Harris v Teachers Registration Board of SA - [2008] SADC 136

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HARRIS v TEACHERS REGISTRATION BOARD OF SA
[2008] SADC 136
Judgment of Her Honour Judge McIntyre
21 October 2008
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - GOVERNMENT AND PUBLIC AUTHORITIES
Applicant/plaintiff claims damages in negligence against the respondent/defendant alleging that it negligently delayed the processing of his teacher registration certificate - Held: no error apparent in the decision of the learned magistrate that there was no evidence that the respondent was negligent in its handling of the applicant’s application for registration - Application dismissed - Observations on duty of care owed by the respondent to persons seeking registration.
Magistrates Court Act 1991 s38, s38(7); Teachers Registration & Standards Act 2004 , referred to.
Homestead Award Winning Homes Pty Ltd v South Australia (1998) 72 SASR 299 at 319; Northern Territory v Mengel [1994-1995] 185 CLR 307; Perre v Apand Pty Ltd (1999) 198 CLR 180, considered.

HARRIS v TEACHERS REGISTRATION BOARD OF SA
[2008] SADC 136
Introduction

This is an application pursuant to s38 of the Magistrates Court Act 1991 (“the MCA”) to review a minor civil decision made on 13 August 2008 by Mr KA. Millard SM in which he dismissed the applicant’s claim for damages.
The applicant claimed that the respondent negligently or deliberately delayed the processing of his teacher registration certificate and that the delay caused him to lose income. The applicant conceded, during the course of the hearing before Mr Millard SM, that he could not substantiate the assertion that the respondent deliberately delayed his application. He confirmed this in the hearing before me.
The issue is therefore whether the applicant has established negligence on the part of the respondent. He bore the onus of establishing that the respondent owed him a duty of care, that the respondent breached that duty by careless conduct and that the breach was a legally sufficient cause of injury. He also bore the onus of establishing the extent of any injury.
Hearing in the Magistrates Court
The applicant appeared in person and Ms Hastings, the registrar of the respondent, appeared for the respondent. They both gave evidence and a number of documents were tendered.
His Honour was unable to be satisfied on the evidence before him that the respondent was in any way dilatory in its handling of the plaintiff’s application. He reached this conclusion on the basis of the material placed before the court as to the dates and times upon which matters were dealt with. He further found that evidence of lost income was “at best speculative”. Accordingly, whilst it appears that the learned magistrate considered that the respondent owed a duty of care to the applicant he found that the applicant had not discharged the onus of establishing a breach of that duty nor had he established that there was an injury in the relevant sense.
District Court Review
My powers on applications for review are found in s38(7) of the Magistrates Court Act 1991. In particular I may inform myself as I think fit and I am not bound by the rules of evidence. I must act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Further, there is a power to rehear evidence taken before the Magistrates Court should the court determine to do so. Whilst it is not spelt out it seems clear that my powers also include the ability to receive fresh evidence.
Mr Harris and Ms Hastings appeared on review before me. Both parties provided a written case in accordance with the relevant practice direction and supplemented this with oral submissions. The applicant also wrote to me following the hearing by letter dated 15 October 2008 to clarify his position in relation to an error on his registration application.
The application for review did not specifically refer to any error in the decision of Mr Millard SM, rather the application reiterated the matters previously complained of in the Magistrates Court concerning the conduct of the respondent. The applicant’s amended submissions filed on 13 October 2008 however indicate that he takes issue with the decision principally because there was material not presented to the learned magistrate. This material is outlined in his submissions. There is no other basis upon which the applicant says the learned magistrate was in error.
Background
The applicant is a teacher who applied for registration by the respondent pursuant to the Teachers Registration & Standards Act 2004 (“the TRS Act”). He was first registered as a teacher in South Australia in 1983. In recent years he has worked overseas as a researcher for six months of every year and, when in South Australia, he works as a temporary relieving teacher (“TRT”).
His registration as a teacher lapsed on 31 January 2007. He lodged an application with the respondent for re-registration on 26 April 2007. His claim arises out of that application. He complains of two periods of delay. The first was from 8 May to 31 May 2007, the period taken to undertake a criminal record check. The second was from 1 June to 12 June, the time the criminal records check was completed to the date he received his registration certificate. He was unable to seek work as a TRT prior to obtaining his registration certificate and accordingly the delay caused him to lose income.
The first delay - Criminal Records Check
I note and agree with the learned magistrate’s comments concerning the necessity for the respondent to ensure that a full criminal history check is made. This is an obligation not only under the TRS Act but also at common law.
It is uncontentious that the only method by which a full police check can be made is using the Crimtrac system. This is an electronic system requiring the input of standard search criteria. It can be the case that there will be a number of people in Australia with the same name and even the same date of birth. When such matches occur, the respondent is informed. The respondent then supplies further identification material pursuant to the criminal record check consent form in the application for registration. This is what occurred in the applicant’s case.
The applicant complains of this in his written submissions under the heading “Paragraph 9”. He says that the magistrate was in error in reaching the conclusion that there was no improper delay in the initial handling of the application because the magistrate was not informed that the information given to the police by the respondent was “insufficient to positively identify the subject”. He complains that the respondent did not supply material such as his South Australian address; photograph identification and a copy of his passport at the time of the initial Crimtrac application.
It is not plain to me that this evidence was not before the learned magistrate; however, even if it were not, this material does not demonstrate negligence on the part of the respondent. The respondent used the only system reasonably available to it to undertake its statutory and common law obligations. The system does not allow for the provision of information of the type suggested by the applicant until the system indicates that there is more than one person with the same name and date of birth. Given the substantial numbers of enquiries by the respondent and other users of the system, it is likely this is due to reasons of efficiency. Whatever the reason, the respondent properly completed the original application and provided additional information in a timely manner on request, resulting in the respondent obtaining a criminal record check for the applicant. I consider that the learned magistrate’s finding that there was no improper delay in the initial handling of the application was correct.
Second Delay – the Registrar’s queries
The second asserted delay arose because the applicant had not fully completed the application form and had arguably provided incorrect information in relation to prior criminal convictions. The learned magistrate concluded that Ms Hastings, the registrar, acted reasonably in expressing concern that a number of issues should have been more adequately addressed in the application. He found that she properly and promptly directed her staff to follow these matters up with the applicant. This occurred by telephone call to the applicant on 4 June 2007; two working days after the receipt of the criminal record search. The applicant’s response was dated 4 June 2007 but was not received by the Board until 8 June 2007. The learned magistrate found that the response was dealt with extremely expeditiously in that the letter was received on 8 June and was considered on the next working day being 12 June 2007. The applicant’s registration was confirmed on that date.
The applicant takes issue with this finding on the basis that:
The Magistrate did not fully hear the reason for such seeming expeditiousness i.e. there was nothing for the TRB to respond to. There were no fresh documents etc submitted. Why? The registrant’s 4 June letter had merely reminded the TRB that the TRB already were given all the information several weeks before (document 18). No wonder the Magistrate found the TRB response extremely expeditious: there was nothing for the TRB to do but to walk over to a section in their own office and get the information lodged by the Registrar the week before.[1]
[1] Applicant’s submissions page 1
I do not accept this submission. The registrar sought clarification of the following matters:
·The reason the applicant did not disclose details of his prior criminal conviction on his application form particularly in view of a letter previously sent by the registrar to the applicant in June 2004 reminding him of his obligation to disclose that prior conviction, and
·The time the applicant had spent overseas in order to determine whether it was necessary to conduct an overseas criminal record check.
·The response to section 5 of the application in relation to the applicant’s teaching service.
The learned magistrate found, and I agree, that these were proper enquiries for the registrar to make in the discharge of her duties. The information requested was not, as the applicant asserts, information that had already been given to the respondent. It was not a question of requiring further documentation but rather of seeking clarification of aspects of his application and an explanation of his failure to declare a conviction and follow the direction previously given by the registrar in her letter of 4 June 2004.
The registrar considered that the question in the registration form relating to prior convictions was unambiguous and required disclosure. Further she had previously written to the applicant specifically directing him to disclose this prior conviction. I note the submissions of the applicant that, in his view, the question in the application form was ambiguous and further that he saw a distinction between the terms “actual imprisonment” and “suspended sentence”. He also says that the wording of the form has changed since the 2004 letter and accordingly he did not consider that this letter required him to disclose the conviction on the new form. I have some difficulty with these propositions but, even accepting them, it is my view that it was not unreasonable of the registrar to seek an explanation in view of her honestly held belief that the applicant had failed to properly disclose the conviction.
The applicant complained that he did not fully detail his teaching service or time spent overseas due to discussions with an employee of the Teacher’s Registration Board. Whilst this may be the case this does not, in my view, affect the reasonableness of the registrar’s enquiry.
I therefore agree with the learned magistrate’s finding that there is no evidence that the respondent improperly or negligently delayed processing the applicant’s application for registration as a teacher following the criminal records check.
Loss
The learned magistrate found that the applicant had not demonstrated that he suffered a loss because he had not shown any evidence of an offer of employment. The applicant says that the process by which TRT work is allocated was not properly explained to the magistrate and that had this occurred he would have found that there was a loss. In view of my findings on the issue of delay I need not consider this issue further. I simply note that claims in negligence for financial loss, unconnected with physical injury to persons or property, are problematic.[2]
[2] Perre v Apand Pty Ltd [1999] 198 CLR 180
Further issues
For the reasons outlined above I consider that the learned magistrate was correct and that the applicant must fail. There is however a further issue that was not raised by the parties and was not the subject of argument. Whilst it is not necessary to deal with this issue in order to determine this application I consider it important to highlight it.
It appears to have been assumed that the respondent owed a duty of care to the applicant. This is a vexed area of law but it is my view that arguably it did not. Arguably there was no relationship of proximity between the applicant and the respondent. The respondent has onerous obligations to discharge in properly administering the system of registration of teachers in this State in order to ensure that applicants are fit and proper people to be registered as teachers. To impose further obligations of the type sought by the applicant would be to unduly complicate the administration of the TRS Act. I refer to the decision of Prior J in Homestead Award Winning Homes Pty Ltd v South Australia[3] where his Honour said, in analogous circumstances, that:
To acknowledge such a duty of care as that alleged in favour of Homestead would be unfair and unreasonable. It would create risks of a conflict of interest and duty upon those seeking to carry into effect the protective and regulatory measures contained in the Fair Trading Act and the Builders Licensing Act and impede the effective administration of those Acts. It is incompatible with the functions of the Commissioner to have a duty of care owed to a licensed builder.
[3] (1998) 72 SASR 299 at 319
Even if the applicant’s original claim that the respondent had acted deliberately in delaying the processing of his claim had been maintained and established, it is far from clear that he would have been entitled to recover damages. In effect this was an allegation of misfeasance in public office. In that context I refer to the High Court decision in Northern Territory v. Mengel[4] and in particular to the comments of Brennan J:
There can be no tortious liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of a power by a public officer may inflict on another an unintended but foreseeable loss – or even an intended loss – but, if the exercise of the power is valid, the other’s loss is authorised by the law creating the power. In that case the conduct of the public officer does not infringe an interest which the common law protects. However, a purported exercise of power is not necessarily wrongful because it is ultra vires. The history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of power when the act is ultra vires.
[4] [1996] 185 CLR 307 at 356
Plainly the respondent was acting within its powers at all times. In particular, when the Crimtrac request was made and when the applicant was required to provide an explanation of aspects of his application form. If the respondent would not be held liable in these circumstances for a deliberate act then, as a matter of logic, it should not be held liable for the same act if it be negligent. However, as I have indicated above I agree with the findings of the learned magistrate that there is no evidence that the respondent was careless in its handling of the applicant’s application or that it unreasonably delayed his registration.
In those circumstances I dismiss the application for review. I will hear the parties as to costs.