallagher’s statement dated 29 August 2013, she asserted that when leaving a supermarket, she was carrying some groceries, and the plaintiff came toward her. She says that she had no time to turn anywhere and that the plaintiff brushed her left shoulder and in a loud whisper said, ‘You are a dog.’ Counsel submitted that while the defendant should not have accepted that that was what took place, the defendant knew that at least one of the three witnesses who sought the protection of a screen would be contending that she had already been abused by the plaintiff.[44]
[44]Transcript 31 March 2014, 93 LL24–27.

Counsel also noted the witness statement of Ms Rouse at paragraph 18, where Ms Rouse characterises the plaintiff’s conduct towards her as rude, aggressive, demanding, intimidating and condescending. Ms Conroy, in her witness statement at paragraph 6, asserts that the plaintiff’s behaviour to the students and Ms Conroy, was intimidatory.

In conclusion, counsel submitted that when the defendant came to make its decision about the witness screen it knew in general terms what was being asserted by each of the three witnesses. The defendant knew that the witnesses were saying that they had experienced the plaintiff’s intimidating and inappropriate behaviour. Counsel for the defendant submitted that the panel members also knew that the three witnesses were only willing to give evidence behind a witness screen. This knowledge was based on an assertion made by Counsel Assisting. Counsel submitted that the plaintiff’s behaviour went beyond being argumentative and repetitive, and included sarcasm, abuse and grossly improper conduct.

The defendant submitted that the erection of a witness screen was not a major restriction on the plaintiff’s capacity to conduct his defence as a self-represented litigant. He was able to ask questions, he knew who the witnesses were, he had their statements and could hear their responses. The only thing the plaintiff could not do was see the three witnesses while they answered his questions. The defendant submitted that a witness screen is a very modest restriction on the capacity of a self-represented litigant to conduct his/her case.

The defendant submitted that the key issue is that as a decision-making body, it was not inhibited in any way. The panel members were able to observe the witnesses.

In terms of the interests of justice, it is submitted that there was no inhibition in respect of the fact-finding body. There was no jury, and the defendant did not need to warn itself not to draw adverse inferences from the presence of a screen. There was a lawyer chairing the formal hearing and the only impediment caused by the screen was the plaintiff not being able to see the three witnesses.

The defendant accepted that the plaintiff could not make submissions in respect of some aspects of demeanour which he might otherwise have been able to make, based on his observations. However, the defendant was able to observe such matters and it is submitted that the defendant would have been mindful of its relative advantage over the plaintiff. The defendant submitted that if the plaintiff actually suffered any disadvantage, it was so minimal as to be negligible.

The defendant submitted that the decision-making body must engage in a balancing exercise recognising that witnesses should not be intimidated and that courts and tribunals ought to take suitable measures to avoid that occurring.

The defendant accepted that the panel members made the decision promptly once the application had been made to erect the screen. It is submitted that the defendant was aware of the plaintiff’s objection. The defendant accepted that no prior notice had been given to the plaintiff about the application.

The defendant agreed that on 1 April 2014 the plaintiff put before it written submissions addressing, amongst other things, the decision to the use the screen. It submitted that it was the plaintiff who chose to cease taking part in the formal hearing and who denied himself the opportunity to develop any arguments he wanted to ventilate on the screen issue before the defendant.

Counsel submitted that in the Reasons at pages 43 and 44 (pages 784 and 785 of the Court Book) the defendant provided an explanation of its attempts to balance fairness to the plaintiff against fairness to witnesses. In summary, it is submitted that this was a discretion available to the defendant at first instance and one that should not be interfered with on appeal in circumstances where the appeal court is denied the advantage of having seen and heard what took place.

On the basis of these submissions the defendant submitted that the plaintiff’s grounds of review one and three must fail.

In relation to the second ground of review, namely that the defendant exhibited bias by reason of the decision made in respect of the witness screen, the defendant submitted that the panel members simply balanced the competing considerations of fairness. Accordingly, the defendant submits there is no proper basis to conclude that the panel members were biased.

Procedural fairness

In the first ground the plaintiff argued that putting up the witness screen was a denial of procedural fairness. In the third ground, he argued that the failure to hear his objection was also a denial of procedural fairness.

Section 2.6.48(d) of the Act says that at a hearing, the hearing panel is bound by the rules of natural justice. So it is clear that procedural fairness applies to the panel/defendant. What remains to be answered is what procedural fairness required in this case.

What procedural fairness entails is flexible and will be determined by what is fair in all the circumstances of the case. As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:

It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.[45]

[45](2006) 228 CLR 152, [26].

The content of the requirement of procedural fairness will also vary in accordance with the character and function of the decision-maker.[46]
[46]Robb v Chief Commissioner of Police [2005] VSC 310, [29].

In Jeray v Blue Mountains City Council Allsop P said:

At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court. A sharp line between rules and consequences cannot be drawn in this respect. Analogies of the rules of the game and how the game is played may be helpful at one level, but ultimately each circumstance has to be analysed and evaluated to see whether, in a human context, a fair hearing has been provided.[47]

[47][2010] NSWCA 367, [6]. (Emphasis added.)

The circumstances of this particular case include that the plaintiff was self-represented. Allsop P described the difficulties faced by self-represented litigants as follows:

Litigants reflect the community in general. They come in a variety of forms. Those who seek to represent themselves are one of those types of litigants. Litigants who represent themselves may do so for many reasons: lack of funds, inability to obtain assistance, for whatever reason, a personal desire to participate. The reason does not matter. One consequence of people appearing for themselves is that they suffer the dual strain of being both litigant and advocate. All who have undertaken the strain of advocacy understand the strains involved in one task. The combined role must be doubly stressful.[48]

[48]Jeray v Blue Mountains City Council [2010] NSWCA 367, [8].

Allsop P went on to warn against unthinkingly indulging any whim of a self-represented litigant, and to explain that the balance to be struck between fairness, procedural rigour, and wise and practical indulgence in managing any given case, may be a fine one, about which minds can differ.[49] This last point was demonstrated by the 2:1 split in that case.
[49]Ibid [9]-[11].

Although cross-examination is often required by procedural fairness, there are cases where procedural fairness has been found not to require that parties be given an opportunity to cross-examine. For example, in O’Rourke v Miller, Gibbs CJ, with whom Mason and Dawson JJ agreed, said:

Even when there is a hearing before a tribunal it does not follow that a person affected necessarily has a right to cross-examine witnesses … Natural justice does not require the application of fixed or technical rules; it requires fairness in all the circumstances.[50]

[50](1985) 156 CLR 342, 353.

In this case, however, it was not in dispute that the content of the hearing rule included a right of the applicant to cross-examine witnesses. The critical question here is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the particular circumstances of this case?[51]
[51]Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J, 585.

Ground one

The plaintiff’s first ground of appeal is that by erecting the witness screen the defendant denied him procedural fairness. The plaintiff argued that the right to face one’s accuser should only be compromised in very particular circumstances,[52] and none of those circumstances existed in this case. The plaintiff said that in Victoria ‘screens are only generally permitted’ to ‘shield an alleged victim of rape from the accused’, for certain ‘vulnerable’ – medically certified witnesses, or for minors. According to the plaintiff, to use screens in any other circumstances ‘runs contrary to long-established basic and fundamental tenets of our justice system’.
[52]In para [37] of his affidavit affirmed 30 October 2014 the plaintiff said those particular circumstances are outlined in para [27] of the same affidavit. The correct reference appears to be para [35].

He contended that the screen severely affected his capacity to conduct his defence because he could not see the witnesses’ visual and body language, and he was therefore put at a disadvantage.

The defendant relied on s 2.6.48(a) of the Act, which provides that the procedure of a hearing panel is in its discretion, and s 2.6.48(c) which provides that the hearing panel is not bound by rules of evidence but may inform itself in any way it thinks fit.

Section 2.6.48 appears to give the panel the power to decide to use witness screens. Further, the authorities recognise that witness screens are appropriate in certain circumstances.

The history of the right to confront one’s accusers was explained by Slicer J in Kerrison v Buxton, a case considering video link evidence in criminal trials, as follows:

Until the 15th Century, the modern witness was virtually unknown in jury trials and remained rare into the 16th Century. The jury fulfilled the double capacity of finders of fact and witnesses using their own knowledge and making their own enquiries before trial. A witness who came forward on behalf of a party was susceptible to an action for maintenance of the particular case. A witness compelled by order was not so susceptible. The Statute of Elizabeth 1562 - 1563, 5 Eliz I, c 9, provided for the compulsory attendances of witnesses, it being regarded as a duty, although it appears that Crown witnesses in criminal cases were required to attend by Royal Prerogative at an earlier time. The right to confront or cross-examine a witness came to be accepted. Given that non-verbal testimony was also important, the physical presence of the witness before the fact finder was significant and preferred to depositions taken before trial. From that time, with some exceptions, the common law required that a witness be physically present in the courtroom and be in the presence of an accused person at the time of giving testimony. Agreed matters could be placed before the tribunal by virtue of statutory provision, such as those contained in the Evidence Act 1910 (‘the Act’), s 109, s 113A. Further statutory provisions permitted the tendering of testimony by an absent or deceased person (the Act, s 81C, s 81D, s 81K, s 81N), although the rights of an accused remained protected (the Act, s 81C(2)). But absent statute or with limited exception such as secondary evidence of a ‘dying declaration’, the law required the physical presence of the witness. Technology has enabled the transmission of the image and voice of a witness to be received from elsewhere and Parliaments have enacted legislation to permit such use of technology. But the human dimension of presence remains an important ingredient of the criminal trial process and convenience or economics ought not be the primary factors in any decision to use technological methodology. Its use ought be subject to consideration of fairness and the effect of presence. Parliaments have attempted to achieve a balance of competing interests in the various legislature schemes.
…
… But the central tenet remains. A person charged with criminal conduct is entitled to confront in person the accusers, whilst the criminal justice system maintains the methodology of oral testimony. Parliament might modify the process but, accepting the needs of young or vulnerable persons by a special process of exemption, there remains a need that a person, subject to sanction, be enabled to confront the accuser. Technology or convenience ought not supplant the human dimension, unless Parliament determines otherwise.[53]

[53](2000) 9 Tas R 276, [8], [22]. (Citations omitted.)

The common law has admitted exceptions to the general practice of witnesses giving evidence in the presence and view of the accused. These exceptions tend to apply to vulnerable witnesses such as children, victims of sexual offences, and people with intellectual or special disabilities. Contrary to the plaintiff’s arguments, the list of witnesses in respect of whom alternative arrangements may be made is not closed.[54] The power of the Supreme Court to make alternative arrangements for the giving of evidence may come from statute or the Court’s inherent jurisdiction.[55]
[54]See for example the breadth of s 360 of the Criminal Procedure Act 2009 (Vic), which states that the ‘court may direct that alternative arrangements be made for the giving of evidence by a witness’.
[55]R v Lodhi [2006] NSWCCA 101, [35] (McClellan CJ at CL, with whom Spigelman CJ and Sully J agreed).

The New South Wales Court of Criminal Appeal in R v Ngo (Stein JA, Sully and Levine JJ) noted that there are many examples of courts adopting procedural measures that depart from the traditional concept of the ‘right of confrontation’, and that some of those examples are based on the interests of the administration of justice, while others are based on the need to protect witnesses.[56] The right to confront one’s accusers is a fundamental yet not absolute right.[57] Misconduct of the accused can lead to waiver of the right, and various pieces of legislation that erode the right have been enacted. Those pieces of legislation seek to accommodate the rights of the public, witnesses, and the accused.[58]
[56](2003) 57 NSWLR 55, [82] (‘R v Ngo’).
[57]R v Ngo, [118]–[120].
[58]Ibid [83].

The ability of a court or a tribunal to make special arrangements for the giving of evidence is not limited to particular categories of vulnerable witnesses. Here the witnesses were adults and they were not alleging that the plaintiff had committed any sexual or violent offences against them. There was no evidence that they suffered from any special disability. Nevertheless, the circumstances may have justified the making of the special arrangements for those witnesses to give evidence, despite the resulting difficulties to the plaintiff. It all depends on the circumstances of the case.

In my view, the defendant had the power to order that witness screen be used. That power arose under s 2.6.48(a) and (c) of the Act. Under those provisions, the defendant had the discretion to determine how cross-examination would be conducted. The defendant exercised that discretion to impose a restriction on the cross-examination of three witnesses, in the form of a witness screen.

The fact that the defendant decided to put in place the witness screen does not amount to a denial of procedural fairness. This is because the defendant had the power to order that the screen be erected, and the fact that the power was exercised did not deny the plaintiff procedural fairness. I accept that the witness screen may have put him at a disadvantage, but they did not amount to a denial of procedural fairness.

As will be discussed below in the context of ground three, the disadvantage caused by the screen was a factor to be considered by the defendant when determining whether to put up the screen. As long as the defendant considered that prejudice and the interests of the plaintiff, along with the other relevant factors, when deciding to erect the witness screen, then this Court cannot, when conducting judicial review of the defendant’s decision, impeach the defendant’s ultimate decision on the basis that it would have reached a different decision on the witness screen application. I do not understand the plaintiff to be arguing in this appeal that the defendant’s decision to put up the screen was bad for Wednesbury unreasonableness.

Ground one must therefore fail.

Ground three

In this ground, the plaintiff challenges the process by which the defendant decided to put up the witness screen.

There are several authorities that discuss the proper approach to determining applications for special arrangements for the giving of evidence.

The proper process for considering an application for witness screens to be used in criminal and civil proceedings was considered by the Full Court of the South Australian Supreme Court in Question of Law Reserved (No 2 of 1997).[59] Doyle CJ, with whom Cox and Williams JJ agreed, considered the application of s 13 of the Evidence Act 1929 (SA), which provided:
[59](Unreported, Supreme Court of South Australia Court of Criminal Appeal, Doyle CJ, Cox and Williams JJ, 26 February 1998).

13.(1) If it is practicable and desirable to make special arrangements for taking evidence from a witness in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of a courtroom, or for any other proper reason, the court should, subject to subs(3) and subs(4), order that special arrangements be made for taking the evidence of that witness.
(2) The Court may, for example, make orders of the following kinds:
(a) an order that the evidence be given outside the courtroom and transmitted to the courtroom by means of closed circuit television;
(b) an order that a screen, partition or one-way glass be placed to obscure the witness’s view of a party to whom the evidence relates or some other person;
(c) an order that the witness be accompanied by a relative or friend for the purpose of providing emotional support.

(3) An order must not be made under subs(1) if the order would prejudice any party to the proceedings.

(4) An order must not be made under subs(1) if its effect would be -
(a) to relieve a witness from the obligation to take an oath;
(b)to relieve a witness from the obligation to submit to cross-examination; or
(c) to prevent the judge, or (in the case of a trial by jury) the jury, from seeing and hearing the witness while giving evidence.

(5) If the effect of an order under subs(1) would be to prevent the defendant in criminal proceedings from seeing and hearing a witness while giving evidence, the order may only be made if there is no other practicable way to protect the witness.
(6) If a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the parties, the judge and (in the case of a trial by jury) the jury while the witness is giving evidence.
(7) If, on a trial by jury, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
(8) An order under this section may be made, varied or revoked on the court’s own initiative, or on the application of a party or witness.
(9) If evidence is to be given in criminal proceedings by a vulnerable witness, the court should, before evidence is taken in the proceedings from the witness, determine whether an order should be made under this section.
(10) In subs(9) —
‘vulnerable witness’ means —
(a) a witness who is under 16 years of age;
(b) a witness who suffers from an intellectual disability,
(c) a witness who is the alleged victim of a sexual offence to which the proceedings relate; or
(d) a witness who is, in the opinion of the court, at some special disadvantage because of the circumstances of the case, or the circumstances of the witness.

Doyle CJ said that when deciding whether to order special arrangements for the taking of evidence:

In my opinion a court is empowered to decide an application under s 13 on such material as the court sees fit. That material need not be evidence, nor need it be material that would be admissible as evidence in the proceedings. In the usual case the court can decide an application, and should be able to decide an application, on the basis of information provided orally by counsel. In an exceptional case, the court might require some material, such as a written report, to substantiate a need attributed to a witness. In some cases, the court might be assisted by asking the witness a few questions, not on oath, for which purpose the witness might be placed close to the bench, just as some judges question potential jurors seeking an exemption from jury service.
I stress, that the procedure to be adopted is for the court to decide. However, I would anticipate that, particularly in the case of a witness such as a child, it would rarely be necessary to go beyond the information provided by counsel, because applying everyday experience and common sense, that information should be sufficient for the court to decide the application.
The court should not allow the consideration of an application under s 13 to cause a significant interruption to the flow of the case in which the matter arises. Of course, the court must hear submissions from both parties. But the decision is not to be made after some kind of mini trial or enquiry in which each side advances material and tests it.
In my opinion, in the usual case, having heard both counsel briefly, the court should decide an application by acting upon a plausible and reasonable request. The court does not have to embark upon an enquiry and come to a conclusion on the balance of probabilities. It is sufficient that the request is plausible and reasonable. In an exceptional case, opposition to the making of an order might persuade the court that some further information or explanation should be provided. Opposition to the making of an order might persuade the court that it is not desirable to make the order. Everything would depend upon the circumstances. But the section is to be applied expeditiously, and without significant interruption to the flow of the case, and also without protracting the pre-trial procedures, should it arise at that stage.
…
It follows that when common sense suggests to the court that the application is plausibly made, while the court must hear any opposition, the order will usually be made without any further enquiry, unless the reasons for any opposition to the order cause the court to have some doubts …[60]

[60]Emphasis added.

As to s 13(3), Doyle CJ said the prejudice must be more than that necessarily involved in the making of the order, and that it was difficult to identify circumstances where the prejudice would meet that threshold. His Honour gave a one-way screen between witness and accused as an example of a measure that has little potential to prejudice the accused.

Doyle CJ emphasised again that ‘the court must consider the request and any arguments put in opposition to the request’. His Honour explained that the party objecting to the special arrangements need not show that he/she would be prejudiced by those arrangements, because he/she may rely on other reasons to persuade the court not to make the special arrangements.

In R v Ngo[61] the New South Wales Court of Criminal Appeal considered s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), which allowed evidence to be given by audio link or audio visual link. Subsection (3) provided that if a party opposed such arrangements, the court must not make the order/direction unless satisfied that it is in the interests of the administration of justice to do so. The trial judge had decided that it was in the interests of the administration of justice to make the order because the witnesses’ fears were genuine and the witnesses would probably not have given evidence in the murder trial were the order not made. Under the order, evidence was to be given by audio-visual link, but the accused was not permitted to see the screen.
[61](2003) 57 NSWLR 55.

Their Honours noted that the trial judge was in a superior position to assess whether the witnesses’ fears of the accused were genuine and whether the witnesses would not give evidence without the special arrangements. When it came to considering any unfairness to the accused, the Court held that the trial judge’s order did not mean the accused would not have a fair trial. This was because the accused’s legal representatives could still view the screen, and the accused’s ability to instruct counsel was not affected (despite what the accused said).[62]
[62]R v Ngo [108]-[113].

On the meaning of ‘in the interests of the administration of justice’, the Court said:

… Where a party opposes a direction being made, the court ‘must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so’. This places an onus on the prosecution, which made the subject application, to so satisfy the court. The phrase, ‘in the interests of the administration of justice’ is a broad one and not susceptible to precise definition. The particular context of the use of the phrase will provide assistance as to its content. In the subject context it must include the impact on the parties and the trial of making or not making the direction. This involves assessing the impact on the fairness of the trial for the accused. It also involves the issue of the fairness to the witnesses and to the Crown. There may be many things which can be said to be relevant to the interests in the administration of justice. Some will be interests of the accused, some of a witness, some of the Crown and some of the general community or the public interest in a fair and efficient system of criminal justice. However, what appears to be required is a balancing of these interests.[63]

[63]Ibid [124].

The Court of Appeal held that the trial judge carried out a discretionary balancing of the relevant considerations and his decision did not involve appellable error. The trial judge clearly balanced the unfairness to the accused against the fears of the witnesses and the probability that they would not give evidence if the direction were not made, and his conclusion that the interests of the administration of justice required that the order be made, was legitimate.[64]
[64]Ibid [126].

In R v Lodhi[65], the Attorney-General and ASIO sought protective orders that screened ASIO witnesses from the accused’s view. Whealy J said that in determining the application the Court was required to:

… conduct a balancing and weighing exercise in relation to a number of strongly competing considerations. These include the protection of national security; the right of the prosecutor to place before the jury evidence in support of its contention that the accused is guilty of the charges brought against him; the principles of open justice and, importantly, the accused’s right to be tried fairly. The Court’s ultimate task is to come to a discretionary decision in relation to the imposition of protective orders and, if so, the extent to which such orders should be made. The considerations I have identified, as might be expected, pull strongly in different directions.[66]

[65][2006] NSWSC 596. An appeal from this decision was dismissed in R v Lodhi [2006] NSWCCA 101.

[66][2006] NSWSC 596, [6]. See also [27] and [56].

In respect of the interests of the accused, Whealy J said:

… it is important to bear in mind, that although an order which deprives the accused of a face to face confrontation with the relevant witnesses involves some unfairness, there is a need to determine the degree extent and effect of that unfairness. There can be no doubt that an accused person has a fundamental right to a fair trial and a direction should not be made if that means an accused could not have a fair trial. On the other hand a fair trial does not mean a perfect trial (free from possible detriment or disadvantage of any kind or degree to the accused).[67]

[67]Ibid [58]. (Citations omitted.)

Finally, in Mills v Hendriksen[68] the Supreme Court of Western Australia held that a magistrate had erred in ordering that a witness’ evidence be given by video link, because the magistrate had not heard from the accused.[69] It did not appear that the magistrate undertook the necessary balancing of interests or was properly satisfied that the order was in the interests of justice, as required by the provision providing for such an order to be made. The magistrate had failed to weigh up all the relevant factors.
[68][2008] WASC 79.
[69]Ibid [169], [172].

Other cases have also emphasised the task of balancing the disadvantage to the witness and the prejudice to the accused.[70]
[70]R v West [1992] 1 Qd R 227, 231 (Thomas J, with whom Moynihan and Ambrose JJ agreed); R v Sparkes (1996) 6 Tas R 178, 199-200.

Although each of the aforementioned cases consider the application of legislation that does not apply here, the principles of balancing competing interests are relevant. In each case the court emphasised that the interests of the accused/defendant/respondent must be balanced with the interests of the witnesses, the prosecution, and the public. The order to allow the witness screen did affect in a direct way the plaintiff’s rights or interests and accordingly the decision making process had to be conducted fairly. The plaintiff’s interest in this case was his professional reputation and ability to earn a living. What is necessary is to identify the content of the obligation to conduct the process in a fair manner.

In the circumstances of this case, procedural fairness required that when the application for witness screens was made, the defendant hear from Counsel Assisting, and then hear any objections from the plaintiff. Depending on what the plaintiff said when objecting, the defendant may have been required to investigate further the witnesses’ reasons for wanting a screen. Further investigation may have involved asking Counsel Assisting for more information, or asking for affidavits from the witnesses, or speaking to the witnesses. Depending on the plaintiff’s objection, procedural fairness may also have required the defendant to consider alternative protections for the witnesses that would have been less restrictive of the plaintiff’s cross-examination, such as a one-way screen that allowed the plaintiff to see the witnesses.

I turn now to what occurred at the formal hearing.

At the formal hearing, when Counsel Assisting applied for the use of witness screens, the plaintiff said ‘I object to that absolutely’. The defendant did not respond. Instead, it asked Counsel Assisting to outline the application. After Counsel Assisting gave a brief outline, saying that three witnesses had intimated that they were only willing to give evidence behind a screen and that they felt intimidated by the plaintiff, the Chairman indicated that the defendant agreed to the request. From the transcript it does not appear that the Chairman consulted the other panel members.

The plaintiff pointed out to the defendant that he had not been given a chance to comment on the application, and then said ‘this is utterly outrageous’. The Chairman said ‘We’ll make a note of that’.

The defendant argued that when making the decision to erect the screen, it was aware of the plaintiff’s objection. In my view, this overstates the defendant’s awareness. The defendant was aware that the plaintiff objected, however, without having heard the plaintiff’s objection, the defendant was unlikely aware of the nature of the objection. Put another way, the defendant was aware of the fact of objection, but not the substance of the objection.

It follows that the defendant failed to hear the plaintiff’s objection to the application for witness screens, and thereby denied the plaintiff procedural fairness.

Hearing the plaintiff’s objection was all the more important in this case because he was self-represented. In most cases where screens are used, they screen the witness from the view of the accused. They do not screen the witness from the view of the cross-examiner. In this case, the screen obstructed the cross-examiner’s view of the witnesses, because the plaintiff was both defendant and cross-examiner. Courts have tended to erect screens after holding that the screen causes little prejudice to the accused, because their legal representatives can still see the witness. The screen in this case had a greater potential to prejudice the interests of the plaintiff, and he was not given the opportunity to explain this to the defendant.

In its written reasons the defendant addressed the plaintiff’s objection, which he had put in writing and submitted the day after the screen had been erected. The defendant argued that in those reasons it sought to balance fairness to the plaintiff with fairness to the witnesses. By the time the defendant conducted this balancing process, the decision to erect the screen had already been made. The balancing exercise was conducted to justify the decision, rather than to reach the decision.

The balancing must be done when deciding whether or not to put up screens. When that decision was made, the plaintiff had not been given an opportunity to articulate his objection, and therefore the defendant could not have adequately considered the interests of the plaintiff when conducting the required balancing exercise.

I also question the extent to which the defendant critically assessed the concerns/fears of the witnesses, and the extent to which the defendant simply assumed the nature and severity of those fears based on its own observations of the plaintiff. The defendant submitted that it had been communicated to it that the witnesses were only willing to give evidence behind a screen. In fact, Counsel Assisting said the witnesses had ‘intimated’ to that effect. The defendant did not seek to clarify further whether the witnesses were adamant, or whether lesser restrictions would have allayed their fears.

I note that the defendant submitted it exercised its discretion to determine whether to put up the screen, and that this decision should not be interfered with on appeal in circumstances where the appeal court is denied the advantage of having seen and heard what occurred below. The defendant argued that a mere procedural issue may not constitute a proper basis for certiorari, and cites Brimbank Automotive Pty Ltd v Murphy[71] in support of this proposition.
[71][2009] VSC 26 (Brimbank), [11].

It is true that the defendant was better placed to assess the witnesses’ fears and the potential prejudice to the plaintiff. However, by not giving the plaintiff the opportunity to make his objection to the use of the screen, the defendant erred in the exercise of its discretion, and orders in the nature of certiorari are therefore available. As to the argument that it was a mere procedural issue, the case cited does not support the argued-for proposition. In Brimbank the plaintiff sought judicial review of a magistrate’s decision to refuse an adjournment. The decision to refuse the adjournment was a discretionary interlocutory decision. Kaye J warned against interfering with such decisions, but did not say that orders in the nature of certiorari may not lie against ‘procedural issues’. In this case, the decision under review was a final determination by the defendant, and was not a procedural or interlocutory decision. The plaintiff relied on a procedural matter in his judicial review proceeding, but he is not challenging a mere procedural decision.

The defendant raised an argument that the key issue was that the decision-making body, the defendant, was not inhibited in any way by the screen. This argument must be rejected. The hearing process was adversarial. Evidence is tested by cross-examination. To the extent that the screen impeded the plaintiff’s ability to cross-examine the witnesses, the defendant was correspondingly inhibited in its fact finding role. In any event, the defendant being able to see the witnesses does not alter the fact that the plaintiff was denied the opportunity to make his objection, and was thereby denied procedural fairness.

It is unnecessary for me to consider whether relief should be refused on the basis that had procedural fairness been accorded to the plaintiff, the result would have been the same and the witness screen would have been erected. Quite rightly, the defendant did not argue that had the plaintiff been allowed to make submissions when objecting to the use of witness screens, the result would have been the same. Had the defendant so argued, the plaintiff’s bias claim may have been stronger. Rather, the defendant’s argument in this Court was that the screen did not materially or unfairly disadvantage the plaintiff. As to the process by which the defendant decided to put up the screen, the defendant simply argued that it had considered the witnesses’ concerns, the nature of their evidence, and the behaviour of the plaintiff in the hearing so far. The defendant did not argue that it had considered the plaintiff’s position in balancing the relevant interests before the decision to erect the screen was made.

In my view, the plaintiff was denied procedural fairness because the defendant did not allow him to articulate his objection, and the defendant fell into jurisdictional error. The duty to act fairly where a body such as the defendant exercises a power will be readily inferred when the decision impacts upon the rights, interests and expectations of the person, the subject of the decision. I consider the nature of the infringement of the plaintiff’s right to make submissions and for those submissions to be considered before making an order, may have had a significant impact on the executor of the order to allow the witness screen and as such the procedural fairness rule in the circumstances of this case require a right to be heard prior to the order being made. The plaintiff succeeds on ground three.

Ground two

The plaintiff appears to assert that the defendant, by its decision to allow the witness screen, exhibited actual bias. Ground 2 states that: ‘ … in using a more visually divisive screen … as to render the panel members clearly extremely bias against the plaintiff and unsuitable to perform such judicial responsibilities’.

Clearly fair play demands that the defendant hearing the application for the witness screens be unbiased, and that the defendant require adequate evidence of matters that have to be considered before an order is made. However, actual bias requires proof as to the mind of the decision-maker. A court will only find actual bias if satisfied that the decision maker approached an issue with a closed mind. The decision maker must be shown to be unwilling or unable to decide the issue impartially and not amenable to persuasion by any evidence that might be led.[72] Such a finding will be made only with extreme caution.[73] Cogent evidence is required.[74]
[72]Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, 551–2.
[73]Ibid.
[74]Zaltni v Minister for Immigration and Multicultural Affairs [2000] FCA 399, [59].

The plaintiff did not put before the Court any cogent evidence in support of ground 2. There is no substance to the plaintiff’s assertion that there was actual bias by reason of the defendant’s decision to utilise the witness screen. Ground 2 must therefore fail.

Conclusion

For the reasons set out above, I am not satisfied that the plaintiff was denied procedural fairness by the defendant’s ’s decision to allow the witness screen (ground 1).

I do not consider the defendant’s ’s decision to allow the witness screen constitutes actual bias (ground 2).

I do however consider the plaintiff was denied procedural fairness because the defendant did not allow him to articulate his objection to the use of the witness screen (ground 3).

In the amended originating motion dated 12 September 2014, the plaintiff seeks an order quashing the defendant’s ’s decision made on 14 July 2014. The defendant made two findings; the first on 28 April 2014, in which the defendant made a finding of serious misconduct and unfitness to teach against the plaintiff and the second on 14 July 2014, in which the defendant made its penalty decision. If the plaintiff only seeks certiorari in respect of the 14 July 2014 penalty decision then the finding of serious misconduct remains standing and he cannot have the matter remitted to be heard again.

It is clear from the relief sought in the amended originating motion and the plaintiff’s submissions that what he seeks is certiorari in respect of both the 28 April 2014 and 14 July 2014 decisions.

Accordingly, I make the following orders:

(a) the Court orders that the defendant’s 28 April 2014 and 14 July 2014 decisions and orders are set aside; and

(b) the proceeding be heard and decided again, by the defendant and the defendant is not to be constituted for the rehearing by the same members who made the original orders.

I will hear the parties on costs.

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[2015] VSC 208

20 May 2015