Hill v Green
Case
•
[1999] NSWCA 477
•22 December 1999
No judgment structure available for this case.
Reported Decision: 48 NSWLR 161
New South Wales
Court of Appeal
CITATION: Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley [1999] NSWCA 477 FILE NUMBER(S): CA 40224/98; 40225/98; 40226/98; 40724/98 HEARING DATE(S): 22 June 1999 JUDGMENT DATE:
22 December 1999PARTIES :
Donald Hill (Cl)
v
George Green (Op)Maureen Jarvis (Cl)
v
Steve Buckley (Op)Walter Henry Wood (Cl)
Brian Young (Cl)
v
Steve Buckley (Op)
v
Steve Buckley (Op)JUDGMENT OF: Spigelman CJ at 1; Mason P at 83; Sheller JA at 87; Beazley JA at 110; Fitzgerald JA at 111
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S) : 30105/97
30104/97
30121/97
30057/98LOWER COURT JUDICIAL OFFICER: Grove J, Dunford J
COUNSEL: Cl: C Porter QC, J Bishop, P M Lane
Op: P Menzies QC, T AndersonSOLICITORS: Cl: MacMahon Associates
Op(1,2,3): I V Knight
Op(4): Adrian Murphy (Green)CATCHWORDS: Administrative Law; procedural fairness/natural justice; teachers' disciplinary charges found proven without hearing/inquiry; question of whether regulatory scheme constituted a "code"; "curing" effect of right of appeal; perverse fact-finding and error of law. ACTS CITED: Teaching Services Act 1980
Interpretation Act 1987
Government and Related Employees' Appeal Tribunal Act 1980
Industrial Relations Act 1996
Workers Compensation Act 1926
Compensation Court Act 1984CASES CITED: Kioa v West 159 CLR 550
Annetts v McCann 170 CLR 596
Ainsworth v Criminal Justice Commission 175 CLR 564
Attorney-General (NSW) v Quin 170 CLR 1
Durham Holdings Pty Ltd v NSW [1999] NSWCA 324
Matkevich v NSW Technical & Further Education Commission (No.3) (Court of Appeal, 3 February 1996, unreported)
Smith v Allan (1993) 31 NSWLR 52
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Australian Broadcasting Tribunal v Bond 170 CLR 321
Bruce v Cole (1998) 45 NSWLR 163
Minister for Immigration v Eshetu (1999) 73 ALJR 746
Minister for Immigration v Epeabaka (1998) 84 FCR 411
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Baba v Parole Board of NSW (1986) 5 NSWLR 338
Murray v Legal Services Commission [1999] NSWCA 70
Twist v Randwick Municipal Council (1976) 136 CLR 106
R v Marks; ex parte Australian Building Construction Employees and Builders Labourers Federation 147 CLR 471
Oates v Attorney-General (Cth) (1998) 156 ALR 1
Johns v ASC 178 CLR 408
Macksville v Mayze (1987) 10 NSWLR 708
Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1
Waitakere City Council v Lovelock (1997) 2 NZLR 385
Fares Rules Meat v Australian Meat & Livestock Corp (1990) 96 ALR 153
Abebe v The Commonwealth (1999) 162 ALR 1DECISION: See orders
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40224/98, 40225/98, 40226/98, 40724/98
ALD 30105/97, 30104/97, 30121/97, 30057/98
SPIGELMAN CJ
MASON P
SHELLER JA
BEAZLEY JA
FITZGERALD JA
WEDNESDAY 22 DECEMBER 1999Donald HILL v George GREEN
JUDGMENT
Maureen JARVIS v Steve BUCKLEY
Walter Henry WOOD v Steve BUCKLEY
Brian YOUNG v Steve BUCKLEY
1 SPIGELMAN CJ: The facts and issues are set out in the judgment of Fitzgerald JA which I have read in draft.2 The obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard: see Kioa v West (1985) 159 CLR 550 at 576, 581, 632; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574-575; Attorney General (NSW) v Quin (1990) 170 CLR 1 at 57. 3 In determining whether there has been a statutory modification, the courts must apply the principle of the law of statutory interpretation that general words used in a statute will be read on the basis of an assumption that Parliament did not intend to infringe fundamental rights or principles - including procedural fairness - and, accordingly, that such general words may not be given their full scope or literal construction. (See Potter v Minnehan (1908) 7 CLR 277 at 304; Ex parte Walsh & Johnson; In re Yates (1925) 37 CLR 36 at 93; Bropho v Western Australia (1990-91) 171 CLR 1 at 17-18). The process by which the courts read down words of general application is well established. (See the authorities collected in R v Young [1999] NSWCCA 166 at [23]-[25] and my address “Statutory Interpretation: Identifying the Linguistic Register”, the Sir Ninian Stephen Lecture at the University of Newcastle, 23 March 1999, to be published in the Newcastle Law Review, accessible at 4 There are a number of alternative, but equivalent, formulations of the test to be applied in determining that Parliament intended to abrogate principles which it would normally be presumed to respect. These include phrases such as “clear and unambiguous words”, “unmistakable and unambiguous” and “express words or necessary implication”. (See the range of alternative formulations referred to in Durham Holdings Pty Limited v The State of New South Wales [1999] NSWCA 324 at [44]). The formulation which has been adopted in the procedural fairness cases is “express words of plain intendment”. (Commissioner of Police v Tanos (1958) 98 CLR 383 at 396; J v Lieschke (1987) 162 CLR 446 at 463; Annetts v McCann supra at 598; Ainsworth v Criminal Justice Commission supra at 576.) This is the equivalent of the various formulations to similar effect in the analogous case law. 5 One issue referred to in the judgment of Fitzgerald JA is whether or not this approach to statutory construction should be applied to a regulation making power expressed in the customary general form: prescription of matters “necessary or convenient to be prescribed” for the purposes of the Act and to the regulations made under such a power. 6 The regulation making power under consideration is of this general character. Section 100(1) of the Teaching Services Act 1980 provides:
Procedural Fairness
7 Section 84 of the Teaching Services Act provides:
“100(1) The Director General of Education may, with the approval of the Governor, make regulations, not inconsistent with this Act, for or with respect to -
… … …
(j) any matter that by this Act … is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the provisions of this Act … concerning the Education Teaching Service.”
8 One way of determining the issues raised in these proceedings would be to read down the general words of s100 and s84 so that they do not authorise regulations which abrogate the common law doctrine of procedural fairness. The regulations would then be construed, if capable of being so construed, so as not to impinge on that doctrine by applying s32 of the Interpretation Act 1987:
“84(1) A breach of discipline alleged to have been committed by an officer or temporary employee of a Teaching Service shall be dealt with by the appropriate Director-General or a prescribed officer.
(2) Subject to this Division, the regulations made under s100 …may -
(a) make provision for or with respect to the manner of dealing with alleged breaches of discipline; and
(b) prescribe all matters that are necessary or convenient to be prescribed for carrying out or giving effect to this Division.”
9 There is, in my opinion, much to be said for the proposition that regulations with respect to discipline which abrogate the requirements of procedural fairness, are not a valid exercise of a regulation making power expressed in the general terms of s84, subject, of course, to consideration of the total context of the particular statutory power. The submissions in this Court, however, focussed on the proper construction of the regulations. The case proceeded on the assumption that the Regulations were valid. The case should be decided on this basis. 10 The principle of the law of statutory interpretation that, absent “express words of plain intendment”, Parliament did not intend to infringe upon fundamental rights or principles applies, in my opinion, to the construction of delegated legislation promulgated by the Executive, to which a similar presumed intention should be attributed.
“32(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.”
11 The statutory context is set out partly in the Teaching Services Act 1980 (‘the Act’) and partly in the Teaching Services (Education Service) Regulation 1994 (‘the Regulations’). 12 The Act contains a list of matters which constitute a breach of discipline:
Statutory Context
13 As quoted above, s84(1) states that “a breach of discipline alleged to have been committed … shall be dealt with” by the appropriate officer. This formulation is repeated in Regulation 15(1) which provides that, where a charge is denied, the disciplinary authority “is to deal with the charge”. 14 The relevant regulations are set out in full by Fitzgerald JA. Regulation 15(2) provides that the disciplinary authority “may deal with the charge” by either requiring an explanation in writing or by conducting an inquiry. I will refer to these options as “the explanation route” and the “inquiry route”. If, initially, the authority follows the explanation route, subsequently, it “may decide to deal with the charge” by conducting an inquiry, under Regulation 15(3)(b). 15 Regulation 15(3)(a) empowers a decision maker who follows the explanation route to make a “finding”. A decision maker who follows the inquiry route under either Regulation 15(2)(b) or Regulation 15(3)(b), must conduct himself or herself under Regulation 16. However, nothing in the Regulations makes provision for any terminus of an “inquiry”. There is no reference to a “finding”, “report” or equivalent. 16 Regulation 19 contemplates that a charge may be “found not to be proved” and provides for consequences. The use of the language of ‘proof’ is of significance. The position where a charge is “proved” is covered in the Act, not the Regulations. Section 85 empowers the imposition of specified punishments where the primary decision maker “finds that the officer … charged has committed the breach”. 17 On the proper construction of the scheme, the word “finding” in Regulation 15(3)(a) is intended to coincide with the scope of “finds” in s85(1). The Regulations assume, without saying so expressly, that the inquiry route will result in a similar “finding”. 18 Issues of procedural fairness may arise with respect to the substantive decision to make a “finding” under Regulation 15(3)(a), as occurred in each of the cases on appeal. A finding that a breach of discipline has been committed triggers the power to impose a sanction under s85 of the Act. This is a sufficient adverse consequence to attract the obligation of procedural fairness. (See Ainsworth v Criminal Justice Commission supra at 576-577). 19 Regulation 15 requires the decision maker to choose between two procedures. The issue for determination is what, if any, consequences flow from the fact, if it be the fact, that the choice of one of those procedures resulted in a process that fails to comply with common law requirements of procedural fairness. Specifically, if the explanation route is chosen, is the procedure restricted to, what counsel for the Appellants called, a “paper trial”? 20 Counsel for the Respondents submitted that the limited menu of two procedures was intended to be exhaustive and, in that sense, constituted a mini-code. Accordingly, he submitted, there was no means of challenging the decision to choose one procedure rather than the other, except on judicial review grounds. On this basis, whether or not the choice of the explanation route failed to satisfy the common law requirements of procedural fairness, is not a relevant question. The exercise of the statutory discretion, it was submitted, is not subject to any such restraint.
“83 An officer or temporary employee of a Teaching Service who -
(a) commits any breach of this Act or the regulations;
(b) engages in any misconduct;
(c) uses intoxicating beverages;
(d) wilfully disobeys, or wilfully disregards, any lawful order made or given by a person having authority to make or give the order;
(e) is negligent, careless, inefficient or incompetent in the discharge of his duties; or
(f) engaged in any disgraceful or improper conduct,
is guilty of a breach of discipline.”
21 I agree with the conclusion of Fitzgerald JA that the application of the “express words of plain intendment” test leads to the conclusion that the Regulations do not, on their proper construction, abrogate the obligation to accord procedural fairness. 22 In the present cases, Dunford J and Grove J, regarded themselves as bound to apply the decision of the majority in Matkevich v New South Wales Technical and Further Education Commission (No 3) (Court of Appeal, 2 February 1996, unreported). Their Honours understood that case to hold that the discretion to choose between the two routes could not be impugned on the basis that the explanation route would not accord with procedural fairness. It does not appear that their Honours had the benefit of the full submissions that have been made to this Court. 23 In Matkevich Cole JA noted that the Appellant “accepted that the Prescribed Officer had a discretion to choose between the alternative methods of proceeding” (at 14, see also 4-5). His Honour concluded (at 14):
Is the Common Law Obligation Abrogated?
24 Powell JA noted that “the parties had assumed” that “the procedure to be followed in relation to disciplinary charges” was set out in the Regulations. His Honour concluded (at 10-11):
“Once it is accepted that a discretion to hold an inquiry or not exists as a matter of law, and that there was no procedural unfairness in relation to the exercise of that discretion, it cannot be said that the factual circumstances are such as to remove the right to exercise the discretion in the manner which occurred. So to hold would be to rewrite the regulation.”
25 Although Powell JA did not expressly refer, as Cole JA referred, to the applicability of procedural fairness to the decision to choose one of two procedures, nothing in his Honour’s reasons would suggest that he disagreed with Cole JA in this respect. 26 Kirby P noted (at 3) that the Regulation there under consideration “afforded” the prescribed officer “the discretion to deal with the charge” in one of two ways, identically expressed to those in the Regulation here under consideration. Kirby P said that in all the circumstances the “proper exercise of the power” in that case required the conduct of an inquiry. However, his Honour held (at 12) that this was not the “only lawful” exercise of the power. On this approach, Kirby P did not differ from Cole and Powell JJA with respect to the characterisation of the power as conferring a discretion. 27 In Matkevich the employee had exercised his right to appeal to the Government and Related Employees Appeals Tribunal (“GREAT”), which had found in his favour with respect to the failure on the part of the prescribed officer to make available to the employee an opportunity to be heard on the written submissions from the Department on the question of penalty. GREAT held that he had been denied procedural fairness by reason of this failure. This was one of the grounds on which the appeal had been brought to GREAT. 28 The issue in this Court was whether, by reason of this finding, GREAT was obliged to quash the original decision. By majority (Kirby P dissenting) this Court held that the departure from procedural fairness did not require that course. GREAT was entitled to consider the merits of the appeal and, in that way, rectify on appeal the deficiency it had identified. 29 The issue which divided this Court in Matkevich concerned procedural fairness as a basis for an appeal to GREAT. It was not concerned with procedural fairness as a basis for judicial review by the Supreme Court of a primary decision. 30 Matkevich proceeded against the background that this Court had determined that GREAT had jurisdiction to determine, in the course of an appeal, that the primary decision was invalid on the basis of, inter alia, a denial of procedural fairness. (Smith v Allan (1993) 31 NSWLR 52). Nevertheless, in Matkevich the decision under challenge in this Court was a decision by the Tribunal, not a decision by a primary decision maker. 31 Nothing in the reasoning in Matkevich indicated that any judge had concluded that the scheme of the regulations had abrogated the common law obligation of procedural fairness. Indeed Kirby P (at 21-22) and Powell JA (at 12-14) held that the failure to afford an opportunity to be heard on penalty in reply was a denial of procedural fairness which would have entitled GREAT to allow the appeal. Nothing in their Honours’ reasoning would suggest that judicial review of the primary decision, would not, subject to discretionary considerations, be equally available. Cole JA said nothing inconsistent with this, although he does not directly consider it. 32 In Matkevich the Court rejected the contention that the common law doctrine of procedural fairness required the primary decision maker to exercise his statutory discretion in a particular way, namely to choose the inquiry route. The Court did not, however, determine that the conduct of the decision making process after a choice had been made could never lead to a failure to comply with the requirements of procedural fairness. Indeed, the reasoning with regard to the consequences of the failure to call for submissions in reply on penalty, is precisely to the contrary. In my opinion, Matkevich does not need to be distinguished or overruled. 33 I agree that the decision not to conduct an inquiry does not, of itself, constitute a denial of procedural fairness. That is not, however, to say that a denial of procedural fairness cannot occur in the conduct of the decision making process pursuant to either course once chosen. Far from contradicting any such proposition, Matkevich supports it. 34 The issue falls to be determined as a matter of statutory construction. Are there “express words of plain intendment” which indicate that the Regulations intended to abrogate the common law doctrine. In my opinion there is no such indication. 35 Under the Regulations, a decision maker is entitled to deal with the charge by directing the employee to furnish an explanation. Thereafter, in my opinion, the Regulations, on their proper construction, require procedural fairness to be observed. 36 Regulation 15(3)(a) contemplates consideration by the decision maker of “reports relating to the breach of discipline and any replies or explanations of the member of staff”. This indicates an intention that the employee will be given an opportunity to be heard (c/f Murray v Legal Services Commission (1999) 46 NSWLR 224 at [87]-[92]). What is required by way of a hearing will depend on the circumstances. 37 The matter primarily relied on to indicate an intention to abrogate the common law principles is the structure of the Regulations. The decision maker is presented with a choice of two. Plainly the inquiry route, subject to how it is conducted, will provide procedural fairness. The explanation may or may not do so. Subject to the possibility of judicial review of the choice, to which Cole JA referred, the very fact that a discretion is conferred which, if exercised in one way will accord procedural fairness, supports the existence of an intention to abrogate the common law requirement to do so. 38 It is well established that the legislature should not be imputed with an intention to abrogate the common law principles because of the conferral by the statute “of rights which are commensurate with some of the rules of natural justice”. (Annetts v McCann supra at 598 referring to Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 344-345, 347 and 349. See also J v Lieschke supra 446; Ainsworth v Criminal Justice Commission supra at 575; Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at 98-99). 39 In my opinion, the fact that a legislature confers a discretion as to procedure between alternatives, one of which will almost invariably accord procedural fairness and the other will sometimes fail to do so, will only indicate an intention to abrogate the common law principles if the legislature itself provides sufficient detail as to the procedure to be followed under the lesser alternative so as to indicate an intention to be exhaustive. That has not occurred in the Regulations under consideration. 40 The terminology employed in Regulation 15(3)(a) does not suggest that the explanation route is confined to the steps for which the Regulations otherwise specifically provide. The “reports”, “replies” and “explanations”, referred to in Regulation 15(3)(a), are not limited to a “charge” under Regulation 14(2), an “explanation” contained in a “reply” under Regulation 14(4) and an “explanation” under Regulation 15(2)(a). This appears from the use of the words “reports” and the plural form of “replies”. 41 The Regulations make no express provision for anything called a “report”. This, of itself, is enough to show the Regulations are not exhaustive with respect to the inquiry route. The use of the plural “replies” does not have the same strength. However, it does reinforce the inference available from the reference to “reports”. The reference to “replies” suggests that the Regulation is not concerned only with the “reply” referred to in Regulation 14(3) and (4). As the “reply” is in response to a specific charge, there is no reason to believe that more than one reply to each charge was contemplated. Accordingly, the use of the plural is of some significance. 42 An “explanation” under Regulation 15(2)(a) must be in writing. No doubt a decision maker can give more than one direction and receive more than one explanation. The use of the plural is not indicative. However, the “explanations” which the decision maker must ‘consider’ under Regulation 15(3)(a), are not, in my opinion, necessarily confined to the written explanation or explanations under Regulation 15(2)(a), and the “explanation” component of a reply within Regulation 14(4)(b). I attach significance to the fact that there is no express provision for the decision maker to do anything after receiving a written explanation. I do not believe that the draftsperson intended to prevent a decision maker from seeking clarification of an explanation or, indeed, of a “report”. If he or she can seek clarification, there is no reason why that must be done in writing. 43 There is no mini-code. There is no statutory basis for an inference that the explanation route is necessarily confined to a “paper trial”. Whether it should be so limited in a particular case is subject to the common law requirements of procedural fairness. Those requirements are not excluded by the Regulations which, in the choice of terminology of “reports” and “replies” indicate that, at least with respect to the explanation route, they are not intended to be exhaustive. The position with the inquiry route may be different, but it is not necessary to decide that issue. 44 What, if any, additional steps should be taken by the decision maker after receipt of an “explanation” received following a Regulation 15(2)(a) direction, will be determined by the common law requirements of procedural fairness. This may, in appropriate circumstances, include elements of an oral hearing which does not necessarily have to be conducted as a full “inquiry” under Regulation 16. 45 In my opinion, a valid decision under Regulation 15(3)(a), must comply with the requirements of procedural fairness. My reasoning differs from that of Fitzgerald JA in one respect. In my opinion it is not necessary to conduct a full “inquiry” if the choice of the explanation route does not afford procedural fairness in the circumstances of a specific case. Rather, what is required is the provision of procedural fairness beyond the opportunity, on the one occasion stipulated in the Regulations, to provide an “explanation” in writing. That does not necessarily import a full “inquiry”.
“It cannot, in my view, be the law that, where, in a case such as this, rules which have legal effect permit disciplinary charges to be dealt with in one or other of the defined ways at the discretion of the relevant officer, the rules of procedural fairness require that the relevant officer exercise the discretion in one rather than the other of those ways.”
46 The facts in relation to this case appear in the judgment of Fitzgerald JA. The adverse decision which has exposed him to the prospect of termination was based on the following reasoning:
Hill
47 It was on the basis of these two matters - the letter of apology and the departure from his post - that the decision maker found Particular 2 made out. He dismissed Particular 1 on the basis that it was word against word. He held that there was, with respect to that particular, “no reason on the basis of the evidence” to accept the complainant’s word over that of Mr Hill. The two elements referred to provided such a reason, in the view of the decision maker, with respect to the second particular. 48 It may well be that the matters to which the decision maker referred are entitled to significant, even decisive, weight in resolving the conflict between the complainant and Mr Hill. However where, as here, there is a real issue of credibility to be resolved, it is not consistent with procedural fairness to give such factors decisive weight without pursuing other aspects of the credibility of the respective versions of the events which could also be entitled to weight in determining what in fact occurred. The conflict could not be resolved as simply as it was. 49 The nature of the allegations made, the extent of direct conflict, and the seriousness of the consequences which result from an adverse decision, indicate that some element of an oral hearing was required to satisfy the requirements of procedural fairness. (See eg Chan v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 599E-602D). 50 At the least, Mr Hill was entitled to have the decision maker conduct some form of oral inquiry of the complainant and observe his confirmation of the allegations. Further, some form of testing of the complainant by the decision maker or, perhaps, by representatives of Mr Hill, was also required. 51 Fitzgerald JA discusses the relevance of the right of appeal to GREAT. His Honour refers to the different ways in which such a right has been seen to impinge on a requirement to afford procedural fairness on the part of a primary decision maker. 52 The decision in the present case is within s23(1)(f) of the Government and Related Employees Appeal TribunalAct 1980 and a right of appeal arises under s24(1). By reason of s36 of the Act such an appeal is required to be “formal” and, accordingly, pursuant to s38(1):
“Despite Mr Hill’s submission to the contrary, the evidence presented by the Department in the form of Mr Hill’s note of apology and the fact that he left Coonamble shortly after the event are both relevant and telling. The tone and content of the note of apology point to a far more traumatic event than that described by Mr Hill and contain a significant apology. Mr Hill’s actions, as described by him, would not warrant such an apology. The tone of the letter and the level of apology serve to support Mr Pennell’s account of evidence not Mr Hill’s.
Furthermore, Mr Hill’s action in abandoning his position during the school year was clearly in response to an event far more significant than that described by him. Such action in my experience is extremely unusual.”
53 Furthermore, by force of s38(4), an appellant and a representative of the employer, “may call and examine any witness”. The proceedings, subject to contrary direction, must be public (s38(2)). They must be recorded (s38(7)). Finally:
“38(1) Where a sitting of the Tribunal is formal, evidence in the proceedings before the Tribunal shall be given on oath and shall be subject to cross-examination.”
54 This is not a case in which the existence of a right of appeal can be interpreted to reflect an intention to abrogate the obligation to provide procedural fairness on the part of a primary decision maker. The right of appeal is granted by a different Act and one intended to apply to a range of disciplinary appeals operating under a variety of statutory regimes. In any event appeal rights are “rarely conclusive” in this respect. (Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 25 per McHugh JA). 55 I agree with Fitzgerald JA that the suggestion sometimes made that an appeal “cures” a failure by the primary decision maker is not based on principle. In my opinion, the issue arises at the stage of the exercise by the Court of its discretion to grant relief. The nature of the appeal and the circumstances of the case will all need to be considered in dealing with a submission that relief should be denied by reason of the availability of a right of appeal. (See eg Macksville District Hospital v Mayze (1987) 10 NSWLR 708 at 720-722). 56 This was not a matter argued before Dunford J. Nor was it submitted in this Court that the existence of the right of appeal to GREAT should be taken into account. This Court does not need to determine the matter. 57 For these reasons I agree with the order proposed by Fitzgerald JA in the case of Hill.
“s43(1) The Tribunal is not bound by the rules or practice as to evidence and may, subject to subsection (2), inform itself on any matter in such manner as it thinks fit.
(2) The Tribunal shall not inform itself on, or take into consideration, any matter which has not been disclosed in evidence at a sitting of the Tribunal if the matter is one which ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the sitting.
(3) Nothing in subsection (2) prevents the Tribunal from informing itself on, or taking into consideration, any matter of which it is entitled to take judicial notice.”
58 I agree with the reasons of Fitzgerald JA in these two cases. 59 A further submission was made by the Appellants. In each case the Appellant had been denied the opportunity to make submissions as to whether the inquiry route should be followed. As I noted above Cole JA expressly referred to this matter in Matkevich. Whilst such a decision was made at the first stage under Regulation 15(2) without any such opportunity, the Appellants had every opportunity to make such submissions prior to the second stage, under Regulation 15(3). There was no denial of procedural fairness with respect to the decision making process considered as a whole.
Young and Jarvis
60 In the case of Wood, Fitzgerald JA has set out the relevant facts. His Honour finds in favour of the Appellant on two grounds: first, he was entitled to an inquiry under Regulation 16 and secondly, the decision maker could not reasonably have decided that the charge was established. 61 As to the first matter, the construction of the Regulations I have outlined above, does not require a full “inquiry route” whenever the “explanation route” is found not to satisfy the common law requirements of procedural fairness. 62 The charge to which Mr Wood had to respond was based on the allegation that a Ms Scott had told him of her concerns that a male teacher, Mr Peter Boys, had engaged in “improper conduct” with female students. The decision maker referred to Mr Wood’s agreement that Ms Scott had expressed concerns about Mr Boys permitting students to use the staffroom and that he was “overfriendly” or “overfamiliar” with some female students. This was accepted by the decision maker as satisfying the charge of “improper conduct”. The written determination goes on to refer to “Ms Scott’s very serious allegations about Mr Boys’ improper conduct with female students” and “the serious nature of Ms Scott’s concerns”. 63 There is no finding of fact that the “serious allegations” or “serious nature” of the “concerns” was comprised of anything more than the matters which Mr Wood admitted: ie use of the staffroom and “over friendly” and “overfamiliar” conduct. 64 At p2 of the Determination, the decision maker said:
Wood
65 The critical findings by the decision maker are set out at p3 of the Determination:
“I now turn to the nature of the concerns raised by Ms Scott with Mr Wood and as to whether on the balance of probabilities they included concerns that she had about the improper conduct of Mr Boys with female students.
Mr Wood’s solicitors argue that the Department has not provided evidence that Ms Scott conveyed to Mr Wood, either verbally or in writing, allegations that Mr Boys was engaging in any kind of sexual misconduct. The Department’s particular charge, however, is that Ms Scott conveyed to Mr Wood her concerns that Mr Boys’ behaviour with female students was improper.”
66 As I read this passage, the decision adverse to Mr Wood was based only on his admissions. The Determination contains no other explicit finding of fact as to the content of the communication from Ms Scott. Although there is no statutory requirement prescribing the contents of a “finding” under Regulation 15(3)(a), the document styled a “Determination” purports to set out the findings of fact and the reasoning. The covering letter by which the decision maker conveyed the document to Mr Wood’s solicitor described it as “A copy of the report of my findings”. 67 In these circumstances there is no basis for overturning the decision on the basis of a denial of procedural fairness. Nothing seems to have turned on any difference in the recollections of Ms Scott and Mr Wood. If, as I have concluded, the adverse finding was based only on Mr Wood’s own admissions, he cannot complain on the grounds of denial of procedural fairness. There may be circumstances in which the decision maker takes a particular view of an admission which he should put to the person making it. For the reasons I discuss below, this was not such a case. 68 In my opinion, the matter falls to be determined on the basis of whether or not the decision maker’s decision involved an error in fact finding of a character which would justify judicial review.
“Mr Wood admits that Ms Scott did raise the issue of Mr Boys’ allowing female students to use the staffroom and that Ms Scott described Mr Boys’ relationship with female students as ‘over friendly’ and ‘over familiar’.
On the balance of probabilities I find the evidence supports the allegation that Ms Scott did in fact, in or about 1986, convey to Mr Wood her concerns about improper conduct of Mr Boys with female students.”
69 The issue is whether an inference of “improper conduct” was open to be drawn on the limited basis of the evidence accepted by the decision maker, namely, the admissions by Mr Wood. An alternative way of testing the decision is to ask whether or not the finding was based on a logical process of reasoning? 70 The test that an inference of fact must be open to be drawn is confirmed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ, when his Honour said:
Inadequacy of Fact Finding
71 As Sir Frederick Jordan put it:
“So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”
72 As the extract from Mason CJ indicates, there is no common law requirement of logical reasoning. (See also Minister for Immigration and Ethnic Affairs v Epeabaka (1998) 84 FCR 411 at [20]-[26]). However, that conclusion must depend on the statutory context (c/f Bruce v Cole supra at 189F-G). In my opinion, where a statute or regulation makes provision for an administrative decision in terminology which does not confer an unfettered discretion on the decision maker, the Courts should approach the construction of the statute or regulation with a presumption that the Parliament or the author of the regulation intended the decision maker to reach a decision by a process of logical reasoning and a contrary interpretation would require clear and unambiguous words. 73 In the present case, the decision maker is a “disciplinary authority” appointed under Regulation 15(1) “to deal with the charge”. His or her statutory function is to “make a finding after considering any reports relating to the breach of discipline and any replies or explanations of the member of staff”. An inference of fact that is not open to be made, or that is not based on logical reasoning, is not, in my opinion, a “finding” within the meaning of the statute. 74 The elements of the statutory context from which I draw this conclusion are the following:
“A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences …
Such a finding can be disturbed only (a) if there is no evidence to support its inferences or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences.” ( Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126 at 138).
See also Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 761, 763, 766; Smith v General Motor Cab Company Ltd [1911] AC 188 at 190; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 199; Roads Corporation v Dacakis [1995] VR 509 at 517-520; S v Crimes Compensation Tribunal [1998] 1 VR 83 at 90-91; Bruce v Cole (1998) 45 NSWLR 163 at 187-188; Minister for Immigration v Eshetu (1999) 73 ALJR 746 at [138]-[145].
75 The charge was one of negligent conduct. The relevant particular of negligence was the failure to act after Ms Scott had informed the Appellant of what the charge described as “improper conduct” on the part of Mr Boys towards female students. 76 In her evidence to the Royal Commission Ms Scott had expressly distanced herself from any connotation of sexual conduct:
(i) The relevant power uses the word “finding”, which is not language of discretion (Regulation 15(3)(a)).(ii) The “finding” can only be made “ after considering ” the case put before the decision maker in “reports”, “replies” or “explanations” (Regulation 15(3)(a)).
(iii) The nature of the charge must be of such a character, that the employee may “admit or deny the truth of the charge” (Regulation 14(4)(a) and (5)).
(iv) The “finding” should, on an outcome favourable to the employee, be capable of being described as “ not proved ” (Regulation 19).
(v) The finding should, on an outcome unfavourable to the employee, be capable of being described as a finding that the employee “ committed the breach ” (s85(1) of the Act).
77 It was in the context of this evidence that the Appellant, through his solicitors, made the admissions on which the decision maker relied. The solicitors’ submission said:
“Q … did that relate to the type of conduct of a relationship or sexual matter?
A Not sexual. I just said unprofessional and perhaps friendly.
Q Friendly?
A Overfriendly with - something that I wouldn’t do, that I would have thought that most teachers wouldn’t do. I just thought it was perhaps a little too far.
Q Right. And whey you say ‘too far’, do you mean by ‘too far’, too close or what is it?
A Yes, too close.
………
Q And so what you wrote was something that you had observed?
A Yes, I’d observed over friendliness.
………
I thought he was overfriendly, but here was gossip of a higher level of overfriendliness which I sort of dismissed, because I had only seen overfriendliness. I hadn’t seen anything else ...”.
78 The issue is whether the alleged misuse of the staffroom and “overfriendliness” or “overfamiliarity” was incapable of constituting improper conduct about which a teacher could be expected to act. Alternatively, was the process of reasoning by which negligence was found, illogical? 79 The ultimate finding is one of negligence in the discharge of duties which is a “breach of discipline” within s83(e) of the Act. In the course of making that finding the decision maker has characterised Ms Scott’s disclosure as being one of “improper conduct” by another teacher towards his female students. 80 In my opinion, a finding that a teacher had received information about “improper conduct” and had taken no steps to investigate or remedy such conduct, is reasonably capable of supporting a finding of negligence. It could not be held that such a finding was not open or was based on illogical reasoning. 81 Nor, in my opinion, can the intermediate inference that the content of the conversation with Ms Scott, as admitted, could constitute “improper conduct” be challenged. It was not in terms of, nor apparently intended to suggest, sexual misconduct. Nor does the decision maker appear to have regarded it as such. Indeed the various particulars provided with the original charge distinguish between “improper conduct” and “improper relationship”. In my opinion, it was open to the decision maker to find that the specific matters admitted to have been said did involve relevantly improper conduct on the part of Mr Boys. To be such, the conduct did not have to involve sexual misconduct. 82 In my opinion the appeal in this matter should be dismissed. 83 MASON P: I agree with Sheller JA. 84 I also agree with what the Chief Justice has written about an inference of fact needing to be based upon evidence capable of supporting the inference and as to the absence of a common law requirement that administrative decisions must be based upon logical reasoning. 85 In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 402 the High Court described a particular argument as denying the import of logic and common sense in matters of statutory construction. The Court cited with approval Lord Devlin’s words in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 516 (“no system of law can be workable if it has not got logic at the root of it”). This does not establish illogicality as an independent common law ground of judicial review standing outside the Wednesbury principle where it applies. That principle requires something more than absence of a rational process (see A v Minister for Immigration & Multicultural Affairs [1999] FCA 1086 at [49] per Lee J). If illogicality (in its strict and formal sense) were to be accepted as a basis for challenging certain administrative decisions, it would be because such a requirement were imported into the process of decision-making by the statutory mandate, not because of some general common law requirement to that effect (cfKing Gee Clothing Co Pty Ltd v Connell (1945) 71 CLR 184 at 194 per Dixon J). 86 The correctness and scope of this Court’s decision in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 was not raised in argument. Within its proper scope of application, Azzopardi should in my view continue to be followed in this State unless and until leave to challenge it is given by this Court or it is overruled by the High Court. 87 SHELLER JA: I have had the benefit of reading the reasons for judgment prepared in draft by the Chief Justice and Fitzgerald JA. Those judgments make it unnecessary for me to re-state the circumstances in which these four applications were made except so far as it is necessary to explain my conclusions. 88 Part 3 of the Teaching Services (Education Teaching Service) Regulation 1994 (the Regulation) concerns breaches of discipline by members of staff, that is to say, officers or temporary employees of the Education Teaching Service, including teaching staff; cl 3. The Regulation was made pursuant to the Teaching Services Act 1980 (the Act). Section 83 of the Act provides:
“We are instructed that Ms Scott had referred towards the end of her written list of complaints to Mr Boys being ‘over friendly’ or ‘over familiar’ with students, that Mr Wood questioned her as to what she meant by that and that she responded by referring to her earlier complaints about students using the staffroom etc and Mr Boys treating students as equals and added that she had heard ‘gossip’ or ‘rumour’. Mr Wood believes that he questioned Ms Scott about that, although he cannot recall what he asked or how she replied. However, we are instructed that Ms Scott definitely did not provide any details as to what she had heard … We are instructed that none of the complaints presented by Ms Scott, either verbally or in writing, concerned any allegation that Mr Boys was engaging in any kind of sexual misconduct.”
89 Clause 14 of the Regulation provides for the laying of charges against a member of staff if it appears to a disciplinary authority that the member may have committed a breach of discipline (sub-cl (1)). The member charged must be directed to send a written reply to the disciplinary authority laying the charge (sub-cl (3)). The reply must admit or deny the truth of the charge and may give any explanation that the person wishes to make in regard to the charge (sub-cl (4)). If a reply is not received by the disciplinary authority within the time specified in the direction, the member of staff is taken to have denied the truth of the charge (sub-cl (5)). 90 Clause 15 of the Regulation provides for the methods of dealing with charges. If a member of staff denies the truth of a charge, the Director General (or some other disciplinary authority appointed by the Director General) is to deal with the charge (sub-cl (1)). Sub-clauses (2) and (3) provide as follows:
“ Breaches of discipline
An officer or temporary employee of a Teaching Service who:
(a) commits any breach of this Act or the regulations,
(b) engages in any misconduct,
(c) uses intoxicating beverages or drugs to excess,
(d) wilfully disobeys, or wilfully disregards, any lawful order made or given by a person having authority to make or give the order,
(e) is negligent, careless, inefficient or incompetent in the discharge of his or her duties, or
(f) engages in any disgraceful or improper conduct,
is guilty of a breach of discipline.”
The breaches of discipline s83 describes range from the minor to the very serious with punishments ranging from a caution to dismissal from the Teaching Service; s85 of the Act.
91 Clause 16 provides for the conduct of inquiries as follows:
“(2) A disciplinary authority may deal with the charge:
(a) by directing the member of staff to furnish an explanation in writing within such time (being at least 14 days) as is specified in the direction; or
(b) by conducting an inquiry.
(3) If a disciplinary authority takes action under subclause (2) (a):
(a) the authority may make a finding after considering any reports relating to the breach of discipline and any replies or explanations of the member of staff; or
(b) the authority may decide to deal with the charge by conducting an inquiry under subclause (2) (b).”
92 Clause 17 enables a disciplinary authority to grant to a witness summoned to attend and give evidence at an inquiry conducted by the authority expenses for attendance. Clause 19, which was amended as from 8 April 1997, provides for various things to be done if a charge of breach of discipline against a member of staff is found not to be proved. 93 A reading of cl 16 indicates the formality of an inquiry. Of pivotal importance in understanding the nature of the inquiry are the member’s right to be present and to be represented and, in particular, sub-cl (7) which acknowledges that critical and contested evidence (that is evidence of “matter ……that ought, in the interests of justice, to be available for challenge or testing”) should be presented to the disciplinary authority in a way which makes it available for challenge or testing by the persons entitled to be present at the inquiry. The sub-clause expressly puts into place that element of procedural fairness which flows from what Kirby P, as his Honour then was, described in Matkevich v New South Wales Technical & Further Education Commission (No 3) (unreported) Court of Appeal 2 February 1996, at 12 as “a fundamental right of a person to face, and to have the opportunity to question, his or her accusers.” 94 The availability of a choice of procedure which cl 15 (2) gives a disciplinary authority for dealing with a charge recognises the range of seriousness of possible charges and the extent to which they are disputed. In one case it may be appropriate for the disciplinary authority to do no more than consider the charge and any departmental reports relating to the breach of discipline and any replies or explanations furnished by the member of staff charged. In another case anything less than the formal presentation of evidence in the presence of the member of staff charged with the opportunity for that member to challenge and test it would be inappropriate. There may be many valid reasons why a member of staff would prefer and accept that the charge be dealt with under the first rather than the second procedure. But, in my opinion, there is nothing in either the Act or the Regulation which removes or curtails the right of the member of staff charged to have the charge dealt with according to the dictates of procedural fairness. 95 The Regulation ensures that this will happen. If a disciplinary authority decides to follow the procedure under cl 15(2) (a), it may instead of making a finding under sub-cl (3) (a) decide to deal with the charge by conducting an inquiry under sub-cl (2) (b); sub-cl (3) (b). But, by way of example, if a contested charge is dealt with and a finding made against the member charged without the procedures described in cl 16(7) being followed, so that the member is denied the opportunity to challenge and test the evidence the member disputes, not only have the dictates of procedural fairness been flouted but the regulatory scheme has been ignored. It could not seriously be contended that in these circumstances a disciplinary authority could arbitrarily choose, if the member has asked it to conduct an inquiry, not to do so. 96 As I have already indicated, the member of staff may prefer and agree to the procedure under cl 15(2)(a) being adopted. If a finding is then made against that member the member would be hard pressed to complain because an inquiry had not been conducted in accordance with cl 16. If on the other hand, against the member’s objection, a serious charge founded on testimony which the member disputes is dealt with without the member having the opportunity to challenge and test provided for in cl 16, the member would, ordinarily, have justification to complain and have any adverse finding set aside. 97 I have deliberately stated my opinion in general terms. In any case ultimately the question must be whether the disciplinary authority in dealing with a charge against a member has failed to accord that member procedural fairness. This will depend upon the circumstances of the particular case. The answer will not necessarily be found in looking at the nature of the complaint and whether the procedure under cl 15(2)(a) or (b) has been adopted. The choice of the first procedure leaves open to the disciplinary authority a further choice to conduct an inquiry. In one sense the discretion is unfettered. But in exercising it the disciplinary authority is bound to take into account the wishes of the member charged and bound to ensure that the charge is dealt with, as the common law and the Regulation require, in accordance with the dictates of procedural fairness. 98 If it be correct to say as Fitzgerald JA has said that the Court’s conclusion in Matkevich “necessarily involved the proposition that the legislative or sub-legislative source of the material discretion - in Hill’s case subclause 15(2) and (3) of the Regulation - authorised a discretionary decision to adopt a course which denies procedural fairness to a person charged in the determination of that charge” then, with due respect, I agree that that view is wrong and should not be followed. In short, it is not an answer to a claim that procedural fairness has been denied to a member of staff charged with a breach of discipline, for example by denial of the opportunity to challenge and test critical and contested evidence, to say that the disciplinary authority decided to follow the procedure set out in cl 15(2)(a). The Chief Justice has said and I agree:
“(1) If it is decided to conduct an inquiry, the disciplinary authority must give written notice to the member of staff charged of the time, date and place at which the inquiry is to be conducted.
(2) If the member of staff does not, without reasonable cause, appear at the time, date and place notified, the charge may be inquired into and dealt with in the member’s absence.
(3) For the purposes of an inquiry, a disciplinary authority may call on any person to appear and to give such evidence, and produce such documents, as appear to the authority to be relevant to the inquiry.
(4) A member of staff must not, without reasonable cause:
(a) fail to appear, give evidence or produce documents at an inquiry when called on to do so; or
(b) knowingly give false or misleading evidence at an inquiry.
(5) A member of staff may be represented at an inquiry by a barrister, solicitor or agent employed at the member’s expense.
(6) A disciplinary authority may conduct an inquiry without regard to legal formality, and is not bound by any law or practice as to evidence, but may inform himself or herself of any matter in such manner as he or she things fit.
(7) However, a disciplinary authority must not inform himself or herself of, or take into consideration, any matter that has not been disclosed in evidence at a sitting of the inquiry if the matter is one that ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the inquiry.
(8) Nothing in subclause (7) prevents a disciplinary authority:
(a) from informing himself or herself of, or taking into consideration, any matter of which a court would be entitled to take judicial notice; or
(b) when deciding whether or how to punish a member of staff found to have committed a breach of discipline, from taking into consideration any previous breach of discipline that has been found by a disciplinary authority to have been committed by the person charged.”
99 I agree for the reasons that the Chief Justice and Fitzgerald JA have given that Mr Hill should be given leave to appeal and his appeal allowed with costs and that in the cases of Mr Young and Mr Jarvis the applications for leave to appeal should be refused with costs. 100 This leaves the application by Mr Wood. Mr Wood was charged with negligence in the discharge of his duties; s83(e) of the Act. In the notice of charge dated 7 May 1997 five grounds were particularised, all of which related to failing to exercise appropriate professional judgment or notifying appropriate authorities about the conduct of a teacher, Peter Boys, involving female students or a female student. No dates were provided of the alleged acts of negligence. A request for further particulars of the acts or omissions, which were alleged to constitute the charge, specifying the dates and times when, and the place where, each act or omission was said to have occurred, was initially met by a claim that this was a matter for evidence. Further correspondence from Mr Wood’s solicitor brought the reply that the particulars set out in the notice of charge had been amended. The amended particular was set out. The form of that particular was:
“a valid decision under regulation 15(3)(a) must comply with the requirements of procedural fairness.”
I accept that procedural fairness may be achieved in a particular case without the need for a full inquiry. The obvious example may be where the member charged, while denying the charge, does not wish to confront and cross-examine the accuser.
101 No further indication of the nature of the improper conduct was given. A request for particulars asking for identification of the improper conduct met the response that this was a matter for evidence. I feel bound to say that these responses to legitimate requests in relation to what was ultimately regarded as a very serious allegation about Mr Boys’ improper conduct with female students gives little confidence in the administration of the disciplinary system. 102 By letter dated 1 September 1997 the first opponent wrote to Mr Wood’s solicitor notifying him of his appointment as the prescribed officer to deal with the disciplinary charge brought against Mr Wood and of his determination under cl 15 (2) of the Regulation to deal with the charge by giving a direction within the terms of cl 15 (2) (a). Therewith he enclosed a copy of the Department’s report in relation to the matter. In addition to the particular which I have set out, the report contained a statement of “relevant evidence” which in part was a transcription of evidence in a Royal Commission by Ms Scott in which she said she had raised some concerns about Mr Boys with Mr Wood (“it wasn’t a specific complaint”) in writing. The report continued:
“Whilst employed as an officer of the Education Teaching Service in the Department of School Education, at the Broadmeadow School, in or about 1986, having been told by, and given a typed statement by Leanne Scott, a teacher at the Broadmeadow School, of concerns that she had about the improper conduct of a male teacher at the same school, namely, Peter Boys, with female students at that school, you failed to cause an investigation to be made with respect to that allegation.”
103 The statement “relevant evidence” continued by saying that Mr Wood did not act on the concerns raised by Ms Scott. There followed a heading ‘Summation’:
“Ms Scott proceeded to describe the ‘over-friendliness, over-familiar, too close’ behaviour of Boys which she reported to Mr Wood.
Q. Can you tell us please what [Mr Wood] said to you in respect of what you should do or he should do, if anything?
A. Well, he said that what I had written was libellous and that - did I have proof, and I said, no, it is just gossip.
Q. Certainly.
A. But I took the complaint back and I ripped it up and put it away.”
104 I find it hard to relate this “summation” to the evidence set out of “over-friendliness”, “over-familiar”, “too close” behaviour of Mr Boys and Ms Scott’s evidence that it was just gossip. One cannot help but suspect that this summation was based on other material, perhaps included in the original particulars, but not now pursued. 105 Part of the attachment to the letter was a document approximately 25 pages long headed “Interview Schedule Discussion with Leanne Scott ……. conducted at Newcastle State Office on Monday 9/12/96…”. It is enough to say that this document contains very serious allegations about the conduct of Mr Boys, after which under the words “I’ve heard the following” appeared eleven numbered paragraphs including:
“Evidence given in the Royal Commission and to the Department of School Education investigator, indicates that Ms Scott, a teacher at the Broadmeadow School at the time, had knowledge of improper conduct by Peter Boys - reports from students who had been involved with Boys, her own observations, suspicions and rumours - which she disclosed to Mr Wood in 1986.
Ms Scott told both the Royal Commission and the Department’s investigator that she documented her concerns and presented them to Mr Wood who was the supervisor of the faculty in which she worked. Ms Scott raised with Mr Wood very serious matters which warranted further action to ascertain the substance of her claims. Mr Wood’s claim that it would be hard to prove was not an adequate response.
Mr Wood’s professional judgement was wrong.
Mr Wood failed to act on the information he had. He stated that it was hard to prove and he did nothing with the information. This was negligence on his part in circumstances where he had very serious allegations about improper conduct by a teacher with female students. He should have acted to cause an investigation to occur.”
106 On or about 18 September 1997 Mr Wood’s solicitor forwarded submissions to the first opponent. In the course of these it was said that Mr Wood denied the allegation that he was negligent in the discharge of his duties. Following that appeared paras 28 and 33 as follows:
“10. I went to Wal Wood with a typed statement of incidents; unprofessional behaviour of PB; he told me it was slander because much of it was hard to prove; I took it back. I don’t have it now.”
What this document had to do with the charge particularised against Mr Wood is difficult to discern. Even more difficult is it to understand why the document was sent with the report to the disciplinary authority and why it was received by him.
107 The submissions went on to deal in detail with the evidence and the allegations. However, no submission was made that an inquiry should be conducted in accordance with cl 16 of the Regulation. On 30 September 1997 the first opponent published his determination. Included in the determination were the following:
“28. Mr Wood instructs that in or about 1986 Ms Scott did speak to him, and showed him (rather than gave him) a written list (though he is unsure whether it was typed) of her concerns about Peter Boys. Mr Wood denies, however, that the concerns conveyed to him by Ms Scott, verbally or in writing, included that Mr Boys was engaging in improper conduct with female students, or that anything she conveyed to him in 1986 was of a nature which would give rise to a duty to cause an investigation to be made.
……
33. We are instructed that in fact what Ms Scott ‘disclosed’ to Mr Wood in 1986 were her complaints concerning Mr Boys’ disregard of her professional position in allowing students to use the staff room which she and Mr Boys shared and treating her, in the presence of students, as though she were of lesser status than them. We are instructed that specific complaints included that student Carol Watson frequented the staff room and spread her belongings on Ms Scott’s desk, sat in her chair and helped herself to Ms Scott’s coffee, and that Mr Boys told students to ignore Ms Scott. We are instructed that Ms Scott had referred towards the end of her written list of complaints to Mr Boys being ‘over-friendly’ or ‘over-familiar’ with students, that Mr Wood questioned her as to what she meant by that and that she responded by referring to her earlier complaints about students using the staff room etc., and Mr Boys treating students as equals, and added that she had heard ‘gossip’ or ‘rumours’. Mr Wood believes that he questioned Ms Scott about that, although he cannot recall what he asked or how she replied. However, we are instructed that Ms Scott definitely did not provide any details as to what she had heard. Mr Wood further instructs that he does not recall telling Ms Scott that what she had written was ‘slander’ or ‘hard to prove’, but that he did advise her not to leave the written list of complaints around the staff room where Mr Boys, or students, might see it, as that was likely to aggravate the conflict between her and Mr Boys. We are instructed that none of the complaints presented by Ms Scott, either verbally or in writing, concerned any allegation that Mr Boys was engaging in any kind of sexual misconduct.”
108 There is considerable force in the submission that not only did Mr Wood deny the allegations against him but gave a version of events which, if accepted, must have resulted in the dismissal of the charge. However, the first opponent concluded, based on Mr Wood’s admission, that Ms Scott’s allegations were “very serious allegations about Mr Boys’ improper conduct with female students.” While, if these allegations were only those particularised in the report and described in Mr Wood’s submission, I find this conclusion surprising, I am not persuaded that the conclusion was not open to the first opponent. 109 If Ms Scott’s allegations were found to be very serious allegations then it does not seem to me possible to interfere with the finding that Mr Wood was negligent in the discharge of his duties in not causing an investigation to be made with respect to them. Moreover, although I find the process by which Mr Wood was charged and the charges particularised very unsatisfactory and, I hope, but one of a few isolated examples, which have come to the attention of this Court, I am not persuaded that the finding was vitiated by procedural unfairness. Accordingly, I agree with the Chief Justice that Mr Wood’s application for leave to appeal should be dismissed with costs. 110 BEAZLEY JA: I agree with Fitzgerald JA. 111 FITZGERALD JA: The four applicants, Hill, Young, Jarvis and Wood, are and were at all material times teachers employed by the Department of Education and Training. Hill was a Head Teacher at Coonamble High School. Young was a Deputy Principal, Jarvis a Leading Teacher, and Wood a Head Teacher (Administration) at Broadmeadow School. 112 Each of the applicants was charged departmentally with a disciplinary offence and penalised after it was found that the offence was established. It was found that one of the two particulars of the charge against Hill was not established. The respondent Green was the “prescribed officer” within the meaning of s 83 of the Teaching Services Act 1980 (the “Act’) and clause 13 of the Teaching Services (Education Teaching Service) Regulation 1994 (the “Regulation”) who determined the charges against Hill. The other respondent, Buckley, was the prescribed officer who determined the charges against Young, Jarvis and Wood. 113 The applicants challenged the determinations in the Administrative Law Division, Hill sought declaratory relief and an order that the respondent Green “take no further part in the disciplinary proceedings against [Hill] arising out of the events that gave rise to the proceedings”. Each of Young, Jarvis and Wood sought declaratory relief and an order quashing the decision against him on her. but their proceedings were dismissed. The applicants seek leave to appeal to this Court against those decisions. With the consent of the parties, the Court heard full argument so as to permit it to dispose of any appeals for which leave is granted. The applicants’ argument sought to persuade the Court to overrule its decision in Matkevich v NSW Technical and Further Education Commission (No.3). Unreported, NSWCA, 2 February 1996. One aspect of that decision, on which the Court was unanimous, is relevant to all four of the present proceedings. The second aspect, which related to the penalty imposed on Matkevich, is relevant only to the proceeding by Hill.
“I disagree with Mr Wood’s solicitor’s argument that he has been denied procedural fairness in that the Department failed to provide Mr Wood with an opportunity to respond to the allegations against him before he was formally charged. Through the processes in which we are currently engaged Mr Wood has been afforded every and adequate opportunity to respond to the particular of charge.
In part, the Department of School Education alleges that, in or about 1986, Mr Wood was told by, and given a typed statement by Leanne Scott of concerns she had about the improper conduct of a male teacher at the same school, namely Peter Boys, with female students at the Broadmeadow School.
Having considered the evidence submitted by the Department and the form of admission by Mr Wood I find it proven that, on the balance of probabilities, Ms Scott did, in or about 1986, tell Mr Wood of concerns she had with respect to Mr Boys and that she did have with her at that time a paper detailing those concerns.
On the balance of probabilities I find it proven that Ms Scott did give the statement to Mr Wood.
Although it may have only been in Mr Wood’s possession for a short period of time it would have afforded Mr Wood an opportunity to examine the contents. As Ms Scott’s immediate superior it is reasonable for the Department to expect that Mr Wood would have taken the time to ensure that he did, in fact, closely examine the document.
I now turn to the nature of the concerns raised by Ms Scott with Mr Wood and as to whether on the balance of probabilities they included concerns that she had about the improper conduct of Mr Boys with female students.
Mr Wood’s solicitors argue that the Department has not provided evidence that Ms Scott conveyed to Mr Wood, either verbally or in writing, allegations that Mr Boys was engaging in any kind of sexual misconduct. The Department’s particular of charge, however, is that Ms Scott conveyed to Mr Wooed her concerns that Mr Boys’ behaviour with female students was improper.
The concerns Ms Scott raised with respect to Mr Boys’ improper conduct with female students related to actions by Mr Boys which breached standards of conduct which would be expected of a person in Mr Boys’ position.
………
Mr Wood admits that Ms Scott did raise the issue of Mr Boys’ allowing female students to use the staff room and that Ms Scott described Mr Boys’ relationship with female students as ‘over-friendly’ and ‘over-familiar’.
On the balance of probabilities I find that the evidence supports the allegation that Ms Scott did in fact, in or about 1986, convey to Mr Wood her concerns about improper conduct of Mr Boys with female students.
Mr Wood denies that he did not cause an investigation into Ms Scott’s concerns regarding Mr Boys’ improper conduct with female students to be made.
His solicitors in their submission advise that Mr Wood felt sympathetic to Ms Scott and raised her concerns with Mr Boys. I do not accept that this action constitutes an investigation to be made into Ms Scott’s very serious allegations about Mr Boys’ improper conduct with female students.
Mr Wood’s solicitor advises that Mr Wood raised Ms Scott’s concerns with Mr Cotterill, Principal of the school, sometime later. Mr Wood, however, maintains that Ms Scott did not raise with him ‘any information with respect to which he would have a duty to act to cause an investigation to be made.’
On the balance of probabilities I find it difficult to accept that even if Mr Wood raised Ms Scott’s concerns with Mr Cotterill that he adequately or comprehensively conveyed the serious nature of Ms Scott’s concerns regarding Mr Boys’ improper conduct with female students.
I have formed the opinion that, on the balance of probabilities, Mr Wood made a judgement about the severity, reliability and veracity of Ms Scott’s concerns which was seriously flawed.
……..
I find the charge of a breach of discipline within the meaning of section 83 (e) of the Teaching Services Act 1980 in that you were negligent in the discharge of your duties proven.”
114 It is convenient to start with the application by Hill, who was found to have committed the most serious offence and is under threat of dismissal. 115 Hill was charged with improper conduct contrary to subs 83(f) of the Act. The allegation which was held to be established was that “on or about 4 April 1993, in regard to a male student (namely Graham John Pennell), who was boarding at your home, at about 9.15pm, whilst you were naked and with your penis erect, you entered his bedroom and grabbed his penis and commenced to masturbate in front of him”. 116 Prior to being charged, Hill was informed of the allegation and required to respond in writing within fourteen days. His response was to “absolutely deny” the allegation. 117 After Hill was charged on 18 November 1997, his solicitor, who has acted throughout for all applicants, wrote to the appropriate officer within the Department, and, after reiterating that Hill “denies absolutely that he has engaged in any improper conduct as alleged”, stated:
Hill
118 The next communication was a letter from the respondent Green dated 25 March 1998 which was in the following terms:
“Given the nature of the allegations, the person who has made those allegation and the delay in making them we believe it would be appropriate to receive submissions on the manner in which the disciplinary charges would be dealt with by the Prescribed Officer. We would ask that you bring this letter to his or her attention so that they might make appropriate submissions at the relevant time.”
119 The departmental report referred to in the letter which is set out in the preceding paragraph recited the history of the investigation and charge and, in relation to the allegation which was subsequently found established, stated that reliance was placed on a statement by Pennell to Coonamble Police on 8 April 1993, a record of interview of Pennell by a departmental officer on 24 September 1997 and a record of interview which that officer had on the same day with a friend to whom Pennell had made a complaint. Reference was also made to a letter of apology written by Hill to Pennell, which was left in his bedroom at Hill’s house where it was found on the day after the alleged misconduct. Further, it was pointed out that Hill left Coonamble almost immediately, sought a transfer, and, on 19 April 1993, commenced long service leave. 120 Hill’s solicitor responded on his behalf by a written submission dated 20 April 1998. Paragraphs 7, 8, and 9 of that submission were in the following terms:
“The Director-General has appointed me as the Prescribed Officer to deal with the charge made against you on 18 November 1997, under the Teaching Services Act, 1980.
I have decided to deal with the charge under clause 15(2)(a) of the teaching Services (Education Teaching Service) Regulation, 1994.
I have received a report from the Department of Education and Training in relation to the charge. A copy of this report is attached.
Accordingly, you are directed to furnish an explanation in writing in relation to the charge, within 14 days of receipt of this letter.”
121 Each of those matters was elaborated upon, including a detailed submission concerning the “Need to have a hearing”. Documents were attached, including a statement by Hill dated 16 April 1998 in which he denied the charge and sought to explain his departure from Coonamble and application for a transfer. 122 There was no further communication until 14 May 1998 when Green wrote to Hill’s solicitor in the following terms:
“7. It is the purpose of this submission to examine the particulars of the charge, assess the evidence which is out forward by the Case Management Unit and, having regard to that evidence and the evidence put forward by Mr Hill, argue that on the basis of the material available to you could not be properly satisfied that the allegations have any substance or merit.
8. We commence this document, however, by making a primary submission that you should not determine the charge in a manner unfavourable to our client with a hearing.
9. We also provide a number of submissions on preliminary issues relating to the appropriate approach to be taken in determining a disciplinary inquiry. Those issues are:-
(a) the burden of proof;
(b) the standard of proof;
(c) the approach to making findings;
(d) the use of evidence of complaint; and
(e) where there is a lack of corroboration”123 The report referred to in the letter which is set out in the preceding paragraph recited the history of the investigation and charge and said:
“I refer to the disciplinary charges made against your client Mr Donald Hill.
Your client’s response has been considered along with the report provided by the Department of Education and Training. I have determined that the charge of breach of discipline within the meaning of section 83(f) of the Teaching Services Act, 1980 in that Mr Donald Hill engaged in improper conduct is proven.
A copy of my report is attached. I have not included a copy of the Department’s report as I have previously provided this to you.
I now invite Mr Hill to make a submission within 28 (twenty eight) days of the date of this letter as to the penalty to be imposed.
I will make my decision about penalty at that time whether or not a submission has been received from you.”
124 It was subsequently decided to terminate Hill’s employment, although that decision has not yet been implemented. 125 Hill’s primary submission is that Green’s refusal to conduct an inquiry constituted a denial of natural justice. The response which is made is that Green was entitled to proceed as he did, in accordance with this Court’s decision in Matkevich. 126 It is common ground that the material provisions concerning the determination of the charges against the applicants are clauses 13 to 16 inclusive of the Regulation, which are found in Part 3 “Breaches Of Discipline By Members Of Staff”. Those clauses are as follows:
“Despite Mr Hill’s submission to the contrary, the evidence presented by the Department in the form of Mr Hill’s note of apology and the fact that he left Coonamble shortly after the event are both relevant and telling. The tone and content of the note of apology point to a far more traumatic event than that described by Mr Hill and contain a significant apology. Mr Hill’s actions, as described by him, would not warrant such an apology. The tone of the letter and the level of apology serve to support Mr Pennell’s account of evidence not Mr Hill’s.
Furthermore, Mr Hill’s action in abandoning his position during the school year was clearly in response to an event far more significant than that described by him Such action in my experience is extremely unusual.
Determination
The detail of Mr Pennell’s account, his confirmation of his account after a period of over four years, the action taken by Mr Hill in abandoning his employment in Walgett and Mr Hill’s own words in his letter of apology constituted strong enough evidence to determine that on the balance of probabilities particular 2 is proven.
On the balance of probabilities: I find particular 2 proven .
Summary of findings
On the basis of all the evidence available to me, I find
Particular 1 not proven
Particular 2 proven
The community has a right to expect high standards of behaviour on the part of teachers. This includes maintaining professional relationships with students while avoiding the establishment of personal relationships which extend beyond an accepted pupil teacher relationship. This special relation and trust extends to out of school hours and is not diminished by the age of the student or the student’s living arrangements.
On the basis of the evidence presented to me it is clear that on the balance of probabilities Mr Hill has breached that trust in this case.
I therefore find the charge proven.”
127 The present applications proceeded on the footing that the material provisions in Matkevich, which were contained in the Technical and Further Education Teaching Service Regulation 1981, were not different in substance or effect from the provisions now relevant. 128 Charges of disciplinary offences against Matkevich included a charge of improper conduct involving allegations of statements to a female student involving a sexual innuendo and assault of a female student in his home (by “pulling her to you and then rubbing your hands on her buttocks”). Matkevich denied all allegations except that of smoking in his office. 129 Matkevich’s request for an inquiry was denied, and, in due course, the prescribed officer found the charges proved. He then received submissions on penalty, but did not provide Matkevich with a copy of the submissions adverse to him. In respect of the charges relating to sexual innuendo and assault, he recommended that Matkevich be directed to resign. 130 Matkevich appealed to the Government and Related Employees’ Appeal Tribunal (“GREAT”) under subss 23(1)(f) and 24(1) of the Government and Related Employees’ Appeal Tribunal Act 1980. GREAT determined to conduct a full hearing on all issues. Matkevich objected to that course, and appealed to this Court under s 54 of the Government and Related Employees’ Appeal Tribunal Act. 131 In this Court, Matkevich argued that the decision of the prescribed officer was void, that he was entitled to have the matter redetermined by a prescribed officer, and that he would be disadvantaged by the course proposed by GREAT. Before GREAT, he would be in the position of an appellant, with the burden of establishing his entitlement to relief, and, if GREAT found against him, his only appeal would be to the Supreme Court on a question of law. If the charge were redetermined by a prescribed officer, the Department would have the burden of establishing that he had committed the disciplinary offences, and, if the prescribed officer made such a determination, Matkevich would then have an appeal on the merits to GREAT, with the further right of appeal to the Supreme Court on a question of law. 132 Kirby P stated that “… the proper (as distinct from the only lawful) exercise of the power to determine complaints of the variety, belatedness and seriousness of those brought against such a senior career teacher as Mr Matkevich was by the conduct of a inquiry … and not by the informal procedure which [the prescribed officer] adopted …. In such matters (which ultimately had such a serious consequence), it is ordinarily a fundamental right of a person to face, and to have the opportunity to question, his or her accusers… But, with some regrets, I cannot say that the contrary decision may be characterised, in law, as so flawed as to be void and of no effect”. 133 In dealing with the prescribed officer’s failure to hold an inquiry, Powell JA said:
“PART 3 - BREACHES OF DISCIPLINE BY MEMBERS OF STAFF
Officers who may deal with breaches of discipline: sec 82
13. In accordance with paragraph (a) of the definition of “prescribed officer” in section 83 of the Act, the following positions in the Public Service (being positions within the Department) are prescribed as positions for the purposes of Division 6 of Part 4 of the Act in its application to the Education Teaching Service:
Deputy Director-General
Assistant director-General
DirectorLaying of charges
14(1) If it appears to a disciplinary authority that a member of staff may have committed a breach of discipline, the member may be charged by the authority with the breach.
(2) The charge maybe laid orally or in writing but, if laid orally, the member of staff must be furnished with a written copy of the charge within a reasonable time.
(3) At the time the member of staff is charged by a disciplinary authority in writing or furnished with a written copy of the charge, the member must be directed to send a written reply to the authority within such time (being at least 14 days) as is specified in the direction.
(4) The reply:
(a) must admit or deny the truth of the charge, and
(b) may give any explanation that the person wishes to make in regard to the charge.
(5) If a reply is not received by the disciplinary authority within the time specified in the direction, the member of staff is to be taken to have denied the truth of the charge.Dealing with charges
15.(1) If a member of staff denies the truth of a charge, the Director-General (or some other disciplinary authority appointed by the Director-General) is to deal with the charge.
(2) A disciplinary authority may deal with the charge:
(a) by directing the member of staff to furnish an explanation in writing within such time (being at least 14 days) as is specified in the direction; or
(b) by conducting an inquiry.
(3) If a disciplinary authority takes action under subclause (2)(a):
(a) the authority may make a finding after considering any reports relating the breach of discipline and any replies or explanations of the member of staff; or
(b) the authority may decide to deal with the charge by conducting an inquiry under subclause (2)(b).
(4) If 2 or more charges are laid against a member of staff at the one time and the member admits to the truth of one or more but not all of the charges, all of the charges may be dealt with in the manner prescribed by subclause (2).Conduct of inquiries
16(1) If it is decided to conduct and inquiry, the disciplinary authority must give written notice to the member of staff charged of the time, date and place at which the inquiry is to be conducted.
(2) If the member of staff does not, without reasonable cause, appear at the time, date and place notified, the charge may be inquired into and dealt with in the member’s absence.
(3) For the purposes of an inquiry, a disciplinary authority may call on any person to appear and to give such evidence and produce such documents, as appear to the authority to be relevant to the inquiry.
(4) A member of staff must not, without reasonable cause:
(a) fail to appear, give evidence or produce documents at an inquiry when called on to do so; or
(b) knowingly give false or misleading evidence at an inquiry.
(5) A member of staff may be represented at an inquiry by a barrister, solicitor or agent employed at the member’s expense.(6) A disciplinary authority may conduct an inquiry without regard to legal formality, and is not bound by law or practice as to evidence, but may inform himself or herself of any matter in such manner as he or she thinks fit.
(7) However, a disciplinary authority must not inform himself or herself of, or take into consideration, any matter that has not been disclosed in evidence at a sitting of the inquiry if the matter is one that ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the inquiry.
(8) Nothing in subclause (7) prevents a disciplinary authority:
(a) from informing himself or herself, or taking into consideration, any matter of which a court would be entitled to take judicial notice; or
(b) when deciding whether or how to punish a member of staff found to have committed a breach of discipline, from taking into consideration any previous breach of discipline that has been found by a disciplinary authority to have been committed by the person charged.”134 Cole JA said:
“It cannot … be the law that, where, in a case such as this, rules which have legal effect permit disciplinary charges to be dealt with in one or other of two defined ways at the discretion of the relevant officer, the rules of procedural fairness require that the relevant officer exercise his discretion in one rather than the other of those ways.”
135 GREAT considered that the prescribed officer’s omission to provide Matkevich with a copy of the submissions on penalty made against him was unfair. However, GREAT held that the defect did not vitiate the penalty decision but that Matkevich’s appeal to it, which was to be a full appeal on facts and law in which Matkevich was entitled to call evidence, would satisfy the duty of fairness or at least “cure” the prescribed officer’s failure to act fairly. 136 Kirby P disagreed. His Honour said:
“Once it is accepted that a discretion to hold an inquiry or not exists as a matter of law, and that there was no procedural unfairness in relation to the exercise of that discretion, it cannot be said that the factual circumstances are such as to remove the right to exercise the discretion in the manner which occurred. So to hold would be to rewrite the Regulation…”
137 Powell JA said:
“… The facility of appeal to the Tribunal is beneficial. But it cannot cure every wrong done at first instance.
A person affected is ordinarily entitled to have a lawful, fair primary decision, especially where his employment, reputation and other rights are at risk. In the case of this Tribunal, to limit the appellant to a hearing on the merits before the Tribunal, would have the further practical disadvantages earlier mentioned, a reversal of the burden of proof and a deprivation of the right of further appellate review, from a decision of the Tribunal, save on a question of law. Although the Tribunal would reach a decision, and not a recommendation, it would be a decision from which no further appeal on the merits would be available. Against the background of the other reservations about the course of the primary decision making in this case and the grave consequences for an employee of 20 years service, it is my view that the only lawful response was to set the decision aside and recommit the matter for determination by the primary decision maker. He could then reach his decision as the law requires, without the serious flaw of a procedural character …
In a subsequent passage, his Honour made it plain that the only matter which he considered should be remitted to the prescribed officer was Matkevich’s penalty.
138 Cole JA was also of opinion that the inquiry proposed by GREAT satisfactorily resolved any difficulties associated with the procedure adopted by the prescribed officer. 139 By majority, Matkevich’s appeal was dismissed. 140 In Matkevich, it was held that procedural fairness did not oblige the prescribed officer to hold an inquiry. At least two members of the Court, Powell and Cole JJA, considered that it was a sufficient answer to Matkevich’s complaint that an inquiry had not been held that the prescribed officer had a discretion under the Regulation either to hold an inquiry or proceed without an inquiry, subject to a qualification expressed by Cole JA “that there was no procedural unfairness in relation to the exercise of that discretion”. If an inquiry was necessary to procedural fairness in the determination of the charge against Matkevich, the Court’s conclusion necessarily involved the proposition that the legislative or sub-legislative source of the material discretion - in Hill’s case, subcll 15(2) and (3) of the Regulation - authorised a discretionary decision to adopt a course which denies procedural fairness to a person charged in the determination of that charge. 141 In my opinion, that view is contrary to binding authority and should not be followed. 142 A statute does not exclude requirements of procedural fairness (i.e., authorise procedural unfairness) except by “plain words of necessary intendment”. Annetts v McCann (1990) 170 CLR 596, 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 574-575; Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6. The necessary legislative intention is not to be inferred from statutory rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of NSW (1986) 5 NSWLR 338, 344-345, 347, 349; Annetts v McCann 170 CLR 596, 598; Murray v Legal Services Commission [1999] NSWCA 70. 143 Consistently with that principle of construction, a statutory regulation - making power does not authorise a regulation which excludes the requirements of procedural fairness except by “plain words of necessary intendment”. Waterhouse v Knox (1910) 10 SR (NSW) 155; Lubcke v Little (1970) VR 807; R v Whyalla; ex parte Kittel (1979) 20 SASR 386. The regulation-making powers in the Act, Sections 84(2), 99, 100 and 101. which are merely expressed in general terms, do not contain the necessary “plain words of necessary intendment”. If subcll 15(2) and (3) of the Regulation purported to authorise a denial of procedural fairness, they would be beyond power and invalid, unless they could be read down pursuant to s 32 of the Interpretation Act 1987. 144 However, on their proper construction, subcll 15(2) and (3) of the Regulation do not purport to have that effect. As with a statute, a regulation does not exclude the requirements of procedural fairness except by “plain words of necessary intendment”. Words which merely grant a decision-maker a discretion concerning the course to be followed do not fit that description. A discretion which is not expressly fettered, like any other generally expressed power, must be exercised to provide procedural fairness. That principle is applicable to subcll 15(2) and (3) of the Regulation. 145 The practical effect , which seems intentional, is that a charge may be dealt with under subcll 15(2)(a) and (3)(a) if the procedure for which it provides will be fair to the person charged. Otherwise, a charge must be dealt with under subcll 15(2)(b) and cl 16. 146 The respondent’s argument that Part 3 of the Regulation constitutes a “code” misses the point. It might well be the case that a charge only be laid in accordance with cl 14, that the only alternative methods of dealing with a charge are those specified in subcll 15(2) and (3), and that an inquiry must be conducted in accordance with cl 16. Assuming that to be so, the question remains whether the discretionary power granted by subcll 15(2) and (3) may be exercised without regard to, or must be exercised to give effect to, the need for procedural fairness in the determination of a charge. The latter is the correct position, for the reasons earlier explained. 147 In Matkevich, Kirby P considered that an inquiry was called for in the circumstances of that case, correctly in my opinion. However, as is obvious from subcll 15(2)(a) and 3(a) of the Regulation, an inquiry is not necessary to procedural fairness in every case. The manifest intent of subcll 15(2) and (3) of the Regulation is that a decision-maker must adopt the procedure which is suitable to the particular case. It is unnecessary for present purposes to decide whether the primary obligation to accord procedural fairness to the person charged might ever be qualified by other considerations; for example, by the adjustment of what fairness involves when a complainant is a young child. 148 The charge against Hill was serious, and the decision whether he had committed the offence with which he was charged was dependent upon contested allegations and circumstances which required explanation, in both instances involving issues of credibility. It was unfair to Hill for the respondent Green to find Hill guilty after proceeding under subcll 15(2)(a) and 3(a). Despite the respondent’s submissions to the contrary, there were no competing considerations which were sufficient to deprive Hill of his entitlement to confront and cross-examine his accuser, cf Commission of Police v Tanos (1958) 98 CLR 383, 395-396; Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487, 516; McCormack v FCT (1979) 52 ALJR 436, 439-440, 444, 450 and 451; Chen Zhen Zi v Minister for Immigration & Ethnic Affairs (1994) 121 ALR 83, 91-94; Murray v Legal Services Commissioner [1999] NSWCA 70. which, in the context of subcll 15(2) and (3) of the Regulation, was only possible in an inquiry pursuant to subcll 15(2)(b) and 16. 149 What has been said to this point is concerned with the operation of the Regulation and leaves out of account Hill’s opportunities to challenge the decision adverse to him which was made by the respondent Green under subcll 15(2)(a) and 3(a). The Regulation and the Act are not materially exhaustive. Because a decision was made to dismiss him, Hill had a right of appeal to GREAT under subss 23(1)(f) and 24(1) of the Government and Related Employees Appeal Tribunal Act 1980, although he did not exercise that right. Instead, he applied to the Industrial Relations Commission for an order for reinstatement under Part 6 of the Industrial Relations Act 1996. That proceeding has not been determined. 150 Hill’s rights, and his proceeding, under the Industrial Relations Act can be ignored for present purposes. Although “… where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if the decision-making process, viewed in its entirety, entails procedural fairness”, South Australia v O’Shea (1987) 163 CLR 378, 389. See also Twist v Randwick Municipal Council (1976) 136 CLR 106, 111, 116; R v Marks; ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471, 484-485; Oates v Attorney-General (Cth) (1998) 156 ALR 1, 12; reversed on another ground, [1999] HCA 35. the principle is confined to “steps or stages” in a single “decision-making process”. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408, 473-474. Hill’s proceeding under the Industrial Relations Act is separate from the determination of the charge against him under the Act and the Regulation and his associated appellate right under the Government and Related Employees Appeal Tribunal Act. Further, the respondents did not rely on Hill’s Industrial Relations Commission proceeding as a reason for refusing him the relief claimed in the exercise of the Court’s discretion. 151 A decision which is subject to appeal and an appeal from the decision are usually treated in this context as parts of a single “decision-making process”, and an adequate right of appeal, which provides the appellant with a fair procedure for the determination of all matters in dispute, factual and legal, usually provides an answer to a complaint that procedural fairness was denied in respect of the initial decision. R v Marks; ex parte Australian Building Construction Empolyees & Builders Labourers’ Federation (1981) 147 CLR 471, 484-485, per Mason J. Why that is so has not yet clearly emerged. Further, it is not authoritatively established what is an adequate right of appeal for this purpose. 152 In Matkevich, Powell and Cole JJA considered that the appeal to GREAT provided an answer to the prescribed officer’s breach of procedural fairness in not providing Matkevich with a copy of the submissions made against him on penalty. Their Honours’ reasons are not elaborate. It must have been implicitly accepted that the determination of a charge under the Regulation and an appeal to GREAT are “steps or stages” in a single “decision-making process”, notwithstanding that a decision under the Regulation is immediately complete and effective, and remains so unless an appeal is successfully prosecuted. If that was their Honours’ view, it is perhaps to be supported by the decisions of the High Court in Twist (1976) 136 CLR 106. and R v Marks. (1981) 147 CLR 471. 153 Kirby P’s judgment in Matkevich did not expressly challenge the propositions that procedural fairness requires consideration of the “… decision-making process … in its entirety…”. His Honour’s opinion that an appeal to GREAT was not adequate to redress a failure to provide procedural fairness when the charge was initially determined was founded on the circumstance that Matkevich would have had forensic advantages if procedural fairness had been accorded to him initially which were not available to him on appeal. The views which Kirby P there expressed are supported by what his Honour had said in Smith v Allan, (1993) 31 NSWLR 52, 60-61. See also Macksville & District Hospital v Mayze (1987) 10 NSWLR 708, 714-716, 718-722, 728; Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, 16-17, 25. with the concurrence of Clarke JA and Samuels AJA. Smith v Allan (1993) 31 NSWLR 52. was not referred to in Matkevich. 154 The conflicting views in Matkevich were expressed in a narrow context. Commonly, as in the present proceeding, complaints that procedural fairness has been denied arise in claims for declaratory, injunctive and/or prerogative relief. Matkevich involved an appeal to this Court on a question of law under s 54 of the Government and Related Employees’ Appeal Tribunal Act. The point of difference between Kirby P and the majority in relation to Matkevich’s appeal with respect to penalty was whether he was entitled to have GREAT allow his appeal and order that his penalty be redetermined by a prescribed officer (which was Kirby P’s opinion) or whether, as was the opinion of the majority, GREAT was entitled to decide Matkevich’s penalty after following appropriate procedures. The decision is of little, if any, assistance in determining the significance of Hill’s right to appeal to GREAT to his present claim to relief. 155 One view which has been expressed is that an adequate right of appeal excludes the right to procedural fairness in respect of an initial determination. Twist v Randwick City Council (1976) 136 CLR 106, 110-112, per Barwick CJ. While that view might provide a logical foundation for the proposition that an adequate right of appeal can provide an answer to a complaint that procedural fairness was denied in relation to an initial determination, it is open to obvious objection and has generally been rejected. Twist 136 CLR 106, 116, per Mason J; 118-119 per Jacobs J. A statutory provision granting an adequate right of appeal could not be described as containing “plain words of necessary intendment” that the initial decision-maker is permitted to act unfairly. 156 Another opinion sometimes advanced is that an adequate appeal “cures” See for example, Twist v Randwick City Council (1976) 136 CLR 106, 116 per Mason J; cf Ridge v Baldwin (1964) AC 40, 79 per Lord Reid. a failure by an original decision-maker to provide procedural fairness. The meaning of this proposition is unclear, and the statement is not readily referable to any identifiable legal principle. Perhaps what is meant is that “a full and fair hearing in the appeal” makes any denial of natural justice by the original decision-maker “irrelevant”, R v Marks; ex parte Australian Building Construction Empolyees & Builders Labourers Federation (1981) 147 CLR 471, 485, citing Calvin v Carr [1980] AC 574, 593. See also Walker v Secretary Department of Social Security (No.2) (1997) 75 FCR 493, 507. but again the underlying principle is obscure. 157 The theory which has received most assent is that an adequate right of appeal ordinarily provides the appropriate remedy for a denial of procedural fairness at the stage of an initial determination. See, for example, Marine Hull Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234; appld (1986) 57 ALR 77 Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 118 ALR 527, 540-541. This theory, which has not been fully elaborated, avoids the difficulties involved in other suggested explanations of why an adequate right of appeal can provide an answer to a denial of procedural fairness in respect of an initial determination, and is compatible with legal principle. 158 In Twist, (1976) 136 CLR 106, 111. Barwick CJ stated 136 CLR 106, 111. that “[t]he mere existence of an appeal may not in some circumstances satisfy the requirements of natural justice”, but considered that that the appeal in that case, which required the District Court to examine the facts and “exercise a primary discretion”, was adequate. His Honour said 136 CLR 106, 111-112. “… the District Court must be satisfied by evidence duly given before it …” 136 CLR 106, 111-112., and “ … must decide on its own view of the actual facts whether an order should be made …” 159 Mason J stated that “… the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standards of fairness”. 136 CLR 106, 116. Nonetheless, his Honour was of the opinion that the appeal in that case was an answer to appellant’s complaint that he had been denied natural justice. His Honour said:
“…while it would have been open to the Tribunal to express its view that the prescribed officer’s determinations as to penalty were void, it could not have done so in relation to the prescribed officer’s determination as to the charges which he had determined ought to be found proven. The Tribunal, thus, was not, in my view, bound to set aside … the prescribed person’s determination as to the questions of guilt or otherwise but, on the contrary, was left to determine what was the most appropriate order to be made in order to rectify whatever deficiencies in the proceedings it had found. It would, in my view, have been open to the Tribunal to remit the question of penalty to the prescribed officer … - but it would not, in my view, have been obliged to do so; on the contrary, it would have been open to the Tribunal itself to determine the appropriate penalty, each of Mr Matkevich and the Commission having an opportunity to lead whatever evidence and to advance whatever submission he and it thought appropriate. In fact, the course determined upon by the Tribunal - that is a hearing de novo both as to questions of guilt or otherwise and as to penalty - goes beyond what, in my view, Mr Matkevich was entitled to expect…”
160 The remaining member of the Court, Jacobs J, said: 136 CLR 106, 188.
“… the appeal not restricted in any way. It is a full appeal on facts and on law in which the appellant is entitled to call evidence. The appeal extends to such elements of discretion as may enter into the making of the order as well as to the existence or non-existence of the conditions which are to be satisfied before an order can be made.” 136 CLR 106, 114.
Later, 136 CLR 106, 116-117. his Honour said that “… the appeal provided for [namely] an unrestricted appeal to a court involving a hearing de novo”, provided “… the exclusive remedy available … to challenge the validity or correctness of an order …”.
161 In R v Marks, (1981) 147 CLR 471. Mason J said: 147 CLR 471, 484.
“ … This right of appeal gives to the District Court a right of the broadest kind to determine at the date of the hearing of the appeal whether the conditions precedent to the making of the order existed at the date of the council’s order and continue to exist at the date of hearing of the appeal and whether any, and if so what order should be made ‘having regard to this Act, the ordinances, the circumstances of the case, and the public interest’. The word ‘appeal’ does not limit the inquiry before the District Court. It merely describes the initiation of the process of determination before the District Court for which the section provides. I find no need to add more to what has been said hereon by Barwick J and Mason J.”
Later his Honour said that he regarded “ the wide provision for appeal” as an indication that the legislature did not intend that an order made by the council without procedural fairness was “invalid, that is to say, void and a nullity …”. 136 CLR 106, 119. His Honour continued: 136 CLR 106, 119.
“The appeal is to a judicial body in the fullest sense of that term. The determination must be made upon the evidence before the District Court. I do not think that it would at all accord with the legislative intention that an owner should be able to ignore rights of appeal of the kind given … and instead rely on an absolute invalidity of the order that the council had made. A different view might be open if the appeal were to anything less than to the wide jurisdiction and consequent legal standing possessed by the District Court …”
162 In both Twist (1976) 136 CLR 106. and R v Marks, (1981) 147 CLR 471. a single statute provided for both the initial determination and the right of appeal. The approach adopted in those cases is consistent with the rule of statutory construction that a remedy provided by an enactment for the enforcement or breach a right created by the enactment is ordinarily exclusive. Barraclough v Brown [1897] AC 615. It is unnecessary for present purposes to embark on a detailed discussion of the rule, which modern authority in this State tends to treat as merely empowering the Court to refuse any remedy other than that provided for by the Act creating the right in its discretion. See, for example, Sutherland Shire Council v Leyendekkers [1970] 91 WN (NSW) 250, 263; North Sydney Municipal Council v Comfytex Pty Ltd (1975) 1 NSWLR 447, 450; Johnco Nominees Pty Ltd v Albury- Wodonga (NSW) Corporation (1977) 1 NSWLR 43. See also Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Dorf Industries Pty Ltd v Toose (1994) 127 ALR 654, 670. 163 Other decisions establish that there is a discretion to refuse declaratory, injunctive or prerogative relief when an adequate alternative remedy such as an appeal, is available. R v Federal Court; ex parte Western Australia National Football League (Inc) (1979) 143 CLR 190, 230-231, 238; R v Cook; ex parte Twigg (1980) 147 CLR 15; R v Ross-Jones; ex parte Green (1984) 156 CLR 185; R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400; Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492, 498; Macksville & District Hospital v Mayze (1987) 10 NSWLR 708, 719-723; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. See also R v Chief Constable Of Merseyside Police; ex parte Calveley [1986] QB 424, 433, 435. In R v Inland Revenue Commission; ex parte Preston, [1985] AC 835, 852. Lord Scarman accepted that the grant or refusal of such relief when there is an adequate appeal from an initial determination which involved a denial of procedural fairness should similarly be decided by the exercise of a judicial discretion. [1985] AC 835, 852. See also per Lord Templeman at pp862 ff. 164 In my opinion, the position can be broadly summarised as follows. In the absence of “plain words of necessary intendment”, an initial decision-maker is required to provide procedural fairness and his or her failure to do so will involve legal error. However, the relief available in respect of such an error is ordinarily confined to any statutory right of appeal, provided that an appeal is adequate to provide the appellant with the procedural fairness to which he or she is entitled. A full appeal There is a discussion of the history and nature of appeals in Fleming v R (1999) 73 ALJR 1, and State Rail Authority of NSW v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588, 609 ff, per Kirby J. on facts and law will ordinarily be adequate for that purpose, even if the appeal involves routine forensic disadvantages compared to a “first instance” redetermination. Nonetheless, the Court retains a discretion to grant other relief if that is justified in the circumstances of the case. For example, a person charged with a disciplinary offence which involves criminal conduct should not be obliged to give evidence and expose himself or herself to the risk of self-incrimination. Cf Reid v Howard (1995) 184 CLR 1; Vasil v National Australia Bank Limited [1999] NSWCA 161. 165 What has been said to this point omits reference to a matter which was not discussed in Twist (1976) 136 CLR 106. or R v Marks. (1981) 147 CLR 471. Both cases emphasised the broad nature of the appeal for which the relevant statute provided. The Government and Related Employees Appeal Tribunal Act similarly envisages a “full appeal”. Sections 24, 36, 38, 41-44, 48. Theoretically, at least, a person charged with a disciplinary offence who is denied procedural fairness in respect of the initial determination could appeal to GREAT on that sole ground and obtain an order setting aside the initial determination and remitting the matter for redetermination. If that course were followed, the onus of proof on the appellant Government and Related Employees Appeal Tribunal Act, s 42(2). which troubled Kirby P in Matkevich would relate only to proof of the denial of procedural fairness in respect of the initial determination. Understandably, however, an appellant wishing to contest the merits of an initial determination would be loath to confine his or her appeal to GREAT in that way, and this Court’s decision whether or not to grant relief notwithstanding a right of appeal to GREAT should, in my opinion, be decided on the footing that such an appeal would oblige the appellant to prove that he or she was not guilty of the disciplinary offence. 166 It is unnecessary for present purposes to consider whether a person with a right of appeal to GREAT who was denied procedural fairness in respect of an initial determination should ordinarily be refused relief in this Court and left to exercise his or her appeal right in respect of that error. While I doubt whether it is significant that an appeal to GREAT arises under a different statute from the Act and the Regulation, Smith v Allan (1993) 31 NSWLR 52. is against the routine refusal of relief by this Court on the basis that there might have been an appeal to GREAT. 167 In any event, I am satisfied that the allegations against Hill were such that he ought not to be refused relief because he had a right of appeal to GREAT. 168 I would grant him leave to appeal and allow his appeal with costs. It was not disputed that in these circumstances, orders should be made in accordance with his claim.
“In any event, what happened before Marks J cannot constitute a basis for prohibition on the ground that there was a denial of natural justice. BLF exercised its right of appeal to the Full Bench. On an appeal the Full Bench may admit further evidence and it may confirm, quash or vary the award or decision under appeal or make an order or decision dealing with the subject matter of the decision under appeal …. In Twist …, this Court held that the existence of a full statutory right of appeal on facts and law was indicative of a legislative intention that the citizen’s only right of redress against the councils’ failure to give him an opportunity to be heard before making a demolition order was by way of appeal …
The present case has some similarities to Twist . There is here a full appeal on fact and law … Moreover, s.35(9)(a) enables the Full Bench to admit further evidence …
…. The BLF exercised its right of appeal and the Full Bench examined the matter for itself. The BLF does not suggest that there was any denial of natural justice in the appeal … In my opinion the BLF received a full and fair hearing on the appeal and in these circumstances any denial of natural justice before Marks J was irrelevant…”
169 Subject to matters noted below, it is agreed that the material circumstances in Young and Jarvis’ applications are identical. I will first deal with those relating to Young. 170 Broadly speaking, the same procedure was adopted as was adopted in relation to Hill, although the charge against Young was much less serious; namely, negligence in the discharge of his duties contrary to subs 83(e) of the Teaching Services Act. 171 The particulars of the charge which were originally given alleged that Young:
Young and Jarvis
172 On 19 May 1997, Young’s solicitor wrote complaining that the particulars were unsatisfactory and asking that he be provided with “… particulars of the acts or omissions which are alleged to constitute the charge specifying the dates and times when, and the places where, each act or omission was said to have occurred”. That request was refused by letter dated 28 May 1997. 173 However, by a further letter dated 17 July 1997, the following “amended Particular” was notified:
“(1) Failed to exercise appropriate professional judgment in situations where there was a disclosure from a student, teacher or other person of improper conduct by a teacher (namely Peter Boys) against female students.
(2) Failed to adequately and appropriately investigate or ensure that and adequate and appropriate investigation occurred in situations where there was disclosure from a student, teacher or other person or improper conduct by a teacher (namely Peter Boys) against female students.”
Young was required to reply in writing within 14 days, admitting or denying the truth of the charge and giving any desired explanation.
174 By letter dated 1 September 1997, Young’s solicitor was advised by the respondent Buckley that he had determined under sub-regulation 15(2) of the Teaching Services (Education Teaching Service) Regulation to “… deal with the charge by giving a direction within the terms of Clause 15(2)(a)”. A copy of the Department’s report was provided, and Young was directed to furnish an explanation, in writing, within 14 days. 175 The “Relevant evidence” and “Summation” sections of the Departmental report which is referred to in the letter which is set out in the previous paragraph were as follows:
“Whilst employed as an officer of the Education Teaching Service in the Department of School Education at the Broadmeadow School, on being told in or about 1994, by Terence Doherty, a teacher at that school, that he was concerned about the improper relationships of a male teacher at that school, namely Peter Boys with female students of that school, you failed to take any action to cause an investigation to be made in relation to that allegation.”
176 By letter dated 8 September 1997, at Young’s solicitor’s request, Buckley asked the Department’s Director of Personnel and Employee Relations to provide Young with “… copies of all instructions given by the Department to its employees from 1970 to 1997 as to action to be taken where a complaint is made to them against a teacher of improper conduct involving a student”. 177 Young’s solicitor lodged a submission on his behalf dated 15 September 1997. Although reference was made to Buckley’s determination to deal with the charge against Young by requiring a written explanation, no request was made for him to conduct an inquiry. 178 Paragraph 6 of the submission stated:
“ Relevant evidence
1.1 Doherty … told the Royal Commission … that he had reported his concerns about the conduct of Peter Boys to superiors. “I reported my concerns to deputy principal 1 (Mr Thomas), deputy principal 2 (Mr Young), …”
1.2 Mr Doherty told the Commission the time when he first told Mr Young of his concerns.
“Q. … in respect of the discussion you had with deputy principal 2 (Mr Young), when in time was that discussion?
A. About 1994, I think, or 1995, in that early period after his arrival in the school …
Q. And could you tell us please where you were when you approached him?
A. In his office.
Q. And could you tell us please, then, without using any names, once again what was said to deputy principal 2 (Mr Young).
A. It was a conversation very similar to that which I had with deputy principal 1* (Mr Thomas) that what was going to be done about teacher number 9 (Peter Boys) and his conduct and behaviour, and there was no comment forthcoming.”
(* Earlier in his evidence Doherty said “I said to deputy principal 1 (Mr Thomas) “What are you going to do about the paedophile who is running that particular department … I think this should be investigated …” …)
“Q. Well, was deputy principal 2 (Mr Young) silent?
A. Yes, he made no positive comment at all.
Q. When you had no response, what did you say, if anything?
A. I rightly or wrongly came to the conclusion that I was not telling anyone any new news, that his lack of response indicated that you were only stating something that’s widely known.
Q. Did he inform you of any action that might or might not be taken?
A. There was no - I got no response”. …
Summation
Evidence given to the Royal Commission by Mr Doherty indicates that during Mr Young’s time as Deputy Principal at the Broadmeadow School, Brian Young was in receipt of information alleging improper conduct by a teacher, namely Peter Boys. Evidence further suggest that Mr Young’s professional judgement was not to act on such information.
Mr Young was provided with information shortly after his appointment as Deputy Principal at the Broadmeadow School, that an experienced teacher with many years of service in that school, Mr Doherty, had concerns relating to a suspected paedophile in the school.
Mr Young did not act on the information given to him. His professional judgement not to act on such information amounts to neglect in the discharge of his duties.”
179 Emphasis was given in the submission to the necessity for Buckley to confine himself to material which had been put before him by one or other of the parties and seen by Young, the necessity for him to consider only relevant material, the standard of proof applicable and the need to dismiss the charge unless satisfied of the facts and that such facts constituted negligence by Young in the discharge of his duties. 180 The latter point was elaborated upon in the discussion of the charge in the submission, where it was pointed out that one of the matters of which Buckley was required to be satisfied was that Doherty said to Young “that he was concerned about the improper relationships of a male teacher at the school, namely Peter Boys, with female students…”. 181 It was submitted that the material placed before Buckley by the Department did not establish that that was what Doherty had said to Young even if that material was taken at its face value and that, in any event, the application of the content of that material to a conversation between Doherty and Young was dependent upon unproven Departmental assertions. 182 On 30 September 1997, Buckley wrote to Young’s solicitor in the following terms:
“6. Prior to dealing with the individual particulars of charge, … it is necessary to make some submissions on a number if issues of a general nature relating to the conduct of disciplinary inquiries here. These issues are:-
(b) the standard of proof;
(a) the burden of proof;
(c) relevance of evidentiary material; and
(d) findings.”
183 The report which is referred to in the letter set out in the preceding paragraph accepted the Departmental assertions concerning the nature of the material on which it relied, and continued:
“I refer to the disciplinary charges made against your client.
Your written explanation has been considered along with the report provided by the Department of School Education. I have determined that I find the charge of a breach of discipline within the meaning of section 83(e) of the Teaching Services Act , 1980 in that Mr Young was negligent in the discharge of his duties proven.
A copy of the report of my findings is attached.
I now provide your client with the opportunity to make submission within 14 (fourteen) days of the date of this letter, as to the penalty to be imposed.
I will make my decision about penalty at that time whether or not a submission has been received from your client.”
184 Subsequently, Young was cautioned by way of penalty. He does not have a right of appeal to GREAT or other avenue of administrative review. 185 Although the conversation which, according to Doherty, he had with Jarvis was not precisely identical to that which he said he had with Young, the two conversations were to similar effect, the outcome was the same, and the points taken by Jarvis are the same as those taken by Young. It was accepted that the outcomes in both cases will be the same. 186 Young submitted that he was denied natural justice when Buckley made a finding against him “… when he could have directed [Young] to furnish a further explanation in writing or he could have directed an inquiry”. Alternatively, it was submitted that there was no evidence of matters which had to be proved to establish the disciplinary offence alleged. The principal foundation for the latter point was that the conversation which, according to Doherty, he had with Young did not “… convey his concerns about improper relationships of Mr Boys with female students …”. 187 Young’s argument in this Court as to why he was denied procedural fairness did not clearly emerge. The point seemed to be that, if he had been asked, he could have sought an inquiry and, if an inquiry had been held, he could have cross-examined Doherty, whose evidence might then not have been accepted. Implicit in this argument, I think, were propositions that Young was entitled to be heard on whether an inquiry was held and to an inquiry. 188 Young did not request an inquiry, and, although he disputed the charge, he did not deny a conversation with Doherty or offer a different version of what was said. Instead, he directed the contest in other directions, in effect contending that, for the reasons which he advanced, the evidence did not prove the allegation against him. 189 On the material before the Court, I am not persuaded that Young omitted to seek an inquiry because of some misunderstanding of his rights or a belief that a request for an inquiry would have been futile, Cf Sullivan v Department of Transport (1978) 20 ALR 323, 343 (Deane J); Re Association of Architects; ex parte Municipal Officers Association (1989) 63 ALJR 298, 305 9Gaudron J); Al-Mehdawi v Secretary of State of the Home Department [1990] 1 AC 876. or that he would have been entitled to an inquiry if he had sought one. 190 Further, I am satisfied that there was an adequate evidentiary foundation for the respondent Buckley’s conclusion that the charge against Young was established. 191 Having regard to the approach adopted by Young, the small penalty involved and the absence of any point of general principle, I would refuse him leave to appeal, with costs. 192 As indicated above, similar orders are appropriate in respect of the application by Jarvis.
“On the balance of probabilities I find that the evidence supports the allegation that Mr Doherty did in fact, in or about 1994, convey his concerns about improper relationships of Mr Boys with female students to Mr Young.
The allegation made by Mr Doherty to Mr Young regarding Mr Boys’ behaviour was sufficiently serious for the Department to expect and require that Mr Young would take proper and sufficient action to cause an investigation to be made in regard to that allegation.
On the balance of probabilities I find that Mr Young made a professional judgement not to act on the information provided by Mr Doherty. I am of opinion that this judgement was seriously flawed and such conduct amounted to a neglect of duty.
Accordingly, I find it proven that whilst employed as an officer of the Education Teaching Service in the Department of School Education, at the Broadmeadow School, on being told in or about 1994 by Terence Doherty, a teacher at that school, that he was concerned about the improper relationships of a male teacher at that school, namely Peter Boys, with female students of that school, Mr Young failed to take any action to cause an investigation to be made in regard to that allegation.
I find the charge of a breach of discipline within the meaning of section 83(e) of the Teaching Services Act 1980 in that you were negligent in the discharge of your duties proven.”
193 Although the procedure following in relation to Wood was not significantly different from that followed in relation to Young and Jarvis, and Wood also received a caution as his penalty, it is necessary to note the different circumstances of his case. 194 Like Young and Jarvis, Wood was charged with negligence in the discharge of his duties contrary to subsection 83(e) of the Teaching Services Act 1980. The original charge, dated 7 May 1997, contained five particulars and directed Wood to reply in writing within 14 days, either admitting or denying the truth of the charge and giving any desired explanation. 195 On 19 May 1997, his solicitor wrote asking for further particulars, which were refused on 28 May 1997. 196 However, following orders made in the Supreme Court on 30 May 1997 in another matter, the Crown Solicitor wrote to Wood’s solicitor on 2 June 1997 stating that “… the Department will review the particulars already provided and will provide proper particulars as soon as possible, and in the meantime no further action will be taken …”. 197 On 17 July 1997, the following “amended Particular” was provided:
Wood
198 A request for further particulars on 15 August 1997 was refused on 27 August 1997. 199 On 1 September 1997, Buckley wrote to Wood’s solicitor in the following terms:
“Whilst employed as an officer of the Education Teaching Service in the Department of School Education, at the Broadmeadow School, in or about 1986, having been told by, and given a typed statement by Leanne Scott, a teacher at the Broadmeadow School, of concerns that she had about the improper conduct of a male teacher at the same school, namely Peter Boys with female students of that school, you failed to cause an investigation to be made with respect to that allegation.”
200 The “Relevant Evidence” and “Summation” in the report referred to in Buckley’s letter of 1 September 1987 were as follows:
“The Director-General of School Education has appointed me pursuant to Clause 15(1) of the Teaching Services (Education Teaching Service) Regulation 1994 as the prescribed officer to deal with the disciplinary charge brought against Mr Wood.
I have determined under Clause 15(2) of the regulation that I will deal with the charge by giving you a direction within the terms of Clause 15(2)(a).
Accordingly, I have enclosed a copy of the Department’s report in relation to this matter. Your client is directed to furnish me with an explanation, in writing, within fourteen days of the date of this letter.”
201 Subsequently, Wood’s solicitor made a submission to Buckley. 202 Part of that submission was a complaint about the failure to provide Wood with an opportunity to present his “… response to the relevant allegation(s) before charges were laid”, with a contention that a failure to provide him with that opportunity constituted a denial of procedural fairness. 203 Another matter raised was a complaint concerning the refusal of particulars, which included the following paragraph 19:
“Relevant Evidence
1. In an interview with Mr Cooney on 9-12-96, a summary of which is at TAB B, Ms Scott said words to the effect “I went to Wal Wood with a typed statement of incidents and unprofessional behaviour of Peter Boys. He told me it was slander because much of it was hard to prove. I took the document back. I don’t have it now”.
2. In evidence to the Royal Commission (TAB C 35500-35513), Ms Scott related the above in the following terms:
“Q. Did you at some stage raise some concerns about teacher 9 (Peter Boys) with the superior officer at school 2 ( Broadmeadow School)?
Ms Scott proceeded to describe the “overfriendliness, over familiar, too close” behaviour of Boys which she reported to Mr Wood.
A. Yes I did.
Q. …and tell us who that superior officer was …
A. Teacher 8 (Mr Wood), but it was blandly put. It wasn’t a specific complaint.
Q. And it was in some form of writing?
A. Yes it was.
Q. Who did the writing?
A. I did.
Q. Can you tell us please what teacher 8 (Mr Wood) said to you in respect of what you should do or he should do, if anything?
A. Well, he said that what I had written was libellous and that - did I have proof, and I said, no, it is just gossip.
Q. Certainly.
A. But I took the complaint back and ripped it up and put it away. (35502035504 TAB C).
When asked to put a time on the approach she made to Wood, Scott replied, “I think it was 1986”. (35504 TAB C).
3. Mr Wood did not act on the concerns raised by Ms Scott. In an interview with Mr Cooney and Mr Fox on 2-12-96 (TAB D), the then Principal, Mr Cotterill, when asked “do you have any recollection of any teacher, student or parent contacting you or a member of the school executive with information, evidence or suspicions about Peter Boys engaging in improper conduct with … or …?” stated words to the effect “the only thing on file about Peter Boys is the 1993 touch football thing”.
Summation
Evidence given in the Royal Commission and to the Department of School Education Investigator, indicates that Ms Scott, a teacher at the Broadmeadow School at the time, had knowledge of improper conduct by Peter Boys - reports from students who had been involved with Boys, her own observations, suspicions and rumours - which she disclosed to Mr Wood in 1986.
Ms Scott told both the Royal Commission and the Department’s investigator that she documented her concerns and presented them to Mr Wood who was the supervisor of the faculty in which she worked. Ms Scott raised with Mr Wood very serious matters which warranted further action to ascertain the substance of her claims. Mr Wood’s claim that it would be hard to prove was not an adequate response.
Mr Wood’s professional judgment was wrong.
Mr Wood failed to act on the information he had. He stated that it was hard to prove and he did nothing with the information. This was negligence on his part in circumstances where he had very serious allegations about improper conduct by a teacher with female students. He should have acted to cause an investigation to occur.”
204 Another contention was that the departmental report constituted only the Department’s “… submission to you in support of its case”, and “… does not constitute evidence, and cannot be relied upon as such to establish any fact …”. 205 Wood’s submission went on to say that he denied the charge, and set out his account of what had occurred between him and Scott “… in or about 1986…” with respect to “… her concerns about Peter Boys”. Wood specifically denied “… that the concerns conveyed to him by Scott, verbally or in writing, included that Boys was engaging in improper conduct with female students, or that anything she conveyed to him in 1986 was of a nature which would give rise to a duty to cause an investigation to be made”. 206 It was also submitted that the documentation relied upon by the Department to support the charge against Wood not only did not so support it but rather tended to support Wood’s own account of what had occurred between him and Scott, and that the content of the “Summation” in the Department’s report involved “a considerable leap” from the statements by Scott concerning what she had said to Wood. It was argued that, on the contrary, Scott’s references to “incidents” and “unprofessional behaviour” involving Boys in the record of her interview by the Departmental officer “… may well have been to incidents of unprofessional conduct completely unrelated to any improper conduct of a sexual nature with female students, and the connotations attributed to those terms by the Department were probably not intended by Ms Scott”. 207 Another point made by Wood’s submission was that, while the charge against him related to events in 1986, the interview upon which the charge was founded was conducted in December 1996, and “… Ms Scott was not asked about when she acquired the information she is reported as having reported, and in fact questions concerning her knowledge of allegations against Mr Boys were generally posed in the present tense - …. Generally, Ms Scott’s reported answers are not enlightening as to when she acquired information, and it seems likely that her answers, in keeping with the questions asked, reflect her knowledge at the time of the interview, which could have been acquired at any time between when she was appointed to the Broadmeadow School in 1985 and the time of the interview. The document therefore offers no indication as to the state of Ms Scott’s knowledge, from any source in 1986”. 208 Submissions were also made that, if Buckley accepted that the relevant portions of the document put before him by the Department as a transcript of evidence before the Royal Commission referred to a conversation between Scott and Wood (which it was submitted was not established) Scott said no more than that “… s/he thought that [Boys] was unprofessional and overfriendly (presumably with students), but s/he did not allege to [Wood] that [Boys] had engaged in any relationship or conduct of a sexual nature with students”. Other observations were made concerning Scott’s evidence to the Royal Commission. 209 Wood’s submission stated that he acted on Scott’s concerns by speaking to Boys on a number of occasions when he observed Boys being inconsiderate of Scott and, sometime after his conversation with Scott, “… he informed the Principal of the concerns that Ms Scott had raised with him”. According to Wood’s submission, those concerns were not “concerns relating to improper conduct by Boys with female students at the school”. 210 Other points made in the submissions which had been placed before Buckley on behalf of Young and Jarvis were also contained in the submission on behalf of Wood. 211 On 30 September 1997, Buckley wrote to Wood’s solicitor in the following terms:
“We note that in fact the Department offers no evidence in its case against our client which would clarify the issue as to the nature of the information which Ms Scott is alleged to have provided to Mr Wood. The result is that that alleged “improper conduct with female students” could be anything from conduct of a serious sexual nature to some relatively trivial conduct of which Ms Scott disapproved, for example, the use of language that she considered may offend female students, and our client would need to respond to the whole range of possibilities to completely answer the charge. We shall assume, since the Department apparently considers that the “improper conduct” was of a nature which raised a duty to “cause an investigation”, that it involved sexual misconduct of some kind, however the lack of proper particularisation of the charge against Mr Wood constitutes a serious denial of procedural fairness to which we strongly object.”
212 In the determination referred to in the letter set out in the preceding paragraph, Buckley expressed the opinion that Wood had been afforded an adequate opportunity to respond to the charge and said:
“I refer to disciplinary charges made against your client.
Your written explanation has been considered along with the report provided by the Department of School Education. I have determined that I find the charge of a breach of discipline within the meaning of section 83(e) of the Teaching Services Act, 1980 in that Mr Wood was negligent in the discharge of his duties proven.
A copy of the report of my findings is attached.
I now provide your client with the opportunity to make a submission within 14 (fourteen) days of the date of this letter, as to the penalty to be imposed.
I will make my decision about penalty at that time whether or not a submission has been received from your client.”
213 Wood has no right of appeal to GREAT or other entitlement to administrative review of Buckley’s decision, which it is reasonable to assume has blighted Wood’s career. 214 Buckley’s reasons indicate that he relied on Scott’s version of events in forming his conclusion adverse to Wood. Even if Scott’s “evidence” could support Buckley’s conclusion, it was inconsistent with Wood’s account of what had occurred. Critical facts were in issue which could not fairly be decided against Wood without an inquiry at which he could confront and cross-examine Scott and give evidence on his own behalf. 215 In my opinion, it was unfair for Buckley to find Wood guilty after proceeding under subcl 15(2)(a) and 3(a). 216 The conflict between Wood and Scott concerning their conversations and Wood’s action could not be circumvented by the device of taking a statement by Wood’s solicitor out of context and using it as an admission by Wood that Scott had made statements to him that her own “evidence” did not claim that she had made. Wood’s solicitor’s submission did not provide a sufficient evidentiary basis for Buckley’s conclusion adverse to Wood despite Wood’s denial and Scott’s version of events. 217 In my opinion Buckley not only treated Wood unfairly, his reliance on the submission by Wood’s solicitor as a sufficient admission by Wood to support a conclusion adverse to Wood involved error of law. 218 The essential matters to which reference has been made can be briefly summarised. 219 After the nature of the charge against him had been provided to Wood on 17 July 1997, he was informed by Buckley on 1 September 1997 that the departmental assertion was that Scott “… went to … Wood with a typed statement of incidents and unprofessional behaviour of Peter Boys”, which were “blandly put. It wasn’t a specific complaint”. Further, the Department acknowledged that Scott told Wood that her information was “just gossip”. 220 Nonetheless, according to Buckley, the Department asserted that Scott’s statements had disclosed to Wood her “… knowledge of improper conduct by Peter Boys - reports from students who had been involved with Boys, her own observations, suspicions and rumours” and that these were “very serious matters which warranted further action to ascertain the substance of her claims”. The disciplinary offence alleged against Wood was a negligent failure to cause an investigation “in circumstances where he had very serious allegations about improper conduct by [Boys] with female students”. 221 Woods could not be negligent in not causing an investigation of the “gossip” of which Scott had informed him unless what he had been told by Scott involved “improper conduct … with female students … by Boys” which warranted investigation. 222 Wood’s solicitor’s submission to Buckley denied that Scott had provided Wood with information which warranted investigation, and directly raised “the issue as to the nature of the information” which Scott had given Wood, drew attention to the action which he had taken in response to Scott’s information, and contended that his action was appropriate having regard to what Scott had told him. 223 Wood’s solicitor’s submission to Buckley included the following passage:
“In part, the Department of School Education alleges that, in or about 1986, Mr Wood was told by, and given a typed statement by Leanne Scott of concerns she had about the improper conduct of a male teacher at the same school, namely Peter Boys, with female students at the Broadmeadow School.
Having considered the evidence submitted by the Department and the form of admission by Mr Wood I find it proven that, on the balance of probabilities, Ms Scott did, in or about 1986, tell Mr Wood of concerns she had with respect to Mr Boys and that she did have with her at that time a paper detailing those concerns.
On the balance of probabilities I find it proven that Ms Scott did give the statement to Mr Wood.
Although it may have only been in Mr Wood’s possession for a short period of time it would have afforded Mr Wood an opportunity to examine the contents. As Ms Scott’s immediate superior it is reasonable for the Department to expect that Mr Wood would have taken the time to ensure that he did, in fact, closely examine the document.
I now turn to the nature of the concerns raised by Ms Scott with Mr Wood and as to whether on the balance of probabilities they included concerns that she had about the improper conduct of Mr Boys with female students.”
then
“…
Mr Wood admits that Ms Scott did raise the issue of Mr Boys’ allowing female students to use the staffroom and that Ms Scott described Mr Boys’ relationship with female students as “overfriendly” and “over familiar”.
On the balance of probabilities I find that the evidence supports the allegation that Ms Scott did in fact, in or about 1986, convey to Mr Wood her concerns about improper conduct of Mr Boys with female students.
Mr Wood denies that he did not cause an investigation into Ms Scott’s concerns regarding Mr Boys’ improper conduct with female students to be made.
His solicitors in their submission advise that Mr Wood felt sympathetic to Ms Scott and raised her concerns with Mr Boys. I do not accept that this action constitutes an investigation to be made into Ms Scott’s very serious allegations about Mr Boys’ improper conduct with female students.
Mr Wood’s solicitor advises that Mr Wood raised Ms Scott’s concerns with Mr Cotterill, Principal of the School, sometime later. Mr Wood, however, maintains that Ms Scott did not raise with him “any information with respect to which he would have a duty to act to cause an investigation to be made”
On the balance of probabilities I find it difficult to accept that even if Mr Wood raised Ms Scott’s concerns with Mr Cotterill that he adequately or comprehensively conveyed the serious nature of Ms Scott’s concerns regarding Mr Boys’ improper conduct with female students.
I have formed the opinion that, on the balance of probabilities, Mr Wood made a judgment about the severity, reliability and veracity of Ms Scott’s concerns which was seriously flawed.
Further, the Department has provided evidence to support their assertion that he did not raise with Mr Cotterill the matters which are the substance of the particular charge….
…
On the balance of probabilities I find it proven that whilst employed as an officer of the Education Teaching Service in the Department of School Education at the Broadmeadow School, in or about 1986, having been told by, and given a typed statement by Leanne Scott, a teacher at the Broadmeadow School, of concerns that she had about the improper conduct of a male teacher at the same school, namely Peter Boys, with female students at that School, you failed to cause an investigation to be made with respect to that allegation. I find the charge of a breach of discipline with the meaning of section 83(e) of the Teaching Services Act 1980 in that you were negligent in the discharge of your duties proven.”
224 Wood had understood the problem to be personal conflict between Scott and Boys, and took action accordingly. To quote again from Wood’s solicitor’s submission to Buckley:
“We are instructed that what in fact Ms Scott ‘disclosed’ to Mr Wood in 1986 were her complaints concerning Mr Boys’ disregard of her professional position in allowing students to use the staff room which she and Mr Boys shared and treating her, in the presence of students, as though she were of lesser status than them. We are instructed that specific complaints included that student Carol Watson frequented the staff room and spread her belongings on Ms Scott’s desk, sat in her chair and helped herself to Ms Scott’s coffee, and that Mr Boys told students to ignore Ms Scott. We are instructed that Ms Scott had referred … to Mr Boys being ‘overfriendly’ or ‘overfamiliar’ with students, that Mr Wood questioned her as to what she meant by that and that she responded by referring to her earlier complaints about students using the staff room etc, and Mr Boys treating students as equals and added that she had heard ‘gossip’ or ‘rumours’. Mr Wood believes that he questioned Ms Scott about that, although he cannot recall what he asked or how she replied. However, we are instructed that Ms Scott definitely did not provide any details as to what she had heard … We are instructed that none of the complaints presented by Ms Scott, either verbally or in writing, concerned any allegation that Mr Boys was engaging in any sexual misconduct.”
225 In his “findings”, Buckley again referred to “the serious nature of Ms Scott’s concerns regarding Mr Boys’ improper conduct with female students” and said:
“Mr Wood instructs that he did in fact act on the concerns raised to him in 1986 by Ms Scott regarding Mr Boys’ conduct towards her. He instructs that he felt sympathetic with Ms Scott and spoke to Mr Boys shortly afterwards and also on subsequent occasions when he observed Mr Boys being inconsiderate of Ms Scott…”
226 Wood’s account of what had occurred, which at best for the Department was the only material upon which Buckley could legitimately rely without conducting an inquiry, was inconsistent with Buckley’s conclusion that Woods had negligently failed to cause an investigation. 227 There was a plain legal error by Buckley if, as I think, Wood’s submission did not provide any evidentiary foundation for Buckley’s conclusion adverse to Wood. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Bruce v Cole (1985) 45 NSWLR 163; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577. 228 Even if Wood’s submission provided some evidence upon which Buckley could rely, I consider that a conclusion adverse to Wood was not open to Buckley on the basis of that submission. No reasonable person could have reached a conclusion adverse to Wood on the basis of the contents of his submission. 229 In Azzopardi v Tasman UEB Industries Ltd, (1985) 4 NSWLR 139, 155-157. (All members of the Court considered that the finding in Azzopardi was not perverse: see pp 152, 157C). Glass and Samuels JJA held that a factual conclusion which is perverse, illogical or “marred … by patent error” does not involve error of law. Although it was recognised in Azzopardi that the circumstance that there was evidence to support the findings and conclusion adverse to the appellant who bore the onus of proof on the material issue presented him with special difficulties, the majority opinion was not confined to such a case but was expressed as a general principle applicable to factual conclusions. Kirby P dissented in Azzopardi, (1985) 4 NSWLR 139, 155-157. and subsequently from time to time repeated his criticism of the majority view. For example, Donnelly v Victims Compensation Fund Corp (1995) 82 A Crim R 55, 63. See also X v The Commonwealth [1999] HCA 63 at [136]. 230 Factual conclusions which are “perverse” in the sense in which that description was used in Azzopardi (1985) 4 NSWLR 139. were there held to include conclusions which are “contrary to the overwhelming weight of the evidence” (1985) 4 NSWLR 139, 155-156. and even conclusions “that no reasonable person could have made …” (1985) 4 NSWLR 139, 156.. The underlying theory was that such conclusions are merely “wrong in fact” (1985) 4 NSWLR 139, 156., not in law. It was not explained why the characterisation of a perverse conclusion as wrong in fact prevents it from also involving legal error. 231 Azzopardi (1985) 4 NSWLR 139. was concerned with a decision of the Workers Compensation Commission under the Workers Compensation Act 1926. By subs 37(4)(a) of that Act, an appeal from such a decision could only be brought (so far as presently material) if the appellant was aggrieved “in point of law”. While the Workers Compensation Commission decision under appeal preceded the Compensation Court Act 1984, that Act had been passed at the time of this Court’s decision in Azzopardi (1985) 4 NSWLR 139.. The Compensation Court Act abolished the Workers Compensation Commission and substituted the Compensation Court. Although subs 37(4)(a) of the Workers Compensation Act was substantially re-enacted in subs 32(1) of the Compensation Court Act, the Compensation Court Constituted by the Compensation Court Act 1984. is required by subs 17(1) of the Compensation Court Act to decide “upon the real merits and justice of the case.” I consider a factual conclusion by the Compensation Court which no reasonable person could have made would be a plain breach of that statutory obligation, and a clear error of law. 232 Nonetheless, the majority opinion in Azzopardi (1985) 4 NSWLR 139. has been followed in subsequent judgments of this Court on appeal from the Compensation Court For example, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247., and applied to factual conclusions by administrative decision-makers. 233 However, in Bruce v Cole, (1998) 45 NSWLR 163. the Court limited Azzopardi to the “construction of a statutory formula which limits appeals to ‘errors of law’.” (1998) 45 NSWLR 163, 189. An objection to this approach is that the phrase ‘error of law’ was not used in subs 37(4)(a) of the Workers Compensation Act and is not used in subs 32(1) of the Compensation Court Act. Further, in the absence of something in the statutory context which justifies a different approach, it is difficult to understand why a phrase such as “error of law” would not be given its common law meaning when used in a statute. 234 In Bruce v Cole, (1998) 45 NSWLR 163. the plaintiff, who was then a Supreme Court Judge, challenged a finding of the Conduct Division of the Judicial Commission of NSW. Spigelman CJ, with whom the other members of the Court agreed, accepted that if the Judge “… was no longer incapable of discharging his duties at the date of the [Conduct Division’s] report … no reasonable decision-maker could form the opinion that the matters ‘could justify parliamentary consideration of [his] removal’.” (1998) 45 NSWLR 163, 187. 235 It appears to have been implicitly accepted in that passage that, if no reasonable decision-maker could have formed the opinion which the Conduct Division had formed, its decision would have been legally erroneous. However, after noting that the present state of the law concerning restrictions on judicial review of findings of fact “is not entirely clear”, (1998) 45 NSWLR 163, 187. the Chief Justice stated a number of principles, in the course of which he said, (1998) 45 NSWLR 163, 188-189. citing Azzopardi: (1985) 4 NSWLR 139.
“Mr Wood admits that Ms Scott did raise the issue of Mr Boys’ allowing female students to use the staff room and that Ms Scott described Mr Boys’ relationship with female students as ‘overfriendly’ and ‘over familiar’.
… I find that the evidence supports the allegation that Ms Scott did in fact, in or about 1986, convey to Mr Wood her concerns about improper conduct of Mr Boys with female students.”
236 As noted above, Para. 120. the majority opinion in Azzopardi (1985) 4 NSWLR 139. applied the description “perverse” to a range of erroneous factual conclusions which did not, it was said, involve legal error, including factual conclusions “that no reasonable person could have made”. 237 The Chief Justice continued in Bruce v Cole: (1998) 45 NSWLR 163, 189.
“In this Court there is a well-established body of jurisprudence that even a perverse finding of fact does not constitute error.
…
It may be that the word ‘perverse’ is used in different senses in the line of authority in this Court stemming from Azzopardi … and the line of authority in the Federal Court stemming from the passage of Lord Brightman in Pulhlhofer : … The latter is to be explained as Sir Anthony Mason did in Australian Broadcasting Tribunal v Bond namely, the word ‘perversely’ signifies ‘acting without probative evidence’: ( Australian Broadcasting Tribunal v Bond (at 359); also Minister for Immigration and Ethnic Affairs Teo (at 149). On this basis there is no necessary conflict between the two lines of authority.”
238 In Bruce v Cole, (1998) 45 NSWLR 163. the Court’s conclusion that the Conduct Division had not made an error of law was expressed in the following passage: (1998) 45 NSWLR 163, 202.
“Azzopardi and subsequent cases involved the proper construction of a statutory formula which limits appeals to ‘errors of law’. The issue turned on the intention of parliament. Different considerations arise in the development and application of common law principles identifying the proper basis for judicial review of administrative action. In my opinion, at common law, a decision-maker who acts without probative evidence - to which conduct the word ‘perversely’ has appropriately been attached - does not make a valid decision. It is the equivalent of acting without evidence.
I accept that a finding of primary fact by the Conduct Division will be vitiated if there was no probative evidence to support it. Similarly an inference of fact is vitiated if it is not open on the primary facts properly so found. In this case the finding of continued incapacity was an inference.
There is also a statutory context to the Division’s fact finding. The statutory opinion is to the effect that ‘the matter could justify parliamentary consideration of the removal of the judicial officer’. Such ‘parliamentary consideration’ of removal is now governed by s 53(2) of the Constitution Act which identifies the contents of an address as ‘seeking removal on the ground of proved misbehaviour or incapacity’. The use of the word ‘proved’ in s 53(2) establishes that a Conduct Division may only form its opinion on the basis of probative evidence.
Furthermore, the statutory context suggests that the common law principle, that an illogical inference does not in itself constitute an error of law, Cf. Minister for Immigration and Multicultural Affairs v Eshetu 162 ALR 577, paras 101 and 145. does not apply. …
The fact that the statutory opinion relates to a process in which ‘proved incapacity’ must be established requires a logical process of reasoning to draw an inference. There is a statutory standard by which the fact finding of the Conduct Division must be measured.”
239 Unless treated as merely a decision on the construction of the former subs 37(4)(a) of the Workers Compensation Act, as suggested by Bruce v Cole, (1998) 45 NSWLR 163. and hence immaterial for present purposes, the principle adopted by the majority in Azzopardi (1985) 4 NSWLR 139. is the reverse of that applied in relation to discretionary administrative decisions. It has been accepted at least since Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223. that a discretionary administrative decision which was not reasonably open to the decision-maker involves an error of law. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41; A-G (NSW) v Quin (1990) 170 CLR 1, 36; Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, 290. The position was succinctly summarised in BTR PLC v Westinghouse Brake & Signal Co (Australia) Ltd (1992) 106 ALR 35, 45, per Lockhart and Hill JJ. in the following passage:
“In accordance with the strict legal tests applied in this area of law, there was before the Division probative material capable of supporting the conclusion that his Honour’s incapacity continued … There was probative material before it to ground such a conclusion and accordingly to infer that incapacity continues.
Further assessment of the strength of the evidence - which I have found to reach the relevant standard of being capable of supporting the conclusion drawn by the Conduct Division - is a matter for parliament. The opinion of the Division that the evidence could justify consideration of his Honour’s removal must await the consideration of each House of Parliament, and then the Governor in Council, to determine whether it should do so.”
240 The same principle applies to appellate review of judicial discretions. House v R (1936) 55 CLR 499, 504-505. 241 The “Wednesbury” principle with respect to discretionary administrative decisions has not been immune from criticism or, as is to be expected of lawyers, attempts at refinement and reformulation. New Zealand and United Kingdom decisions and some academic writings are discussed in Waitakere City Council v Lovelock (1997) 2 NZLR 385. See also Fares Rural Meat & Livestock Co. Pty Ltd v Australian Meat & Live-Stock Corporation (1990) 96 ALR 153, 166-168, per Gummow J. The differences of opinion are not surprising. There is an established judicial policy of reluctance to interfere in administrative decision-making, and the “Wednesbury” principle has elements of imprecision and circularity and can call for value judgments which are sometimes semantically disguised. The debate which has attended the “Wednesbury” principle has largely, although not wholly, centred on what are suitable criteria for determining whether a decision is outside the ambit of a power to decide. However, many legal principles require comparable judicial confidence and agility; for example, the tests applied when jury verdicts are challenged as “perverse”. The “Wednesbury” principle is settled law, See Australian Broadcasting Tribunal v Bond 170 CLR 321, 355-357, 365, 366-368, 387; Abebe v The Commonwealth (1999) 162 ALR 1, paras 59, 114-116, 194, 208, 288-299; Minister for Immigration & Multicultural Affairs v Eshetu 162 ALR 577, paras 39-45, 100-101, 121-127, 138, 145, 147, 159, 183-187, 194. and, provided that proper judicial restraint is exercised, its application does not hinder legitimate administrative decision-making but protects those affected from the misuse of administrative power. 242 In Minister for Immigration and Multicultural Affairs v Eshetu, 162 ALR 577. Mr Eshetu argued that the Refugee Review Tribunal had erred in law in concluding that he was not entitled to a protection visa because he did not have a well-founded fear of prosecution in his country of origin. According to Mr Eshetu, the tribunal’s conclusion “was so unreasonable that no reasonable tribunal, acting within jurisdiction and according to law, would have come to such a conclusion”. 162 ALR 577, para 39. 243 While all members of the High Court rejected Mr Eshetu’s contention, a majority accepted that a perverse factual conclusion by a decision-maker involves an error of law. Gleeson CJ and McHugh J regarded the material question as being whether the tribunal had abused its power, 162 ALR 577, paras 39-41. but did not expand on how such an abuse is to be identified in this context. Gaudron and Kirby JJ considered that Mr Eshetu would have been entitled to relief if there had been “no logical basis” for the tribunal’s decision. 162 ALR 577, paras 100-101. Gummow J related the “Wednesbury” principle to abuse of power, 162 ALR 577, paras 122-127. and accepted that “findings or inferences of fact which were not supported by some probative material or logical grounds” may be challenged. 162 ALR 577, paras 145, 147. Neither Hayne J 162 ALR 577, para 159. nor Callinan J 162 ALR 577, paras 183-187, 194. expressed concluded opinions. 244 A discretionary decision and a factual conclusion by an administrative decision-maker each involves the exercise of a power, ordinarily, as on this occasion, a statutory power or power under subordinate legislation. In my opinion, a decision which is outside the ambit of a power to decide, that is, which on the probative evidence is not reasonably open to an administrative decision-maker consistently with the proper exercise of the power, is legally erroneous. 245 Even without an express provision such as subs 17(1) of the Compensation Court Act, in the absence of some special provision, a statutory power to decide does not authorise a perverse decision, or, more specifically, a factual conclusion which no reasonable person could have reached. Cf. Bruce v Cole (1998) 45 NSWLR 163, 189. 246 In my opinion, Buckley’s perverse conclusion that Wood was guilty of the offence with which he was charged on the basis of the contents of Wood’s own submission was not authorised by the source of Buckley’s power, Regs 15 and 16, and therefore involved legal error. 247 I would grant Wood leave to appeal and allow his appeal with costs. It was not disputed that, in these circumstances, orders should be made in accordance with his claim.
“A decision made so unreasonably must, of its nature, have involved the decision-maker in an error of law, albeit that the principle of law applied may well not have been stated.”
248 Hill and Wood should be granted leave to appeal, their appeals should be allowed, with costs, and the orders each claimed should be made. Young and Jarvis should be refused leave to appeal, with costs.
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