Griffiths v Secretary of the NSW Department of Education; Dennaoui v Secretary of the NSW Department of Education

[2017] NSWSC 1012

Supreme Court

New South Wales

Medium Neutral Citation:

Griffiths v Secretary of the NSW Department of Education; Dennaoui v Secretary of the NSW Department of Education [2017] NSWSC 1012

Hearing dates:

31 July 2017

Date of orders:

31 July 2017

Decision date:

31 July 2017

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

In proceedings 2017/164805 and 2017/164816:

 

(1) Order that proceedings 2017/164805 and 2017/164816 be heard together and that the evidence in one proceeding be evidence in the other, pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW).

 

(2)   Order that the proceedings be adjourned to 20 October 2017 for mention before me at 9.15am.

 

(3)   Reserve the costs of the defendant’s notice of motion filed on 13 June 2017.

 

(4)   Grant liberty to apply on 3 days’ notice.

 

In proceedings 2017/164805:

 

(5)   Note the defendant’s undertaking that the position of Principal, Punchbowl Boys High School will not be permanently filled until the final determination of this proceeding (2017/164805) or until further order of this Court.

 

In proceedings 2017/164816:

 (6)   Note the defendant’s undertaking that the position of Deputy Principal, Punchbowl Boys High School will not be permanently filled until the final determination of this proceeding (2017/164816) or until further order of this Court.

Catchwords:

PRACTICE AND PROCEDURE – adjournment application – question of legality of transfer under s 51A of Teaching Service Act 1980 (NSW) which was effected prior to giving of direction as a result of disciplinary investigation – whether proceedings may be of limited utility – where disciplinary investigation ongoing – whether public interest in resolving construction of s 51A ought override matters in favour of adjournment – HELD – adjournment desirable in the interests of justice as factual questions, including discretionary matters relevant to whether declaration ought be granted, could be affected by outcome of disciplinary investigation ­– public interest in early determination of pure question of construction does not override factors in favour of granting adjournment

Legislation Cited:

Civil Procedure Act 2005 (NSW), Part 6, s 58
Teaching Service Act 1980 (NSW), s 51A, Pt 4A
Uniform Civil Procedure Rules 2005 (NSW), rr 28.5, 59.10

Category:

Procedural and other rulings

Parties:

Christopher Griffiths (Plaintiff)
Joumana Dennaoui (Plaintiff)
Secretary of the New South Wales Department of Education (Defendant)

Representation:

Counsel:
C Howell (Plaintiffs)
R Lancaster SC/M Easton (Defendant)

  Solicitors:
New Law (Plaintiffs)
Minter Ellison (Defendant)

File Number(s):

2017/164805, 2017/164816

Judgment

Introduction

1. Christopher Griffiths, the plaintiff in proceedings 2017/164805, was the Principal of Punchbowl Boys High School. Joumana Dennaoui, the plaintiff in proceedings 2017/164816 was the Deputy Principal of the Punchbowl Boys High School. By letters dated 2 March 2017 Murat Dizdar, on behalf of the defendant, purported, pursuant to s 51A of the Teaching Service Act 1980 (NSW) (the Act), to transfer Mr Griffiths to the Ringrose office, located at the Ringrose Public School and to transfer Ms Dennaoui to the position of Deputy Principal of Casula High School.

2. Correspondence ensued between the plaintiffs (via their union and their solicitors) and the defendant concerning the legality of the transfer. On 8 May 2017 the defendant wrote to both plaintiffs and informed them that allegations had been made that they may have engaged in misconduct, as a result of which investigations had been commenced. Mr Griffiths was directed to “alternative duties” pending the outcome of the investigation or until further notice and told not to enter the grounds of Punchbowl Boys High School for any reason without approval. A letter in similar terms was sent to Ms Dennaoui.

3. Each plaintiff commenced proceedings in this Court by filing a summons on 1 June 2017. The relief sought includes a declaration that the purported transfer on 2 March 2017 was void and of no effect (prayer 1); in the alternative, an order quashing the defendant’s decision to remove the plaintiff from his or her position with effect from 2 March 2017 (prayer 2); and an order that the defendant take no steps or no further steps in reliance on its decision purporting to remove each plaintiff from his or her position with effect from 2 March 2017 (prayer 3).

The defendant’s notice of motion

4. In each proceedings, the defendant has, by notice of motion filed on 10 July 2017, sought the following orders:

1. That proceedings numbered 2017/00164816 and 2017/00164805 be heard together and that the evidence in one proceeding be evidence in the other, pursuant to Rule 28.5 of the Uniform Civil Procedure Rules 2005 (NSW).

2. That, pursuant to section 66 of the Civil Procedure Act 2005 (NSW), the proceeding be adjourned until further directions on a date convenient to the Court not before 14 August 2017.

3. That the defendant is not required to comply with Rule 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) to provide a statement of reasons until further direction.

4.    That the Court notes the defendant's undertaking that the position of Principal, Punchbowl Boys High School, will not be permanently filled until the final determination of this proceeding (2017/00164816) or further order of the Court.

5. The principal contest arises from prayer 2 of the notice of motion. The first prayer is consented to. The third prayer is now otiose, statements of reasons having been provided by the defendant in respect of each plaintiff.

The defendant’s submissions

6. The defendant, for whom Mr Lancaster SC and Mr Easton appeared, contended that it would be in the interests of justice for these proceedings to be adjourned since, if they were not, the proceedings may prove to be of limited utility and the Court’s discretion whether to grant the relief sought would potentially be affected by matters which had not yet been determined. He relied on the provisions of Part 6 of the Uniform Civil Procedure Act 2005 (NSW) and contended that the principles of case management articulated in that part tended in favour of the granting of the adjournment.

7. The defendant accepted that prayers 1 and 2 gave rise to a free-standing legal question. However, he contended that the questions whether the substantive relief in prayer 3 ought be granted; or, if the invalidity of the purported transfer under s 51A of the Act could be established, the discretion to grant declaratory relief in terms of prayer 1 ought be exercised, turned on factual questions which could only be determined once the disciplinary investigation had concluded. Mr Lancaster argued that it would not be in the interests of justice for this Court to proceed to determine the matters raised by the summons in a partial vacuum, particularly where there was a real prospect that the position of the plaintiffs would not be materially affected by the outcome of the proceedings, since there is no challenge to the validity of the directions made in respect of each of them on 8 May 2017.

8. Mr Lancaster sought to distinguish the present case from one in which, for whatever reason, the relief sought by a plaintiff was purely hypothetical for that plaintiff but potentially of benefit to others. He submitted that, if, for example, the plaintiffs had decided to resign from the teaching service after an invalid transfer, they might still prosecute the proceedings since they would have standing, as persons who had been the subject of a purported transfer under s 51A of the Act (which confers a general power on the Secretary of the defendant to transfer employees), to seek declaratory relief. In that event, the Court would, when it decided the validity of the transfers, know what the plaintiffs’ positions were. In that event, if this Court found the transfers to be invalid, it would be in a position to decide whether to exercise this Court’s jurisdiction to grant declaratory relief by reference to actual facts rather than speculation. He contrasted this example with the present case when it could reasonably be expected that, unless the proceedings were adjourned, this Court would determine the summons prior to the completion of the disciplinary investigation, when many factual matters would remain uncertain.

9. Mr Lancaster also relied on the circumstance that the plaintiffs had not commenced these proceedings until 1 June 2017, just before the time limit of three months stipulated in Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1). He contended that the degree of expedition with which the parties had approached the proceedings was a relevant consideration by reason of s 58(2)(b)(ii) of the Civil Procedure Act

The plaintiff’s submissions

10. The plaintiffs, for whom Ms Howell appeared, opposed the adjournment of the proceedings pending the disciplinary investigation. She contended that, irrespective of the outcome of disciplinary proceedings, the plaintiffs were entitled to have their claim for relief determined. She submitted that the plaintiffs’ challenge to the validity of the decisions made on 2 March 2017 under s 51A of the Act was confined to what was known, and relevant, at or prior to that date and would not be affected by any subsequent events. Thus, she contended that the plaintiffs’ argument, that Part 4A of the Act (entitled “Management of conduct and performance”) formed a code which excluded the general power of transfer under s 51A, could not, as a matter of logic, be affected by the subsequent investigation. She submitted that the plaintiffs would argue at the substantive hearing that the defendant had, in the present case, exercised his power under s 51A on 2 March 2017 for disciplinary reasons and that the purported transfer was invalid on that basis. She submitted that this proposition could be made good by contemporaneous material up to that date and that subsequent events were irrelevant.

11. Ms Howell contended that the plaintiffs had a strong personal interest in the outcome of the proceedings. She argued further that if the plaintiffs were completely exonerated by the disciplinary investigation they ought not to have to wait for a further period pending the determination of these proceedings. Ms Howell also contended that the questions raised by the plaintiffs affected all teachers employed by the defendant in New South Wales. Ms Howell also submitted that it was undesirable that questions of such significant public importance (such as whether s 51A of the Act includes an obligation of procedural fairness and whether Part 4A of the Act is a code which excludes the power of transfer under s 51A) be left uncertain for a lengthy period.

12. In response to the defendant’s submission about the timing of the commencement of the proceedings, Ms Howell relied on the narrative as to the steps which the plaintiff had taken between 2 March 2017 and 1 June 2017 to which Ms Kava deposed in her affidavit of 5 July 2017.

Consideration

13. I am persuaded that the adjournment sought by the defendant ought be granted. Although there may be a pure legal point in the plaintiff’s application for relief in the summons, there are factual questions, both in the determination of the claim for relief and in the circumstances relevant to the discretion whether to grant relief, which are, or could be, affected, by the outcome of the disciplinary investigation. In these circumstances, the refusal of the adjournment could result in this Court’s determining the matter prematurely, or on a hypothetical or speculative basis, which proves to be inconsistent with what unfolds in the course of, and as a result of, the disciplinary investigation. This would be inconsistent with the proper administration of justice. As there is presently no challenge to the validity of the directions made by the defendant in respect of each plaintiff under Part 4A of the Act, there is no material prejudice to the plaintiffs by the grant of the adjournment.

14. Although there is a prospect of potential prejudice to the plaintiffs if they are wholly exonerated by the disciplinary investigation and wish to be returned to their previous positions at Punchbowl Boys High School, any such prejudice can be ameliorated by a grant of expedition of these proceedings in that event. I note the undertakings made by the defendant not to permanently fill the positions formerly occupied by the plaintiffs until the determination of these proceedings or until further order.

15. I am not persuaded that any public interest in the determination of the questions of construction of s 51A of the Act that have been raised by the plaintiff is of such urgency as to override the matters in favour of the adjournment referred to above.

16. Although I have been persuaded to grant an adjournment in the terms sought by the defendant, I should record for completeness that I do not regard the plaintiffs as being dilatory in not commencing the proceedings until 1 June 2017. It is appropriate that parties correspond with a view to resolving issues without recourse to litigation if at all possible.

Orders, directions and notations

17. For the reasons set out above, I make the following orders, directions and notations:

In proceedings 2017/164805 and 2017/164816:

1. Order that proceedings 2017/164805 and 2017/164816 be heard together and that the evidence in one proceeding be evidence in the other, pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW).

2. Order that the proceedings be adjourned to 20 October 2017 for mention before me at 9.15am.

3. Reserve the costs of the defendant’s notice of motion filed on 13 June 2017.

4. Grant liberty to apply on 3 days’ notice.

In proceedings 2017/164805

1. Note the defendant’s undertaking that the position of Principal, Punchbowl Boys High School will not be permanently filled until the final determination of this proceeding (2017/164805) or until further order of this Court.

In proceedings 2017/164816

1. Note the defendant’s undertaking that the position of Deputy Principal, Punchbowl Boys High School will not be permanently filled until the final determination of this proceeding (2017/164816) or until further order of this Court.

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Decision last updated: 01 August 2017